author: PRESIDING JUSTICE COCCIA

text:
    WILLIAM MOSHE, as Parent and Next Friend of Ashor Moshe, a Minor, et al., Plaintiffs-Appellants, v. ANCHOR ORGANIZATION FOR HEALTH MAINTENANCE, Defendant-Appellee (David S. Kang et al., Defendants).
    First District (5th Division)
    No. 1—88—0284
    Opinion filed May 25, 1990.

      James H. Canel, Ltd., of Chicago (James H. Canel and Patricia N. Hale, of counsel), for appellants.
    Lord, Bissell & Brook, of Chicago (Harold L. Jacobson, Hugh C. Griffin, Diane I. Jennings, and Chad M. Castro, of counsel), for appellee.
   PRESIDING JUSTICE COCCIA

delivered the opinion of the court:

This is an appeal from the dismissal of a medical malpractice complaint against a health maintenance organization (HMO). The original complaint was filed on September 29, 1983, by William Moshe, on behalf of his minor son, Ashor Moshe, and by William and Farida Moshe, on their own behalf, against Ashor’s physician, David S. Kang (hereafter Dr. Kang). The complaint was later amended to add as defendant four other doctors, Rush-Presbyterian-St. Luke’s Hospital, and Anchor Organization for Health Maintenance (hereafter Anchor or Anchor HMO).

Anchor, a corporation organized under the Illinois Voluntary Health Services Plans Act (Health Plans Act) (Ill. Rev. Stat. 1987, ch. 32, par. 595 et seq.), was at all relevant times also certified as a health maintenance organization (HMO), pursuant to both State and Federal statutes. Anchor is affiliated with Rush-Presbyterian-St. Luke’s Hospital (Rush-Presbyterian). Plaintiffs sought to hold Anchor liable for the alleged medical malpractice of Dr. Kang, a consultant specialist under contract with Anchor to provide medical services to its subscribers, and of other physicians who were direct Anchor employees. In response, Anchor moved to dismiss plaintiffs’ complaint, as to it, on the ground that Anchor is statutorily immune from liability, pursuant to section 26 of the Health Plans Act (Ill. Rev. Stat. 1981, ch. 32, par. 620). On January 14, 1988, following protracted discovery, the circuit court of Cook County granted Anchor’s motion. The court’s order, dismissing all claims against Anchor with prejudice, also stated that there was no just cause to delay enforcement or appeal. (107 Ill. 2d R. 304(a).) Plaintiffs timely appealed Anchor’s dismissal from the case. Proceedings against Rush-Presbyterian and the five doctors, who are not parties to this appeal, remain pending in the circuit court.

The record reveals that Ashor Moshe was born on January 12, 1978. When Ashor was six months old, Dr. Kang, then his private physician, diagnosed Ashor as suffering from a genetic condition known as methylmalonic acidemia. Sometime after this diagnosis but prior to 1982, Ashor’s father, through his employer, selected Anchor HMO as the source of primary medical care for his family. Dr. Kang, pursuant to his consulting agreement with Anchor, continued to provide medical care to Ashor for his methylmalonic acidemia, by his parents’ request. However, under Anchor regulations, such care now required authorization by an Anchor primary care staff physician, a salaried employee of the health plan. The record also discloses that generally, a consultant physician, such as Dr. Kang, could hospitalize Anchor patients only with the prior approval of an Anchor staff physician or its medical director.

The lawsuit against Dr. Kang and the other defendants arose from events which took place in December 1982. As alleged in plaintiffs’ third amended complaint, filed October 27, 1987, Ashor was brought to Dr. Kang on December 6, 1982, with signs and symptoms of infection. The complaint further alleges that, in light of the child’s diagnosed condition of methylmalonic acidemia, Dr. Kang and Dr. Eduard Jung, Ashor’s primary care staff physician at Anchor, knew or should have known that in the presence of infection, Ashor was particularly susceptible to developing severe ketoacidosis. On December 7, 1982, Ashor was found comatose and unresponsive, and was diagnosed as suffering from severe ketoacidosis after admittance to Rush-Presbyterian’s pediatric intensive care unit. As a result of his illness, Ashor developed further complications and allegedly suffered brain damage and permanent disability.

Count I of the complaint charges that Drs. Kang and Jung were negligent in failing to diagnose acidosis on December 6, 1982, and in failing to hospitalize Ashor for observation and supportive therapy in order to prevent the onset of ketoacidosis. It further charges that Anchor created policies, procedures, and regulations which inhibited the ability of physicians to provide quality health care. Inter alia, it states that Anchor created disincentives to hospital admissions through a process of “utilization review,” to determine whether admissions and the length of in-hospital stays were necessary and appropriate, and through restrictions on certain medical tests and services absent prior approval by Anchor personnel. Thus, plaintiffs alleged that Anchor, through the acts and omissions of Drs. Kang and Jung, and its own policies, had proximately caused minor plaintiff’s injuries. Count II, brought by Ashor’s parents, contains the same allegations against Drs. Kang and Jung, and Anchor, and requests damages for medical expenses and loss of society of their child. In count III, minor plaintiff charges three other doctors, Anchor, and Rush-Presbyterian with negligence based upon the treatment he received at Rush-Presbyterian after being admitted there on December 7, 1982. Count IV, brought by the parents, mirrors the allegations of count III.

This appeal hinges entirely upon the application and effect of the Voluntary Health Services Plans Act (Health Plans Act) (Ill. Rev. Stat. 1987, ch. 32, par. 595 et seq.), originally enacted in 1951, and of a 1988 amendment to that statute. At all times relevant to proceedings in the circuit court, including the dates of the alleged malpractice, the filing dates of the original and amended complaints, and the date of the dismissal order, section 26 of the Voluntary Health Services Plans Act provided as follows:

“A health services plan corporation shall not be liable for injuries resulting from negligence, misfeasance, malfeasance, nonfeasance or malpractice on the part of any officer or employee of the corporation, or on the part of any person, organization, agency, or corporation rendering health services to the health services plan corporation’s subscribers and beneficiaries.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 32, par. 620.)

On May 23, 1986, Anchor filed, pursuant to section 2—619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—619), a motion to dismiss the claims against it, on the ground that “Anchor is a health service plan corporation organized and chartered under the Voluntary Health Services Plans Act *** as well as the Health Maintenance Organization Act,” and thus statutorily exempt from malpractice liability. Attached to the motion was the sworn affidavit of William Gold, then president of Anchor HMO, in which he stated that “as of 1982 and continuing until the present time, Anchor HMO has been a charitable not-for-profit health service plan corporation duly organized and chartered under the Voluntary Health Service [sic] Plan [sic] Act by the Director of Insurance of the State of Illinois.” No other documentation was attached to the motion to dismiss. However, a copy of Anchor’s charter as a Voluntary Health Services Plans corporation organized under the Health Plans Act, approved by the Illinois Director of Insurance on November 2, 1971, was attached to Anchor’s later filed “Reply Brief in Support of Motion to Dismiss.” This reply brief was subsequently incorporated into Anchor’s “Amended Motion to Dismiss” plaintiff’s third amended complaint, upon which the court ultimately ruled. Although the affidavit of Mr. Gold was later stricken, the trial judge finding it insufficient because it did not set out in detail the documents and records reviewed by Gold to support his statement (107 Ill. 2d R. 191(a)), Gold did indicate in a later discovery deposition that he had reviewed the articles of incorporation and the Department of Insurance’s triennial insurance audit of Anchor, required under the Health Plans Act, for the years 1982 to 1984. In ruling on the motion to dismiss, the trial court relied on Gold’s deposition and the amended motion, with charter, as well as the discovery deposition of a former Anchor president and other pertinent Anchor documents, as discussed below.

Nathan Kramer, president of Anchor from 1971 to 1985, stated in his deposition that he had devised the original health care plan out of which Anchor HMO eventually grew. The genesis of Anchor, in 1971, was an agreement between the former Presbyterian-St. Luke’s Medical Center and the union representing about one-third of the center’s employees. In lieu of paying into the union’s health and welfare fund, the medical center believed that it could provide a better health program than the union could. After a health care plan was devised, all union members were required to join the program, which was also offered to nonunion employees of Presbyterian-St. Luke’s. Mr. Kramer, one of the original signatories to Anchor’s Health Plans Act charter, identified his signature and the charter documents. He further stated that by 1977, Anchor had also been certified as an HMO under the Illinois Health Maintenance Organization Act (Ill. Rev. Stat. 1981, ch. 111½, par. 1401 et seq.) (Illinois HMO Act), and qualified under the Federal Health Maintenance Organizations Act of 1973 (42 U.S.C. §300e et seq. (1982)) (Federal HMO Act). Once federally qualified as an HMO, Anchor was able to market its program directly to employers in the Chicago area and present information to employees about the advantages of its health plan, particularly its affiliation with the medical center (by 1982, known as Rush-Presbyterian). As a result of this marketing activity and with the recruitment of more doctors and health professionals, Anchor was functioning by 1982 as a staff-model HMO with about 66,000 subscribers, most of whom were part of employer groups. When Kramer retired in 1985, the program had a total of 130,000 subscribers, of which Rush-Presbyterian employees represented only a “relatively small fraction.” Approximately 90% to 95% of Anchor’s income, according to Kramer, was derived from the premiums paid to Anchor by the public and private employers of its subscribers.

Mr. Kramer also stated in his deposition that throughout the period from 1977 to 1985, Anchor operated, on a daily basis, pursuant to all three statutes under which it was chartered, certified, or qualified. Specifically, with respect to the Health Plans Act, he stated that operating pursuant to the statute included ongoing compliance with the following: (1) providing a comprehensive range of medical services, including those expressly enumerated therein; (2) issuing to all subscribers a “subscription certificate,” including certain itemized information in a specified format, such certificate having been first approved by the Illinois Director of Insurance; (3) operating on a not-for-profit basis under the management of a corporate “board of trustees,” at least 30% of whom are Illinois licensed physicians or dentists; (4) having a “medical director,” appointed by the trustees, who is in “complete charge of and responsible for the medical and related scientific aspects of the corporation”; and (5) filing with the Director of Insurance an annual financial statement. (See Ill. Rev. Stat. 1981, ch. 32, pars. 596, 599, 607 through 609, 609.1 through 609.3, 609.8 through 609.10, 615, 621.) However, with respect to the marketing of Anchor HMO to employers and potential subscribers, Kramer stated that no distinction whatsoever was made between Anchor’s status as a qualified HMO and as a Health Plans Act corporation. Potential subscribers were informed that Anchor was a “federally qualified HMO and a state certified HMO and incorporated under the Voluntary Health Services Plans Act.”

Following Mr. Kramer’s August 5, 1987, deposition, plaintiffs filed a request for Anchor to produce certain documents, among them copies of Anchor form contracts, in use during 1982, with staff and consulting physicians. Also produced was a copy of a subscriber certificate for the relevant time period. These documents are included in the record on appeal. A provision in the form contract entered into by Anchor and its primary care staff physicians defines Anchor as “[a]n Illinois Voluntary Health Services Plans Corporation having several plans and numerous subscribers and beneficiaries as patients.” It further states that, as Anchor is “obligated to provide certain [mjedical services” to these patients, it has obtained “the services of the staff member to assist it in the discharge of its [mjedical services obligations.” Also, by express terms of this agreement, Anchor provides its staff physicians with “professional liability (malpractice] coverage.” Another form contract, used for physicians rendering services on an outpatient or consulting basis, states that Anchor agrees to pay these physicians for the services rendered thereunder “on an appointment basis and in a timely manner as requested by ANCHOR staff physicians.” In another provision, the consulting physician “warrants that he/she has in effect during the term of the contract a professional liability insurance policy.” This agreement further provides that “[tjhe physician will exercise independent professional judgment and discretion in performing services to Anchor patients and shall not be supervised as to detail.”

Both the staff and consulting physician contracts include a “utilization review” clause, to the effect that the physician agrees to participate in any utilization review program developed by Anchor, including “current review of hospitalized patients by the ANCHOR Utilization Review Nurse.” Mr. Kramer stated in his deposition that utilization review is a “universal practice,” required under the Federal HMO Act, in order to avoid both underutilization and overutilization of in-hospital services. In terms of the hospitalization policy in effect in 1982, Kramer explained that hospital admissions by consultant physicians had to be approved by a primary care physician, with the exception of life-threatening medical emergencies. He further stated that, in practice, hospitalization was actually a “joint decision,” whereby the consultant, after seeing the patient, generally discussed the case with the primary care physician and the two would jointly determine whether an admission was required. In many cases, where a consultant would admit a patient without the primary physician’s approval, Anchor would subsequently pay the hospital costs, based on a case-by-case determination and often the degree of confidence that the staff physician placed in the consultant to make this decision.

The face sheet of the subscriber certificate issued to new Anchor subscribers (heads of families), describes defendant as “the Anchor Organization for Health Maintenance (‘ANCHOR’), an Illinois Voluntary Health Services Plans Act Corporation.” It further states that “Anchor is qualified under the Federal HMO Act of 1973 and certified under the State of Illinois HMO Act of 1974.” In the first paragraph of the “General Provisions” section is the following statement:

“It is expressly understood that ANCHOR (as a corporation) does not itself undertake to furnish any health services benefits. ANCHOR pays, to the professional staff involved, for the benefits received by virtue of the authority vested in it by the Illinois Voluntary Health Services Plans Act. ANCHOR’S obligation is limited to furnishing health benefits through contracts with the professional staff. The corporation is not, in any event, liable for any act or omission of the professional staff.” (Emphasis added.)

On January 14, 1988, the trial court heard arguments on Anchor’s motion to dismiss. Plaintiffs argued that the admission by Anchor that it operated in a dual capacity, both as a qualified HMO and as a Health Plans Act corporation, created a genuine issue of material fact as to whether the actual medical care provided to Ashor Moshe was provided in Anchor’s capacity as a Health Plans Act corporation or in its capacity as an HMO. They maintained that, to the extent that care was provided under the State or Federal HMO statutes, neither of which contains an immunity clause, Anchor should not be permitted to claim total immunity solely by virtue of its Health Plans Act charter. Plaintiffs also claimed that there remained a factual question of whether Anchor regulated physician care or otherwise violated the “unique organizational structure” required under that statute, and by so doing, relinquished its right to insulation from all liability. Anchor countered with the argument that its charter was duly obtained by compliance with all specific requirements of the Health Plans Act, that it had complied with all periodic reporting requirements since 1971, that its operations had been at all times subject to supervision by the Director of Insurance, as provided in the statute, and that its charter had never been revoked. Therefore, unless and until that charter was revoked by the Director, as expressly provided in section 9 of the statute (Ill. Rev. Stat. 1981, ch. 32, par. 603), Anchor would remain entitled to the statutory immunity granted by section 26. Anchor further noted that nowhere in the Illinois HMO Act does the legislature state that certification under that Act would terminate the statutory immunity granted to Health Plans Act corporations, although the lawmakers were well aware, in 1974, of that longstanding immunity. The trial court, stating that it had reviewed pertinent Health Plans Act provisions and relevant case law, granted Anchor’s motion.

While this appeal was pending, the Illinois legislature amended the Health Plans Act to effectively accomplish the following: (1) permit no new Health Plans Act charters unless the organization to be so chartered had also been approved as a health maintenance organization under the Illinois HMO Act; (2) eliminate statutory immunity for most corporations already chartered under the Health Plans Act, including corporations such as Anchor; and (3) provide for these changes, along with some amendments to the Illinois HMO Act (relating to prescription drugs and the insurance licensing of HMO’s which enroll public aid and medicare recipients) to take effect immediately upon becoming law, i.e., August 30, 1988. (Pub. Act 85—1246, eff. August 30, 1988.) The current version of section 26 of the Health Plans Act provides as follows:

“A health services plan corporation incorporated prior to January 1, 1965, operated on a not for profit basis, and neither owned [n]or controlled by a hospital shall not be liable for injuries resulting from negligence, misfeasance, malfeasance, nonfeasance or malpractice on the part of any officer or employee of the corporation, or on the part of any person, organization, agency or corporation rendering health services to the health services plan corporation’s subscribers and beneficiaries.” Ill. Rev. Stat., 1988 Supp., ch. 32, par. 620.

In their reply brief submitted to this court, plaintiffs argue that, by reason of the recent amendment of section 26 by the legislature, we need not even reach the issue of whether the immunity conferred by the Health Plans Act, as originally enacted, extended to Anchor’s activities requiring certification as an HMO. They contend that under the unambiguous language of the 1988 amendment, Anchor no longer has any immunity to assert, and that the trial court’s order, dismissing Anchor from the case, must be reversed.

Opinion

The parties do not dispute that Anchor was duly chartered as a Voluntary Health Services Plans Act corporation in 1971 and remained so chartered up to and including all times relevant to this lawsuit. Nor is it disputed that Anchor filed all required annual reports and otherwise complied with all mandatory procedural provisions of that statute. Clearly, Anchor’s status as a Health Plans Act corporation is conclusively established by the record and is not at issue here. Nonetheless, plaintiffs contend, as they did in the circuit court, that the dual status of Anchor as Health Plans Act corporation and health maintenance organization somehow precludes the automatic application to Anchor of the grant of immunity in the Health Plans Act, as a matter of law, without further factual inquiry into the “capacity” (i.e., whether as Health Plans Act corporation or as HMO) in which Anchor provided health services to minor plaintiff. We have reviewed the pertinent provisions of the Health Plans Act, relevant case law, and the legislative history of the 1988 amendatory act. As further explained below, we find that the trial court was correct in concluding that Anchor’s dual status would not preclude operation of the immunity provision, as originally enacted, to bar all malpractice claims against it as a matter of law. With the evidence before him, and given the express provision of immunity in the Health Plans Act on the date of his dismissal order, we believe that the trial judge came to the proper conclusion. Therefore, the dispositive issue of this case can be simply stated. Should the 1988 amendment, eliminating statutory immunity for a class of Health Plans Act corporations which certainly includes Anchor HMO, be applied retroactively to allow plaintiffs’ claims against this defendant? For reasons which follow, we hold that it should not.

Preliminarily, we observe that the legislature enacted no amendments to section 26 of the Health Plans Act in the 37-year period between 1951 and the recent amendment at issue in this case. During this period, in 1974, the Health Maintenance Organization Act became law. (Ill. Rev. Stat. 1975, ch. 111½, par. 1401 et seq.) That statute describes a “Health Care Plan” subject to its regulation as follows:

“ ‘Health Care Plan’ means any arrangement whereby any person undertakes to provide or arrange for, pay for, or reimburse any part of the cost of any basic health care services [and at least part of] such arrangement consists of arranging for or the provision of such health care services, as distinguished from mere indemnification against the cost of such services, on a per capita prepaid basis, through insurance or otherwise.” (Ill. Rev. Stat. 1981, ch. 111½, par. 1402(5).)

Under the original Health Maintenance Organization Act, any “person,” including foreign corporations, could apply and be certified as an HMO. (Ill. Rev. Stat. 1975, ch. 111½, par. 1403(a).) In 1982, the statute was amended to provide that only an “organization” could be certified as an HMO. (Ill. Rev. Stat. 1987, ch. 111½, par. 1403(a).) An “organization” is defined in relevant part as “a nonprofit corporation authorized under *** The Voluntary Health Services Plans Act.” Ill. Rev. Stat. 1987, ch. 111½, par. 1402(11).

The only appellate case specifically addressing the malpractice immunity of Voluntary Health Services Plans corporations is Brown v. Michael Reese Health Plan, Inc. (1986), 150 Ill. App. 3d 959, 502 N.E.2d 433, in which this court upheld the constitutionality of section 26 against an equal protection challenge. In affirming the trial court’s decision, dismissing a malpractice complaint against Michael Reese Health Plan solely on the basis of an asserted section 26 immunity, we stated:

“From our • reading of these provisions of the Voluntary Health Services Plans Act, we believe the legislature has clearly carved out a separate and distinct classification of health care providers. The voluntary health services plan is distinguishable from other health care providers because they serve the unique function of both insurer and health care provider. The health services plan is regulated by the Department of Insurance and governed by specific legislative requirements, unlike other, unregulated health care providers. In our opinion, this unique organizational structure and regulation of the voluntary health services plan corporation provides a rational basis for immunizing the defendant corporation in the instant case ***.” (Brown v. Michael Reese Health Plan, Inc., 150 Ill. App. 3d at 961-62, 502 N.E.2d at 434-35.)

A health provider’s dual capacity, as Health Plans Act corporation and HMO, was not an issue in Brown, and the opinion gives no indication as to whether Michael Reese Health Plan was also a certified HMO at times relevant to that litigation. However, Brown leaves no question about the legitimacy of the statutory immunity conferred upon all Health Plans Act corporations by section 26, prior to its recent amendment.

The legislative history of the 1988 amendment to the Health Plans Act reveals that Public Act 85 — 1246, which incorporates the amendment, originated as House Bill 3806, sponsored by Representatives Shaw, Flowers and Rice. (85th Ill. Gen. Assem., House Bill 3806, 1988 Sess.) As introduced by Representative Shaw on April 8, 1988, House Bill 3806 sought to amend only the Illinois HMO Act, to require the insurance licensing of HMO’s enrolling public aid recipients. (85th Ill. Gen. Assem., House Proceedings, April 8, 1988, at 264.) Senator Jones, the bill’s Senate sponsor, subsequently offered an amendment which would have changed some provisions of the Health Plans Act as well, but not the section 26 immunity provision. (85th Ill. Gen. Assem., Senate Proceedings, June 15, 1988, at 1786-88.) The amendatory language here at issue was the product of a conference committee appointed to consider differences between the Senate and House versions of the bill. Its report, incorporating the new language of section 26, was adopted by both houses of the legislature, following debate, on June 30, 1988. (85th Ill. Gen. Assem., Housing Proceedings, June 30, 1988, at 5634-37.) The only substantive discussion of the statutory immunity provision occurred during the June 30, 1988, Senate debate on the conference committee report. The following is a portion of that discussion:

“Senator Jones: *** First Conference Committee Report *** repeals the immunity for civil liability granted to the medical plans under the voluntary health service plans. ***
* * *
Senator Geo-Karis: *** I understand that the exemption from liability that the Health Service Plan Corporation currently has for injuries resulting from negligence on the part of officers or employees of the corporation is taken out. So they are ... they do have liability, is that correct?
* * *
Senator Jones: Right now, it’s [sic] only three that falls [sic] under the particular Act and they are immune for ... immune from liability, this takes away that immunity.
* * *
Senator Barkhausen: ... Senator Jones, ... can you tell me how many HMO’s there are that are now organized under the Statute providing for a [sic] voluntary health service plans and providing for some degree of immunity for those plans?
* * *
Senator Jones: There are three.
* * *
Senator Barkhausen: *** [M]y question and concern is ... whether you can tell me whether this eliminates the immunity for all HMO’s that previously were guaranteed statutory immunity from liability suits'?
* * *
Senator Jones: *** [T]he only group that ... is... is exempt would be the Union Health Service but it does take away the immunity for all the others.
* * *
Senator Barkhausen: Can you tell me why the provisions [of the Conference Report] maintain the immunity for one HMO organized under ... as a voluntary health service plan and apparently not for the others?
* * *
Senator Jones: Because it is a not-for-profit and it’s not owned by a hospital.
* * *
Senator Barkhausen: *** [A]s I understand it, there are three HMO’s that are organized as voluntary health service plans that have been provided with statutory immunity for ... for a very good reason under legislation dating back to 1951, and *** we’re only changing the rules for two of them. ***
* * *
Senator Jones: *** There would be one that you’re speaking of that we did not take it away [sic] is just a service organization but the provisions in this piece of legislation *** tak[e] care of the problem that we have *** relating] to HMO’s, and I ask for a favorable vote on this Conference Committee Report.” (Emphasis added.) 85th Ill. Gen. Assem., Senate Proceedings, June 30, 1988, at 154-55, 159, 160-61.

The 1988 amendments to the Health Plans Act, requiring that all corporations subsequently chartered under the Act also be certified as HMO’s, while simultaneously eliminating the statutory immunity for HMO’s already organized under the Act, with the single exception of a union-based service plan which still conformed to the Act’s original concept, manifest a clear legislative intent: to bring those HMO’s chartered under the Health Plans Act into conformity with other Illinois HMO’s in several respects, including their malpractice liability potential. The legislative history, as seen from the above excerpts, further supports the conclusion that, prior to the amendment, corporations such as Anchor, regardless of any “dual capacity” in which they operated, enjoyed complete statutory immunity from such liability. Moreover, the general rule is that a statutory amendment creates a presumption that the legislature intended the amendment to change the law as it formerly existed (Sanchez v. Access Associates (1989), 179 Ill. App. 3d 961, 966, 535 N.E.2d 27, 30), not to clarify the law as it existed. In the case before us, neither the amendatory language nor its legislative history can be reasonably construed as overcoming this presumption.

We turn then to the dispositive question. Should the 1988 amendment to section 26 be given retrospective application, permitting plaintiffs to pursue, against Anchor, a cause of action which accrued in 1982? The principles governing the interpretation of statutes with respect to their prospective or retroactive application were most recently and comprehensively articulated by our supreme court in Rivard v. Chicago Fire Fighters Union, Local No. 2 (1988), 122 Ill. 2d 303, 522 N.E.2d 1195. As the court stated in Rivard, the longstanding general rule is that prospective application of statutes is to be preferred to retroactive application. Thus, an amendatory act will generally be construed as prospective. (Rivard, 122 Ill. 2d at 308-09, 522 N.E.2d at 1198.) The preference for prospectivity is based upon “[the] fundamental principle of jurisprudence that retroactive application of new laws is usually unfair. There is a general consensus that notice or warning of the rule should be given in advance of the actions whose effects are to be judged ***.” (2 N. Singer, Sutherland on Statutory Construction §41.02, at 340 (Sands 4th ed. 1986).) However, when a change of law merely affects the remedy or matters of procedure, an amendment will be construed as retroactive so long as that is what the legislature intended, and absent a saving clause as to existing litigation, all rights of action will be enforceable under the new procedure, without regard to whether they accrued before or after such change or whether the action has been instituted, unless this would result in deprivation of a vested, constitutionally protected right. (See Rivard, 122 Ill. 2d at 310, 522 N.E.2d at 1199; Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 390-91, 415 N.E.2d 1034, 1042.) In the case of procedural changes, the legislative intent may be discerned through the usual devices of statutory interpretation, including an examination of the objective to be obtained, the reason and necessity for the statute, and its legislative history. (Rivard, 122 Ill. 2d at 310, 522 N.E.2d at 1199.) On the other hand, where the change is “substantive” rather than “procedural,” there is a presumption of prospectivity which is rebuttable only by the act itself. In order for a substantive change in the law to apply retroactively, “the act must clearly indicate that the legislature intended a retroactive application,” either by its express language or by “necessary implication.” Rivard, 122 Ill. 2d at 309, 522 N.E.2d at 1198.

Because there is a presumption of prospectivity for substantive changes in the law, we must first determine whether the 1988 amendment, eliminating Anchor’s statutory immunity from malpractice liability, is substantive or procedural. As our supreme court has noted, the line between “substance” and “procedure” may often be unclear, and there is no simple formula for determining whether an amendment relates to a procedural, or to a substantive right. (Rivard, 122 Ill. 2d at 310, 522 N.E.2d at 1199; Orlicki v. McCarthy (1954), 4 Ill. 2d 342, 348, 122 N.E.2d 513, 516.) Generally, procedural law has been defined as “ ‘[tjhat which prescribes the method of enforcing rights or obtaining redress for their invasion; machinery for carrying on a suit.’ ” (People v. Ruiz (1985), 107 Ill. 2d 19, 22, 479 N.E.2d 922, 924, quoting Black’s Law Dictionary 1367 (4th ed. 1951).) Amendments changing statutes of limitation, for example, are generally characterized as procedural (People v. Bates (1988), 124 Ill. 2d 81, 85, 529 N.E.2d 227, 228), and have been applied retroactively where the party affected has a reasonable time to bring an action after enactment of the change (Board of Education of School District No. 170 v. Illinois State Board of Education (1984), 122 Ill. App. 3d 471, 474, 461 N.E.2d 567, 569). (See also People v. Ruiz (1985), 107 Ill. 2d 19, 479 N.E.2d 922 (statutory amendment providing that post-conviction petitions shall be heard by a judge not involved in the original proceeding is procedural in nature); Ogdon v. Gianakos (1953), 415 Ill. 591, 114 N.E.2d 686 (amendment changing manner of service of process deemed to be procedural and applied retroactively).) The service of process statute in issue in Ogdon was, the court concluded, “certainly not a part of that law which creates, defines, or regulates rights. *** The issue or service of process is not what makes one a party to a suit. It is merely a step in obtaining jurisdiction of his person after he is a party to a suit.” (Emphasis added.) (Ogdon, 415 Ill. at 596, 114 N.E.2d at 689.) By the same reasoning, the Rivard court determined that the law governing the suability of voluntary unincorporated associations should be characterized as substantive. It therefore held that a statutory amendment which made unincorporated associations, as collective entities, parties to suits, where formerly, under the common law, injured parties enjoyed rights only against the individual members of such organizations, was presumptively prospective in operation. (See Ill. Rev. Stat. 1985, ch. 110, par. 2—209.1.) As the court stated, “a rule which ‘makes one a party to a suit’ must be considered substantive, whereas a rule which merely facilitates suit against a party is procedural.” Rivard, 122 Ill. 2d at 311, 522 N.E.2d at 1199.

Applying the foregoing principles to the case at bar, we conclude that the 1988 amendment to section 26 represents a substantive change in the law. The former language of the provision, expressly stating that Health Plans Act corporations “shall not be liable” for the malpractice of their employees and health care providers, had the practical effect of extinguishing all causes of action for medical malpractice against these entities, while leaving in place injured parties’ rights against the individual physicians, nurses, technicians, and hospitals involved. (See Rivard, 122 Ill. 2d at 311, 522 N.E.2d at 1199.) The 1988 amendment thus operates to make Anchor a party to such suits where formerly it could not have been one.

Furthermore, as Illinois courts have often stated, a retroactive law is one which “takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect of transactions or considerations already past.” (Emphasis added.) (United States Steel Credit Union v. Knight (1965), 32 Ill. 2d 138, 142, 204 N.E.2d 4, 6, quoted in Brucato v. Edgar (1984), 128 Ill. App. 3d 260, 270-71, 470 N.E.2d 615, 622.) Because retroactive legislation is not favored, the statute eliminating the common law immunity from suit enjoyed by voluntary unincorporated associations, addressed in Rivard, has also been held by this court to be substantive, and to operate prospectively, because it “creates both new rights and new obligations which heretofore did not exist.” (Brucato v. Edgar, 128 Ill. App. 3d at 271, 470 N.E.2d at 623.) Likewise, this court has refused to apply retroactively, in the absence of clear legislative intent, a statutory amendment to section 2—611 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2—611). That amendment, imposing sanctions on attorneys for pleadings signed by them which are in violation of that section, where previously sanctions were applicable only against parties to the suit, was held to be substantive, not procedural, because it created a new obligation. (Ig narski v. Heublin (1988), 171 Ill. App. 3d 830, 835-37, 525 N.E.2d 995, 998.) Prior to Ignarski, this court had also held that a statutory amendment to the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1981, ch. 127, par. 1014.1(b)), authorizing an award of attorney fees to parties obtaining judicial invalidation of State Board of Education administrative rules, could not be applied retroactively where (1) liability for these expenses did not exist prior to the enactment of the amendment; (2) the conduct giving rise to possible liability occurred prior to the amendment’s effective date; and (3) the State Board could not have avoided or limited its liability by taking any action after the effective date. (Board of Education of School District No. 170 v. Illinois State Board of Education, 122 Ill. App. 3d at 477, 461 N.E.2d at 572.) The same reasoning logically applies to the amendment at issue here.

Moreover, we must reject plaintiffs’ argument that the substantive/procedural question may be answered by looking to those cases which have addressed changes in the law of interspousal tort immunity. (See Ill. Rev. Stat. 1987, ch. 40, par. 1001.) While it is true that in Illinois, following Allstate Insurance Co. v. Elkins (1979), 77 Ill. 2d 384, 396 N.E.2d 528, courts have viewed interspousal tort immunity as a procedural, rather than a substantive, bar to actions between spouses, they have done so in the light of a crucial distinction between interspousal immunity and the kind of statutory immunity conferred on corporations chartered under the Health Plans Act. As explained in Elkins, “the effect of the 1953 amendment [codifying interspousal immunity] was not to destroy the cause of action of the injured spouse, but to confer immunity on the tortfeasor spouse, which like a defense based upon the statute of limitations can be waived by the defendant spouse.” (Emphasis added.) (Elkins, 77 Ill. 2d at 390, 396 N.E.2d at 531; see also State Farm Mutual Automobile Insurance Co. v. Palmer (1984), 123 Ill. App. 3d 674, 680, 463 N.E.2d 129, 133.) In other words, interspousal tort immunity is a defense which can be waived, not a substantive bar that would prevent the cause of action from accruing in the first place. (Perkins v. State Security Insurance Co. (1989), 192 Ill. App. 3d 103, 106, 548 N.E.2d 568, 570.) By contrast, the statutory immunity granted to Health Plans Act corporations in the original 1951 legislation, in order to further a unique organizational and regulatory scheme, was nonwaivable. It operated to prevent a cause of action from coming into being, and is therefore, under the Rivard principles, substantive rather than procedural.

Having determined that the 1988 amendment to section 26 of the Health Plans Act is substantive, we next inquire whether the presumption of prospectivity to be accorded that legislation can be overcome, either by the express language of Public Act 85 — 1246, or because a retrospective intent appears “by necessary or unavoidable implication.” (United States Steel Credit Union v. Knight (1965), 32 Ill. 2d 138, 142, 204 N.E.2d 4, 6.) An examination of the Act reveals no express language directing that all or any of the amendments therein be given retroactive application. “Necessary implication refers to a logical necessity; it means that no other interpretation is permitted by the words of the statute construed.” (In re Application of County Treasurer of Cook County for Sale of Certain Real Estate for Delinquent Taxes (1973), 14 Ill. App. 3d 1062, 1066, 304 N.E.2d 9, 12.) We also find no retrospective application by necessary implication in the legislation at issue here. The amendatory act can, in its entirety, be construed as operating prospectively from the effective date of August 30, 1988, i.e., only upon transactions and occurrences on or after that date, without in any way contravening or defeating either its express provisions or the legislative objectives previously discussed. For these reasons, we find that the presumption of prospectivity is not rebutted, and that the immunity provision, as amended, cannot be afforded retroactive application.

Therefore, the trial court’s order granting Anchor’s motion to dismiss was not in error. That order is hereby affirmed, and this case is remanded for further proceedings against the remaining defendants.

Affirmed.

MURRAY and GORDON, JJ., concur.

       Justice R Eugene Pinchara participated in this case prior to his resignation. Since that time, Justice Joseph Gordon was designated the third member of the panel and has read the record and briefs and has listened to the oral argument tapes.


source: Caselaw Access Project

author: JUSTICE GORDON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD MILLER, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—1520
    Opinion filed May 25, 1990.

      Patrick Mahoney & Associates, P.C., of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Marie Quinlivan Czech, Special Assistant State’s Attorney, and Inge Fryklund and Timothy F. Moran, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

Following a bench trial, defendant, Edward Miller, was found guilty of resisting a peace officer (Ill. Rev. Stat. 1987, ch. 38, par. 31—1), but found not guilty of battery (Ill. Rev. Stat. 1987, ch. 38, par. 12—3), and he was sentenced to one year’s court supervision. On appeal, defendant contends that: (1) the trial court’s findings of not guilty of battery and guilty of resisting a peace officer were legally inconsistent; and (2) the State failed to prove him guilty of resisting a peace officer beyond a reasonable doubt. We affirm.

Officer Sanchez testified on behalf of the State that at 11:05 p.m., on September 28, 1987, he responded to a call that shots had been fired on South Racine. He was dressed in plain clothes and drove in an unmarked car. When he arrived at South Racine, he was informed that the suspects were at a restaurant called the Steak and Egger. At the restaurant, he saw defendant and Christopher Coughlin standing by a truck. Sanchez identified himself as a police officer and asked defendant what he was doing in that area. Defendant became “argumentative” and used profane language. Defendant also “backed away” when Sanchez attempted to “pat him down.” When Sanchez “touched” defendant, defendant swung and struck him on the shoulder, after which a “struggled ensued” and defendant was wrestled to the ground. Defendant was subsequently placed under arrest, and a box of ammunition was retrieved from the truck. On cross-examination, Sanchez denied that he hit defendant with a flashlight or that he had a flashlight in his possession on that day. Sanchez also stated that he wore his police star on his belt.

Defendant testified on his own behalf that on September 28, he had dinner at the Steak and Egger restaurant with Coughlin, after which they went to a tavern and consumed alcoholic beverages. They were at the tavern for approximately three hours when defendant left the tavern for some fresh air. While walking down the street, three men accosted defendant and demanded money. Coughlin, who earlier testified that he went out to search for defendant, pulled up in his truck next to defendant. Defendant got into the truck with Coughlin. As they drove off, one of the men fired at the truck, breaking the back window and hitting the windshield. They drove back to the Steak and Egger restaurant, which they knew to be well frequented by police officers. When they arrived there, Coughlin remained in the truck while defendant went in to report the incident to police officers seated in the restaurant. While reporting the incident, he noticed that police vehicles were entering the restaurant’s parking lot. He then went out to talk to one of the uniformed police officers that had just driven in. As he was reporting the incident to that officer, a man dressed in plain clothes, who did not identify himself, grabbed him by the shoulder and spun him around. That man was Officer Sanchez.

Defendant denied punching Sanchez, but admitted pushing him to find out who he was. After pushing Sanchez, defendant backed away from him. At this point two officers grabbed and handcuffed him. While he was being handcuffed, he was hit by a flashlight in the head. He was later taken to a hospital because his head was bleeding profusely.

Coughlin also testified on behalf of the defense to essentially the same events that defendant testified to except that he stated that following the incident with Sanchez, he filed a complaint with the police department about the manner in which defendant was treated. On cross-examination, Coughlin testified that he and the defendant had been drinking alcoholic beverages for three hours.

At the conclusion of the evidence, the trial court found defendant not guilty of battery, stating that “[w]ith respect to the battery charge I don’t believe the State has sustained its burden of proof, intentionally and knowingly. This was an altercation, something arose and for that reason, there will be a finding of not guilty.” On the resisting a peace officer charge, however, the trial court found defendant guilty and it stated that: “I believe that there was sufficient evidence to warrant a finding of guilt and that will be the finding on that charge.” Defendant was sentenced to one year’s court supervision.

Defendant contends that the trial court rendered legally inconsistent findings when it found him not guilty of battery on the ground that the State failed to prove that he acted intentionally or knowingly, but then found him guilty of resisting a peace officer, which also requires proof that defendant acted knowingly. Defendant argues that if the trial court found that the “knowing” element had not been proven for the battery charge, it could not then find that the same element had been proven for the resisting a peace officer charge. We disagree because we find no legal inconsistency in the trial court’s findings.

A legal inconsistency has been defined as follows:

“Verdicts of guilty of crime A but not guilty of crime B, where both crimes arise out of the same set of facts, are legally inconsistent when they necessarily involve the conclusion that the same essential element or elements of each crime were found both to exist and not to exist.” (People v. Murray (1975), 34 Ill. App. 3d 521, 531, 340 N.E.2d 186, 194.)

Thus, in determining whether the trial court’s findings in the present case were legally inconsistent, we must determine whether the crimes of battery and resisting a peace officer are composed of the same essential element(s).

The statutory definition of battery is that defendant

“intentionally or knowingly without legal justification and by any means, (1) cause[d] bodily harm to an individual or (2) [made] physical contact of an insulting or provoking nature with an individual.” (Ill. Rev. Stat. 1987, ch. 38, par. 12—3.)

The definition of resisting or obstructing a peace officer is that defendant

“knowingly resists or obstructs the performance by one known to the person to be a peace officer of any authorized act within his official capacity.” (Ill. Rev. Stat. 1987, ch. 38, par. 31—1.)

Therefore, the essential element of battery is the causing of bodily harm or the “making of contact” of an insulting or provoking nature, while the essential element of resisting a peace officer is “resistance.”

Though both crimes require a “knowing” mental state, that mental state only has meaning with reference to the specific conduct proscribed by the statute defining the offense. Section 4—5 of the Illinois Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 4—5) defines the “knowing” mental state as follows:

“A person knows, or acts knowingly or with knowledge of:
(a) The nature or attendant circumstances of his conduct, described by the statute defining the offense, when he is consciously aware that his conduct is of such nature or that circumstances exist. Knowledge of a material fact includes awareness of the substantial probability that such fact exists.
(b) The result of his conduct, described by the statute defining the offense, when he is consciously aware that such result is practically certain to be caused by his conduct ***.” (Ill. Rev. Stat. 1987, ch. 38, pars. 4—5(a), (b).)

Under section 4—5, a defendant is deemed to have acted knowingly if he was consciously aware that: (1) his conduct was of such nature as the conduct defined in the statute defining the offense; or (2) his conduct was practically certain to cause that result, provided that the offense is defined in terms of a particular result. People v. Herr (1980), 87 Ill. App. 3d 819, 409 N.E.2d 442.

The “knowing” element of battery is different than the “knowing” element of resisting a peace officer. The fact that a conscious awareness that one’s conduct is practically certain to result in bodily harm, thereby resulting in a battery, is separate and distinct from a conscious awareness that that same conduct will impede or delay a peace officer from performing his duties is demonstrated by People v. Picha (1976), 44 Ill. App. 3d 759, 358 N.E.2d 937. In Picha, the defendant was apprehended by campus police officers after a beer glass defendant had thrown shattered and fell on police cars. Defendant twice ran away from the officers, and when he was caught, he was placed under arrest. While the officers attempted to handcuff him, a struggle ensued and defendant struck one of the officers on the cheek, knocking his glasses to the ground. The defendant was convicted of battery and resisting a peace officer. On appeal, defendant sought the reversal of the battery conviction because the conduct comprising it arose out of the same conduct supporting the resisting arrest conviction. In affirming the defendant’s conviction of battery and resisting arrest, the Picha court recognized that both offenses were composed of different mental states when it stated:

“[T]he subsequent act of hitting officer Gonzenbach on the left cheek -with his fist showed a motivation to do bodily harm to this officer that was separable from and independent of his desire to avoid apprehension [resisting arrest] by both officers.” Picha, 44 Ill. App. 3d at 763, 358 N.E.2d at 940.

Likewise in the present case, because the requisite mental states of the two offenses are not similar, a finding by the trial court that the mental state of battery had not been established did not negate the mental state of resisting a peace officer. Nor did that finding negate any of defendant’s actions, including the striking of Sanchez.

Even if the finding of the trial court would have effectively negated the striking, it would not negate the pushing which ensued under defendant’s version of the facts. Moreover, such a finding does not connote a rejection of the testimony that defendant struggled with the policeman and wrestled with him, to which the trial judge alluded in stating that he believed that there was an “altercation” between Sanchez and defendant.

The facts in the present case are unlike those in People v. Pearson (1973), 16 Ill. App. 3d 543, 306 N.E.2d 539, where a legal inconsistency was found when a defendant was acquitted on precisely the same evidence that supported his conviction on the other offense. In Pearson, the defendant was charged with aggravated assault and armed violence, arising out of the alleged firing of a handgun at two police officers. The defendant was found not guilty of armed violence, but guilty of aggravated assault. Despite the fact that the statutory definition of the two offenses involved different elements, the court found that both offenses were supported by the same evidentiary facts. The court noted that the trial court necessarily found that the defendant committed an assault while in possession of a deadly weapon, and that if the defendant committed the assault while armed with a deadly weapon, he also committed armed violence. The court reasoned that because the evidence that the defendant was committing assault while armed with a deadly weapon would suffice to convict for both the aggravated assault and the armed violence charges, the trial court’s findings of guilty on one and not guilty on the other were legally inconsistent, and the conviction could not stand. The court reversed the aggravated assault conviction. On the issue of whether the case should be remanded for a new trial, the Pearson court held that collateral estoppel applied to bar a retrial of the aggravated assault conviction since it would cause the defendant to relitigate an essential element of which he had previously been acquitted. Pearson, 16 Ill. App. 3d 543, 306 N.E.2d 539.

Unlike the facts in Pearson, the evidence in this case supporting the battery charge was not necessarily the same evidence that supported the charge of resisting a peace officer. Moreover, because the elements of two crimes were not coextensive, defendant’s conviction of resisting a peace officer did not entail the relitigation of an essential element of battery and, therefore, does not involve the application of collateral estoppel principles.

Defendant cites to People v. Munday (1985), 134 Ill. App. 3d 971, 481 N.E.2d 338, and People v. Frias (1983), 99 Ill. 2d 193, 457 N.E.2d 1233, as support for his contention that the trial court rendered legally inconsistent findings. Munday, however, does not support defendant’s contention here, since the Munday court held that there was no legal inconsistency.

The other case cited by defendant, People v. Frias (1983), 99 Ill. 2d 193, 457 N.E.2d 1233, is distinguishable from the present case. In Frias, the Illinois Supreme Court held that a jury’s guilty verdict of armed violence was legally inconsistent with an acquittal of murder because the armed violence offense was predicated on murder as an underlying felony. The court reasoned that if the elements of murder were not established, the armed violence offense could not be sustained because the statutory definition of armed violence required establishment of the underlying felony, murder. The present case is distinguishable from Frias because the offense of resisting a peace officer, for which defendant was convicted, was not predicated on the elements of battery being established. Resisting a peace officer is a separate crime which does not require establishment of battery. People v. Pickett (1975), 34 Ill. App. 3d 590, 340 N.E.2d 259; see also People v. Picha (1976), 44 Ill. App. 3d 759, 358 N.E.2d 937.

Since both offenses consist of different essential statutory elements, and since the proof of each offense was not contingent upon the same evidence as was the case in People v. Pearson (1973), 16 Ill. App. 3d 543, 306 N.E.2d 539, there is no legal inconsistency in the court’s findings.

Although not argued by defendant, we should consider whether defendant would be entitled to a reversal for findings which are not legally inconsistent but which nevertheless could be characterized as logically inconsistent. Findings are logically inconsistent when they can be construed to involve both an acceptance and rejection on the same theory of the case for the State or the defense. (People v. Murray (1975), 34 Ill. App. 3d 521, 340 N.E.2d 186.) However, such possible inconsistency will not be a factor to “contribute to a finding that the prosecution has not met its burden of proof,” unless such construction is the only one possible. People v. Buford (1982), 110 Ill. App. 3d 46, 55, 441 N.E.2d 1235, 1242; Murray, 34 Ill. App. 3d at 532, 340 N.E.2d at 194.

The findings here do not compel a conclusion that the trial court accepted and rejected the same theory of the case and are thus not necessarily inconsistent. As stated earlier, the elements of both offenses were different. In finding defendant not guilty of battery on the ground that the mental state of battery had not been established, the trial court was not rejecting evidence that supported either the mental state of resisting a peace officer, or that the conduct, namely the striking, constituted resistance. As stated earlier, even if that finding negated the act of striking as well, it would not connote a negation of the “pushing” which defendant admitted or the ensuing struggle to which the police officer testified.

Defendant next contends that the State otherwise failed to prove him guilty of resisting a peace officer beyond a reasonable doubt. Defendant argues that his conduct did not constitute resistance and that there was no evidence that he knew that Sanchez was a police officer. We disagree.

To obtain a conviction for resisting a peace officer, the State is required to prove that the defendant “knowingly resist[ed] or obstructed] * * * a peace officer of any authorized act within his official capacity.” (Ill. Rev. Stat. 1987, ch. 38, par. 31—1.) “Resistanee” is defined in Landry v. Daley (N.D. Ill. 1968), 280 F. Supp. 938, as “withstanding the force or effect of,” or “the exertion of oneself to counteract or defeat.” (Landry, 280 F. Supp. at 959.) That court construed the statute to proscribe only those physical acts that impose an obstacle which may impede, hinder, interrupt, prevent or delay the performance of an officer’s duties. (280 F. Supp. 938.) The acts of struggling and wrestling with a peace officer are physical acts that constitute “resistance” (People v. Crawford (1987), 152 Ill. App. 3d 992, 505 N.E.2d 394) and will support a conviction for resisting a peace officer even if the underlying attempted arrest was unwarranted. Crawford, 152 Ill. App. 3d 992, 505 N.E.2d 394; People v. Fort (1968), 91 Ill. App. 2d 212, 234 N.E.2d 384.

Defendant maintains on appeal that he neither wrestled nor struggled but only backed away from Sanchez and that the only touching occurred when the officer grabbed defendant and spun him around. This view negates defendant’s own testimony that he pushed Sanchez away before backing away. Moreover, it is not the function of the reviewing court to substitute its judgment for that of the trier of fact on questions relating to the credibility of witnesses. (People v. Sanchez (1987), 115 Ill. 2d 238, 503 N.E.2d 277.) The trier of fact could have disbelieved defendant entirely and concluded that he in fact struggled and wrestled with Sanchez as testified by the prosecution’s witness. Defendant also maintains that he did not know that Sanchez was a police officer because he neither wore his police uniform nor displayed his police star. The trier of fact, however, could have concluded that defendant in fact knew that Sanchez was a police officer in view of Sanchez’s testimony that he twice announced that he was a police officer, and in light of defendant’s testimony that immediately before he met Sanchez, there were several police officers in the restaurant and in the restaurant’s parking lot. Moreover, defendant testified that he was talking to a uniformed police officer when grabbed by Sanchez, yet he does not allude to any reaction from the uniformed policeman or to any attempt on his part to recruit the uniformed police officer’s assistance.

The relevant question, when presented with a challenge to the sufficiency of the evidence is whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements *** beyond a reasonable doubt.” (Emphasis in original.) (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) A criminal conviction .will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of defendant’s guilt. Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.

We therefore conclude that after viewing the record in a light most favorable to the State, a rational trier of fact could have found the essential elements of resisting a peace officer were proved beyond a reasonable doubt. Accordingly, we affirm.

Affirmed.

COCCIA, P.J., and LORENZ, J., concur.


author: JUSTICE LORENZ JUSTICE MURRAY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RAFAEL MENENDEZ, Defendant-Appellee.
    First District (5th Division)
    Nos. 1—88—2573, 1—88—2670 cons.
    Opinion filed May 25, 1990.

      MURRAY, J., specially concurring.
    Cecil A. Partee, State’s Attorney, of Chicago (Bonnie Meyer Sloan, Special Assistant State’s Attorney, and Inge Fryklund, Assistant State’s Attorney, of counsel), for the People.
    Sam Adam, of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Rafael Menendez and Trinidad Garcia were indicted by a Cook County grand jury with possession of, and intent to deliver, a substance containing cocaine in violation of section 401(a)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(a)(2)). Prior to trial, Menendez successfully moved to suppress evidence seized from his luggage. The State now appeals.

We reverse and remand.

Summarized below are the pertinent facts adduced during the hearing on defendant’s motion.

Amtrak police investigator Dennis Kroll testified that, in the course of investigating crimes for Amtrak, he would routinely examine manifests of trains arriving into Chicago. He explained that a manifest is a listing of all passengers on a train, from the city of origin to Chicago and all points en route. The manifest contains the passenger’s name, telephone number, reservation number, destination, and type of accommodations. Kroll stated he would focus upon sleeping compartment reservations because drug couriers typically reserved those accommodations to facilitate control over contraband.

Kroll explained that if the train manifest indicated a passenger arriving into Chicago had reserved a sleeping compartment, he would “bring up” the reservation on a computer located in his office. Using the computer, he could determine the date of the trip, when and in what manner the tickets were purchased, the type of accommodations, and the passenger’s itinerary.

Kroll testified that on June 8, 1987, he examined the train manifest for Amtrak train number four, which was scheduled to arrive in Chicago that day at 2:55 p.m. from Los Angeles, California. The manifest indicated Trinidad Garcia was traveling with sleeping car accommodations. Kroll’s further examination revealed that two passengers were traveling under Garcia’s reservation, although defendant Menendez’ name did not appear on the reservation.

The reservation was made on June 4, 1987, and was for a round trip from Los Angeles to New York. Kroll stated his examination disclosed the reservation had been cancelled four times on the same date it was made. The tickets were paid for in cash in the amount of $2,335. No telephone number was listed on the reservation. The itinerary indicated the passengers would be traveling for six days, spending three days in New York. Specifically, the passengers were scheduled to depart Los Angeles on train number four on Saturday, June 6, 1987, and would arrive in Chicago on June 8, 1987. Compartment A in that car was reserved for that leg of the trip. Separate compartments were reserved for travel between Chicago and New York. The passengers were to leave Chicago on June 8, 1987, arriving in New York the next day. Occupying separate compartments, they were to depart New York on June 12, 1987, arrive in Chicago on June 13, 1987, and leave that day for Denver, Colorado. Between Chicago and Denver the passengers were to occupy the same compartment. Still occupying the same compartment, the passengers were to depart from Denver on June 14, 1987, and arrive in Los Angeles on June 15, 1987, after a brief stop in Salt Lake City, Utah.

Kroll testified that, in observing the train’s manifest, his suspicions were aroused because Garcia’s reservation was made from a narcotics “source city,” the reservation was made only two days prior to departure, the fare was paid for in cash, no telephone number was listed on the reservation, and the length of stay in New York was short in relation to time spent traveling.

Kroll alerted Tom Farri, his superior at Amtrak, who, in turn, notified the Chicago police and the Drug Enforcement Agency (DEA). At approximately 2 p.m. on June 8, 1987, Kroll testified, he met with DEA agent Norbert Kuksta, Chicago police officers Richard Boyle, Bob Balone, Tom Kissel, and others at Union Station in Chicago.

Shortly thereafter, Kroll, Balone, Boyle, and Farri boarded the train where it had been ordered stopped, approximately one mile away from Union Station.

Kroll testified he and Balone passed by compartment A, where he observed defendant and Garcia seated together on a bench. Kroll stated the train attendant informed him that at no time was compartment A left unoccupied, even during meals. Kroll passed that information on to Officer Boyle.

Officer Richard Boyle testified that upon the train’s arrival in Union Station, he observed Garcia carry, from compartment A, a suitcase, a garment bag, and an attache case. Defendant carried two duffle bags. The luggage was loaded onto a cart by a porter. Boyle stated defendant walked on the train platform alongside the cart. Garcia followed approximately 50 feet behind. Boyle stated he was joined by Kuksta and Detective Richard Crowley and the three proceeded to the baggage-claim area, where he observed the porter unload the baggage cart. Boyle testified defendant took the two duffle bags. At that point, Boyle stated, he, Kuksta, and Crowley approached defendant and Garcia.

Agent Kuksta testified he, Boyle, and Crowley identified themselves as police officers. Kuksta stated they were dressed in plain clothes and did not display their weapons. Kuksta stated he told defendant and Garcia he wanted to ask them a few questions, but informed them they were under no requirement to cooperate. He stated defendant and Garcia agreed to answer his questions. Kuksta stated he examined both of the train tickets which Garcia had handed to him. Both tickets were in Garcia’s name. Kuksta stated he asked Garcia why the same name appeared on both tickets and Garcia explained he had been invited by defendant to go on the trip and that defendant had given Garcia the money for the tickets. When Garcia purchased the tickets, he put both in his name.

At that time, Kuksta stated, defendant asked him what the officers’ questioning concerned. Defendant was informed the officers were conducting a narcotics investigation and asked for defendant’s cooperation, indicating it would only take a few minutes. Kuksta testified defendant and Garcia expressed agreement to cooperate. However, Kuksta stated, when informed of the nature of the investigation, defendant “became tense”; his hands trembled and he began to perspire. Garcia exhibited the same behavior. Both defendant and Garcia stated they were not transporting narcotics.

Kuksta testified Garcia consented to let Crowley search his luggage. Crowley then searched the attache case and suitcase, finding no contraband.

Officer Boyle testified that he then asked defendant for consent to search his luggage, explaining defendant was under no requirement to allow the search, was free to leave, and was not under arrest. Defendant asked if Boyle had a search warrant. Boyle stated he did not. Defendant declined to consent to the search of his luggage. Boyle testified he then informed defendant the luggage would be taken and subjected to examination by a trained dog for the presence of narcotics and that the examination would take approximately five minutes. Boyle acknowledged that he had told defendant that if the trained dog reacted positively to the bags, an attempt would be made to obtain a search warrant. The duffle bags and the garment bag were taken to where the trained dog was held by another officer and were placed alongside other “non-suspect” luggage. When the dog was allowed to sniff at the bags, the dog began to “bite and scratch” the two duffle bags, which, Boyle testified, indicated the presence of narcotics.

Agent Kuksta testified he waited with defendant while the bags were subjected to examination by the trained dog. Kuksta stated he informed defendant that, if the dog did not react positively, the luggage would be returned to him in Union Station if he was still there, or forwarded anywhere defendant wished. Kuksta stated both defendant and Garcia indicated an intention to continue with their travel and defendant indicated the bags should be sent to Grand Central Station in New York. Kuksta stated he then left defendant and Garcia alone in the train station.

Kuksta estimated approximately five to seven minutes had elapsed between the time defendant and Garcia had been approached by the officers until the time defendant’s bags had been taken by Boyle and Crowley. During that time, Kuksta stated, the officers did not touch defendant or Garcia, nor did the officers otherwise physically restrict their movement and there were never more than three officers present.

After learning the trained dog had reacted positively, Kuksta went to where defendant and Garcia were and informed them of what had taken place. Kuksta advised defendant that the officers would attempt to secure a search warrant and would detain the bags. Kuksta gave defendant a receipt for the bags.

The bags were transported to police headquarters and a search warrant subsequently granted. Based on the warrant, the bags were opened and 57 pounds of cocaine recovered.

In his own testimony, defendant, a 41-year-old architect, admitted he had agreed to speak to the officers when they approached him as he walked through Union Station. Defendant testified he did not consent to the search of his bags; the bags were taken from him by the officers. Defendant acknowledged that after the officers took the luggage from him, he continued about his business. Defendant conceded the officers spoke to him in a conversational tone, explained to him that he was not under arrest, did not have to speak with them, and was free to leave. Defendant also testified the officers informed him of the nature of the investigation and requested his cooperation, assuring him it would only take a few minutes. Defendant admitted he had agreed to cooperate. He stated approximately 20 minutes elapsed between the time the officers approached him and the time he declined to consent to the search of his bags. Defendant acknowledged one of the officers had indicated his luggage would be briefly detained and subjected to examination by a trained dog.

At that point, defendant’s testimony becomes contradictory. At first, defendant acknowledged one of the officers again told him he was not under arrest and was free to leave. However, defendant also stated the officer “really didn’t say anything,” but indicated only that the luggage was being taken. Defendant testified he did not then know what the officers were going to do with the luggage and that the officers had not indicated the luggage would be detained for only a short time. Defendant stated he could not recall the officers telling him they would attempt to obtain a search warrant if the dog reacted positively to his luggage. Defendant testified the officers did not ask where the bags could be sent but, rather, told him they would send the luggage to Grand Central Station. That arrangement, defendant stated, was not at his request.

Defendant admitted, however, that after the officers took the bags, defendant and Garcia were left alone. He stated that about 20 minutes later an officer approached him and told him that the dog had reacted positively to his luggage and, consequently, the luggage would be detained. Defendant indicated to the officer that he was going to proceed on his way and he was allowed to leave. Defendant acknowledged the officers did not threaten him, touch him, handcuff him, or display their weapons.

After considering the testimony presented, the trial judge sustained defendant’s motion to suppress evidence, stating:

“I believe that the seizure was without any articulable facts. As to the suspicion developed by the agent, it seems to have come from computer print-outs of reasonable acts. I don’t think one would want to travel from Los Angeles to New York without any grips. I think the grips were there reasonably. I think it was not consensual, so this was an unlawful seizure of bags, and subsequently the dog search becomes unreasonable, and the subsequent dog search was unreasonable.”

Opinion

From the comments quoted above, we are unable to ascertain whether the first use of the term “seizure” refers to a “seizure” of defendant’s person, when initially confronted by police, or to the detainment of defendant’s bags. Similarly, we are unable to ascertain whether it was the initial encounter with police or the detainment of defendant’s bags which the trial judge determined was not consensual. Therefore, we proceed to consider, in turn, whether the initial encounter between defendant and the narcotics officers was consensual, and whether the subsequent seizure and exposure of his luggage to a dog trained to detect narcotics violated defendant’s fourth amendment rights.

In Florida v. Royer (1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319, a plurality of the Supreme Court observed that “law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.” (Royer, 460 U.S. at 497, 75 L. Ed. 2d at 236, 103 S. Ct. at 1324.) In People v. Jones (1989), 190 Ill. App. 3d 416, 545 N.E.2d 1332, the facts of which in many ways parallel those presented in the instant case, we observed application of the above rule within the context of the questioning of a passenger disembarking from a train. We noted, in Jones, that “the test for determining whether a seizure has occurred is an objective one, namely, whether a reasonable person would have believed that he was free to leave under the circumstances.” (Jones, 190 Ill. App. 3d at 421, 545 N.E.2d at 1335.) The test for determining whether an encounter is consensual also involves an analysis of the totality of the circumstances and is a matter which the prosecution has the burden of proving. Jones, 190 Ill. App. 3d at 422, 545 N.E.2d at 1335.

After reviewing the record before us, we conclude the initial encounter between defendant and the officers cannot be considered as constituting a “seizure” for fourth amendment purposes. Defendant himself conceded that when approached by the officers in Union Station, he agreed to answer their questions. The record contains no testimony that the officers restricted defendant’s movement in any way through physical contact or by words. There was no evidence that the officers ever threatened defendant, nor is there any indication that the officers displayed a weapon. Defendant admitted specifically being informed he was not under arrest and that he was free to leave. The record also indicates defendant understood he was under no obligation to speak to the officers but did so freely. Furthermore, defendant conceded he even agreed to cooperate with the officers after they had informed him that they were conducting a narcotics investigation. In the absence of such circumstances as might indicate a seizure of defendant’s person occurred during initial questioning by the officers (see United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870), and given defendant’s own testimony that he agreed to comply with the officers’ request that he answer questions, we conclude the initial encounter between defendant and police was consensual.

We must next consider whether the detainment of defendant’s luggage, arising out of the questioning of defendant, constituted a seizure of the luggage for purposes of the fourth amendment. In United States v. Place (1983), 462 U.S. 696, 77 L. Ed. 2d 110, 103 S. Ct. 2637, the Supreme Court held that where authorities possess specific and articulable facts warranting a reasonable belief that a traveler’s luggage contains narcotics, the governmental interest in seizing the luggage briefly to submit the luggage to a “canine sniff” test is so substantial, and the test itself so unintrusive on fourth amendment liberties, that such detainment of luggage is not a seizure requiring probable cause. The question for us then becomes whether the officers in the instant case possessed specific and articulable facts, at the moment the officers took defendant’s bags (see Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868), such as would justify detainment of defendant’s luggage for submission to examination by a dog trained to detect narcotics. In that determination, the Supreme Court has recognized, applying principles relevant to determining whether probable cause exists, innocent behavior will frequently provide the basis for the requisite suspicion. (United States v. Sokolow (1989), 490 U.S. 1, 10, 104 L. Ed. 2d 1, 12, 109 S. Ct. 1581, 1587.) The proper inquiry is not whether particular conduct is innocent or guilty, “ ‘but the degree of suspicion that attaches to particular types of noncriminal acts.’ ” Sokolow, 490 U.S. at 10, 104 L. Ed. 2d at 12, 109 S. Ct. at 1587, quoting Illinois v. Gates (1983), 462 U.S. 213, 243-44 n.13, 76 L. Ed. 2d 527, 552 n.13, 103 S. Ct. 2317, 2335 n.13.

The record indicates the officers knew the following facts as of the time they first approached defendant in Union Station: the tickets had been paid for with cash; no telephone number was given in conjunction with the reservation; the reservation had been made only two days prior to departure; the reservation was repeatedly canceled on the same day it was made; the place of departure, Los Angeles, was considered to be a source city for narcotics; the passengers’ itinerary consisted of almost twice as much travel time as time spent in New York; and the compartment in which the passengers traveled was never left unattended, even during meals. At Union Station, the officers learned from Garcia that defendant had given Garcia the money to pay for the tickets. Importantly, the officers observed that, when informed of the nature of their questioning, defendant became nervous; his hands trembled, and he started to perspire.

Any of the above facts would not, if isolated, indicate evidence of illegal conduct and might be consistent with innocent travel. However, we believe that when considered together, the existence of those facts would certainly justify the officers’ suspicion that defendant’s bags contained contraband such as would be sufficient to subject defendant’s luggage to examination by a dog trained to detect narcotics.

Finally, we note the record discloses defendant’s bags were subjected to examination by the trained dog within minutes of being taken by the officers and defendant was informed of the testing process as well as the procedure for the return of the luggage to him if the dog reacted negatively. See People v. Forrest (1988), 172 Ill. App. 3d 385, 526 N.E.2d 616.

Although we may disturb a trial judge’s ruling sustaining a motion to suppress evidence only where the ruling was manifestly erroneous (see People v. Long (1983), 99 Ill. 2d 219, 457 N.E.2d 1252), we conclude reversal is warranted under the facts in the instant case.

Reversed and remanded.

COCCIA, P.J., concurs.

JUSTICE MURRAY,

specially concurring:

I concur in the majority opinion. Illinois and the law as enunciated by the United States Supreme Court and the majority in this case mandate a reversal of the trial court’s ruling. If this case involved stolen diamonds, laundered money, or other material instead of drugs, case law would have mandated an affirmance. Rather than skirting around the bush, we should label this and other cases involving the search and seizure of drug-bearing luggage from interstate travelers as “the drug exception to the constitutional right against unreasonable search and seizures.”