text:
    GOVERNOR’S OFFICE OF CONSUMER SERVICES, Appellant, v. ILLINOIS COMMERCE COMMISSION et al., Appellees.-THE PEOPLE ex rel. ROLAND W. BURRIS, Attorney General, Appellant, v. ILLINOIS COMMERCE COMMISSION et al., Appellees.
    Third District
    Nos. 3—90—0875, 3—91—0032 cons.
    Opinion filed October 16, 1991.

      Roland W. Burris, Attorney General, of Springfield, and David G. Gilbert and Patricia A. O’Brien, both of Governor’s Office of Consumer Services, of Chicago (Robert W. Cushing and Janice Dale, Assistant Attorneys General, of Chicago, of counsel), for petitioners.
    Roland W. Burris, Attorney General, of Springfield (John P. Kelliher, Special Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Commerce Commission.
    Clark M. Stalker, Carrie Hightman, and Owen E. MacBride, all of Schiff, Hardin & Waite, of Chicago, and Edward C. Fitzhenry, Jr., and Eric Robertson, both of Lueders, Robertson & Konzen, of Granite City, for respondent Illinois Power Company.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The Illinois Attorney General and the Governor’s Office of Consumer Services appeal from an order of the Illinois Commerce Commission (Commission) which redesigned Illinois Power Company’s electric service rates. The separate appeals have been consolidated. We affirm.

On December 8, 1989, Illinois Power filed revised tariff sheets with the Commission to implement redesigned electric service rates and to recover a revenue increase proposed in its then-pending revenue requirement case (Commission docket No. 89 — 0276). The December filing was designated docket No. 90 — 0006 and is the subject of this appeal.

The Commission had granted Illinois Power a $74.8 million rate increase in docket No. 89 — 0276 in an amended final order issued on July 13, 1990. The Commission’s order was appealed to this court in People ex rel. Hartigan v. Illinois Commerce Comm’n (1991), 214 Ill. App. 3d 222, 573 N.E.2d 858. This court affirmed the Commission’s adoption of Hlinois Power’s actual capital structure and the Commission’s determination of an appropriate rate of return, but reversed the Commission’s determination of the used and useful portion of the utility’s Clinton Nuclear Power Station.

In docket No. 90—0006, Illinois Power sought approval of a permanent allocation among customer classes of the revenue increase proposed in docket No. 89—0276, and a redesign of rates and charges to recover the revenue increase. Intervening parties included the People of the State of Illinois ex rel. Attorney General Burris, the Illinois Industrial Energy Consumers (IIEC), the Governor’s Office of Consumer Services, the Office of Public Counsel, the Citizens Utility Board, the Small Business Utility Advocate, the Board of Trustees of the University of Illinois, and the staff of the Commission.

Evidentiary hearings were held on July 26, 27 and 31, 1990, and August 1 and 2, 1990. Oral argument was held on October 17, 1990. Experts testifying before the Commission provided analyses of Illinois Power’s cost of service, and proposed various revenue allocations and rate designs. The record before the Commission contained over 600 transcribed pages of oral testimony and hundreds of pages of written testimony and exhibits.

On November 5, 1990, the Commission entered a final order in docket No. 90 — 0006. The Commission’s 67-page order concluded that marginal costs should be the primary basis and principal determinant of cost of service for the design of Illinois Power’s rates. The Commission adopted, with some exceptions, the marginal cost study proposed by Illinois Power and rejected the cost study sponsored by the Attorney General, the Governor’s Office of Consumer Services, and the Citizens Utility Board. The Commission allocated the authorized revenue increase among Illinois Power’s major customer classes as follows: residential, 9.6%; commercial, 7.1%; industrial, 7.1%; lighting, 7.1%; and municipal, 9.6%.

The Commission denied the applications for rehearing filed by the Attorney General and the Governor’s Office of Consumer Services. Both parties appealed, and the cases were consolidated for our review.

Section 10—201 of the Public Utilities Act (Act) lists the powers and duties of the appellate courts upon appeals from orders of the Commission. (Ill. Rev. Stat. 1989, ch. 111⅔, par. 10—201.) A reviewing court may affirm the Commission’s order; it may reverse the order; or it may remand the cause to the Commission to receive new or additional evidence. (Ill. Rev. Stat. 1989, ch. 111⅔, par. 10—201(e)(v); People ex rel. Hartigan v. Illinois Commerce Comm’n (1987), 117 Ill. 2d 120, 142, 510 N.E.2d 865, 874.) An order of the Commission can be reversed on appeal only if (1) the findings of the Commission are not supported by substantial evidence; (2) the order is without the jurisdiction of the Commission; (3) the order violates the Federal or State Constitution or laws; or (4) the proceedings or manner by which the Commission decided its order violate the Federal or State Constitution or laws, to the prejudice of the appellant. (Ill. Rev. Stat. 1989, ch. 111⅔, par. 10—201(e)(iv).) The findings and conclusions of the Commission on questions of fact shall be held prima facie to be true and as found by the Commission; orders of the Commission shall be held to be prima facie reasonable, and the burden of proof upon all issues raised on appeal shall be upon the party appealing from the order. (Ill. Rev. Stat. 1989, ch. 111⅔, par. 10—201(d).)

“Apart from examining whether the Commission acted within the scope of its authority or infringed upon a constitutional right, a court is limited to reviewing whether the Commission set out findings of fact supporting its decision and whether the findings are against the manifest weight of the evidence.” Hartigan, 117 Ill. 2d at 142, 510 N.E.2d at 874.

The purpose of the proceedings before the Commission was threefold: to choose the study which best measured Illinois Power’s cost to provide service in the future; to allocate the revenue increase among the utility’s major customer classes; and to design the specific rates and charges for each customer class to enable the company to collect its revenue requirement. The determination of revenue allocation, rate design, and customer charges depended upon the selection of an appropriate marginal cost study.

The Attorney General’s main contention on appeal is that the rates produced by the marginal cost methodology adopted by the Commission do not comply with the regulatory goals of the Act. The Attorney General argues that the Commission’s order is contrary to law because it adopts a cost of service study which fails to consider the effects of excess capacity on long-term cost of service; because the Commission’s revenue allocation methodology similarly fails to consider excess capacity; and because the findings with respect to customer charges and rate design violate section 1—102 of the Act. (Ill. Rev. Stat. 1989, ch. 111⅔, par. 1—102.) The Attorney General requests that the case be remanded to the Commission for the establishment of an identifiable standard for satisfying the long-term cost of service “requirement,” as that term is argued to be used in the Act.

We disagree with the Attorney General’s contention that the Commission erroneously rejected the Attorney General’s long-term marginal cost of service study in favor of Illinois Power’s cost study. We find substantial evidence in the record to support the Commission’s adoption of Illinois Power’s marginal cost study.

The marginal cost study presented by Illinois Power measured its cost to provide additional electric service in the future. The study included an analysis of three major cost components: marginal customer costs; marginal capacity costs; and marginal energy costs. Witnesses for Illinois Power testified as to the validity of the marginal cost study. The Commission staff and the expert witness retained by IIEC used Illinois Power’s study in support of their analyses and proposals. Commission staff witness Corbin also testified in support of Illinois Power’s study. (The Commission’s order did reflect his objection to Illinois Power’s inclusion of a portion of minimum distribution system costs in customer-related costs.)

James Drzemiecki provided testimony on behalf of the Attorney General, the Citizens Utility Board, and the Governor’s Office of Consumer Services. Mr. Drzemiecki provided an analysis of Illinois Power’s cost of service and offered various revenue allocation and rate design proposals. Mr. Drzemiecki concluded that Illinois Power’s marginal cost analysis was inadequate to properly allocate costs.

IIEC witness Chalfant testified that the Attorney General’s cost study was neither a valid marginal cost study nor a valid embedded cost study:

“[Bjecause [Drzemiecki] makes no attempt to determine marginal distribution or subtransmission costs, his study cannot be considered marginal; because he alters what he represents to be an embedded cost study, his study cannot be considered embedded; and, because he totally omits a large portion of transmission costs, his study cannot be considered valid in any sense.”

The Commission concluded:

“The Commission believes, as it did in the Commonwealth Edison case in which Mr. Drzemiecki testified ***, that Mr. Drzemiecki’s study is not a marginal cost study as he contends. Mr. Drzemiecki’s blending of marginal and embedded cost concepts severely limits the value this Commission can place on his analysis.
* * *
Mr. Drzemiecki’s cost study incorrectly mixes marginal and embedded cost concepts with the result that it is neither a valid marginal cost study nor a valid embedded cost study. If the Commission were to accept studies that deviate from principles governing appropriately prepared cost studies, i.e., blend disparate concepts on an ad hoc basis, the integrity of such studies would be compromised and it would invite the manipulation of studies in order to achieve the sponsor’s desired results.”

The Attorney General also fails to provide or recommend a definition of “long term.” Illinois Power’s study was based upon a Eve-year estimate of the cost of energy to its system, while the Attorney General’s study was calculated on a 10-year basis. With a definition of “long term” otherwise unavailable, either of these studies could qualify as having considered costs on a long-term basis. We defer, then, to the expertise of the Commission to determine the proper time period for its adopted cost study.

The Attorney General maintains that Illinois Power’s failure to include in its study the effects of excess capacity on long-term costs of service violates the legislative goals of the Act. Section 1—102 of the Act provides, in part:

“The General Assembly finds that the health, welfare and prosperity of all Illinois citizens require the provision of adequate, efficient, reliable, environmentally safe and least-cost public utility services at prices which accurately reflect the long-term cost of such services and which are equitable to all citizens.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 111⅔, par. 1-102.

We do not find the prefatory language of section 1—102 of the Act to mandate the consideration of the “long-term” cost of providing electrical utility service. (Ill. Rev. Stat. 1989, ch. 111⅔, par. 1—102.) This section is identified simply as “Findings and Intent.” The section states the general reasons for enactment of the legislation and lists major goals and objectives of public utility regulation. The section neither mandates the adoption of a particular type of cost study nor requires a certain time period over which such costs are to be developed. Furthermore, “long-term cost” is not defined in the Act, and the Commission is given no direction as to how it is to consider “long-term costs.”

“Prefatory language *** generally is not regarded as being an operative part of statutory enactments. The function of the preamble of a statute is to supply reasons and explanations for the legislative enactments. The preamble does not confer powers or determine rights. [Citation.] A declaration of policy contained in a statute is, like a preamble, not a part of the substantive portions of the act. Such provisions are available for clarification of ambiguous substantive portions of the act, but may not be used to create ambiguity in other substantive provisions. [Citation.]” Illinois Independent Telephone Association v. Illinois Commerce Comm’n (1988), 183 Ill. App. 3d 220, 236-37, 539 N.E.2d 717, 726.

Upon adoption of Illinois Power’s marginal cost study, the Commission used the “Equal Percentage of Marginal Cost” (EPMC) approach to allocate the revenue increase among the company’s major customer classes. This method attempts to equalize marginal cost recovery among the customer classes while limiting the overall increase any particular class will experience.

The Attorney General complains that the EPMC approach magnifies the distortions of marginal cost estimates and does not allow for the effects of system-wide excess capacity on long-term costs, in violation of sections 9—215 and 1—102 of the Act (Ill. Rev. Stat. 1989, ch. 111⅔, pars. 9—215, 1—102). The Attorney General argues that the EPMC allocation ignores the long-run capital costs upon which the emphasized short-term cost savings are based. The result, it is alleged, is a rate structure which disproportionately burdens residential customers. The Attorney General argues that use of the EPMC approach conflicts with section 1—102 of the Act, which mandates the setting of rates at “prices *** which are equitable to all citizens.” (Ill. Rev. Stat. 1989, ch. 111⅔, par. 1—102.) As discussed earlier in this opinion, however, we do not consider this section to be a substantive provision of the Act. Also, the Commission used the constrained EPMC approach, which limits the impact of the revenue increase on residential customers. The Commission stated:

“The Commission continues to believe that the constrained EPMC approach is the most appropriate methodology for allocating an overall revenue increase level to the customer classes. The constrained EPMC approach allows for continued movement toward system average marginal cost recovery for each major class, while taking into account other appropriate rate-making considerations such as rate continuity, customer impact and customer understanding.”

The Attorney General contends that section 9 — 215 of the Act (Ill. Rev. Stat. 1989, ch. 111⅔, par. 9—215) requires the Commission to make excess capacity adjustments to marginal cost studies or to inter-class revenue allocations in order to set rates which are just and reasonable. We note, however, that section 9—215 only “empowerfs]” (emphasis added) the Commission to make adjustments in rates; such action is merely allowed, not required. In addition, we reiterate the Commission’s broad discretion in setting just and reasonable rates.

Finally, the Attorney General takes issue with three aspects of the rates and charges adopted for the individual tariff schedules: the $12.50 monthly residential facilities charge; the residential declining block winter energy charge; and the residential space heat rate. Again, the Attorney General argues that the rate design violates section 1—102 of the Act (Ill. Rev. Stat. 1989, ch. 111⅔, par. 1—102) because the rates and rate structures do not reflect a consideration of the effects of excess capacity. For reasons discussed earlier, we find the argument without merit. We find substantial evidence in the record to support the Commission’s determination.

The setting of utility rates is a legislative rather than a judicial function. (Hartigan, 117 Ill. 2d at 142, 510 N.E.2d at 874.) “ ‘A just and reasonable rate *** is *** a question of sound business judgment rather than one of legal formula ***.’ ” The determination of what is a just and reasonable rate “ ‘is a question of fact to be settled by the good sense of the tribunal it may come before.’ ” (Produce Terminal Corp. v. Illinois Commerce Comm’n (1953), 414 Ill. 582, 590, 112 N.E 2d 141, 144, quoting State Public Utilities Comm’n ex rel. City of Springfield v. Springfield Gas & Electric Co. (1919), 291 Ill. 209, 218, 125 N.E. 891, 896.) We accord great weight to the order of the Commission as reflecting “the judgment of a tribunal appointed by law and informed by experience.” Village of Apple River v. Illinois Commerce Comm’n (1960), 18 Ill. 2d 518, 523, 165 N.E.2d 329, 332.

For the reasons stated above, we affirm the order of the Commission in this matter.

Affirmed.

GORMAN and BARRY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SLATER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SCOTT SMITH, Defendant-Appellant.
    Third District
    No. 3—91—0052
    Opinion filed October 16, 1991.

      Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    William Herzog, State’s Attorney, of Kankakee (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

The trial court convicted the defendant, Scott Smith, of burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19—1(a)) and sentenced him to five years’ imprisonment. The defendant appeals.

The defendant’s trial was set to begin on December 7, 1990. That day, before the trial commenced, the defendant moved for a continuance. He requested the continuance because minutes earlier the State had given him a copy of a statement by Jodi Reato. The statement contradicted a statement Reato had previously given to the defense.

Reato’s first statement was given to the defendant’s original attorney in September of 1990. In it she indicated that she had been with the defendant the night of the burglary. She also corroborated the defendant’s claim that he had been in the area of the burglary but was not involved in it.

Reato’s second statement was given to the State on November 29, 1990. This time she denied being with the defendant on the night of the burglary.

The trial court denied the defendant’s motion for a continuance. The defendant appeals, arguing that the trial court erred in denying his motion. We agree.

Supreme Court Rule 412(a) (134 Ill. 2d 412(a)) states:

“If the State has obtained from the defendant *** information regarding defenses the defendant intends to make, it shall provide to defendant not less than 7 days before the date set for the hearing or trial, or at such other time as the court may direct, the names and addresses of witnesses the State intends to call in rebuttal, together with the information required to be disclosed in connection with other -witnesses *** and a specific statement as to the substance of the testimony such witnesses will give at the trial of the cause.”

Although the trial court has discretion in allowing a rebuttal witness’ testimony even without strict compliance with the discovery rule, abuse of discretion is reversible error if it prejudices the defendant. (People v. Perez (1991), 209 Ill. App. 3d 457, 568 N.E.2d 250.) The granting of a continuance is one way in which a failure to comply with discovery rules may be remedied. (134 Ill. 2d R. 415(g)(i); People v. Musgray (1976), 37 Ill. App. 3d 48, 344 N.E.2d 708.) The goal of pretrial discovery is to promote the fact-finding process and to eliminate the tactical advantage of surprise by either side. People v. Szabo (1977), 55 Ill. App. 3d 866, 371 N.E.2d 117.

In the instant case, the State called Reato as a rebuttal witness even though it had just informed the defendant about her change of position. We recognize that since Reato’s second statement was taken only eight days earlier, it may have been difficult for the State to provide the defendant with a copy seven days before trial. However, we see no reason why the State had to wait until minutes before trial.

The trial court could have remedied the prejudice to the defendant resulting from the State’s noncompliance with Rule 412(a) by granting his request for a continuance. Instead, the court denied his request and allowed the State to use the evidence to substantially undermine his defense. Under these circumstances, we find that the trial court abused its discretion.

Accordingly, the judgment of the circuit court of Kankakee County is reversed and the cause is remanded for a new trial.

Reversed and remanded.

BARRY and GORMAN, JJ., concur.


author: JUSTICE McCUSKEY

text:
    ARLEEN FITZPATRICK, Plaintiff-Appellant, v. KATHERINE CARR, Defendant-Appellee (Russell Johnson et al., as the Canvassing Board of the City of Kankakee, et al., Defendants).
    Third District
    No. 3—90—0426
    Opinion filed October 18, 1991.

      Robert M. Motta, of Oak Park (Michael E. Lavelle, of counsel), for appellant.
    Power & Kick and Carr & Carr, both of Kankakee (L. Patrick Power and Fred S. Carr, Jr., of counsel), for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The plaintiff, Arleen Fitzpatrick, appeals the order and judgment of the trial court in favor of the defendant, Katherine Carr, in which the court held for Carr in Fitzpatrick’s suit to contest the election results within the first precinct, second ward, in Kankakee. We reverse and remand this matter for further proceedings consistent with the directions contained herein.

Arleen Fitzpatrick and Katherine Carr were opposing candidates for the office of city clerk of the City of Kankakee in the April 4, 1989, election. Carr received a 140-vote plurality following the election.

On May 8, 1989, Fitzpatrick filed a lawsuit to contest the election results within the first precinct, second ward. She claimed the following: the ballot labels were switched on automatic voting machine 165681; the election results were therefore incorrect and invalid; that Fitzpatrick should receive the votes which, in fact, were cast for her, but counted for Carr; and that the outcome of this election should be changed.

On April 4, 1989, in the first precinct, second ward, was located voting machine 165681, which was used in this election. Voting machine 165681 was a nine-row machine "with 40 columns. Across the top of the face of this voting machine were located the offices to be voted upon, and the candidates’ names were listed vertically beneath the offices. When a voter enters this voting booth, he pulls the red handle, which closes the curtain behind him and unlocks the machine for voting. A voter can cast a straight Democratic or straight Republican ballot by pulling the lever which has the party designation on it. When the voter does so, the individual levers for each candidate come down at a 45-degree angle to the left and over the name of each Democratic or Republican candidate. If the voter chooses not to cast a straight-party ballot, the voter individually pulls each lever for the candidates the voter wishes to vote for at a 45-degree angle to the left and over the candidates’ names. When the voter completes casting his ballot, the voter again pulls the red lever. The votes are then mechanically recorded, the machine is then automatically relocked, the curtain opens, and the voter exits from the voting booth.

Sections 24—12 and 24—13 of the Election Code (the Code) (Ill. Rev. Stat. 1989, ch. 46, pars. 24—12, 24—13) set forth strict statutory requirements which must be scrupulously adhered to in elections.

Section 24 — 12 of the Code reads in pertinent part:

“The election authority shall provide at least 4 facsimile diagrams which shall be arranged in the form of a diagram showing the entire front of the voting machine as it will appear after the official ballot labels are arranged for voting purposes on election day.” Ill. Rev. Stat. 1989, ch. 46, par. 24—12.

Section 24 — 13 of the Code reads in pertinent part:

“The election authority shall before the day of election, cause the proper ballot labels, together with the transparent protective covering for same, to be put upon each machine, corresponding with the sample ballot labels herein provided for, and the machine in every way to be put in order, set and adjusted, ready for use in voting when delivered at the precinct polling places ***. *** Unless objection is filed, within 2 days, with the election authority, to the use of a particular machine or machines, such voting machine or machines when certified to be correct by the custodian shall be conclusively presumed to have been properly prepared for use at the election for which they were prepared.” Ill. Rev. Stat. 1989, ch. 46, par. 24—13.

A sample paper ballot was prepared for use in the first precinct, second ward. The sample paper ballot used was, in fact, a duplicate of the paper absentee ballot used in this election. Section 24—12 of the Code requires the election authority to furnish a facsimile diagram. Black’s Law Dictionary defines “facsimile” as “[a]n exact copy, preserving all the marks of the original.” (Black’s Law Dictionary 531 (5th ed. 1979).) The sample paper ballot was substituted by the election authority and used as the “facsimile diagram” of the face of voting machine 165681. No actual facsimile diagrams were printed for this voting machine as required by the Code. The sample paper ballot used should have been an exact reflection of the actual face of voting machine 165681 used in the first precinct, second ward.

It is undisputed that during the discovery recount conducted within this precinct on April 24, 1989, the candidates’ names appeared on the face of the automatic voting machine in reverse order. Each horizontal line is assigned a letter, e.g., “A,” “B,” “C,” or “D.” The “A” should appear on the first line and the “D” should appear on the fourth line of the machine when the machine is properly prepared. On automatic voting machine 165681, “D” was positioned on the third line and “C” was located on the fourth line. Therefore, the names of Carr and Fitzpatrick on the face of voting machine 165681 were in reverse order.

When the polling place in the first precinct, second ward, closed on April 4, 1989, the election judges broke the seal on voting machine 165681 and read by row number the total number of votes cast for the candidates. One of the judges read the recorded totals by row number to the other judges who then recorded them on election tally sheets by total number. The seal on voting machine 165681 was intact. It was removed, and the voting machine was examined and tested. No definitive irregularity was determined. Because the recorded totals are by row number only, and not by name, the readings by the election judges and the recorded totals would have been consistent with the machine’s operation but inconsistent with the face of the machine and the way in which the voters had attempted to cast their ballots.

Documentary and testimonial evidence was presented to the trial court that “substantial compliance” with the Code occurred with respect to the preparation of voting machine 165681. Having so found, the trial court applied the conclusive presumption contained within section 24 — 13 of the Code. The trial court then granted Carr’s motion in limine and ruled that Fitzpatrick could not introduce evidence tending to establish that voting machine 165681 was improperly prepared.

It appears from the record that the trial court failed to enforce its ruling on Carr’s motion in limine. Carr waived enforcement of the court’s ruling by allowing certain evidence to be introduced which should have been excluded based on the court’s original ruling on the motion in limine. However, this issue is irrelevant for purposes of this appeal.

In this appeal, the crucial issue is when the voting machine labels were changed. If it can be determined when the labels were changed, did such change result in votes being cast for the wrong candidate?

We find from our review of the record that the trial court misapplied the conclusive presumption of the Code. Application of the conclusive presumption is predicated upon the completion of all detailed and specific acts to be performed by the election authority as set forth in the Code. The specificity of sections 24—12 and 24—13 of the Code shows a clear legislative intent: (1) that the machines shall be in every way in proper working order; (2) that the vote registering counters be in accurate working condition; and (3) that the facsimile diagrams used agree exactly with the ballot labels used on the face of the voting machines. The trial court’s finding of “substantial compliance” is not a standard contemplated by section 24 — 13 of the Code.

It is uncontroverted from the record that the election authority did not prepare a facsimile diagram which agreed exactly with the ballot labels used on the face of voting machine 165681. Sample paper ballots were used instead. The sample paper ballots contained no numerical or alphabetical designations. In contrast, the face of voting machine 165681 had letter and numerical designations with the political parties and candidates’ names arranged in four horizontal lines. It would be impossible to use the sample paper ballot prepared by the election authority to determine the proper ballot placement on the face of voting machine 165681.

The clear objective of the legislative mandate requiring facsimile diagrams is to provide a means whereby the election judges can confirm that the labels are in their proper location and that votes will be mechanically counted for the candidate for whom they are cast. Without the detailed facsimile diagrams required by the Code, the election judges could not verify the correctness of the ballot label placement on the face of the machine. Therefore, it was impossible for the election judges to correctly certify that the ballot label placement on the face of voting machine 165681 agreed with the facsimile diagram. Thus, the conclusive presumption used by the trial judge was in error.

Although it is uncontradicted that the “C” and “D” labels on voting machine 165681 used in the first precinct, second ward, were in the wrong position at the time of the discovery recount, it is not apparent whether the switch occurred in the preparation of the voting machine before it was delivered to the polling place or at some subsequent time.

Voting machine 165681 was prepared and stored at the county highway garage both before and after the election. From Monday evening through Wednesday morning of election week, voting machine 165681 was located at the polling location. At all other relevant times, voting machine 165681 was secured at the county highway garage. On the date of the election, no election official or judge noticed any tampering, abnormality or irregularity with respect to the voting machine. An election judge at the polling place checked the names on the sample paper ballot with those appearing on voting machine 165681. However, she did not check them for proper position since an accurate facsimile diagram of the face of voting machine 165681 was not furnished by the election authority as required by the Code.

In addition to the proper preparation of the facsimile ballot required by section 24—12 of the Code, section 24—13 of the Code requires the following: the issuance of a proper notice of the preparation of the voting machines to the proper authorities, testing of the voting machines for any mechanical problems, and the certification of the lack of such mechanical problems. Fitzpatrick contends the requisite notices issued by the county clerk were insufficient in that they were sent to the wrong party officials and authorities and in an untimely fashion. In light of our holding in this opinion, we do not at this point address the merits of this argument. Rather, this argument is an area of inquiry the trial court should consider on remand.

“The general purpose of all election laws is to obtain fair and honest elections ***.” (Pullen v. Mulligan (1990), 138 Ill. 2d 21, 66, 561 N.E.2d 585, 605.) “[W]e believe that this end is paramount in importance to the formal steps prescribed as a means to its achievement.” (Carr v. Board of Education of Homewood-Flossmoor Community High School District No. 233 (1958), 14 Ill. 2d 40, 44, 150 N.E.2d 583, 586.) In an election contest, a trial court should attempt to ascertain whether the voter intended to vote for the appellant or appellee or whether this intent can be ascertained at all. See Pullen, 138 Ill. 2d at 86, 561 N.E.2d at 614.

We hereby remand this matter for further proceedings with the following directions: (1) if the trial court determines that the ballot placement error on the face of voting machine 165681 occurred prior to the election or during the set-up phases of the election proceedings, the trial court is instructed to reverse the election results of Fitzpatrick and Carr for the first precinct, second ward; (2) if the trial court determines that the ballot placement error on the face of voting machine 165681 occurred at any time during the election held on April 4, 1989, the trial court is instructed to void all election results of Fitzpatrick and Carr for the first precinct, second ward; or (3) if the trial court determines that the ballot placement error on the face of voting machine 165681 occurred subsequent to the election, the trial court is instructed to maintain the status quo and affirm the election results of Fitzpatrick and Carr for the first precinct, second ward.

For the reasons herein set forth, the circuit court of Kankakee County is reversed. This matter is hereby remanded to the circuit court for further proceedings including, but not limited to, conducting another evidentiary hearing consistent with the directions herein contained.

Reversed and remanded.

GORMAN and SLATER, JJ., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARIE BOGUSZEWSKI, Defendant-Appellant.
    Third District
    No. 3—90—0416
    Opinion filed October 18, 1991.

      Thomas A. Karalis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    William Herzog, State’s Attorney, of Kankakee (Jay P. Hoffmann, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Following a bench trial, the court convicted the defendant, Marie Boguszewski, of burglary and theft (Ill. Rev. Stat. 1989, ch. 38, pars. 19—1(a), 16—1(a)(1)). The court thereafter sentenced her to concurrent prison terms of 4 years and 364 days, respectively. The defendant appeals.

The record shows that at 4:45 a.m. on October 29, 1989, Kevin Hill, the night watchman for Vulcan Materials, heard the defendant calling “hello” from the lunchroom area of the plant. He testified that he recognized her voice because he had answered many of her numerous telephone calls to the office asking to speak with Jerry Coleman, a Vulcan employee. Hill also had seen the defendant when she was previously arrested at the plant.

After hearing the defendant’s voice, Hill entered the lunchroom and saw her standing near a table, holding a piece of paper. She asked Hill if she could leave a note on Jerry Coleman’s time card. Hill told her “no” and to leave immediately or he would call the police. The defendant repeated her request, and Hill gave her the same response. The defendant, who was standing about 10 feet from the time card rack, turned, ran out the door with the paper in her hand, got in her car, and drove away. After she had gone, Hill discovered that Coleman’s time card was missing and called the police.

Police officer Huey Boyt testified that he was dispatched to investigate Hill’s report. After speaking with Hill at the plant, he went in search of the defendant. He found her pulling her car into a parking lot. Officer Boyt approached her, told her what she was suspected of, and asked her if she had the time card. She replied, “If I give it to you will the charges be dropped?” Boyt then placed her under arrest and transported her to the county jail. He testified that while Officer Standifer was “booking” the defendant, she recovered Coleman’s time card from the defendant’s purse.

The State and the defendant stipulated that if Officer Susan Standifer were called to testify she would state that her routine, in-custody search led to the discovery of the time card in the defendant’s purse.

Jerry Coleman testified that he had known the defendant for about 10 years. He was employed by Vulcan Materials as a laborer in October of 1989. He was not working at the time the incident in question occurred.

The defendant largely corroborated the testimony of Kevin Hill, the night watchman. She stated that she went to Vulcan Materials at 4:45 a.m. knowing that Coleman would not be there at that time and only wanting to attach a note to Coleman’s time card. She stated she had written the note while driving to the plant. In the note she requested that Coleman contact her. The defendant said she became frightened and left when Hill threatened to call the police. She did not realize she still had the time card until she got in her car. At that point the defendant was too frightened to return the card, so she left. She did not know what had happened to the note she had written.

The defendant admitted that she had been arrested at the plant about one year earlier when she had gone there to see Coleman. She also stated that she had been phoning Vulcan Materials approximately 30 times each night when Coleman was working. She admitted that her past meetings with Coleman were not pleasant. She also stated that the plant was located several miles west of Kankakee. The defendant acknowledged that she and Coleman both lived in town and she knew where he lived. She could not say why she had not placed the note in Coleman’s home mailbox.

On appeal, the defendant argues that her conviction for burglary should be reversed. Specifically, she contends that the State failed to prove her guilty beyond a reasonable doubt, since it failed to show she entered the plant with the intent to commit a theft.

To sustain a conviction for burglary, the State is required to prove either that the defendant entered the building without authority and with the intent to commit a felony or theft, or that she remained within the building without authority and with the intent to commit a felony or theft. (Ill. Rev. Stat. 1989, ch. 38, par. 19—1(a); People v. Vallero (1978), 61 Ill. App. 3d 413, 378 N.E.2d 549.) The intent element of burglary may be established circumstantially, but must be proved beyond a reasonable doubt. People v. Obrochta (1986), 149 Ill. App. 3d 944, 500 N.E.2d 1059.

Unlawful entry into a building containing personal property that could be the subject of larceny gives rise to an inference of intent sufficient to sustain a burglary conviction. (People v. Johnson (1963), 28 Ill. 2d 441, 192 N.E.2d 864.) However, this inference is permissible only in the absence of circumstances that are inconsistent with an intent to commit a theft. (See People v. Ehrich (1988), 165 Ill. App. 3d 1060, 519 N.E.2d 1137.) The failure to conceal one’s identity may be considered in determining the existence of criminal intent. People v. Beasley (1976), 41 Ill. App. 3d 550, 353 N.E.2d 699.

The evidence in the instant case failed to establish that the defendant entered the building with the intent to commit a theft. The defendant testified that she entered intending to leave a note on Coleman’s time card. She became frightened and left with the time card when Hill, the night watchman, threatened to call the police. Hill corroborated the defendant’s testimony that she twice asked to leave a note on Coleman’s time card and ran out the door when he told her to leave immediately or he would call the police.

Furthermore, Hill testified that he only discovered the defendant after he heard her calling “hello” from the lunch room. It is apparent the defendant was not attempting to conceal her identity by this action. Indeed, this behavior is consistent with the defendant’s explanation that she entered the plant to leave a note on Coleman’s time card. It would be very strange behavior for one who intended to commit a theft. For these reasons, we find that the defendant was not proved guilty of burglary beyond a reasonable doubt. We therefore reverse the defendant’s burglary conviction. Inasmuch as the defendant does not challenge her theft conviction, we affirm it.

The judgment of the circuit court of Kankakee County is affirmed in part and reversed in part.

Affirmed in part and reversed in part.

STOUDER, P.J., and SLATER, J., concur.


author: JUSTICE GORMAN

text:
    THE PEOPLE ex rel. SAM CIACCIO, Plaintiff-Appellant, v. WHITEY MARTIN, Defendant-Appellee.
    Third District
    No. 3—91—0090
    Opinion filed October 18, 1991.
    Edward G. Vogt, of Kankakee, for appellant.
    Power & Kick and Carr & Carr, both of Kankakee (L. Patrick Power and Fred S. Carr, Jr., of counsel), for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

This action was brought against defendant Whitey Martin in a suit filed by plaintiff Sam Ciaccio to determine who was lawfully elected alderman of the fifth ward of the City of Kankakee, Illinois, in April 1989. Following a bench trial, the court rendered judgment for the defendant. The plaintiff appeals. We affirm.

On April 4, 1989, an election for alderman for the fifth ward of the City of Kankakee was held. Approximately 1,000 votes were cast, including several absentee ballots. Thirty-seven absentee ballots had been issued to voters who applied to vote absentee based on physical incapacity to be present at the polls. Of these 37 applications, 25 did not state the reason for the physical incapacity, as required on the form. Among the absentee votes were those of Amy Ciaccio, plaintiff’s daughter, and, purportedly, Anthony Poulos.

The official proclamation of the election results showed Ciaccio the winner. After adjustments for certain errors in calculating the results were made, the count was 518 for Ciaccio, 516 for Martin.

In October 1989, the Kankakee city council took action to remove plaintiff from office and to install defendant therein. Plaintiff sued, alleging that the requirement that a voter applying for an absentee ballot based on physical incapacity state the reason for the incapacity is merely a directory requirement. The trial court found for the defendant. It stated that the statute clearly requires an applicant to state the reason for his or her physical incapacity on the application. It found that the statutory provisions should be adhered to because absentee ballots are more easily the subject of fraud than those cast in the regular manner. The court further found that Amy Ciaccio was not a resident where she voted for her father and therefore her vote should not be counted. Finally, the court found that Anthony Poulos’ vote should not be counted since it appeared that he never signed his absentee ballot application. When the court could determine for whom the faulty absentee ballots were cast, it deducted the votes from the candidate’s total; when it could not do so, it applied the rule of proportionality and reduced the votes of the candidates pro rata. After determining which votes were properly cast, the court found that Martin had received a majority of those votes and was elected to the office.

The sole issue on appeal is whether the trial court erred in finding mandatory the requirement that a voter applying for an absentee ballot based on physical incapacity state the reason for that incapacity. Citing Craig v. Peterson (1968), 39 Ill. 2d 191, 233 N.E.2d 345, the plaintiff argues that even where the legislature has declared its intention in seemingly mandatory terms, the courts have been unwilling to disenfranchise voters without their fault. In the case at bar, argues plaintiff, the applicants merely failed to state why they were physically incapable of going to the polls on election day, which failure was ignored by the county clerk, who issued the absentee ballots. Therefore, argues plaintiff, although the statute appeared mandatory, the court should not disenfranchise the absentee voters because they were not at fault.

Section 19—3 of the Election Code (Ill. Rev. Stat. 1989, ch. 46, par. 19—3) provides that “[application for [absentee] ballot shall be substantially in the following form” (emphasis added). Further on it reads: “I state *** that I shall be physically incapable of being present at the polls of such precinct on the date of holding such election for the following reasons: I hereby make application for an official ballot or ballots to be voted by me at such election if I am so physically incapacitated.”

“Whether an enactment is directory or mandatory depends upon the legislative intention, to be ascertained from the nature and object of the act and the consequences which would result from any given construction.” (Serwinski v. Board of Election Commissioners (1987), 156 Ill. App. 3d 257, 259, 509 N.E.2d 509.) In Serwinski, the court held the Election Code’s oath and subscription requirements that a candidate must swear to his statement of candidacy to be mandatory because it activated the Code’s perjury provisions.

Here the language is mandatory and the ballots should not have been issued based on the incomplete applications. The legislature intended that the procedures for obtaining and using an absentee ballot be scrupulously followed. The Election Code (Ill. Rev. Stat. 1989, ch. 46, par. 1—1 et seq.) provides that certain procedures must be followed on election day to enhance the integrity of the electoral process. Thus, when a person votes at the poll, he must announce his name and, if required, his residence to the election judge. An election judge then gives the voter one ballot, which the judge must initial. (Ill. Rev. Stat. 1989, ch. 46, par. 17—9.) After marking the ballot, the voter must then deliver it to an election judge, who at that point enters the name of the voter in the poll books and places the ballot into the ballot box (Ill. Rev. Stat. 1989, ch. 46, par. 17—12). When voting machines are used, which was the case in this election, the legislature has mandated that all the normal statutory procedures must be followed (Ill. Rev. Stat. 1989, ch. 46, par. 24—22) and has also required that certain further procedures be implemented to protect the integ rity of the voting process. For example, after a person votes on a voting machine, an election precinct official is to inspect the face of the voting machine to see that the machine has not been tampered with or injured. Ill. Rev. Stat. 1989, ch. 46, par. 24—8.

These procedures and protections are not available when one votes absentee. Thus the legislature has set forth a procedure with many safeguards in order to determine that only qualified absentee voters cast ballots at any given election. To vote absentee, a person must apply to the county clerk for a special absentee ballot, state the reason in this application why he must vote absentee, and declare that his statements are true under penalty of perjury. (Ill. Rev. Stat. 1989, ch. 46, par. 19—3.) If one must vote absentee because he or she is hospitalized, then the legislature has further conditioned receipt of an absentee ballot on the procurement of a certificate of the applicant’s physician, who must state that he does not expect the voter to be released from the hospital on or before election day. (Ill. Rev. Stat. 1989, ch. 46, par. 19—13.) Therefore, given the language of the statute, its perjury provisions, and the concern of the legislature to safeguard the electoral process in setting forth such procedures for absentee voting, we hold the language of section 19—3 to require those who apply for absentee ballots based on physical incapacity to state the reason therefor.

On appeal, plaintiff did not challenge the trial court’s ruling that Amy Ciaccio’s vote should not be counted. Under the Election Code (Ill. Rev. Stat. 1989, ch. 46, par. 6—27), Ms. Ciaccio did not qualify to vote in the fifth ward election because she was not registered in the precinct in which she resided. Furthermore, the plaintiff stipulated that Anthony Poulos’ vote should not be counted since it appeared that he never signed his vote application.

The trial court properly deducted the faulty ballots on a pro rata basis where it was possible to do so. Where the portion of votes containing illegal ballots can be identified with certainty and proof of irregularities in voting are not such as to justify a disenfranchisement of all voters in a given precinct, it is proper to apportion the illegal ballots instead of excluding the entire vote. Thornton v. Gardner (1964), 30 Ill. 2d 234, 195 N.E.2d 723; Frese v. Camferdam (1979), 76 Ill. App. 3d 68, 394 N.E.2d 845.

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

Affirmed.

McCUSKEY and SLATER, JJ., concur.


author: JUSTICE HAASE

text:
    CONSUMERS ILLINOIS WATER COMPANY, Plaintiff-Appellee, v. THE COUNTY OF WILL, Defendant-Appellee (Citizens Requesting Environmentally Safe Sewer Treatment et al., Intervenors-Appellants).
    Third District
    No. 3—90—0816
    Opinion filed October 18, 1991.
    Michael R. Lucas and Gary S. Mueller, both of McKeown Law Offices, of Joliet (Richard T. Buck, of counsel), for appellants.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellee County of Will.

      Lyman C. Tieman & Associates, of Joliet, and Jones, Day, Reavis & Pogue, of Chicago (Lyman C. Tieman and Jeffrey J. Baker, of counsel), for appellee Consumers Illinois Water Co.
   JUSTICE HAASE

delivered the opinion of the court:

The plaintiff, Consumers Illinois Water Company (Consumers), brought suit against the defendant, County of Will (the County), seeking a declaratory judgment that the County’s zoning ordinance as applied was unconstitutional. Prior to trial, Consumers and the County entered into an agreed settlement order. Thereafter, Citizens Requesting Environmentally Safe Sewer Treatment (CRESST) intervened and filed a motion to vacate the agreed order, contending that the order contravened a requirement that special use permits be passed by a three-fourths vote of the county board. The trial court denied CRESST’s motion to vacate. CRESST appeals.

Consumers is a utility company that provides water and sanitary sewage services. Due to the deterioration of an existing wastewater treatment plant, Consumers sought a special use permit from the Will County Board to allow it to construct a wastewater treatment plant on a parcel of land in Crete Township. The land was zoned as “Countryside Areas and Productive Farmland.”

Section 14.12—7 of the Will County Zoning Ordinance (Will County Zoning Ordinance §14.2—7 (1984)) provides that:

“The County Board *** may grant or deny any proposed special use ***. However, in the event of written protest against any proposed special use, signed and acknowledged by the owners of twenty percent (20%) of the frontage across an alley or directly opposite therefrom *** such special use shall not be granted except by favorable vote of three-fourths (¾) of all members of the County Board.” Will County Zoning Ordinance §14.2-7 (1984).

Because some adjoining landowners filed written objections to Consumers’ request for a special use permit, the ordinance required approval by a three-fourths vote of the county board. On December 21, 1989, the board denied the request for a special use by two votes (19 in favor and 6 against). On February 15, 1990, the board again denied Consumers’ request. Thereafter, Consumers filed a complaint in the Will County circuit court seeking injunctive relief and a declaratory judgment that the County’s zoning ordinance was unconstitutional as applied.

Prior to trial, Consumers and the County entered into an agreed settlement order which granted Consumers a special use permit for a wastewater treatment facility. The permit was subject to various conditions. On July 31, 1990, Judge William Penn approved the agreed order. CRESST subsequently filed a petition to intervene and a motion to vacate the order. CRESST argued that the trial court lacked jurisdiction to enter the order because it did not contain a finding of unconstitutionality. CRESST further argued that the court unlawfully bypassed the legislative process by approving the order without a three-fourths vote of the county board approving the special use permit. The trial court denied CRESST’s motion to vacate.

On appeal, CRESST argues that the trial court lacked jurisdiction to enter the agreed order. It also argues that the agreement improperly contravened the County’s zoning ordinance.

In response, Consumers initially argues that the ordinance upon which CRESST bases its position is invalid. In support of its position, it cites Lutheran Social Services v. County of Henry (1984), 124 Ill. App. 3d 753, 464 N.E.2d 811.

In Lutheran Social Services, the plaintiff sought a special use permit. At the time, the county had an ordinance requiring a three-fourths majority vote from the county board when a municipality objected to the permit. The Lutheran Social Services court noted that State law required only a majority vote to decide all questions that arise at county board meetings, “except in such cases as is otherwise provided.” (Ill. Rev. Stat. 1981, ch. 34, par. 855.) The court then found that the county, as a non-home-rule unit, lacked expressed statutory authority to enact an ordinance contrary to the State law. The court further found that the legislature had specifically authorized a three-fourths majority vote for other zoning decisions such as map and text amendments, but not for the issuance of a special use permit.

CRESST asserts that Lutheran Social Services is inapplicable. In support of its position, it contends that State law now provides that a majority vote is not sufficient to approve a special use permit when written objections are filed. CRESST further contends that a three-fourths vote is required for a special use permit when written objections are filed.

We find CRESST’s contentions erroneous. State law is currently the same as it was at the time of the Lutheran Social Services decision. The majority vote rule of section 53 of the Counties Code (Ill. Rev. Stat. 1981, ch. 34, par. 855), relied on in Lutheran Social Ser vices, is exactly the same as current section 2—1005 of the Counties Code (Ill. Rev. Stat. 1989, ch. 34, par. 2—1005).

Furthermore, State law does not require a three-fourths vote for a special use permit when written objections are filed. CRESST appears to be arguing that the three-fourths vote requirement for map and text amendments of section 5—12014 of the Code applies to special use permits. Yet, CRESST does not explain the fact that the Lutheran Social Services court cited the same statutory provision, formerly section 5 of the Code (Ill. Rev. Stat. 1981, ch. 34, par. 3158), and found that map and text amendments, unlike special use permits, were “other zoning decisions” for which “the legislature has specifically authorized a three-fourths majority vote.” Lutheran Social Services, 124 Ill. App. 3d at 754.

In oral argument, appellants’ counsel argued that the granting of a special use permit was tantamount to a change in the zoning map. We decline to adopt this view. A special use is one which may be created in an existing zoning district without changing the underlying zoning classification and without changing the zoning map. It can be issued for certain periods of time and under certain restrictions which allow the municipal or county authorities the opportunity to maintain a certain degree of control of the special use. It does not change the underlying zoning classification or the zoning map.

In order to grant the appellants the relief they request, we would have to reverse our decision in Lutheran Social Services. We decline to do so.

It may be argued that the effect of existing State law as interpreted in Lutheran Social Services is to prevent local governments from exercising greater control over decisions which directly affect the citizens served by those governments. Perhaps, a county should have the right to require a three-fourths majority vote by the members of the county board prior to issuing a disputed special use permit. As our supreme court pointed out more than 30 years ago:

“We recognize that because the special use may have the same impact upon neighboring property as a variation, procedural safeguards similar to those prescribed for variations might be desirable for special uses as well.” Kotrich v. County of Du Page (1960), 19 Ill. 2d 181, 187, 166 N.E.2d 601.

However, section 2—1005 of the Counties Code (Ill. Rev. Stat. 1989, ch. 34, par. 2—1005 (formerly Ill. Rev. Stat. 1981, ch. 34, par. 855)), as interpreted in Lutheran Social Services v. County of Henry (1984), 124 Ill. App. 3d 753, 464 N.E.2d 811, precludes the county from requiring more than a simple majority for approval. One of the arguments raised by the defendant county in Lutheran Social Services was that it had express authority to provide alternate voting requirements because the statute required majority rule “except in such cases as is otherwise provided” (Ill. Rev. Stat. 1981, ch. 34, par. 855). The court found, however, that this language required a legislative exception to the majority vote rule. The court stated:

“This conclusion is supported by the fact that the legislature has specifically authorized a three-fourths majority vote for other zoning decisions. (E.g., Ill. Rev. Stat. 1981, ch. 34, pars. 3152, 3154, 3158.) By including these exceptions in chapter 34, we believe that the legislature meant to exclude nonstatutory exceptions to the majority vote rule.” Lutheran Social Services, 124 Ill. App. 3d at 754-55, 464 N.E.2d at 812.

The statutory sections to which the court referred (currently Ill. Rev. Stat. 1989, ch. 34, pars. 5—12007, 5—12009, 5—12014) are those involving the adoption of a zoning ordinance, zoning variations, and zoning amendments. The legislature, when drafting provisions for special use permits, did not expressly provide for a three-fourths majority vote, and it was the decision of the court in Lutheran Social Services that no such provision was intended by the legislature. One could certainly argue that a change as potentially serious as the granting of a special use permit should require a three-fourths majority vote when a challenge has been filed.

This court, however, is limited to interpreting the law. “[P]olicy determination and implementation *** is the function not of the court, but of the General Assembly.” (Kotrich, 19 Ill. 2d at 188.) Whether the legislature decides to address this issue in order to give local governments the power to adopt policies which they believe to be in the best interests of their citizens is a matter strictly within the purview of the legislature.

Since a majority of the board voted to grant the special use, the trial court’s entering of the agreed order was not improper. Our resolution of the foregoing issue renders CRESST’s remaining issues moot.

Accordingly, the judgment of the circuit court of Will County is affirmed.

Affirmed.

BARRY and SLATER, JJ., concur.


author: JUSTICE WOODWARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM YOUNG, Defendant-Appellant.
    Second District
    No. 2—90—0046
    Opinion filed October 21, 1991.
    G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, Kathleen T. Zellner & Associates, of Naperville, and James P. Palermini, of Huck, Bouma, Martin, Charlton & Zellner, of Glen Ellyn, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, William Young, was indicted on one count of armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A—2), one count of intimidation (Ill. Rev. Stat. 1987, ch. 38, par. 12—6(a)(1)) and one count of unlawful use of weapons (Ill. Rev. Stat. 1987, ch. 38, par. 24—1(a)(7)). The circuit court found him unfit to stand trial (Ill. Rev. Stat. 1987, ch. 38, par. 104—10 et seq.), and defendant appealed. This court affirmed the finding of unfitness. (People v. Young (2d Dist. 1990), No. 89—0114 (unpublished order under Supreme Court Rule 23).) The circuit court then held a discharge hearing (Ill. Rev. Stat. 1989, ch. 38, par. 104—25) and found that the evidence was sufficient to convict defendant of the aforementioned charges. Defendant appeals from this finding, arguing (1) the court deprived him of his constitutional right to represent himself at the discharge hearing and (2) his trial counsel was ineffective in not raising an insanity defense to the charges. We reverse and remand.

The charges against defendant were based on his conduct on the morning of October 18, 1988, toward his ex-wife and his son, with whom he was living at that time. On November 7, 1988, defendant appeared before Judge Raymond McKoski for a hearing on defendant’s motion to dismiss the public defender as his counsel. The judge questioned defendant to determine whether defendant’s waiver of counsel was knowing and voluntary; defendant invoked his right of silence in response to the questioning. Judge McKoski denied the motion (and defendant’s motion for a change of venue to Biloxi, Mississippi) and ordered that defendant be examined by Dr. Alfred Marx, a psychologist for the Lake County Mental Health Department, to ascertain his fitness to stand trial. Dr. Marx interviewed defendant on November 18, 1988, and also examined the police reports of the events of October 18,1988.

On December 9, 1988, Judge William Block, now presiding over the trial, found that Dr. Marx’s report raised a bona fide doubt of defendant’s fitness to stand trial. He ordered defendant to be examined by Dr. Ronald Baron, a psychiatrist. Dr. Baron interviewed defendant on January 12, 1989. Dr. Baron also reviewed police reports and statements given by defendant’s wife and son, contacted a psychiatrist who had formerly seen defendant infrequently for medication only, and spoke to the assistant public defender who represented defendant throughout the proceedings at the trial level.

When Dr. Marx told defendant the purpose of his examination, defendant replied that he wished to remain silent. According to Dr. Marx:

“[Defendant’s] decision to remain silent is based on the ‘overriding fact’ that he is the central figure in a thirty million dollar civil law suit (starting four years ago) having to do with an injured worker and ‘insurance company fraud,’ involving falsified documents, the F.B.I., and the U.S. Attorney General. He chose not to elaborate regarding this suit.”

Defendant refused to talk about the offenses with which he was charged and said that his actions were a “non-issue.”

Dr. Marx concluded that despite defendant’s “high average intelligence” and good understanding of legal proceedings, defendant’s unwillingness to discuss the events leading up to his arrest precluded a definitive finding of whether he was fit to stand trial. Dr. Marx added, however, that the reports of the alleged offense, defendant’s subsequent behavior and the fitness examination were “highly suggestive of a significant psychiatric disorder which might impair his ability to participate rationally and effectively in his own defense.” According to Dr. Marx, it was to be doubted whether defendant’s “observations and considerations [were] adequately reality oriented. *** [T]here is the distinct possibility that his reasoning and judgment may be based on unrealistic premises, distortions of reality, and/or delusional thinking.”

When Dr. Baron attempted to interview defendant, defendant handed him a note stating that defendant wished to remain silent and that there was a conspiracy against him by Sara Lee Bakeries, where he had worked, and others. Dr. Baron reported that the psychiatrist who had formerly seen defendant for medication only remembered defendant only as “uncooperative and a typical paranoid.” The assistant public defender representing defendant told Dr. Baron that he was limited by defendant’s refusal to talk or let him talk. Dr. Baron concluded that defendant was unfit to stand trial. He wrote:

“While I appreciate the difficulty [Dr. Marx] had in substantiating his hunch, I believe there is ample evidence that [defendant] suffers from a paranoid reaction which significantly interferes with his judgment and his ability to participate rationally in his own defense. *** The further delineation of his disease will have to await securing the hospital records and getting a more adequate history from either the defendant or his family. *** Mr. Young certainly [has] a past history of psychiatric disorder that transcends the immediate offense with which he is charged. His actions in the offense are more in line with a person suffering from persecutory delusions than a rational man.”

On January 26, 1989, the trial court, after a brief hearing at which defendant presented no evidence to rebut the expert reports, entered an order finding defendant unfit to stand trial and placing defendant with the Elgin Mental Health Center. Defendant appealed from the order.

While the appeal was pending, the court received a “progress report” on defendant from the Elgin Mental Health Center. The report, by Dr. Ofelia G. Endrinal, was dated June 28, 1989, filed July 13, 1989, and based on a June 15,1989, fitness evaluation.

Dr. Endrinal concluded that, based on her clinical interview with defendant, her consultation with defendant’s caseworker and treatment team, the police reports and available records, defendant remained unfit to stand trial.

Dr. Endrinal’s report stated that, according to hospital records, this was defendant’s first admission to an Illinois Department of Mental Health and Developmental Disabilities facility, and there was no indication that he had received inpatient private psychiatric treatment. Defendant had attended outpatient sessions at River Edge Hospital. No other information on defendant’s treatment history was available at the time, and defendant refused to provide any.

Defendant refused to discuss the incident leading to his arrest. His conduct, in Dr. Endrinal’s view, was highly suggestive of a “significant paranoid delusional disorder.”

On September 18, 1989, per court order, Dr. Endrinal reported that, in her opinion, defendant would not be fit to stand trial within one year of the original finding of unfitness. Dr. Endrinal explained that she had relied on the June 15, 1989, examination (as defendant refused to be interviewed for a “90-day fitness re-evaluation” on September 12, 1989), pertinent records, and consultation with defendant’s caseworker and the unit psychiatrist. Dr. Endrinal concluded that not only would defendant be unable to participate rationally and effectively in his own defense, but that his mental condition had deteriorated since admission. He was increasingly paranoid and resistant to treatment and continued to be “highly delusional, confused, irrelevant, and illogical.”

Late in September 1989, defendant wrote to G. Joseph Weller of the Office of the State Appellate Defender. He sent copies of the letter to Judge Block, among others. The letter, dated September 27, 1989, reads:

“Dear Mr. Weller:
As indicated in my numerous memos dating back to March, 1989 I am acting as my own attorney and will not be denied that right, and therefore reject Mr. Glaser [defendant’s appellate counsel] as attorney.
Furthermore, I will present at the oral argument proof that the psych report and the court records are false. Judge Block will be peijuring himself if he stated otherwise.
Mr. Glaser may keep me informed as required, but he is not my attorney.
You have ignored my memos for too long, you cannot ignore attempted murder charges which I will also present.
In the meantime I still consider myself illegally detained here atEMHC.
Sincerely,
William H. Young”

Judge Block, uncertain what this letter meant, gave the assistant State’s Attorney and defendant’s trial counsel each a copy and continued the case. On January 8, 1990, two days before this court filed its order affirming the original finding of unfitness, the circuit court held the discharge hearing (Ill. Rev. Stat. 1989, ch. 38, par. 104—25).

Defendant was present at the hearing and was represented by counsel. He asserted no desire to represent himself. Against the advice of the court and counsel, defendant made a statement before trial, which, in its entirety, went (as transcribed) “This court stinks of itnagy. Thank you.”

The prosecution’s principal witnesses were Linda Young, defendant’s ex-wife, and Richard Young, his son. Linda Young testified that on October 19, 1988, she was living at 2325 Federal Parkway in Lindenhurst with defendant, from whom she had been divorced in March of that year, and their 18-year-old son, Richard. Each family member had a separate room. Early that morning, she woke up and noticed that the electricity was off. She went downstairs and saw that defendant was sitting at the kitchen table. He was holding a shotgun and a pistol. She screamed; he ordered her to sit at the table across from him. She did so. He demanded that she write out a confession. She did not understand; he stated that she had killed his mother. She asked him what he meant by that; he referred to accusations that she and Judge Wysocki had made against his mother. She asked defendant what happened to his mother, and he replied that his mother was “not dead” or was “all right.”

Richard Young heard Linda Young screaming and came downstairs. Defendant ordered Richard to sit on the floor and told Linda Young to start writing her confession or he would start shooting her fingers off. She started writing. The guns were on the table, pointed at Linda Young; at some time, defendant pointed a gun at Richard. Eventually, Richard Young sprung at defendant and pushed him against the wall. Linda Young ran next door and Richard Young followed; their next-door neighbor called the police.

On cross-examination, Linda Young stated that she had been married to defendant 23 years. In that time, he had twice committed himself to a mental institution, once early in the 1970s and once in 1982 or 1983. She characterized defendant’s actions of October 19, 1989, as a nervous breakdown; she had seen defendant have nervous breakdowns before, but never that extreme. When she wrote the “confession,” it was because defendant was threatening her with the gun that he was holding.

Richard Young testified that early in the morning of October 19, 1989, he woke up to his mother’s screaming and went downstairs to find that she was seated at the kitchen table across from defendant, who had a shotgun and a pistol. Defendant ordered Richard to kneel on the floor, and Richard did so. Defendant was pointing a gun at Linda Young and ordering her to confess to something. Richard ran out of the room; defendant pointed the shotgun at Linda Young and told Richard that he would kill her if Richard did not come back in. Defendant also attempted to fire the gun. At one point defendant put the shotgun down, and Richard ran toward him; the two struggled for the gun, and Richard eventually pushed defendant away and ran outside to join Linda Young.

On cross-examination, Richard stated that he was not sure if he would characterize defendant’s actions as a nervous breakdown, although he knew that defendant had had a nervous breakdown earlier. Richard had felt threatened because defendant was armed at the time defendant made his threats.

Three Lindenhurst police officers testified to the circumstances of defendant’s apprehension and arrest. Defendant complied with the officers’ demands that he exit the house unarmed. The trial court sustained a prosecution objection when defendant’s attorney asked one officer whether defendant was “acting crazy” when arrested.

The defense put on no witnesses. Defendant’s attorney moved for a finding of acquittal at the close of the State’s evidence. Defendant’s attorney argued only that defendant should be acquitted of the armed violence charge. His argument was that because the intimidation charge depended on the use of the shotgun, the armed violence charge was an impermissible attempt to enhance defendant’s actions to a Class X felony, as the armed violence charge rested on the same use of the shotgun. The trial court denied defendant’s motion.

Aside from a handful of questions on cross-examination, all noted above, defendant’s attorney never argued or suggested that defendant should be found not guilty by reason of insanity.

The court found that the State’s evidence was sufficient to prove defendant guilty beyond a reasonable doubt of the offenses charged. On January 8, 1990, the court entered an order to that effect. The order remanded defendant to the Department of Mental Health and Developmental Disabilities for a period not to exceed two years, the maximum allowed by statute (see Ill. Rev. Stat. 1989, ch. 38, par. 104—25(d)(1)). This appeal followed.

We note initially that although defendant’s appellate brief states that he was “found guilty” at the discharge hearing, a discharge hearing is an “innocent only” proceeding to test the sufficiency of the State’s evidence; although a defendant may be acquitted, a technical determination of guilt is deferred until the defendant is fit to stand trial. (People v. Rink (1983), 97 Ill. 2d 533, 543; People v. Burt (1986), 142 Ill. App. 3d 833, 835.) Where the court has found that it is not substantially probable that a defendant will become fit to stand trial within one year of an adjudication of unfitness, the defendant may move for a discharge hearing. Ill. Rev. Stat. 1989, ch. 38, par. 104—23(a); People v. Quay (1988), 175 Ill. App. 3d 965, 967.

At a discharge hearing, the trial court may make one of three dispositions. First, it may find that the State has carried its burden of proof. It may then remand the defendant for treatment for a period not to exceed, for a Class X or Class 1 felony, a period of two years from the expiration of the original one-year treatment period. (Ill. Rev. Stat. 1989, ch. 38, par. 104—25(d)(1); People v. Burton (1988), 166 Ill. App. 3d 143, 145-46.) At the end of this period, the court may proceed with trial if the defendant is fit or can be rendered fit with special provisions or assistance (Ill. Rev. Stat. 1989, ch. 38, par. 104—25(g)(1)); otherwise, the court must determine whether the defendant is subject to involuntary admission under the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1989, ch. 91½, par. 1—100 et seq.) or constitutes a serious threat to the public safety. If so, the defendant shall be treated similarly to a civilly committed patient; if not, the defendant shall be released (Ill. Rev. Stat. 1989, ch. 38, pars. 104—25(g)(1), (g)(2)).

Second, the court may enter a judgment of acquittal based on a finding that the defendant is not guilty by reason of insanity (Ill. Rev. Stat. 1989, ch. 38, par. 104—25(c)), after which the court must determine, pursuant to section 5—2—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005—2—4), whether the defendant is subject to involuntary admission or in need of mental health services (Ill. Rev. Stat. 1989, ch. 38, par. 104—25(c)). Third, the court may enter a judgment of acquittal not based on a finding of insanity, in which event it may still commit the defendant pursuant to the provisions of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1989, ch. 38, par. 104—25(b)).

Here the court’s finding of unfitness was embodied in its order of January 26, 1989. As the court imposed the maximum term at the discharge hearing, the defendant’s extended term of commitment will expire (and may not run past) January 26, 1992. However, even where the term of treatment expires before the completion of appellate review, an appeal from an order of commitment at a discharge hearing ordinarily will not be considered moot. Yiadom v. Kiley (1990), 204 Ill. App. 3d 418, 424-25.

With these clarifying principles in mind, we move to defendant’s contentions on appeal. Defendant argues first that the trial court violated his constitutional right to waive counsel and appear pro se at the discharge hearing. Defendant construes the letter of September 27, 1989, to G. Joseph Weller as a request that he be allowed to represent himself. He argues that the trial court should have responded to this letter by ascertaining whether defendant was fit to waive his right to counsel and that the trial court’s failure to do so violated defendant’s right to self-representation.

Defendant is correct that the constitutional right to counsel implies a constitutional right to self-representation and that a defendant may waive counsel if such an election is a knowing and intelligent relinquishment of a known right. (People v. Silagy (1984), 101 Ill. 2d 147, 179-80; People v. Davis (1988), 169 Ill. App. 3d 1, 6.) Otherwise, defendant’s argument is meritless and based on a misreading of the record. As the record indicates, Judge McKoski originally found that defendant lacked the capacity to waive the right to self-representation. Defendant never appealed this finding. Defendant’s letter of September 27, 1989, obviously represents his desire to represent himself on his appeal from the finding of unfitness. Defendant never asked to be allowed to represent himself at the discharge hearing and acquiesced in the appointment of an assistant public defender to represent him. Thus, it is understandable that the trial court did not inquire into defendant’s ability to waive the right to counsel; the court had already addressed that issue and decided it unfavorably to defendant, and defendant did not again contest that finding.

In any event, the failure to reopen the inquiry would not have been error. A trial court must carefully scrutinize an asserted waiver of the right to counsel and must determine for itself whether the defendant has the requisite capacity to make an intelligent and knowing waiver. The court must consider various factors including the defendant’s mental capacity. (People v. Kessler (1983), 113 Ill. App. 3d 354, 359.) A defendant who is so mentally ill that he is not fit to stand trial is not likely to have the minimal mental capacity to proceed pro se. Lacking this minimum capacity, he need not and should not be allowed to represent himself even if he wants to do so. (Kessler, 113 Ill. App. 3d at 362, relying primarily on Pickens v. State (1980), 96 Wis. 2d 549, 292 N.W.2d 601.) At the time of the discharge hearing defendant had already been adjudicated unfit to stand trial because of his paranoia and delusional thinking. The court could not reasonably have allowed him to represent himself.

Defendant’s second argument is that he was deprived of the effective assistance of counsel because his attorney at the discharge hearing made no attempt to raise the affirmative defense of insanity. Defendant argues that although the record contains much evidence tending to show that he was insane at the time he committed the alleged offenses, his attorney inexplicably failed to introduce any evidence on the issue at the discharge hearing. Defendant also asserts that his trial counsel failed to pursue discovery that would have supplied witnesses to support an insanity defense.

To prevail on a claim of ineffective assistance of counsel, a defendant ordinarily must show that (1) counsel’s performance was deficient and (2) this deficient performance prejudiced the defense. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064; People v. Albanese (1984), 104 Ill. 2d 504, 525.) To establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome; the defendant need not demonstrate that it was more likely than not that counsel’s errors actually altered the outcome of the proceeding. (Strickland, 466 U.S. at 693-95, 80 L. Ed. 2d at 697-98, 104 S. Ct. at 2068.) Moreover, these principles are guidelines rather than mechanical rules; in each case, the reviewing court must focus on the fundamental fairness of the proceeding and consider “whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.” Strickland, 466 U.S. at 696, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.

In a narrow range of circumstances, prejudice may be presumed. If defense counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, there is a denial of the right to counsel that makes the adversary process itself presumptively unreliable. (United States v. Cronic (1984), 466 U.S. 648, 658-59, 80 L. Ed. 2d 657, 667-68, 104 S. Ct. 2039, 2046-47.) Although defense counsel is not required to create a reasonable defense where none exists, a defendant has the right to require his counsel to subject the prosecution’s case to a meaningful test. (Cronic, 466 U.S. at 656, 80 L. Ed. 2d at 666, 104 S. Ct. at 2045; People v. Hattery (1985), 109 Ill. 2d 449, 461-65.) The guidelines for determining when counsel has been ineffective have been developed primarily in the context of appeals from convictions after criminal trials (or guilty pleas), but we see no reason to apply a different standard to a discharge hearing, where counsel’s performance may determine whether a defendant will be exposed to lengthy confinement and the possibility of a criminal trial and conviction thereafter.

We conclude that defense counsel here failed to subject the prosecution’s case to meaningful adversarial testing and that the result of the discharge hearing must therefore be presumed unreliable. Although courts have characteristically applied the Strickland/ Cronic presumption of unreliability to criminal trials where defense counsel openly and unequivocally concedes the defendant’s guilt against the defendant’s wishes (see Hattery, 109 Ill. 2d at 462-65 (and cases cited therein)), the Supreme Court’s language does not make a formal concession a prerequisite to a presumption of prejudice. Defense counsel’s actions (or inaction) in the case at bar were tantamount to such a concession in any event.

At the discharge hearing, defense counsel put on no witnesses and engaged in minimal cross-examination or argument. Such cross-examination and argument as he made, moreover, were almost entirely directed toward his theory that a conviction of armed violence would be an improper double enhancement of an intimidation conviction. This theory is unsound as a matter of law. (People v. Munson (1988), 171 Ill. App. 3d 274, 276-77.) It cannot be said that defendant wished to concede his guilt or even that he was competent to do so. Defense counsel thus did not subject the prosecution’s case to meaningful testing.

Had there been no bona fide defense, defense counsel would not have been ineffective for not raising one. (Cronic, 466 U.S. at 656 n.19, 80 L. Ed. 2d at 666 n.19, 104 S. Ct. at 2045 n.19.) However, the argument that defendant was insane at the time of the alleged offenses was not so lacking in merit as to make it objectively reasonable for defense counsel to forego any meaningful attempt to raise it at the hearing. We are aware that it would have been defendant’s burden to show by a preponderance of the evidence that at the time of the alleged offenses, as a result of a mental disease or defect, he lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. (Ill. Rev. Stat. 1987, ch. 38, par. 6—2(a); People v. Quay (1988), 175 Ill. App. 3d 965, 968.) We are also aware that unfitness to stand trial is not the equivalent of insanity at the time of the offense. (People v. Lang (1979), 76 Ill. 2d 311, 327.) Nonetheless, even on the limited record before us, it does not appear that the failure of defense counsel even to argue the defense of insanity was objectively reasonable.

At the time of the discharge hearing, defendant had been examined by a number of experts who unanimously concluded that he was suffering from paranoia and delusional thinking. Dr. Marx interviewed defendant within a month of the acts on which the charges were based, and Dr. Baron interviewed defendant less than two months thereafter. Dr. Baron concluded not only that defendant had a history of psychological disorders, but also that defendant’s conduct on October 19, 1988, was “more in line with a person suffering persecutory delusions than a rational man.” Indeed, it is hard to imagine why else defendant would have coerced his former wife at gunpoint into signing a “confession” that she killed someone who was not dead. Assuming that there was some reason not to call witnesses on the issue of insanity, it is not clear why defense counsel did not at least attempt to incorporate the evidence already of record in the case.

Defendant argues additionally that the failure to raise an insanity defense at the hearing indicates that defense counsel was ineffective in failing to investigate a possible insanity defense. In several cases, the appellate court has reversed convictions where defense counsel failed to make an adequate investigation into the evidence that would support the insanity defense. People v. Baldwin (1989), 185 Ill. App. 3d 1079; People v. Murphy (1987), 160 Ill. App. 3d 781; People v. Howard (1979), 74 Ill. App. 3d 138.

In the appeal at bar, there was easily accessible evidence of defendant’s prior hospitalizations for mental problems. Defendant’s ex-wife, under cross-examination by defense counsel, stated that defendant had twice admitted himself to mental institutions, once in the early 1970’s and again in either 1982 or 1983. Defendant’s son confirmed that his father had been previously hospitalized for a “nervous breakdown.” Normally a failure to investigate will not support a claim of ineffective assistance of counsel unless defendant on appeal can show with some specificity what additional evidence his trial counsel could have produced from the investigation. (People v. Young (1983), 115 Ill. App. 3d 455.) Here it is evident even a cursory investigation would have discovered evidence relevant to defendant’s defense. Therefore, we find this failure to investigate defendant’s mental history as a further example of defense counsel’s ineffective assistance.

We believe that the fairest resolution is to remand for a new discharge hearing. We note, however, that defendant’s term of treatment pursuant to the order from which he has appealed expires three years from the original finding of unfitness. This period is the maximum permissible pursuant to a discharge hearing. (People v. Burton (1988), 166 Ill. App. 3d 143, 146.) At the end of this period, therefore, the court must either find defendant fit to stand trial and proceed accordingly or order his commitment according to statute (Ill. Rev. Stat. 1989, ch. 38, pars. 104—25(c), (g)). The disposition will of course depend on the outcome of the new discharge hearing; however, defendant may not be remanded for further treatment (see Ill. Rev. Stat. 1989, ch. 38, par. 104—25(d)) for a term that expires after the statutory maximum of three years from the original finding of unfitness.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

DUNN and BOWMAN, JJ., concur.