author: JUSTICE WELCH

text:
    CEDRIC WEBB, Plaintiff-Appellant, v. MICHAEL P. LANE et al., Defendants-Appellees.
    Fifth District
    No. 5—90—0609
    Opinion filed December 13, 1991.

      Cedric Webb, of Menard, appellant pro se.

    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Robert G. Toews, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE WELCH

delivered the opinion of the court:

Plaintiff, Cedric Webb, appeals from the September 6, 1990, order of the circuit court of Randolph County, Illinois, dismissing his complaint against Michael P. Lane, Director of the Illinois Department of Corrections (Department), Jim Greer, Chief Administrator of Menard Correctional Center, and R. Ticer, K. Schau and T. Thomas, correctional officers and members of the institutional adjustment committee at Menard. In plaintiff’s complaint based on an alleged violation of his civil rights under “the Civil Rights Act of 1870 [sic]” (see 42 U.S.C. §1983 (1988)), he alleged that on July 24, 1989, a Menard correctional officer had seized $800 in United States currency during a search of his cell and that this property had been confiscated and forfeited to the Resident’s Benefit Fund pursuant to Department Rule 501.230 (20 Ill. Adm. Code §501.230 (1985)). In this pro se appeal, plaintiff argues that his complaint adequately stated a claim upon which relief could be granted and that he was denied due process of law when the prison officials confiscated and forfeited his United States currency without a prior due process hearing. Plaintiff seeks to reverse the September 6, 1990, order and to remand this case to the Randolph County circuit court for further proceedings.

Plaintiff alleged in his complaint that as a result of the search he had been charged in a disciplinary report with possession of money, a violation of Department Rule 504, Table A No. 207 (see 20 Ill. Adm. Code §504, Table A (1988)), and that he had appeared before the institutional adjustment committee to respond to said charges on July 27, 1989. At said hearing plaintiff did not request witnesses be called on his behalf and admitted to having the United States currency in his cell. The institutional adjustment committee found plaintiff guilty of possession of United States currency and imposed the following punishment on Webb: (1) revoke good-time credits of two months, (2) demotion to “C” grade for four months, and (3) 15 days’ segregation time.

Plaintiff alleged in his complaint that his $800 was confiscated and forfeited to the Resident’s Benefit Fund pursuant to Department Rule 501.230, which states:

“a) Weapons, alcohol, unauthorized controlled substances, drug paraphernalia or items of like character shall be retained until termination of use in criminal or disciplinary proceedings and then shall be properly disposed.
b) Unauthorized currency shall be deposited in the Resident’s Benefit Fund after use in criminal or disciplinary proceedings.
c) If it is determined that other unauthorized or excess property confiscated as contraband belongs to the committed person:
1) The committed person may arrange to have it shipped at his own expense or may arrange to have it picked up at the facility during certain hours by a designated person within a reasonable time. The committed person must designate in writing the name of the individual who is authorized to pick up his property.
2) Confiscated property may be destroyed at the written request of the committed person.
d) If it is determined that unauthorized or excess property confiscated as contraband belongs to another committed person, it shall be returned to the owner if he is authorized to have the property. If not, the property shall be disposed of in accordance with Paragraph (e) of this Section.
(e) Property which a committed person does not arrange to have shipped or picked up from the facility, or where the owner cannot be identified shall be made State loan or destroyed.
(f) If a committed person indicates in writing his intent to grieve the confiscation of excess authorized property, the property shall be retained at the facility until the grievance procedure has been completed.” (20 Ill. Adm. Code §501.230 (1985).)

Plaintiff contended in his complaint that he did not receive a hearing either prior to or after the confiscation and forfeiture of his money and therefore defendants had deprived him of his right to due process of law as secured by the fifth and fourteenth amendments to the United States Constitution. Plaintiff further contended that defendants had violated 42 U.S.C. section 1983 under color of State law in that:

(a) defendants Lane and Greer had punished plaintiff by forfeiting his $800 without a hearing concerning the final disposition of his money;
(b) defendants Lane and Greer confiscated his personal property of $800 in United States currency;
(c) defendants Lane and Greer confiscated and forfeited his personal property pursuant to Department Rule 501.230(b), which is unconstitutional and arbitrary on its face and does not allow a committed person a hearing concerning the seizure and disposition of his property if the property is (unauthorized) currency, whereas other contraband may be disposed of at the owner’s discretion under Rule 501.230; and
(d) defendants Ticer, Schau, and Thomas failed to specify the reasons for the particular punishment imposed.

Plaintiff sought a declaratory judgment that the practices complained of are unlawful and violative of 42 U.S.C. section 1983; a permanent injunction prohibiting defendants from engaging in the unlawful practices, policies, customs, and usages set forth in the complaint and from continuing any and all other practices shown to be in violation of applicable law; immediate return to plaintiff of the $800; an injunction prohibiting defendants from any retaliatory action against plaintiff; and an award of costs, reasonable attorney fees, compensatory damages of $1,000, and punitive damages of $1,000.

Defendants’ motion to dismiss argued that plaintiff’s complaint failed to state a cause of action against defendants because nowhere had he alleged the violation of any due process procedures, thereby constituting violation of plaintiff’s fourteenth amendment rights, and that plaintiff was, in fact, granted due process in the taking of his property. Defendants Lane and Greer further argued that the complaint failed to state a cause of action against them because plaintiff did not allege any facts linking said defendants with any alleged denial of due process and that they were apparently named in their supervisory capacities in connection with Menard Correctional Center and the Illinois Department of Corrections.

A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle a plaintiff to recover. (Johnston v. City of Bloomington (1979), 77 Ill. 2d 108, 113, 395 N.E.2d 549, 551.) Moreover, the allegations of the complaint must be taken as true where judgment is entered upon allowance of a motion to dismiss the complaint. Johnston, 77 Ill. 2d at 111, 395 N.E.2d at 550.

Section 1983 of the Civil Rights Act of 1871 provides:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit at equity, or other proper proceeding for redress.” (42 U.S.C.S. §1983 (Law. Co-Op. 1986).)

In an action predicated upon section 1983, the court must focus on whether two essential elements are present: (1) whether the conduct complained of was committed by a person acting under color of State law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the constitution or other laws of the United States. (Jones v. Clark (E.D. Pa. 1984), 607 E Supp. 251, 254.) The pleadings indicate that plaintiff has alleged sufficient facts with regard to the presence of this first element. With respect to the second element, plaintiff claims that his right to due process has been violated. The fourteenth amendment provides that no State shall “deprive any person of life, liberty, or property without due process of law.” (U.S. Const., amend. XIV, §1.) In order to make out a valid due process claim plaintiff must establish three prerequisite elements: (1) the existence of a protected life, liberty or property interest; (2) a deprivation of that protected interest; and (3) State action effecting the deprivation of the protected interest. (Jones, 607 F. Supp. at 254, citing Parratt v. Taylor (1981), 451 U.S. 527, 536-37, 68 L. Ed. 2d 420, 429, 101 S. Ct. 1908, 1913-14; Daniels v. Williams (1986), 474 U.S. 327, 330-31, 88 L. Ed. 2d 662, 668, 106 S. Ct. 662, 664.) Conduct that constitutes “State action” for purposes of the fourteenth amendment’s due process clause is also conduct “under color of State law” for purposes of section 1983 actions. Baltz v. Shelley (N.D. Ill. 1987), 661 F. Supp. 169, 175.

We will first address plaintiff’s allegation that Department of Corrections Rule 501.230(b) is unconstitutional and discriminatory on its face. Because pro se civil rights complaints are ordinarily accorded a liberal construction (Haines v. Kerner (1972), 404 U.S. 519, 520, 30 L. Ed. 2d 652, 654, 92 S. Ct. 594, 596), we interpret this allegation to be a contention by plaintiff that the promulgation of this regulation by the Department of Corrections was a violation of substantive due process. The term “due process of law” signifies dual components: it relates to both procedural and substantive law. (In re Petition of Smith (1986), 82 N.C. App. 107, 110, 345 S.E.2d 423, 425.) Procedural due process means notice and an opportunity to be heard and to defend in an orderly proceeding, while substantive due process denotes a standard of reasonableness and limits a State’s exercise of its police power. Smith, 82 N.C. App. at 111, 345 S.E.2d at 425.

Plaintiff claims to have had a protected property interest in the use of his currency and that the complete confiscation of his currency based upon a prison rule is discriminatory where this rule allows prisoners to send other items of unauthorized property home, or dispose of it in other manners, as is provided in sections (c) and (d) of Rule 501.230. For purposes of the due process clause, property interests must be found in State or Federal law. (Campbell v. Miller (7th Cir. 1986), 787 F.2d 217, 222, citing Board of Regents v. Roth (1972), 408 U.S. 564, 577, 33 L. Ed. 2d 548, 549, 92 S. Ct. 2701, 2709; Shango v. Jurich (7th Cir. 1982), 681 F.2d 1091, 1097.) Under the Unified Code of Corrections, the Department of Corrections

“shall establish accounting records with accounts for each person who has or receives money while in an institution or facility of the Department and it shall allow the withdrawal and disbursement of money by the person under rules and regulations of the Department. *** The Department shall disburse all moneys so held no later than [his or her] final discharge from the Department. The Department shall under rules and regulations record and receipt all personal property not allowed to committed persons. The Department shall return such property to the individual no later than the person’s release on parole.” (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 4—3(a).)

It is beyond dispute, therefore, that an Illinois prison inmate would have a property interest in the funds on deposit in his prison account. (Accord Quick v. Jones (9th Cir. 1985), 754 F.2d 1521, 1523; Campbell v. Miller (7th Cir. 1986), 787 F.2d 217, 222; Jones v. Clark (D.C. Pa. 1984), 607 F. Supp. 251, 254.) The issue here turns, however, on whether plaintiff had at least a possessory property interest in “unauthorized,” or contraband, currency.

In Sell v. Parratt (8th Cir. 1977), 548 F.2d 753, the eighth circuit upheld the findings of the Federal district court that under Nebraska law inmates’ possession of money gave them a “possessory” property interest protected within the meaning of the fourteenth amendment, and that confiscation of that property was “punitive” in nature amounting to a forfeiture, a proceeding which is not favored by the law and not specifically authorized by Nebraska law. The eighth circuit held in Sell that an administrative agency has no right without underlying statutory authority to prescribe and enforce forfeitures of property as punitive measures for violations of administrative rules and regulations and violates the due process clause of the fourteenth amendment if it does so. The court noted in dictum, however, that it did not hold that a State legislature may not constitutionally provide by statute that such money shall be permanently confiscated, provided that the forfeiture proceedings are surrounded by adequate procedural safeguards and provided that inmates who are found with money in their possession are given some opportunity to justify their possession notwithstanding their apparent violation of prison rules. (Sell, 548 F.2d at 759.) Numerous Federal and State decisions, in accord with the dictum expressed in the Sell case, provide that seizure and forfeiture of currency as contraband from an inmate pursuant to proper statutory and administrative procedures is not a violation of due process of law. (See Baker v. Piggott (11th Cir. 1987), 833 F.2d 1539, 1540; Harris v. Forsyth (11th Cir. 1984), 735 F.2d 1235, 1236; Hanvey v. Blankenship (4th Cir. 1980), 631 F.2d 296, 297; Sullivan v. Ford (5th Cir. 1980), 609 F.2d 197, 198; In re Petition of Smith (1986), 92 N.C. App. 107, 110, 345 S.E.2d 423, 424; cf. Blackmon v. Norris (Tenn. App. 1989), 775 S.W.2d 367, 369-70 (general statutory statements as to the powers and duties of the Department of Corrections are not enough; the legislature must pass a statute specifically authorizing the forfeiture of case or other items designated as contraband under prison rules).) Plaintiff relies on Sell v. Parratt (8th Cir. 1977), 548 F.2d 753, for the proposition that the confiscation of his $800 in United States currency was punitive in nature, amounted to a forfeiture, and constituted a violation of the due process clause of the fourteenth amendment. We interpret plaintiff’s argument to be based on an observation that in the instant case, as in the Sell case, there was no specific underlying statutory authority for the Department of Corrections to prescribe a forfeiture rule as punishment for the unauthorized possession of money.

Defendants argue in response that the Illinois legislature and the Department of Corrections have constructed a reasonable scheme for controlling the influx of currency into the Department’s penal institutions and that under this scheme it is clear that an inmate may not possess currency while incarcerated. The Unified Code of Corrections provides that the Department shall promulgate rules and regulations in conformity with the Code (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 7—1), and that the Department shall establish rules and regulations for the protection of the person and property of employees of the Department and every committed person (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 7—4). The Code further provides that when an inmate is received into the custody of the Department of Corrections, “[t]he Department shall inventory and issue a receipt to such person for all money and other personal property not permitted to the possession of such person.” Ill. Rev. Stat. 1989, ch. 38, par. 1003-8-l(c).

The Department provides by regulation that “ ‘[contraband’ means items which are proscribed by criminal law, departmental rules or posted notices; items for which a committed person has no authorization to possess; or property which is in excess of that which is authorized by the facility.” (20 Ill. Adm. Code §501.210 (1985).) Pursuant to Department Regulation §504, possession of money is made a punishable offense applicable to inmates in the Department’s adult institutions and facilities. (20 Ill. Adm. Code §504 (1985).) It is further defined in Table A No. 207 of said regulation as “possessing or causing to be brought into the institution, United States coin or currency or a negotiable instrument.” (20 Ill. Adm. Code §504, Table A (1985).) Maximum penalties in terms of number of days in “B” or “C” grade, reduction of good-time credits, and segregation are set for this offense in Table A No. 207 of this regulation, as well.

The Criminal Code of 1961 specifically provides that certain enumerated items shall constitute contraband within a penal institution: alcoholic liquor, cannabis, controlled substances, hypodermic syringes or needles, weapons, firearms, and firearm ammunition. (Ill. Rev. Stat. 1989, ch. 38, par. 31A — 1.1.) Nowhere in the Unified Code of Corrections or the Criminal Code of 1961, however, does the legislature specifically provide that any contraband found in the possession of an inmate shall be confiscated, or that unauthorized money in the possession of the inmate shall constitute contraband, or that the Department of Corrections has the power to denote any items of personal property to be contraband. Thus, under the reasoning of the Federal and State cases following Sell, the Department of Corrections does not have any specific underlying statutory authority for promulgating a regulation allowing the forfeiture of unauthorized money found in the possession of its inmates.

This is not to say that we agree with plaintiffs contention that he has a protected property interest under Elinois law in this unauthorized currency or that the Department’s regulatory scheme violates substantive due process. Unlike the situation in the Sell case, wherein the court determined that an inmate had a property interest in the currency under Nebraska State law, we find that because section 3 — 4—3(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 4—3(a)) evidences a legislative intent to allow prison officials to regulate the possession of money by inmates within Elinois penal institutions, under Elinois law a prison inmate has no protected property interest following incarceration in currency unauthorized by Department regulation to be in his or her possession. For this reason, we decline to hold Sell to be determinative of the issue of whether Regulation 501.230(b) violates due process. In our independent research we could locate no Elinois cases to be on point or persuasive authority with respect to our determination of this issue. However, we shall set forth two cases from other jurisdictions which we find particularly instructive and shall adopt their reasoning in support of our holding that plaintiff had no protected property interest in the contraband currency.

In Bryant v. Barbara (1986), 11 Kan. App. 2d 165, 717 P.2d 522, a prison inmate challenged the constitutionality of prison regulations requiring the registration of all personal property possessed by inmates and the seizure and forfeiture of all personal property not registered to the inmate and found to be in his possession. The court reasoned that if there are constitutionally permissible limitations of the inmates’ property rights which would invalidate the existence of a protectable interest in certain property, the deprivation of that property does not violate due process; therefore, before an inmate can be said to have a protected interest in possessing tangible personal property, that possession must not be prohibited by a lawful prison regulation. (Bryant, 11 Kan. App. 2d at 168, 717 P.2d at 524.) The court also noted with respect to the procedural due process analysis of the prison regulation that the initial seizure was permitted by the registration rule and that once classified as “contraband,” plaintiff lost all rights to the property unless a finding was made at a hearing that the item was not, in fact, contraband. (Bryant, 11 Kan. App. 2d at 168, 717 P.2d at 525.) The court in Bryant held that plaintiff had no protectable interest in the property seized by the prison authorities and its disposal did not work a deprivation of any constitutional right. Bryant, 11 Kan. App. 2d at 170, 717 P.2d at 526.

In Lowery v. Cuyler (E.D. Pa. 1981), 521 F. Supp. 430, the plaintiff brought a civil rights action complaining of the confiscation of cash discovered in a routine cell search and alleged that under the authority of the Sell case, such confiscation was a violation of his right to due process; The Federal district court held that the prison regulation providing for the confiscation of contraband money did not violate due process and granted summary judgment for the defendant prison superintendent. As in the instant case, possession of money by an inmate within the confines of the penal facility was prohibited by prison regulation and plaintiff contended that there was a lack of express statutory authority authorizing confiscation of currency from prisoners in that State, relying on Sell v. Parratt. The court in Lowery reasoned that the proper inquiry in cases such as these after the Supreme Court’s decision in Bell v. Wolfish (1979), 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861, is “whether a state prison system may define the property in which an incarcerated inmate [is not permitted to acquire] an .interest after his incarceration.” The forfeiture question becomes irrelevant, the court in Lowery determined, where there is no protectable property interest in the forfeited items. (Lowery, 521 F. Supp. at 432.) In our opinion, the Lowery court was most instructive in its observation that with this approach the case is not so much a “property interest/due process” case as it is a “conditions of confinement” case and as such is controlled by Bell v. Wolfish, a United States Supreme Court decision which postdated Sell v. Par ratt and which teaches that courts should accord great deference to decisions made by correctional officials concerning the security needs of their institutions. Lowery, 521 F. Supp at 432.

In Bell v. Wolfish (1979), 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861, the Supreme Court acknowledged that prisoners do not forfeit all constitutional protections by reason of their confinement but noted that “simply because prison inmates retain certain constitutional rights does not mean that these rights are not subject to restrictions and limitations.” (Bell, 441 U.S. at 545, 60 L. Ed. 2d at 472-73, 99 S. Ct. at 1877.) As the Supreme Court has also noted, “[ljawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen.” (Wolff v. McDonnell (1974), 418 U.S. 539, 555, 41 L. Ed. 2d 935, 950, 94 S. Ct. 2963, 2974.) It is reasoned that “[a] state has a compelling interest in maintaining security and order in its prisons and, to the extent that it furthers this interest in reasonable and non[]arbitrary ways, property claims by inmates must give way.” (Sullivan v. Ford, 609 F.2d at 198.) The Supreme Court explained in Bell the rationale behind this judicial deference to be accorded correctional officials:

“Prison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape or unauthorized entry. Accordingly, we have held that even when an institutional restriction infringes a specific constitutional guarantee, such as the First Amendment, the practice must be evaluated in the light of the central objective of prison administration, safeguarding institutional security. [Citations.]
*** [T]he problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions. Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security. [Citations.] ‘Such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.’ ” (Bell, 441 U.S. at 547-48, 60 L. Ed. 2d at 473-74, 99 S. Ct. at 1878-79, quoting Pell v. Procunier (1974), 417 U.S. 817, 827, 41 L. Ed. 2d 495, 504, 94 S. Ct. 2800, 2806.)

The court in the Lowery case validated the regulation at issue pursuant to what it viewed as the “mandate” of the Supreme Court in Bell.

The Supreme Court has, since Bell v. Wolfish, expanded upon the substantive due process analysis. The court in Turner v. Safley (1987), 482 U.S. 78, 96 L. Ed. 2d 64, 107 S. Ct. 2254, has instructed that when a prison regulation impinges on inmates’ constitutional rights and does not involve the rights of those who are not inmates, the regulation is not subject to a strict-scrutiny standard of review but is valid if it is reasonably related to legitimate penological interests. (Turner v. Safley, 482 U.S. at 89, 96 L. Ed. 2d at 79, 107 S. Ct. at 2261-62.) The factors relevant to determining the reasonableness of such a regulation are: (1) whether there is a valid, rational connection between the prison regulation and a legitimate and neutral governmental objective put forward to justify the regulation; (2) whether there are alternative means of exercising the asserted constitutional right that remain open to prison inmates; (3) what impact accommodation of the asserted constitutional right will have on guards and other inmates and the allocation of prison resources, generally; and (4) whether there are ready, obvious, or easy alternatives to the challenged regulation. (Turner, 482 U.S. at 89-90, 96 L. Ed. 2d at 79-80, 107 S. Ct. at 2262.) If a least restrictive alternative is proposed by an inmate that fully accommodates the prisoner’s rights at a de minimis cost to valid penological interests, a court may consider the alternative as evidence that the regulation does not satisfy the reasonable-relationship standard. Turner, 482 U.S. at 91, 96 L. Ed. 2d at 80, 107 S. Ct. at 2262.

Accordingly, we decline to analyze the substantive due process issue as the courts did in Sell and its progeny and instead follow the instruction of the Supreme Court in Turner v. Safely. Our analysis of the constitutionality of Rule 501.230(b) turns then on whether the Department of Corrections had a legitimate penological interest in seizing and forfeiting, as contraband, unauthorized currency found to be in the possession of an inmate. With regard to the first factor relevant in determining the reasonableness of this regulation under Turner, the court in Sell v. Parratt noted:

“It has long been prison policy to prohibit inmates from having in their possession what is called ‘free world’ or ‘green’ money. The reasons for the prohibition are obvious. An inmate with currency in his possession may be the subject of attack by other inmates; an inmate with funds is in a better position to escape than an inmate who has no money; the money in the possession of an inmate may be used to bribe guards or other prison employees.” (Sell, 548 F.2d at 756.)

Moreover, the Lowery court noted, in holding that the regulation was reasonable, that prohibiting the possession of money is a valid condition of confinement because possession of cash might enable inmates to purchase contraband, traffic in illegal services such as sex and drugs, and facilitate escape attempts and bribery of staff. Additionally, the Lowery court found the regulation reasonable because prohibition will help the correctional facility staff avoid internal conflicts and violence due to possible robbery attempts. (Lowery, 521 F. Supp. at 433.) Defendants in the instant case have noted that serious institutional hazards are created by permitting inmates to keep large sums of currency and that the statute and regulations were designed to control the influx of currency into the State’s penal institutions. We also note the Unified Code of Corrections’ mandate that the Department of Corrections promulgate regulations which will protect the person and property of Department employees and inmates of Department facilities. We therefore find a valid rational connection between Department Rule 501.230(b) and a legitimate and neutral governmental objective justifying the regulation.

With regard to the second factor, whether there are alternative ways of exercising the asserted constitutional right, we. note summarily that the Unified Code of Corrections provides in section 3— 4 — 3 thereof for the protection and disbursement of prison inmates’ money during incarceration. With respect to the third and fourth factors, plaintiff has suggested as an alternative to Regulation 501.230(b) that contraband currency be allowed to be sent to designated parties as other property is allowed to be dealt with in sections (c) and (d) of Regulation 501.230 dealing with disposal of contraband. We find that such alternative would not serve to deter and may even encourage the conduct of bringing in contraband currency into the prison and therefore would impact adversely on prison security. As the Lowery court so aptly noted with regard to this same alternative suggested by the plaintiff inmate, “[otherwise, it will ‘always be profitable in the long run for inmates to attempt to smuggle cash into the prison, for they would never totally lose it.” (Lowery, 521 F. Supp. at 433.) We find the suggested alternative does not support a rejection of the reasonableness of Rule 501.230(b).

We must conclude under Bell v. Wolfish, as expanded by the court in Turner v. Safely, that Department Rule 501.230(b) does not violate substantive due process because the Department of Corrections had a legitimate penological interest in promulgating such regulation. We further find that under this legitimate regulation, plaintiff would have no protected property interest in the possession of unauthorized currency. For this reason, we need not reach the issue of whether the procedure afforded inmates under the Department regulations prior to the confiscation of the unauthorized currency violates procedural due process. We do note, however, that plaintiff was afforded an opportunity at the hearing before the institutional adjustment committee to challenge the charge of possessing unauthorized United States currency.

Because plaintiff is unable to maintain in the instant case either a violation of substantive or procedural due process by defendants, we hold that the circuit court of Randolph County did not err in dismissing plaintiffs complaint and will affirm its order of September 6, 1990.

Affirmed.

GOLDENHERSH, P.J., and RARICK, J., concur.


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
    THE BOARD OF EDUCATION OF POPE COUNTY COMMUNITY UNIT SCHOOL DISTRICT No. 1, Plaintiff-Appellant and Cross-Appellee, v. THE STATE BOARD OF EDUCATION et al., Defendants-Appellees and Cross-Appellants.
    Fifth District
    No. 5—91—0152
    Opinion filed December 18, 1991.

      Rick W. Abell, of Metropolis, for appellant.
    P. Michael Kimmel, of Gilbert, Kimmel, Huffman & Prosser, Ltd., of Carbondale, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Defendant, Thurman E. Shumaker, was employed for six years as a school counselor by the plaintiff, the Board of Education of Pope County Community Unit School District No. 1 (Board). He was suspended and dismissed on March 22, 1985, on charges of insubordination, negligence, failure to carry out assigned duties, lack of cooperation with teachers and staff, failure to cooperate and assist students and their parents, and conduct unbecoming a professional teacher.

Mr. Shumaker requested a hearing on the dismissal before a State Board of Education hearing officer pursuant to section 24 — 12 of the School Code (Ill. Rev. Stat. 1985, ch. 122, par. 24 — 12). On August 7, 1985, the hearing officer found the causes for dismissal were remediable, held the dismissal improper and ordered the Board to reinstate the defendant and reimburse him for lost income. On September 11, 1985, the Board filed for an administrative review. The circuit court affirmed the hearing officer’s decision on May 14, 1986, but did not direct reinstatement or specify damages. The Board filed an appeal from the circuit court’s decision. On November 19, 1986, this court held the Board’s appeal was untimely filed and dismissed it for want of jurisdiction. Board of Education v. Illinois State Board of Educa tion (1986), No. 5 — 86—0636 (unpublished summary order), appeal denied, (1987), 114 Ill. 2d 543, 508 N.E.2d 725.

On March 27, 1987, the Board instituted a reduction in force due to economic factors. Five teachers, including Shumaker, were honorably dismissed.

On September 27, 1987, Shumaker filed a petition to enforce the circuit court’s May 14, 1986, decision. On the motion of the Board, the circuit court dismissed the petition because it had no jurisdiction to hear the case. Defendant Shumaker appealed, and this court held that the circuit court had jurisdiction to enforce its order and remanded the matter for Shumaker’s reinstatement and to find and set the amount of damages and costs incurred by him. Board of Education v. Illinois State Board of Education (1990), 197 Ill. App. 3d 1110 (unpublished Rule 23 order).

The Board filed an affirmative defense in the circuit court on September 23, 1990, alleging the reduction in force had terminated Mr. Shumaker’s employment as of May 29, 1987. Shumaker objected and the issue was taken with the case as the court reserved its ruling on the matter. The hearings included evidence on the reduction-in-force issue. The circuit court ordered that defendant Shumaker be reinstated “instanter” and assessed damages accordingly.

In its February 1, 1991, order the circuit court stated:

“As to the reduction in force affirmative defense, this Court views, and would allow affirmative, [sic] only to the extent that it would be impossible to follow the mandate of the Court of Appeals. *** Shumaker should be reinstated instanter pursuant to the Court of Appeals mandate.”

This wording suggests that the circuit court misinterpreted our June 5, 1990, order as precluding any consideration of the Board’s affirmative defense and calling for an immediate reinstatement regardless of the offsetting evidence.

The sole issue before this court at that time was the matter of circuit court jurisdiction. No evidence regarding damages had been presented. In a case of improper dismissal of a teacher, the measure of damages is the amount the teacher would have earned had he not been improperly dismissed. (Birk v. Board of Education of Flora Community Unit School District No. 35 (1983), 120 Ill. App. 3d 181, 186, 457 N.E.2d 1065, 1069.) The Board’s reduction-in-force affirmative defense goes directly to damages and as such must be fully weighed and considered before damages can be determined. Had the defendant died in the interim, reinstatement would obviously have been impossible and would have directly affected damages. A similar analogy can be made here. If the intervening economic reduction in force would have legitimately terminated the employment of Mr. Shumaker, had he not already been improperly dismissed, it would affect the damages and could prevent reinstatement.

We, therefore, reverse and remand on the issue of damages and reinstatement and direct the circuit court to consider the Board’s affirmative defense in determining said damages and subsequent reinstatement.

Reversed and remanded with directions.

HOWERTON and HARRISON, JJ., concur.


author: JUSTICE LEWIS PRESIDING JUSTICE GOLDENHERSH,

text:
      In re MARRIAGE OF ANN MANNS, Petitioner-Appellant and Cross-Appellee, and LARRY R. MANNS, Respondent-Appellee and Cross-Appellant.— LARRY R. MANNS, Petitioner-Appellee, v. ANN MANNS, Respondent-Appellant.
    Fifth District
    Nos. 5—90—0504, 5—90—0530 cons.
    Opinion filed December 20,1991.

      GOLDENHERSH, P.J., dissenting.
    Schiller, Du Canto & Fleck, of Chicago (Robert W. Wilcher and Sarane C. Siewerth, of counsel), for appellant.
    Morris B. Chapman & Associates, Ltd., of Granite City (Morris B. Chapman, Melissa A. Chapman, Glenn E. Bradford, and Clarence W. Harrison II, of counsel), for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

These appeals, No. 5 — 90—0504 and No. 5 — 90—0530, were argued separately but have been consolidated for opinion by agreement of the parties during oral argument.

No. 5-90-0504

In Madison County No. 90 — D—22, on January 5, 1990, Ann R. Manns as petitioner filed a petition, subsequently amended, for dissolution of marriage. On April 26, 1990, the respondent, Larry R. Manns, filed a petition for reimbursement in the amount of one-half the sum of $160,000, the sum which he alleged he had been required to advance by way of payment of the parties’ estimated joint income tax for 1989. The parties were engaged in a number of joint commercial enterprises, many involving the rental of real estate owned jointly by them. Following a hearing on June 12, 1990, the trial court that same day entered an order granting the respondent’s “Motion for Reimbursement” and requiring Ann Manns to pay to Larry Manns $111,191.17 within three days. The trial court also ordered both parties not to make further withdrawals from their business accounts for personal reasons.

On June 15, 1990, Ann Manns moved voluntarily to dismiss her cause of action without prejudice pursuant to section 2 — 1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1009). According to the minute record, on June 15, 1990, counsel for Ann Manns indicated that a copy of her motion to dismiss voluntarily had been served on Larry Manns, and the trial court, assuming that notice had been given, entered the order granting the motion on that day without notifying counsel for Larry Manns. However, upon the trial court’s discovery later that same day that notice had not been given as required, the court called counsel for both parties and advised that the order of voluntary dismissal had been vacated and set aside.

On June 19, 1990, Larry Manns filed a petition for rule to show cause why Ann Manns should not abide by the order of June 12, 1990, “and especially why she has not delivered the moneys due respondent thereunder.” On July 3, 1990, following a hearing on June 28, 1990, the trial court entered an order finding

“that it is [Ann Manns’] right to voluntarily dismiss this cause; but, such Motion for Dismissal cannot be allowed to interfere with the effect of the Court’s previous Order as this would prejudice the rights of the Respondent and allow the Petitioner to use the voluntary dismissal for the sole purpose of avoiding an unfavorable order.”

In this order the court described its previous order of June 12, 1990, as a “Temporary Order.” The trial court dismissed the cause on the motion of Ann Manns but stated that it “retains jurisdiction for purposes of enforcing the Order entered on June 12, 1990, and this matter is to be set by the Clerk on the next available date on [Larry Manns’] Petition for Rule to Show Cause why [Ann Manns] should not be held in contempt for failure to comply with that Order.” Trial had not been had and judgment had not been entered as to the dissolution of the marriage. No counterpetition for dissolution of marriage had been filed.

On July 12, 1990, Ann Manns answered the petition for rule to show cause, stating that the contempt proceedings “have been abated by virtue of the Court’s order of July 3, 1990[,] dismissing the underlying proceedings out of which this Petition for Rule to Show Cause arose. There is no justiciable case or controversy pending before this Court.” That same day Ann Manns filed a motion to dismiss the petition for rule to show cause because the trial court “lacks subject matter jurisdiction over the Petition for Rule to Show Cause, which has been abated by the dismissal of movant’s Petition for Dissolution of Marriage.” Thereafter, on August 2, 1990, Ann Manns filed a notice of appeal “from the Order entered on June 12, 1990, and made final by the order entered on July 3, 1990.” On August 7, 1990, Larry Manns filed a notice of cross-appeal from the order entered on July 3, 1990.

Ann Manns presents two issues for review: (1) whether in an action for dissolution of marriage a trial court may order a distribution of one party’s separate property to the other party without a full hearing on the marital or nonmarital nature of the property and (2) whether a trial court may retain jurisdiction to enforce a temporary order even after the entire cause is dismissed upon the petitioner’s motion for a voluntary dismissal. In his cross-appeal Larry Manns raises a single issue, whether a party may voluntarily dismiss an action “when preliminary mandatory injunction has been granted the opposing party.”

In her brief on appeal Ann Manns contends, inter alia, that section 2 — 1009(a) of the Code of Civil Procedure grants to any plaintiff the absolute right to dismiss the action without prejudice at any time before trial or hearing begins, upon notice and payment of costs. She maintains that the trial court erred in imposing an impermissible restriction upon her absolute right to have her case dismissed. She argues that the status of the case upon voluntary dismissal is “as if no dissolution action had ever been filed; because no cause of action remained before the court, there was nothing to enforce, and any temporary order was rendered nugatory.”

Section 2 — 1009(a) of the Code of Civil Procedure provides as follows:

“The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party’s attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause. Thereafter the plaintiff may dismiss, only on terms fixed by the court (1) upon filing a stipulation to that effect signed by the defendant, or (2) on motion specifying the ground for dismissal, which shall be supported by affidavit or other proof. After a counterclaim has been pleaded by a defendant no dismissal may be had as to the defendant except by the defendant’s consent.” Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1009(a).

A plaintiff has an absolute right to take a voluntary dismissal unless there exists an unequivocal conflict between a specific rule of the supreme court and section 2 — 1009, as occurred in O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322, or there exists a previously filed motion, which, if ruled upon favorably by the court, could result in a final disposition of the cause of action, as occurred in Gibellina v. Handley (1989), 127 Ill. 2d 122, 535 N.E.2d 858. (See In re Marriage of Saleh (1990), 202 Ill. App. 3d 131, 559 N.E.2d 812.) It has been broadly held that the voluntary dismissal statute grants plaintiffs the absolute privilege to dismiss regardless of motive. (Rohr v. Knaus (1987), 153 Ill. App. 3d 1013, 506 N.E.2d 634.) It is well settled that prior to trial or hearing the right to dismiss an action voluntarily is subject only to the obligation to pay court costs. (In re Marriage of Mostow (1981), 95 Ill. App. 3d 915, 420 N.E.2d 731.) Otherwise stated, this statute clearly confers the right to dismiss prior to trial or hearing and expressly imposes on that right a single condition, that the moving party pay the opposing party’s costs (Mostow, 95 Ill. App. 3d 915, 420 N.E.2d 731). For purposes of section 2 — 1009, “hearing” means the taking of evidence for the court’s determination on the issues in the action sought to be dismissed. (See Mostow, 95 Ill. App. 3d 915, 420 N.E.2d 731.) Upon proper notice and payment of costs, a plaintiff has an absolute right to dismiss his action before a trial or hearing has begun, and the trial court has no discretion to interfere with the exercise of that right. (City of Palos Heights v. Village of Worth (1975), 29 Ill. App. 3d 746, 331 N.E.2d 190.) The trial court is vested with discretion to fix terms concerning a voluntary dismissal after trial or hearing has begun, but it does not follow that the court has the same discretion prior thereto. (City of Palos Heights, 29 Ill. App. 3d 746, 331 N.E.2d 190.) The trial court cannot fix terms to the detriment of a plaintiff as to a voluntary dismissal before a trial or hearing has begun. City of Palos Heights, 29 Ill. App. 3d 746, 331 N.E.2d 190.

In Saleh, after the petitioner had filed his petition for dissolution of marriage, the respondent obtained an award of temporary maintenance. Later, the respondent filed a motion for rule to show cause alleging that the petitioner had failed to pay the temporary maintenance previously awarded to her. No hearing was requested on this petition, and no date was set by the court to consider the petition. Thereafter, the petitioner filed a motion for voluntary dismissal, at which time trial had not yet commenced and the respondent had not filed a counterpetition for dissolution of marriage or any other counterclaim. The trial court denied the petitioner’s motion for voluntary dismissal. On review, the order denying the motion was vacated and the cause was remanded for further proceedings. The court in Saleh stated that the petitioner had an absolute right to dismiss the cause voluntarily pursuant to section 2 — 1009. The case did not, the court reasoned in Saleh, present the situation, as in O’Connell, where the statutory enactment permitting a voluntary dismissal conflicts directly with a specific supreme court rule or the situation, as in Gibellina, where a motion existed which, if ruled upon favorably by the court, would have resulted in a final disposition of the case. The respondent’s petition for rule to show cause, the court said expressly, was not such a motion. Declining to place further limitations upon the common law and statutory right of plaintiffs to dismiss their cases, beyond those limitations imposed in O’Connell and Gibellina, the court in Saleh held that under the circumstances the plaintiff there had an absolute right to dismiss voluntarily his petition for dissolution of marriage.

In Mostow the petitioner filed her petition for dissolution of marriage and thereafter was granted temporary maintenance, child support, fees and costs. Before trial was to begin, petitioner moved for a voluntary dismissal without prejudice. The respondent did not contest the propriety of the dismissal itself but requested that the trial court impose conditions on petitioner’s right to dismiss the action, namely, reimbursement for certain of the aforementioned payments, including attorney fees, payment of his accountant’s fees, payment for other costs and expenses, and barring of the petitioner from seeking temporary maintenance in the event that she refiled an action for dissolution of marriage. The trial court granted the petitioner’s motion for a voluntary dismissal but refused to impose conditions, which refusal the respondent urged as error. The court on review determined that, contrary to the respondent’s assertions, the four-day hearing on petitioner’s motion for temporary maintenance and support did not constitute a trial on the issues because that hearing was on the preliminary issues of temporary maintenance, support, and fees and did not relate to the issues of the dissolution action itself which the petitioner sought to dismiss. Thus, the court concluded, for purposes of the statute no trial or hearing had begun. Observing that the statute expressly imposes on the right to dismiss prior to trial or hearing the sole condition that the moving party pay the opposing party’s costs, the court was unable to read any additional conditions into the statute and held that the trial court had properly denied the respondent’s request that the petitioner’s right to dismiss be subject to her reimbursement of the respondent for his payment of her attorney fees and costs and to her payment of his accountant’s fees. For the same reasons, the court said, the trial court properly refused to bar the petitioner from seeking temporary maintenance in the future if she filed another dissolution action: “Such a penalty clearly contravenes the express statutory language that the right to dismiss prior to trial is absolute” (Mostow, 95 Ill. App. 3d at 918, 420 N.E.2d at 733).

In the instant case, section 2 — 1009 does not conflict with a supreme court rule, and no motion existed which, if ruled upon favorably by the court, would have resulted in a final disposition of the case. Nor did the hearing conducted on the respondent’s petition for reimbursement constitute a hearing related to the issues of the dissolution action itself sought to be dismissed. Inasmuch as no trial or hearing had begun for purposes of section 2 — 1009, the trial court could impose upon Ann Manns’ absolute right to dismiss without prejudice prior to trial or hearing the sole condition that she pay Larry Manns’ costs. The trial court could not, however, impose additional conditions upon that right. By requiring that Ann Manns comply with the order for reimbursement entered on June 12, 1990, the trial court effectively imposed an additional — and impermissible — condition upon her absolute right, under these circumstances, to dismiss prior to trial or hearing. That it could not do. Therefore, we affirm that part of the judgment granting Ann Manns a voluntary dismissal and vacate that part of the order pertaining to the enforcement of the order entered on June 12. 1990.

In light of this disposition, we need make no determination with regard to Ann Manns’ contention that, because the marriage had not yet been dissolved, the trial court lacked authority to order reimbursement of the respondent by her.

With respect to his cross-appeal, the respondent states that Ann Manns was permitted to dismiss her petition for dissolution of marriage voluntarily “even though a hearing had been had on the mandatory injunction.” The principal difficulty with this assertion is that a hearing was had on the respondent’s petition for reimbursement. A mandatory injunction was neither sought nor granted. As we have already indicated, the hearing so conducted was one unrelated to the issues of the dissolution action itself sought to be dismissed. Nor may the respondent’s petition for reimbursement be deemed, as he suggests in his reply brief, a counterclaim. By this petition, filed on his behalf as respondent in the dissolution action, he sought and obtained relief concerning a matter which — if it were properly considered by the trial court at that time — was, at most, a preliminary one. The respondent stresses “the inequities of the situation,” arguing that, unlike other civil actions, an action for dissolution of marriage can be brought as long as a marriage continues and that the respondent is, therefore, on a treadmill, subject to indefinite dismissals under section 2 — 1009 and indefinite refilings. In the history of these proceedings, however, the petitioner has exercised her right of voluntary dismissal but once. Thus, this appears to us an inappropriate case in which to consider the imposition of a limitation, beyond those limitations already imposed in O’Connell and Gibellina, upon the common law and statutory right of plaintiffs to dismiss their cases. Hence, we may not, as the respondent asks us to do, reverse the order of the trial court granting the petitioner’s motion for voluntary dismissal.

No. 5-90-0530

In Madison County No. 90 — CH—284, after having obtained a temporary restraining order on August 8, 1990, Larry Manns as plaintiff filed that same day a complaint for injunction against Ann Manns as defendant, seeking to restrain her from proceeding with case No. 90 — D—10991 for dissolution of marriage in Cook County “or from filing any other action for divorce or related thereto in this or any other state until a final resolution of the Madison County action is determined.” The Madison County action to which he refers is that discussed above, No. 90 — D—22, appeal No. 5 — 90—0504. During the pendency of the appeal in No. 5 — 90—0504 Ann Manns filed an action for dissolution of marriage in Cook County on August 3, 1990. Larry Manns sought to enjoin her from proceeding with that cause or any other for dissolution of marriage during the pendency of the appeal in No. 5 — 90—0504. Following a hearing the trial court on August 15, 1990, entered an order dissolving the temporary restraining order and

“enjoining and restraining Respondent Ann R. Manns[,] her agents or servants from proceeding further with the divorce action Cause No. 90 — D—10991 in the Circuit Court of Cook County or any other similar action at law or equity in Illinois while there exist [sic] a pending appeal of her cause of action 90 — D—22 originally filed in Madison County and now on appeal. This order to remain in effect until further order of this Court.”

From this order Ann Manns appeals, pursuant to Supreme Court Rule 307(a)(1) (134 Ill. 2d R. 307(a)(1)), presenting a single issue for our review, whether Larry Manns has fulfilled the prerequisites of a temporary restraining order and preliminary injunction sufficiently so that each of the requirements for the injunction was established by a preponderance of the evidence.

By its own terms the order for injunction endures “while there exist [sic] a pending appeal of her cause of action 90 — D—22 originally filed in Madison County and now on appeal.” With our filing of this opinion today, the appeal in No. 90 — D—22, No. 5 — 90— 0504, is no longer pending, and as a consequence, the injunction terminates with this filing. Inasmuch as this filing renders moot the appeal in No. 5 — 90—0530, pertaining to the injunction, we do not consider the issue there presented and hereby dismiss the appeal.

No. 5 — 90—0504, Affirmed in part; vacated in part.

No. 5 — 90—0530, Dismissed.

HOWERTON, J., concurs.

PRESIDING JUSTICE GOLDENHERSH,

dissenting:

I respectfully dissent and draw specific attention to that part of the majority opinion which vacates the circuit court’s order of July 3, 1990, relating to enforcement of its June 12, 1990, order granting the petition for reimbursement filed by respondent, Larry Manns.

The majority opinion characterizes the circuit court’s order of July 3, 1990, as imposing an improper condition upon the right of petitioner, Ann Manns, to dismiss her action prior to the commencement of a hearing on the merits. I disagree with the concept that the circuit court’s order of July 3, 1990, constituted imposition of a condition upon this nearly absolute right to dismiss; in fact, this order reserved to the court its right to enforce a judgment it had already made on respondent’s petition for reimbursement which the trial court properly treated as a counterclaim.

The petition for reimbursement requested relief independent of an ultimate distribution of marital assets and also independent of the necessary finding prior to a distribution that the assets to be distributed were, in fact, marital. The basis of this petition for reimbursement was the ongoing business relationship between the parties and definite ascertainable financial transactions between the two of them as well as a joint obligation for taxes. While not labeled as a counterclaim, this petition was, in fact, a counterclaim. In re Marriage of Black (1985), 133 Ill. App. 3d 59, 477 N.E.2d 1359.

In Black, the court characterized a counterclaim as distinguishable from an answer or affirmative defense in that it seeks affirmative relief of some kind. The Black court held that the intervening grandparents’ petition seeking an award of custody constituted a counterclaim which could not be defeated by voluntary dismissal of the initial petition for dissolution pursuant to section 2 — 1009 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1009), and, in fact, barred that voluntary dismissal. The petition for reimbursement granted by the trial court in this action is comparable to the petition for custody in Black.

The majority reaches its conclusion by treating the petition for reimbursement as a temporary request for distribution of property prior to any determination of its character as marital or nonmarital. By assuming that the petition asks for a distribution of possibly marital property, the majority can then conclude that the petition for reimbursement is an integral part of the dissolution action which appellant sought to dismiss as opposed to an independent claim that would be in the nature of a counterclaim. The majority can thereby consider this petition for reimbursement subject to dismissal as part of the underlying claim pursuant to section 2 — 1009 of the Code. The majority opinion frames the issue in terms of whether “a trial court may order a distribution of one party’s separate property to the other party without a full hearing on the marital or nonmarital nature of the property.” (Emphasis added.) 222 Ill. App. 3d at 341.

Given this characterization of the petition as a request for distribution of property as opposed to a petition in the nature of a counterclaim, the majority then proceeds to characterize the trial court’s order granting the petition for reimbursement on June 12, 1990, as a temporary order. Once the order of June 12, 1990, is characterized as a temporary order, it, of necessity, becomes subject to dismissal under section 2 — 1009 and the majority’s conclusion on the second issue logically follows from the characterizations contained in the first issue; a temporary order must of necessity abate upon dismissal of the underlying petition for dissolution. Both authorities cited for support of the majority’s ruling (In re Marriage of Saleh (1990), 202 Ill. App. 3d 131, 559 N.E.2d 812, and In re Marriage of Mostow (1981), 95 Ill. App. 3d 915, 420 N.E.2d 731) dealt with truly temporary orders and are thus distinguishable from the case at bar.

The majority’s disposition of cause No. 5 — 90—0530 is also dependent upon the court’s characterization of the trial court’s June 12, 1990, order as a temporary order.

In sum, since I think the situation in Black more accurately characterizes the case at bar than either Saleh or Mostow, I respectfully dissent from my colleagues’ disposition of this appeal.


author: JUSTICE GEIGER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. C.S., Defendant-Appellant.
    Second District
    No. 2—89—0644
    Opinion filed December 31,1991.

      G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendant, C.S., appeals from the trial court’s orders: (1) that she undergo a blood test for human immunodeficiency virus (HIV) and (2) disclosing the positive test results. We affirm the court’s order, as modified.

The defendant pleaded guilty to unauthorized possession of a hypodermic needle or syringe (Ill. Rev. Stat. 1989, ch. 38, par. 22 — 50) and was sentenced to 270 days in the county jail. Thereafter, pursuant to section 5 — 5—3(h) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3(h)), the court ordered the defendant to submit to HIV testing. Section 5 — 5—3(h) mandates such testing for persons convicted of unauthorized possession of a hypodermic needle or syringe.

The defendant's HIV test results were positive, and the State moved for disclosure of the results. The court ordered the defendant to report for treatment information from public health officials. It also ordered that the defendant’s test results be disclosed to all attorneys in the criminal division of the Winnebago County State’s Attorney’s office, to two persons at the Winnebago County jail, and to the Rockford city police supervisor of detectives.

In its order, the court found it necessary and in the public interest that law enforcement personnel be protected against physical harm in future contacts with the defendant and that both law enforcement personnel and lawyers in the State’s Attorney’s office be informed of facts sufficient to initiate or institute proper criminal charges in future contacts with the defendant. The court also found it was in the defendant’s privacy interest that police disclosure be made only to one specific supervisor.

The defendant appealed and was granted stay of the disclosure order, pending appeal. On appeal, the defendant challenges the constitutionality of the section 5 — 5—3(h) requirement that she be tested for HIV or any other causative agent of acquired immunodeficiency syndrome (AIDS). She also argues that, even if she was constitutionally tested for HIV, the court’s disclosure order was an abuse of discretion. We first address the constitutionality of section 5 — 5—3(h).

Section 5 — 5—3(h) provides as follows:

“(h) Whenever a defendant is convicted of an offense under Section 1 or 2 of ‘An Act to regulate the possession, delivery, sale or exchange of hypodermic syringes, hypodermic needles, and similar instruments,’ *** the defendant shall undergo medical testing to determine whether the defendant has been exposed to *** (HIV) or any other identified causative agent of *** (AIDS). Except as otherwise provided by law, the results of such test shall be kept strictly confidential by all medical personnel involved in the testing and must be personally delivered in a sealed envelope to the judge of the court in which the conviction was entered for the judge’s inspection in camera. Acting in accordance with the best interests of the public, the judge shall have the discretion to determine to whom, if anyone, the results of the testing may be revealed.” Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3(h).

The “section 1” offense to which section 5 — 5—3(h) refers is the offense of which the defendant was convicted. It is defined as follows:

“§1. No person, not being a physician, dentist, chiropodist or veterinarian licensed under the laws of this State or of the state where he resides, or a registered professional nurse, or a registered embalmer, manufacturer or dealer in embalming supplies, wholesale druggist, manufacturing pharmacist, registered pharmacist, manufacturer of surgical instruments, industrial user, official of any government having possession of the articles hereinafter mentioned by reason of his official duties, nurse or a medical laboratory technician acting under the direction of a physician or dentist, employee of an incorporated hospital acting under the direction of its superintendent or officer in immediate charge, or a carrier or messenger engaged in the transportation of such articles, or the holder of a [statutorily described prescription], or a farmer engaged in the use of such instruments on livestock, or a person engaged in chemical, clinical, pharmaceutical or other scientific research, shall have in his possession a hypodermic syringe, hypodermic needle, or any instrument adapted for the use of controlled substances or cannabis by subcutaneous injection.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 22 — 50.

In her first argument, the defendant refers to the intrusive nature of the mandatory blood test here and to the sensitive privacy issues connected with the AIDS-related results. According to the defendant, the interest of promoting public health is not particularly furthered by this testing and disclosure law. In her argument, the defendant points to the fact that section 5 — 5—3(h) does not require that results be disclosed to the person tested and does not prescribe or authorize any treatment for an infected person. She also notes that the statute is situated amongst criminal, not public health, provisions.

Additionally, the defendant compares the provisions of section 5— 5 — 3(h) to the testing requirements under the Illinois Sexually Transmissible Disease Control Act (Ill. Rev. Stat. 1989, ch. 111½, par. 7401 et seq.). That latter, public health statute allows involuntary AIDS testing only upon the presentation of a warrant showing exhaustion of less coercive means and real and present danger to public health. Ill. Rev. Stat. 1989, ch. 111½, par. 7406(c).

According to the defendant, the section 5 — 5—3(h) testing requirement is more akin to a police dragnet than to a scheme carefully tailored to reduce infringement of protected rights. She labels section 5 — 5—3(h) as a “standardless mandate.” She notes that the court ordering her blood test had no evidence that she might be infectious, except that she had been convicted of illegal possession of hypodermic-injection items. She notes that there was no showing made or attempted that she had used the hypodermic devices that she was convicted of possessing, that she customarily used such devices, or that she was addicted to drugs that are customarily injected. Further, she notes that even if we assume that she was infectious, there was no showing here either of a real and present danger to the public health or that there were no less coercive alternatives to the testing. See Ill. Rev. Stat. 1989, ch. HV-k, par. 7406(c).

Mandatory blood testing is a search and seizure that must comply with the United States Constitution’s fourth amendment standards for reasonableness. (Schmerber v. California (1966), 384 U.S. 757, 767-68, 16 L. Ed. 2d 908, 918, 86 S. Ct. 1826, 1834.) A search’s reasonableness is measured by balancing the nature and quality of the intrusion into the individual’s fourth amendment interests against the importance of the governmental interest alleged to justify the intrusion. O’Connor v. Ortega (1987), 480 U.S. 709, 719, 94 L. Ed. 2d 714, 724,107 S. Ct. 1492, 1498-99.

In its argument to support the mandatory testing here, the State notes the extent and significance of AIDS-related viruses today. It also notes generally understood information that those viruses are most commonly spread through sexual contact but that the exchange of blood products, most commonly by needle-sharing drug users, is another common means of transmission.

Citing Flanders and Flanders’ Aids Library in a Book (1991), the State observes that intravenous drug users are considered less likely than other risk groups to engage in safe sexual practices and that there exists concern that the disease they may contract may spread to the general population either sexually or through contaminated blood transfusions. According to the State, it cannot be denied that the people of Illinois have a vital interest in controlling the spread of AIDS and that section 5 — 5—3(h) is a well-reasoned response to the accelerating epidemic of HIV infection among intravenous drug users.

The defendant acknowledges that the State has an interest in promoting public health. However, she challenges making a connection between possessing drug-injection equipment and being in a high-risk group for AIDS contraction; in that vein, she challenges the related view that it would be a reasonable exercise of the State’s police powers to AIDS test a person who had been shown to have possessed drug-injection equipment. We agree with the State’s general position that the testing of individuals belonging to a high-risk group for contraction of AIDS viruses in the midst of the AIDS epidemic, is a reasonable exercise of the State’s police powers. (Cf. Skinner v. Ry. Labor Executives’ Association (1989), 489 U.S. 602, 103 L. Ed. 2d 639, 109 S. Ct. 1402.) Further, given the documented connection between illegal intravenous drug use and the spread of HIV infection, we find that testing likely illegal intravenous drug users is that kind of reasonable exercise of State police power. See Glover v. Eastern Nebraska Community Office of Retardation (D. Neb. 1988), 686 F. Supp. 243, aff’d (8th Cir. 1989), 867 F.2d 461.

Further, given the particularity with which the defendant’s “section 1” offense is defined, we find that mandating a test for persons convicted of the offense is equivalent to mandating a test for likely illegal intravenous drug users. The “section 1” prohibition on possession of devices adapted for drug injection has been carefully drafted to apply only to persons without legally recognized reason to possess those items closely connected with illegal intravenous drug use. We find that the connection is sufficiently direct to negate a constitutional need for further evidence of illegal intravenous drug use to justify testing.

In finding the test mandate of section 5 — 5—3(h) to be constitutional, we acknowledge that blood testing to secure personal information about AIDS exposure is extremely sensitive. (See Glover v. Eastern Nebraska Community Office of Retardation (D. Neb. 1988), 686 F. Supp. 243, aff'd (8th Cir. 1989), 867 F.2d 461; Woods v. White (W.D. Wis. 1988), 689 F. Supp. 874.) However, we find that the testing requirement of section 5 — 5—3(h) directly addresses the public health concerns surrounding the spread of HIV among intravenous drug users. It does not compel an oppressive treatment, but rather requires mere submission to a minimally intrusive medical technique involving virtually no risk, trauma, or pain. (See Schmerber, 384 U.S. at 771, 16 L. Ed. 2d at 920, 86 S. Ct. at 1836; cf. In re Reliford (1978), 65 Ill. App. 3d 177.) Additionally, the statute’s test mandate is limited to persons convicted of criminality connected with high-risk behavior for the transmission of a deadly disease. (See Ill. Rev. Stat. 1989, ch. 38, par. 22 — 50.) Further, the statute specifically provides for confidentiality of test results. (Cf. Woods v. White (W.D. Wis. 1988), 689 F. Supp. 874.) Lastly, although the Illinois Sexually Transmissible Diseases Act provides for standards different from the ones here, that act does not address the same narrow interests as section 5 — 5—3(h)’s provisions for blood testing of likely intravenous drug users. We find that the State’s interest here is based on an acceptable and narrow purpose and that the HIV-test mandate of section 5 — 5—3(h) passes constitutional muster. See In re Reliford (1978), 65 Ill. App. 3d 177, 182.

We go on, then, to examine the court’s specific order of test-result disclosure in this case. Under section 5 — 5—3(h), the court has the discretion to determine, in accordance with the best interests of the public, to whom, if anyone, the HIV test results should be revealed. Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3(h).

As an initial position, the defendant has stipulated to the propriety of the court’s order that officials at the Winnebago County jail be informed of her test results. We endorse the defendant’s agreement with that portion of the court’s disclosure order.

In their role as day-to-day physical caretaker for the defendant, the jail personnel could well face practical decisions that they can appropriately address only with knowledge of her infected status. In that regard, for example, their knowledge could be necessary to dissuade them, in the defendant’s interest, from exposing her unnecessarily to persons infected with a cold or other contagious condition. Upon considering related information, they might determine that such exposure was a more significant risk for her than for a prisoner not known to be infected. Furthermore, given their own exposure to physical contact with the defendant and the seriousness of contracting the infection, the jail personnel should, in their own interest, be entitled to knowledge that enables them to cautiously avoid the defendant’s accidental or intentional communication of the virus to them. This portion of the court’s disclosure order clearly was within the court’s discretion.

We now, then, address the remaining, contested portions of the court’s disclosure order. Regarding those orders, for disclosure to State’s Attorney personnel and to police for the purpose of instituting or initiating criminal charges, the defendant argues that the court’s order is needlessly broad. She notes her broad privacy right under Illinois law (Leopold v. Levin (1970), 45 Ill. 2d 434, 440-41; People v. Jackson (1983), 116 Ill. App. 3d 430, 432-35) and asserts that her “weighty privacy interest is being sacrificed upon an altar of prosecutorial paranoia that she will engage in criminal activity in which her infected status will play a role.”

Particularly regarding disclosure to all criminal division lawyers in the office of the State’s Attorney, the State argues that the goal to provide appropriate charging information for the future is a legitimate factor supporting test-result disclosure here. The State emphasizes that the defendant was not a person who voluntarily submitted to an AIDS test and that she has a significant criminal history. It urges that her HIV infection can have an impact on possible future offenses.

After considering the parties’ analyses, we conclude that the court’s order for disclosure to the State’s Attorney personnel was without justification in the public interest and, thus, an abuse of discretion. The State’s most forceful argument to support the order is that in the event of potential prosecution under section 12 — 16.2 of the Criminal Code of 1961, for example, the defendant’s HIV status could well be essential to prosecutors. Section 12 — 16.2 prohibits a person who knows that he is infected with the HIV virus from certain conduct which is considered to possess the potential for transmitting the virus. Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16.2.

The defendant argues that if, as has been speculated, she is involved in criminal activity in the future, prosecutors need only petition the court for disclosure of test results. Although the defendant does not directly argue the point, we conclude that her argument is supported by the disclosure language of section 5 — 5—3(h). As we read it, section 5 — 5—3(h) does not restrict the court to a one-time consideration of to whom it is in the public’s interest to disclose a defendant’s positive HIV status. (See Williams v. Illinois State Scholarship Comm’n (1990), 139 Ill. 2d 24, 50-51.) Further, the State has presented no persuasive argument, and we do not find, that the results of the defendant’s HIV test would be inaccessible to the State’s Attorney in the future event that those results were necessary to a specifically anticipated prosecution.

We note that the fact of the defendant’s conviction of possessing injection equipment remains available to the State. Likewise, the State is informed that the defendant submitted to the mandatory HIV testing in connection with that conviction. Consequently, if the defendant’s HIV test results become relevant to preparations for specific future prosecution, the State will be in a position to know if it should petition the court for disclosure under section 5 — 5—3(h). In that event, the court can assess, based on additional relevant facts, whether disclosure to the State’s Attorney or his personnel is in the public interest.

Given the importance of the defendant’s privacy interest, the absence of the facts demonstrating a current prosecution use for the defendant’s test results, and our conclusion that the section 5 — 5—3(h) disclosure procedure will be available to the State’s Attorney if facts supporting a specific future prosecution arise, we find that the court’s order of disclosure to State’s Attorney personnel was an abuse of discretion. We vacate that portion of the court’s judgment.

Regarding release of test results to the Rockford police supervisor, the State acknowledges that one of the court’s stated purposes, to allow the police to institute proper criminal charges in the future, is not directly applicable; the State’s Attorney has exclusive authority to determine the extent to which a person should be prosecuted for criminal conduct. (People v. Dandridge (1987), 152 Ill. App. 3d 941, 943.) Nevertheless, even considering the defendant’s privacy interest we find that this portion of the court’s disclosure order was within the court’s constitutional discretion under section 5 — 5—3(h).

In reaching our conclusion, we rely on part of the court’s second stated rationale for release of test results to the Rockford police department — that disclosure was necessary and in the public interest to protect law enforcement personnel against physical harm. We consider that police have occasion to stop and search individuals. Based on that fact, we find that the trial court here could reasonably and properly determine that section 5 — 5—3(h) disclosure to the police supervisor was in the public interest.

By ordering disclosure to a supervisory officer who is in a position to advise other officers of proper procedures for dealing with the public, the court provided that supervisor with increased information about officers’ potential contact with a population that includes infected individuals. Thus, it better prepared the supervisor to develop and promulgate an appropriate policy that, for example, would help officers avoid accidental punctures from a possibly infected needle carried on a searched individual’s person.

Accordingly, even weighing the defendant’s privacy interests (see Woods v. White (W.D. Wis. 1988), 689 F. Supp. 874), we find no reason to disturb the court’s determination that the direct supervisor of police detectives should be informed of the defendant’s positive test for HIV. With that information, the supervisor will be better able to advise officers of appropriate levels of health precautions in their contacts with the public.

Based on the foregoing, we vacate the portion of the order of the circuit court of Winnebago County that ordered disclosure of State’s Attorney personnel. We then affirm the order as modified.

Affirmed as modified.

INGLIS and BOWMAN, JJ., concur.


author: JUSTICE HARRISON

text:
    ELYSE R. MEYER, Plaintiff-Appellee, v. JAMES E. MEYER, Defendant-Appellant.
    Fifth District
    No. 5—90—0584
    Opinion filed December 26,1991.

      William C. Evers III, of Collinsville, for appellant.
    David M. Fahrenkamp, of Edwardsville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Defendant, James E. Meyer, appeals from a judgment of the circuit court of Madison County which (1) found him in contempt of court for failure to make child support payments and ordered him to pay plaintiff, Elyse Meyer, past-due child support in the amount of $100; (2) reduced his future child support obligations from $275 a month to $75 a month; (3) found that plaintiff was entitled to a sum equal to one-half of the fair market rental value of the former marital residence for the period during which defendant’s girl friend lived with him there; and (4) ordered defendant to pay $80 of plaintiffs attorney fees. We reverse and remand for further proceedings.

The marriage between plaintiff and defendant was dissolved in a judgment entered on February 23, 1989. At the time of the dissolution, the parties had two sons, Daniel and Kristian. Under the terms of judgment, plaintiff was given primary physical custody of Kristian, while defendant was given primary physical custody of Daniel. Plaintiff received no maintenance, but defendant was required to pay her child support for Kristian in the amount of $275 per month. There were also various provisions for the distribution of the parties’ property. Chief among them was that defendant had “the right to the exclusive possession of the marital home for a period of six (6) years or until his remarriage.”

In April of 1990, some 14 months after the judgment of dissolution, defendant petitioned the court to terminate his obligation to pay child support to plaintiff. The basis for this request was that Kristian no longer resided with plaintiff and was, in fact, emancipated. Two months later, defendant filed a supplementary motion asking that plaintiff be required to reimburse him for all past child support payments he had made to her following Kristian’s emancipation.

Plaintiff responded shortly thereafter by moving to have defendant’s girl friend ousted from the marital residence and to have the house sold pursuant to conditions set forth in the dissolution judgment. Plaintiff’s motion also claimed that she was entitled to certain rental payments for the period during which the girl friend lived with defendant in the house. In addition, plaintiff moved to have defendant held in contempt of court on the grounds that he had ceased making child support payments to hér after filing his motion to terminate and was now $1,100 in arrears.

The court ruled on these motions following a hearing held August 13, 1990. Although the court found that Kristian had been in the Job Corps since September of 1989 and had not resided with plaintiff since that time, it refused to relieve defendant of his past child support obligations. It did, however, reduce defendant’s payments from $275 per month to $75 per month for the period between April of 1990, when defendant filed his motion to terminate those payments, and September of 1990, when Kristian was to turn 18. The court also ruled that defendant could cease making all child support payments for Kristian as of September 1,1990.

In the same order, the court found defendant in contempt of court for unilaterally terminating his support payments after filing his motion to terminate but held that the contempt was not willful. It ordered him to pay an arrearage of only $100, not the $1,100 requested by plaintiff, and to pay $80 of plaintiff’s attorney fees. The court also denied plaintiff’s request that the marital residence be sold. However, it did find that defendant was obligated to “reimburse plaintiff k of the fair market rental value from June 1, 1990, [when defendant’s girl friend first occupied the marital residence] until the [girl] friend vacates the premises.” The reimbursement was to be in the form of a credit “which shall be paid by the [defendant] at the time the marital home is sold.”

On this appeal, defendant argues that the circuit court acted improperly in requiring him to reimburse plaintiff for one-half of the fair market rental value of the marital residence. We agree. The original judgment of dissolution stated: “The husband shall have the right to the exclusive possession-of the marital home for a period of six (6) years or until his remarriage.” An award of exclusive possession of a marital residence is in the nature of a property settlement. This is so even where, as here, the right to exclusive possession is not permanent but will terminate upon some future contingency such as remarriage. (In re Marriage of Christianson (1980), 89 Ill. App. 3d 167, 173, 411 N.E.2d 519, 524.) By holding that defendant was obligated to pay plaintiff one-half of the fair market rental value of the house, the circuit court was, in effect, modifying this property settlement. The order cannot be construed in any other way. It had nothing to do with maintenance to plaintiff, for she demanded no maintenance. Nor did it have anything to do with defendant’s child support obligations. Its sole purpose was to place a new condition on defendant’s right to the property after he began using it in a way that plaintiff did not like.

The law in this State is clear that the provisions of a dissolution judgment governing property disposition “may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.” (Ill. Rev. Stat. 1989, ch. 40, par. 510(b); In re Marriage of Clark (1986), 149 Ill. App. 3d 613, 618, 500 N.E.2d 1092, 1095.) In this case, the circuit court made no finding that the judgment should be reopened, and plaintiff never claimed that conditions existed which would justify its being reopened. The award of rental payments to plaintiff was therefore plainly improper and must be set aside.

We must also set aside the circuit court’s judgment to the extent that it denied defendant’s right to reimbursement for previous child support payments and ordered him to continue paying additional sums, plus an arrearage. Section 510(d) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 510(d)) provides that “[u]nless otherwise agreed in writing or expressly provided in the judgment, provisions for the support of a child are terminated by emancipation of the child.” Although extraordinary circumstances must exist before a court will allow support to terminate where, as here, a child has yet to reach the age of majority (In re Marriage of Wilde (1986), 141 Ill. App. 3d 464, 476, 490 N.E.2d 95, 103), we believe that such circumstances were present in this case.

Defendant established that Kristian enrolled in the Job Corps and moved out of plaintiff’s house on September 23, 1989. He never returned, except for brief visits on weekends and holidays. He did not even reside in this State. According to the evidence, he lived in a Job Corps Center in Indiana for the first five months he was in the program. He subsequently moved to a Job Corps Center in St. Louis, Missouri, where he completed his service. The Corps enabled Kristian to be self-sufficient. It provided him with room and board, clothing (after an initial 90- or 120-day period), medical care, vocational training and spending money.

Once he was in the Corps, Kristian asked nothing from defendant, his father, and plaintiff’s contributions were reduced to little more than giving him a place to stay, food to eat and other incidentals when he came into town to visit her. Although Kristian did leave the Corps shortly before his eighteenth birthday, he never returned to plaintiff’s care or custody. Even when he eventually relocated to the same town where she lived, he chose to stay not with her, but with a friend. There is no evidence that he did this for anything other than a desire to remain independent of his parents, and his actions manifest a permanent abandonment of the parental home.

Plaintiff nevertheless contends that Kristian cannot be deemed emancipated because no formal order of emancipation was obtained pursuant to the provisions of the Emancipation of Mature Minors Act (Ill. Rev. Stat. 1989, ch. 40; par. 2201 et seq.). This argument is wholly without merit. The Act does not provide the exclusive method for obtaining emancipation of a minor under Illinois law, and the terms of the Act explicitly so state. See Ill. Rev. Stat. 1989, ch. 40, par. 2202.

Plaintiff argues, in the alternative, that defendant should only be relieved of his child support obligations for the period following the date on which he filed his motion to terminate. Correspondingly, she claims that he is not entitled to recover any of the support payments he made to her before then. Plaintiff’s position is based on the principle that installments of child support become vested when they accrue and that vested installments can be neither terminated nor modified. (In re Marriage of McDavid (1981), 97 Ill. App. 3d 1044, 1050, 425 N.E.2d 442, 447; Ill. Rev. Stat. 1989, ch. 40, par. 510(a).) What plaintiff fails to appreciate is that no installments accrued here, and therefore none become vested, following Kristian’s emancipation.

Upon Kristian’s emancipation, defendant’s support obligations automatically ended by operation of law under section 510(d) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 510(d)). Defendant was not required to go through the formality of obtaining another court order to confirm this, just as he would not have been required to obtain such an order had Kristian become emancipated by virtue of having attained his majority or enlisted in the armed forces. We would reach a different conclusion had the case involved unallocated support payments for multiple children, for in such cases the parent responsible for tendering the payments cannot make a unilateral pro rata reduction in the amount he or she pays when one of the children becomes emancipated, absent an agreement to the contrary. (See In re Marriage of Erickson (1985), 136 Ill. App. 3d 907, 914, 483 N.E.2d 692, 698.) That situation, however, is not present here. In the matter before us, all of the disputed payments were allocated to Kristian and Kristian alone.

In sum, plaintiff had absolutely no right to the child support payments made by defendant for the period following Kristian’s emancipation on September 23, 1989. The only reason defendant continued to make child support payments for Kristian after that time is that he was not aware that the emancipation had taken place. Plaintiff did not tell him about it, even though the dissolution judgment itself expressly obligated her to keep him advised at all times of Kristian’s residence. On defendant’s motion, the circuit court should therefore have terminated defendant’s support obligations retroactively to September 23 and ordered plaintiff to return the child support payments to which she was not entitled. Correspondingly, the circuit court should have denied plaintiff’s petition for a rule to show cause, and defendant should not have been held in contempt. See In re Marriage of Erickson (1985), 136 Ill. App. 3d 907, 915-16, 483 N.E.2d 692, 699.

Finally, we must reverse the circuit court’s ruling that defendant was obligated to pay $80 of plaintiff’s attorney fees. The circuit court gave absolutely no indication of why it was making that award. The only explanation we can find is that in holding defendant in contempt, the circuit court believed that he had acted without “cause or justification” within the meaning of section 508(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 508(b)). As we have just suggested, however, defendant was entirely justified in proceeding as he did. The award of attorney fees to plaintiff was therefore improper. In re Marriage of Lavelle (1990), 206 Ill. App. 3d 607, 614, 565 N.E.2d 291, 295.

For the foregoing reasons, the August 13, 1990, judgment of the circuit court of Madison County is reversed, and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

HOWERTON and CHAPMAN, JJ., concur.


author: JUSTICE HOWERTON JUSTICE CHAPMAN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VIRGIL L. BOAZ, Defendant-Appellant.
    Fifth District
    No. 5—90—0213
    Opinion filed December 26,1991.
    CHAPMAN, J., concurring in part and dissenting in part.

      Daniel M. Kirwan and Larry R. Wells, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Don Sheafor, State’s Attorney, of Vandalia (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, and M. Keith Smith, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

Defendant was convicted of aggravated criminal sexual assault. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(b)(1).) He appeals on two grounds: (1) that he was twice placed in jeopardy for the same offense; and (2) that he was deprived of a fair trial because the State and one of its witnesses violated an order in limine by referring to prior incidents between defendant and victim. We affirm.

The bill of indictment stated that on or about March 5, 1989, defendant knowingly committed an act of sexual penetration by placing his mouth on the penis of a 13-year-old boy. Before trial, defendant filed a bill of particulars (Ill. Rev. Stat. 1989, ch. 38, pars. 114— 2(b), 111 — 6), requesting the State to disclose the exact time and date of the offense charged. March 30, 1989, was the date the State gave, a date different from that of the indictment.

Four months later, prospective jurors were assembled, voir dire was conducted, and the State’s Attorney, defendant’s counsel and the circuit judge recessed to chambers to select 12 jurors and one alternate. Before recessing, however, the judge told the prospective jurors that they were free to break for lunch. After lunch, the names of the persons selected were announced. Eleven jurors and one alternate were sworn. The twelfth juror, whose name had been announced, had not yet returned from lunch, and so had not yet been sworn. Before the twelfth juror returned, defendant moved to confine the State to prove the allegations as specified in the bill of particulars, namely that the offense occurred on March 30, 1989, not March 5, 1989. The State moved to amend, but defendant argued that the State could not amend because the trial had already begun. (See Ill. Rev. Stat. 1989, ch. 38, par. 114 — 2.) The circuit court ruled that since only 11 jurors had been sworn, the twelfth having not yet returned from lunch, the trial had not yet begun, and the court granted the State leave to amend. Defendant moved for a mistrial. The circuit court granted it but ruled that jeopardy had not attached and that defendant was subject to retrial.

Jeopardy attaches in a jury trial once the jury is impaneled and sworn. (Crist v. Bretz (1978), 437 U.S. 28, 57 L. Ed. 2d 24, 98 S. Ct. 2156; Ill. Rev. Stat. 1989, ch. 38, par. 3 — 4(a)(3).) Defendant claims that jeopardy attached because 12 jurors — 11 jurors and an alternate — were sworn. We disagree. While it is true that 11 jurors and an alternate were sworn, and that the 11 and the alternate could have constituted a valid jury (see People v. Campbell (1984), 126 Ill. App. 3d 1028, 467 N.E.2d 1112, cert, denied (1985), 471 U.S. 1136, 86 L. Ed. 2d 695, 105 S. Ct. 2677), the jury in this case, in fact, had not been impaneled and sworn. The circuit judge, when informed that the twelfth juror was still at dinner, stated, “When he comes back from dinner he will be on the jury.” Jeopardy would not have attached until the twelfth juror had been sworn. (Crist v. Bretz (1978), 437 U.S. 28, 57 L. Ed. 2d 24, 98 S. Ct. 2156.) Therefore, the circuit court’s ruling that defendant was subject to retrial was not error.

Defendant alternatively seeks a new trial arguing that the State denied him a fair trial by violating the circuit court’s order in limine, which barred the State from making “any reference to or presenting any evidence concerning similar incidents.”

During opening argument the State’s Attorney stated:

“[The victim] will tell you that on one occasion when he was over [at defendant’s house], and he believes it to have been 1987, he was over there at defendant’s house playing the video games and so forth and that was one of the occasions that he stayed all night with the defendant, he will tell you that when he stayed overnight with the defendant at times he slept most the time in the bedroom with the defendant Virgil Boaz. He •will tell you that he was sleeping on defendant’s bed, sometime in 1987, that he was awakened by the defendant, Virgil Boaz — .”

Defendant’s counsel objected, requested a side bar, and argued that any comment about an incident in 1987 violated the order in limine. The State’s Attorney argued that the in limine order only covered incidents with other victims and not incidents with this victim. The court sustained the objection, told the State’s Attorney that the order in limine barred comment of other incidents with this victim, and instructed the jury to disregard the statements about incidents in 1987.

Later, the State examined an investigator from the Department of Children and Family Services. The investigator testified that during his investigation, he showed the victim a calendar and asked him when was “the last time that anything had happened.” Again defense counsel objected; the circuit court sustained it and instructed the witness not to “use any phraseology ‘the last time’ or ‘last occurrence’ or anything like that.”

Defendant claims that these violations of the order in limine deprived him of a fair trial and warrant a new trial. We disagree. While it is true that violations of an order in limine may be reversible error (Shehy v. Bober (1979), 78 Ill. App. 3d 1061, 398 N.E.2d 80), a new trial is not always warranted where such errors do not unduly affect the result. (Verdonek v. Freeding (1977), 56 Ill. App. 3d 575, 371 N.E.2d 1109, cert, denied (1978), 439 U.S. 837, 58 L. Ed. 2d 133, 99 S. Ct. 122.) Here, defense counsel’s objection interrupted the State’s Attorney’s opening statement and prevented the jury from hearing anything about 1987. In addition, the circuit court instructed the jury to disregard any comment about 1987 and instructed the jury at the conclusion of the trial not to consider opening remarks as evidence. Moreover, any prejudice from the investigator’s comments fades when compared with the overwhelming evidence against defendant.

The circuit court is affirmed.

Affirmed.

HARRISON, J., concurs.

JUSTICE CHAPMAN,

concurring in part and dissenting in part:

I agree with the majority’s disposition as to the in limine issue; however, I believe the defendant was exposed to double jeopardy in violation of the constitution. Contrary to the position taken by the majority, the jury was impaneled and sworn. It has long been established that jeopardy attaches when the jury is impaneled and sworn. Crist v. Bretz (1978), 437 U.S. 28, 35, 57 L. Ed. 2d 24, 31, 98 S. Ct. 2156, 2161; Downum v. United States (1963), 372 U.S. 734, 10 L. Ed. 2d 100, 83 S. Ct. 1033.

Section 115 — 4(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 4) provides that the jury shall consist of 12 members. The record is clear that during jury-selection proceedings 12 jurors and one alternate were selected by name. When the person selected to be juror number 12 did not return from lunch, the juror’s oath was simultaneously administered to the 11 “regular” jurors and the alternate. The record does not show that any distinction between the 11 and the alternate was made in administering the oath. Assuming prospective juror number 12 had not returned from lunch, or was otherwise not sworn in as a juror, the trial judge could have proceeded with the trial using the 12 jurors who had already taken the juror’s oath. (See People v. Harvey (1987), 162 Ill., App. 3d 468, 515 N.E.2d 337.) Jeopardy attaches when the jury is impaneled and sworn. Jeopardy had attached.