author: PRESIDING JUSTICE GREEN

text:
    DOUGLAS L. PRUITT, Special Adm’r of the Estate of Crystal Niki Pruitt, Deceased, Plaintiff-Appellant, v. STEVE JOCKISCH et al., Defendants-Appellees.
    Fourth District
    No. 4—91—0719
    Opinion filed April 30, 1992.
    Rehearing denied June 1, 1992.

      Norbert J. Goetten, of Jerseyville (Kenneth H. Hobson, of counsel), for appellant.
    Rammelkamp, Bradney, Dahman, Kuster, Keaton, Fritsche & Lindsay, RC., of Jacksonville (Forrest G. Keaton, of counsel), for appellees.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

Section 3 of the Wrongful Death Act (Act) states:

“In the event that the only asset of the deceased estate is a cause of action arising under this Act, and no petition for letters of office for his or her estate has been filed, the court, upon motion of any person who would be entitled to a recovery under this Act, and after such notice to the party’s heirs or legatees as the court directs, and without opening of an estate, may appoint a special administrator for the deceased party for the purpose of prosecuting or defending the action.
If a judgment is entered or the action is settled in favor of the special administrator, he or she shall distribute the proceeds as provided by law, except that if proceeds in excess of $1,000 are distributable to a minor or person under legal disability, the court shall allow disbursements and fees to the special administrator and his or her attorney and the balance shall be administered and distributed under the supervision of the probate division of the court if the circuit court has a probate division.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 70, par. 2.1.

The legal questions presented here are as follows: (1) whether section 3 of the Act requires that some notice of the hearing on the petition for appointment of a special administrator must be given to the decedent’s heirs, devisees or legatees; (2) whether, if some notice is required and not given, the action of the special administrator is void as to those entitled to notice who did not receive it; and (3) if subsequent acts of the special administrator are void as to those entitled to notice who did not receive it, may the void nature of those acts be raised on behalf of those persons to set aside, as to them, a release granted by the special administrator, under purported court authority, to an individual or entity alleged to have wrongfully caused the death of the decedent.

As we subsequently explain, we hold that (1) the requirement of section 3 of the Act that a petition give “such notice to the party’s heirs or legatees as the court directs” does mandate the giving of at least some notice to those persons, unless they appear, but the nature of the notice is within the discretion of the court; (2) the failure to give any notice deprives the court of personal jurisdiction over those entitled to notice who did not receive it, and renders subsequent actions of the special administrator void as to them; and (3) the void nature of subsequent acts by that administrator may be raised on behalf of those wrongfully deprived of notice to collaterally attack the validity, as to them, of a release given by the special administrator to persons or entities alleged to be liable for the decedent’s death.

This appeal arises from the proceedings on a two-count complaint filed on May 10, 1991, in the circuit court of Greene County by Douglas L. Pruitt, who had been appointed by that court as special administrator of the estate of his deceased minor daughter, Crystal Niki Pruitt. Count I was against Steve and Deborah Jockisch (defendants) and charged them with liability under the Act for the death of the deceased minor. Count I alleged that the minor had drowned in an aboveground swimming pool on defendants’ property. We need not consider count II, which was against Country Companies, defendants’ liability insurer. That count was dismissed in bar of action on Country Companies’ motion early in the proceedings, and no appeal has been taken from that judgment.

Defendants responded to count I by filing a motion to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619). The motion set forth a purported release given defendants for $10,000 by Penny Pruitt, the decedent’s mother. The release indicated she purported to be special administrator of her decedent daughter’s estate pursuant to an appointment under section 3 of the Act by the circuit court of Cass County. Plaintiff responded to defendants’ motion by a pleading maintaining that the appointment of Penny Pruitt, although made before the appointment of plaintiff in Greene County, was made without any notice to any person who might have a right to recover for the death of the decedent minor.

The record indicates the Pruitts were estranged at the time of the minor’s death and that, in addition to being survived by her parents, the minor was survived by two children of her father by a former marriage. The record also showed that at the time of her appointment, Penny had filed an affidavit that the “whereabouts” of plaintiff were “unknown.” In his answer to defendants’ section 2 — 619 motion to dismiss, plaintiff alleged that Penny knew where his parents lived and could have learned where he was from them.

The circuit court of Greene County denied the defendants’ motion to dismiss but allowed defendants’ motion for a transfer of venue to the circuit court of Cass County based upon the doctrine of forum non conveniens. After transfer, defendants moved for reconsideration of their section 2 — 619 motion to dismiss. The court allowed the motion and, after a hearing, dismissed count I, the only remaining count, in bar of action by order of September 10,1991. Plaintiff has appealed.

Prior to analyzing the procedural problems involved here, a brief mention of the nature of the tort action for wrongful death is appropriate. The common law afforded no remedy on behalf of the surviving heirs or next of kin of a person wrongfully killed, but in 1853, the General Assembly enacted the Act, and for the first time created a cause of action for wrongful death in Illinois. (Ill. Ann. Stat., ch. 70, par. 1, Historical Note, at 283 (Smith-Hurd 1989).) To avoid multiple lawsuits, the Act requires that a single action be brought on behalf of the members of a class entitled to recover. (Hall v. Gillins (1958), 13 Ill. 2d 26, 30, 147 N.E.2d 352, 355.) That class, with minor exceptions set forth in the Act, consists of the surviving spouse and next of kin of the deceased to the extent that they incur injury recognized by the Act. The action must be brought by the representative of the estate of the decedent. (Ill. Rev. Stat. 1989, ch. 70, par. 2.) Section 3 of the Act makes a special administrator appointed thereunder such a representative.

No case closely on point in regard to the issues before us has been called to our attention. Conflicting principles are involved. One is the desirability of affording a person in the position of plaintiff notice of proceedings affecting his rights. The other is the need for people, such as defendants, in dealing with a representative, such as Penny Pruitt, who has letters of office, to be able to rely upon the authority of the representative to act.

We begin by considering the meaning of the language of section 3 of the Act, which states that the court may appoint a special administrator “after such notice to the party’s heirs or legatees as the court directs.” (Ill. Rev. Stat. 1989, ch. 70, par. 2.1.) Plaintiff would have us interpret those words to mean that notice should be given in the same manner as required for the appointment of administrator under the Probate Act of 1975 (Probate Act) (Ill. Rev. Stat. 1989, ch. 1101/2, par. 1 — 1 et seq.). Defendants maintain that section 3 of the Act leaves the decision as to whether any notice be given to the discretion of the court.

Before an administrator can be appointed under section 9 — 5(a) of the Probate Act (Ill. Rev. Stat. 1989, ch. 1101/2, par. 9 — 5(a)), 30 days’ notice by mailing must be given to all persons shown on the petition for appointment to have an equal or greater right than the petitioner to nominate the administrator. Then section 9 — 5(b) of the Probate Act (Ill. Rev. Stat. 1989, ch. 1101/2, par. 9 — 5(b)) requires that within 14 days after letters of administration issue, notice must be given of the appointment to all heirs not notified of the hearing on the petition for appointment of the administrator. Further provision is made for notice by publication to those for whom mailing addresses were unavailable. Under those procedures, the original appointment of an administrator can be temporary if a person having a greater right to nominate and who received no original notice later appears.

Adoption of plaintiff’s theory that the notice format for appointing administrator under the Probate Act was intended to also apply to appointments under section 3 of the Act would have given needed protection to those other than Penny Pruitt who might be entitled to recover. However, if the General Assembly had intended for those complicated provisions to be applicable to section 3 appointments, the General Assembly would have so stated directly. Rather, available history indicates a legislative intention that the section 3 procedure was to be relatively informal:

“[T]he intent of this [section was] to save persons with [a] cause of action the necessity of opening an estate and make it more convenient and also to cut the red tape. If *** the only asset to a decedent’s estate is a cause of action for his wrongful death, the court will be authorized by this Bill to appoint a special administrator who will prosecute or defend the action *** upon a motion of a person entitled to recovery under the Act ***.” 80th Ill. Gen. Assem., House Proceedings, May 3, 1977, at 142 (statements of Representative Beatty).

The instant situation, on the other hand, is a good example of how unfairness can develop from an interpretation of section 3 of the Act which permits appointment of a special administrator without notice. As we have indicated, Douglas L. Pruitt had two children by a prior marriage. No indication is given that either Penny or Douglas L. Pruitt had any other children. Thus, the decedent left her parents and two half-siblings as the only people who could possibly recover under the Act. The precedent in this district is that siblings cannot recover for loss of society and companionship. (Moss v. Whitaker (1991), 214 Ill. App. 3d 89, 573 N.E.2d 333; Carter v. Chicago & Illinois Midland Ry. Co. (1988), 168 Ill. App. 3d 652, 659-60, 522 N.E.2d 856, 860-61, appeal denied (1988), 122 Ill. 2d 571, 530 N.E.2d 240; but see Sheahan v. Northeast Illinois Regional Commuter R.R. Corp. (1986), 146 Ill. App. 3d 116, 120, 496 N.E.2d 1179, 1182; Singh v. Air Illinois, Inc. (1988), 165 Ill. App. 3d 923, 932-33, 520 N.E.2d 852, 858; Schmall v. Village of Addison (1988), 171 Ill. App. 3d 344, 351-54, 525 N.E.2d 258, 263-65, appeal denied (1988), 122 Ill. 2d 594, 530 N.E.2d 264; see Hubbart, Siblings’ Right to Recover Loss of Society Under the Wrongful Death Act, 80 Ill. B.J. 68 (1992).) However, Douglas L. Pruitt, in his present capacity, represents the interests of anyone other than Penny Pruitt who has a similar right of recovery, received proper notice of his appointment, and had a settlement forced on him or her without opportunity to be heard as to who negotiated the settlement.

Because of the appointment of Penny Pruitt as special administrator, those persons whose interests are now represented by plaintiff had to abide by a settlement made by a person with whom they were at odds. Had notice been given, plaintiff, for example, might have persuaded the court to appoint a more neutral person, and he would have had an opportunity to object to the proposed settlement. While no contention has been made that plaintiff’s interests have been denied procedural due process, and we are not holding such a deprivation took place, we recognize that reasonable efforts to notify a party of a proceeding at which a litigant’s property interest is involved are generally considered a significant aspect of due process. Rosewell v. Chicago Title & Trust Co. (1984), 99 Ill. 2d 407, 412, 459 N.E.2d 966, 968; O’Connell v. Pharmaco, Inc. (1986), 143 Ill. App. 3d 1061, 1069, 493 N.E.2d 1175, 1180.

We also note that in sections 19 — 4 and 19 — 8 of the Probate Act, which respectively concern the sale or pledge of personalty of the decedent and the compounding, compromising, and exchange of personalty, express statements are made that the court can grant the relief requested upon notice as determined by the court or “without notice.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 1101/2, pars. 19— 4, 19 — 8.) This legislative choice of words gives some indication that the General Assembly would have used the same careful explanation concerning the court’s power to proceed without notice if that power were intended to be granted to the court by section 3 of the Act.

In view of (1) the fairness of an interpretation of section 3 of the Act that requires some notice of proceedings for appointment of a special administrator, (2) the problems which can arise, as here, where no notice is required, and (3) the general due process concepts served thereby, we hold that the phrase “such notice to the party’s heirs or legatees as the court directs” in section 3 of the Act requires the giving of some notice to those who might be able to recover under the Act, but that notice may be tailored as to time and manner of service as the court deems appropriate.

We now turn to the consequences of the failure to give notice to plaintiff. Plaintiff maintains the failure of notice rendered the appointment of Penny Pruitt void as well as her subsequent acts, including the execution of the purported release of defendants. The major thrust of the defendants’ argument is that any error in the failure of notice is of such a nature that it did not render the release void. Defendants rely principally on the precedent of Balsewicz v. Chicago, Burlington & Quincy R.R. Co. (1909), 240 Ill. 238, 88 N.E. 734, In re Estate of Redmer (1952), 348 Ill. App. 76, 108 N.E.2d 25, Gearty v. L. Fish Furniture Co. (1937), 289 Ill. App. 538, 7 N.E .2d 493, and Chicago & Eastern Illinois R.R. Co. v. Wolfrum (1907), 136 Ill. App. 161.

In Balsewicz, a suit was brought in the circuit court of Bureau County for wrongful death by a personal representative who had obtained letters of administration from the county court of that county. The supreme court overturned a judgment on a jury verdict in favor of that administrator on the basis the trial court had refused to submit to the jury a release obtained from an administrator of the decedent’s estate appointed by the probate court of Cook County. The supreme court reached conflicting conclusions that (1) the residence of the deceased, at the time of death, within a county was necessary to give that court jurisdiction of the decedent’s estate; but (2) because the probate court of Cook County had a general jurisdiction of estates of decedents, its jurisdiction to issue letters to the Cook County administrator, who thereafter gave the release, was conclusively presumed.

The Balsewiez court stated that under the circumstances there, courts such as the probate court of Cook County “are presumed to have jurisdiction to give the judgments they render until the contrary appears, such grant of administration is conclusive and not subject to attack in a collateral proceeding.” (Emphasis added.) (Balsewicz, 240 Ill. at 246, 88 N.E. at 737.) Apparently, the court did not deem significant the fact that at the time of trial it was apparent that the decedent had died a resident of Bureau County, and, by the court’s own theory, the probate court therefore lacked subject-matter jurisdiction.

In Gearty, a stepfather petitioned for and was appointed guardian of a minor boy by the probate court of Cook County and settled a cause of action the minor had against an alleged tortfeasor. Several years later, the boy’s uncle sought to set the release aside when it was pleaded against him in bar of a subsequent suit filed after he (the uncle) became guardian. The uncle contended that the release was void because the stepfather had no standing to petition to be guardian. Citing Balsewiez, the appellate court held the first appointment by the probate court could not be collaterally attacked and upheld the ruling of the trial court dismissing the case as barred by the release. However, the appellate court did state that the probate court “had jurisdiction to act” in appointing the stepfather as guardian. Gearty, 289 Ill. App. at 547, 7 N.E .2d at 496.

In Redmer, the circuit court ordered Hugo J. Hakala to vote certain shares of stock of a decedent in a certain manner. Objections were made to the order on the basis that Hakala was not the administrator of the will annexed of the decedent, as he purported to be. The record showed that the decedent’s will had named certain persons as executor without bond. The court had then appointed them executors upon furnishing bond. When they did not do so, an order was entered appointing Hakala administrator with the will annexed, and he served in that capacity. On appeal, the appellate court held that questioning Hakala’s power to act constituted an impermissible collateral attack upon his appointment. The court indicated that the only way to attack the propriety of his appointment was to do so in the probate proceedings by a petition to revoke letters or an appeal from the order of appointment.

Defendants also rely upon a theory that even if the appointment of a personal representative is void, as long as that representative has letters of office, one sued by that representative in his or her purported representative capacity cannot dispute the authority of the representative. They cite Gould v. Schlossberg (1942), 316 Ill. App. 57, 43 N.E.2d 693, and In re Estate of Trost (1937), 292 Ill. App. 60, 10 N.E.2d 857. However, the situation in those cases is dissimilar from that here. Plaintiff is not contesting the power of anybody to sue him either individually or in his representative capacity. He is contesting, on behalf of the estate of the minor, the validity of a release granted by a former purported special administrator whose appointment, he contends, was void as to him and as to any possible interest of his children because the appointing court had no jurisdiction over their persons at the time of the appointment of Penny Pruitt, or at any time thereafter before that estate was closed.

The cases relied upon most strongly by defendants contain a common thread as, in each case, the question about jurisdiction concerns the question of whether the court sitting in probate had subject-matter jurisdiction and the decisions conclude that great deference should be given to the presumption that the court did have such jurisdiction when it was empowered to hear the type of cases before it. Here, the issue is not whether the Cass County circuit court had subject-matter jurisdiction when it appointed Penny Pruitt as special administrator. The question is whether that court had personal jurisdiction over plaintiff and his daughters so as to affect their rights.

Illustrating the difference between (1) the presumption of subject-matter jurisdiction given a court sitting in probate in regard to a probate matter, and (2) the strict requirement that jurisdiction be obtained over the persons involved in a probate matter, is the case of In re Estate of Stanford (1991), 221 Ill. App. 3d 154, 581 N.E.2d 842, appeal denied (1992), 143 Ill. 2d 638, cited by plaintiff. There, in the probate of a testamentary estate, notice required by sections 6 — 21 and 8 — 1 of the Probate Act (Ill. Rev. Stat. 1985, ch. 1101/2, pars. 6— 21, 8 — 1) was not given to certain of numerous heirs listed on the petition for probate of the will. After the estate was closed, one of those heirs filed a petition to declare all acts of the executor, including sales of realty and personalty, void as to her. The circuit court granted the relief.

On appeal in Stanford, the appellate court affirmed, holding that the notice failure did deprive the trial court of jurisdiction of the complaining heir and rendered all of the orders void as to her. The court further held that the heir who did not get the notice could raise the issue that the order was void at any time. The collateral consequence of setting aside various sales as to the complaining heir is somewhat similar to the setting aside of the release as to the interests of those not receiving notice here. The Stanford court cited Vogel v. Katz (1965), 64 Ill. App. 2d 126, 212 N.E.2d 295. There, an order admitting a will to probate was set aside as to an heir who did not receive notice of the probate of the will as required by the then statutory scheme in that regard. Ill. Rev. Stat. 1961, ch. 3, pars. 63, 64.

We recognize defendants’ argument that third parties, in dealing with a personal representative who has letters of office, need to have a reasonable way of being assured of the representative’s power to act. We agree with the precedent presuming that the court sitting in probate has subject-matter jurisdiction. We do not hold that any particular deviation from statutory mandate deprived the Cass County circuit court of subject-matter jurisdiction to appoint Penny Pruitt as special administrator or to approve the settlement. But, as indicated in Stanford, personal jurisdiction is another matter.

A party dealing with a special administrator under section 3 of the Act can look to the record of the court making the appointment and find out if proof is shown that those entitled to notice by the terms of the petition were shown to be given that notice. The burden of such an investigation thus is much less than would be the burden of checking matters concerning the residence of a decedent (Balsewicz, 240 Ill. 238, 88 N.E. 734) or the relationship between one seeking to be a guardian and the purported ward (Gearty, 289 Ill. App. 538, 7 N.E .2d 493). The rule we apply here is similar to that set forth in section 2 — 1401(e) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2— 1401(e)), which grants protection to a third party acquiring for value and otherwise in good faith an interest based upon a judgment later set aside under the provision of that section. That protection is not granted when “lack of jurisdiction affirmatively appears from the record proper.” Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401(e); see also State Bank v. Thill (1986), 113 Ill. 2d 294, 497 N.E .2d 1156.

The judgment dismissing the complaint must be reversed and the cause remanded to the circuit court of Cass County for further proceedings upon plaintiff’s complaint. The release will stand as a bar to any recovery for any injury suffered by Penny Pruitt, as the release was not void as to her. As she is not a party to these proceedings, we cannot decide what the rights are between her and Douglas L. Pruitt or between her and defendants to the proceeds of the prior settlement. The record shows she received all of those net proceeds after paying attorney fees and expenses.

Accordingly, we reverse the judgment of dismissal and remand to the circuit court of Cass County for further proceedings consistent with this opinion.

Reversed and remanded with directions.

COOK and LUND, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KYLE DEAN OTTEN, Defendant-Appellant.
    Fourth District
    No. 4—91—0726
    Opinion filed April 23, 1992.
    Rehearing denied June 1, 1992.

      Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Norbert J. Goetten and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

The trial court revoked the burglary probation of defendant, Kyle Dean Otten, and sentenced him to four years in prison. The court also ordered defendant to pay restitution. Prior to defendant’s sentencing hearing, the court found him in contempt and sentenced him to 30 days in jail. Defendant appeals his sentence, arguing that (1) the trial court erred in not giving him credit against the four-year sentence for the time he served in jail for contempt, and (2) the trial court’s order of restitution was defective. We affirm and remand with directions.

I. Facts

The trial court originally sentenced defendant to 30 months of probation in May 1989 after he pleaded guilty to burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1(a)). As a condition thereof, the court required him to serve 60 days in jail. According to the presentence report prepared in May 1989, the burglary victim reported a total loss of $1,401.96. Accordingly, the trial court ordered both defendant and his codefendant, Norman Patheal, who was before the court for sentencing at the same time as defendant, to pay restitution of $1,401.96. The court also specifically directed that both defendants were jointly and severally liable for the restitution.

The court ordered Patheal to pay $50 per week beginning with his first paycheck. The court ordered defendant, also as a condition of probation, to make a good-faith effort to obtain a job as soon as he completed serving his 60 days in the county jail. The court further directed defendant to submit a plan to the court within the first 90 days of his probationary period to explain how he proposed to pay the restitution as ordered.

A second codefendant, Michael Orr, was found guilty of the same burglary following a jury trial, and in June 1989, the trial court sentenced him to probation on the condition that he pay restitution of $300.

In April 1990, the State filed a petition to revoke defendant’s probation. In June 1990, defendant admitted to the allegations in the petition, and the trial court then extended his probation for an additional six months and imposed certain additional conditions of probation.

In May 1991, the State filed a second petition to revoke defendant’s probation, alleging in part that he failed to pay restitution and to obtain his educational certificate. In July 1991, the trial court conducted a hearing on this petition, found that the State had proved the above allegations, and allotted the matter for sentencing on August 9, 1991. The court also directed the probation department to prepare a supplemental presentence report.

On August 7, 1991, the probation office reported in writing to the trial court that defendant failed to appear for his presentence investigation interview on July 15, 1991, and had failed to contact that office at any time thereafter despite letters the office had mailed to defendant directing him to do so. Upon receiving that report from the probation office, the court on its own motion entered an order that required defendant to appear on August 9, 1991, the date that his sentencing hearing was originally allotted “to show cause, if any he has, why he should not be held in contempt of court for failure to cooperate with the Adams County Probation Department in the preparation of Presentence Investigation Report herein.”

On August 9, 1991, defendant appeared with his counsel. The trial court began the hearing by noting the action it had taken on August 7, 1991, and asking if the parties were ready to proceed on the contempt matter. They replied that they were, and the trial court then immediately addressed defense counsel and asked if he wished “to offer any evidence.” Defense counsel responded by calling defendant to testify. Defendant then explained that he had not contacted the probation office because, “from 7 o’clock in the morning till 6 o’clock at night,” he was looking for work. He also claimed that he never received a letter from the probation office directing him to contact that office immediately.

The probation officer then testified that he met personally with defendant on July 3, 1991, and told him the date he should appear at the probation office for an interview. The probation officer testified that defendant did not appear, that the officer had sent a letter to defendant at his last known address directing him to contact the officer immediately, but defendant had not responded to that letter.

No further evidence was presented at this contempt hearing. The court then stated to defense counsel, “[s]ince the burden is on the defendant to show cause you may be heard first in argument.” After hearing arguments from both counsel, the court found that “defendant has been contemptuous in his failure and refusal to cooperate with the probation department. *** The defendant will be sentenced to the Adams County Jail for 30 days for contempt, no credit for good time, no day for day.” The trial court then allotted defendant’s burglary re-sentencing hearing for September 3,1991.

After hearing evidence and argument at the resentencing hearing on September 3, 1991, the trial court sentenced defendant to four years in prison and gave him credit on that sentence for 60 days he spent in jail as a condition of his probation. The court further stated the following:

“By law, [defendant] is not entitled to credit for the 25 days he has spent thus far for contempt of court. The remaining five days of that sentence will be vacated and he will begin serving his sentence once again with time running.”

The court further ordered defendant to pay the balance of restitution and costs he owed within one year after his discharge from prison.

II. Credit Against Penitentiary Sentence For Time Served For Contempt

Citing People v. Hutchcraft (1991), 215 Ill. App. 3d 533, 574 N.E.2d 1337, defendant argues that the trial court erred by failing to grant him credit on his penitentiary sentence for time he served in the county jail for contempt while on probation. Hutchcraft focused on section 5 — 8—7(b) of the Unified Code of Corrections (Code), which reads as follows:

“The offender shall be given credit on the determinate sentence *** for time spent in custody as a result of the offense for which the sentence was imposed ***.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—7(b).)

In Hutchcraft, the defendant was on probation for burglary when the State filed a petition entitled, “[p]etition to revoke probation, conditional discharge or court supervision, or in the alternative to hold the defendant in contempt.” (Emphasis added.) (Hutchcraft, 215 Ill. App. 3d at 539, 574 N.E.2d at 1340.) As the title to that petition makes clear, the State alleged that the defendant was in contempt because he had violated conditions of his probation by wilfully failing to advise the probation office of his current address and by wilfully failing to report to the probation officer as directed. (Hutchcraft, 215 Ill. App. 3d at 536, 574 N.E.2d at 1338-39.) Based upon the State’s petition, the trial court found the defendant in contempt and sentenced him to the county jail. (Hutchcraft, 215 Ill. App. 3d at 536, 574 N.E.2d at 1338-39.) Under these circumstances, this court held that the trial court’s incarcerating defendant for contempt was essentially no different than incarcerating him on a petition for revocation of his probation because both kinds of incarceration stemmed from defendant’s violating conditions of his probation. Accordingly, defendant was entitled to credit against the subsequently imposed prison sentence for time he served in the county jail for contempt. Hutchcraft, 215 Ill. App. 3d at 539, 574 N.E.2d at 1340.

We find Hutchcraft factually distinguishable from the present case. Instead, the facts in the present case are more like those in People v. Sanders (1983), 115 Ill. App. 3d 364, 450 N.E.2d 896, and People v. Brents (1983), 115 Ill. App. 3d 717, 450 N.E.2d 910, in which both courts rejected a defendant’s argument that he was entitled to credit for time served on a contempt sentence.

In Sanders, defendant was charged with forgery and ordered to submit handwriting exemplars. The trial court held him in contempt when he refused to do so. (Sanders, 115 Ill. App. 3d at 365, 450 N.E.2d at 897.) Defendant later pleaded guilty to forgery and was sentenced to seven years in prison. The trial court declined to give him credit on that sentence for 121 days he spent in jail as a result of the contempt order. On appeal, this court affirmed. Sanders, 115 Ill. App. 3d at 367, 450 N.E.2d at 898.

In Brents, defendant was sentenced to 20 years in prison on his armed robbery conviction. Earlier, during defendant’s preliminary hearing on that charge, he had become unruly in court, was held in contempt, and sentenced to serve six months in jail. (Brents, 115 Ill. App. 3d at 718, 450 N.E.2d at 911.) However, after defendant served four months of that contempt sentence, he was sentenced on the armed robbery conviction, and thereafter entitled to credit for the remaining time he spent in the county jail against his 20-year sentence for armed robbery. The trial court refused to give defendant credit for the four months he served on contempt prior to his being sentenced on the armed robbery charge, and defendant appealed. The appellate court affirmed the trial court’s denial of credit and explained as follows:

“To hold otherwise would greatly diminish a defendant’s incentive to comply with the trial court’s order respecting proper decorum in the courtroom and render the contempt citation itself meaningless and inoperative.” Brents, 115 Ill. App. 3d at 721, 450 N.E.2d at 913.

We agree with the holdings in Sanders and Brents and conclude that giving defendant in the present case credit for the time he spent in jail on contempt would greatly diminish a defendant’s incentive to comply with the trial court’s orders regarding his reporting to the probation office so that a presentence report can be prepared.

Despite our holding regarding the issue of defendant’s credit for time served, we nonetheless point out that the contempt procedures utilized at the trial level were flawed. Even though defendant has not raised any issue on appeal regarding those procedures, we fear that our failure to address this subject might mislead trial courts and attorneys into believing that the procedures used in this case were appropriate.

The most striking feature about the contempt proceedings in the present case is the apparent confusion by all trial level participants regarding the nature of the contempt charge at issue. In In re Marriage of Betts (1990), 200 Ill. App. 3d 26, 558 N.E.2d 404, this court discussed at some length the distinguishing characteristics of civil and criminal contempt (see Betts, 200 Ill. App. 3d at 43-47, 558 N.E.2d at 415-18) and direct and indirect contempt (see Betts, 200 Ill. App. 3d at 47-48, 558 N.E.2d at 418-19), and wrote the following:

“The primary determinant of whether contempt proceedings are civil or criminal in nature is the purpose for which contempt sanctions are imposed. If contempt sanctions are imposed for coercive purposes — to compel the contemnor to perform a particular act — the contempt is civil in nature. On the other hand, criminal contempt sanctions are imposed for the purpose of punishing past misconduct.” Betts, 200 Ill. App. 3d at 43, 558 N.E.2d at 415.

The record in the present case does not make clear whether the trial court incarcerated defendant for contempt until such time as he complied with the court’s requirement to cooperate with the probation office (civil contempt), or, instead, to simply punish defendant for his failure to cooperate (criminal contempt). Our difficulty with viewing the contempt order as civil in nature is that the trial court never specified what defendant must do in order to be released from jail. As we explained in Betts,

“Civil sanctions are prospective in nature; they seek to coerce compliance at some point in the future. That point might be immediate compliance in open court or whenever the contemnor chooses to use his ‘key’ — namely, compliance — to open the jailhouse door.” (Emphasis in original.) (Betts, 200 Ill. App. 3d at 46, 558 N.E.2d at 417.)

The trial court in the present case gave no indication what that “key” might be.

On the other hand, our difficulty with viewing the trial court’s contempt order as criminal in nature is that defendant was afforded none of the criminal due process rights to which he is entitled when a person is charged with indirect criminal contempt. (See Betts, 200 Ill. App. 3d at 58-60, 558 N.E.2d at 425-26 (setting forth in detail the procedural rights of persons charged with indirect criminal contempt and holding that “[i]ndirect criminal contempt proceedings must generally conform to the same constitutionally mandated procedural requirements as other criminal proceedings”).) The trial court’s statement at defendant’s August 1991 contempt hearing that “the burden was on the defendant to show cause” provides the clearest indication that defendant was not afforded the procedural protections he was due. Furthermore, the record in this case reveals another serious procedural deficiency that this court discussed in In re Marriage of Alltop (1990), 203 Ill. App. 3d 606, 616, 561 N.E.2d 394, 401, as follows:

“[T]o avoid the surprise and confusion shown by the record in this case, we hold that due process requires that before criminal sanctions may be imposed upon a respondent as a result of indirect criminal contempt proceedings, notice must be provided to the alleged contemnor that such sanctions are being sought and might be imposed. This requirement can be met by entitling the initial pleading, ‘petition for adjudication of criminal contempt.’
We hold that a pleading entitled ‘petition for rule to show cause’ is not sufficient to provide the due process to which an alleged criminal contemnor is entitled.”

Because the petition in the present case was entitled “petition for rule to show cause,” under Alltop it could not serve as the basis for a finding that defendant was in indirect criminal contempt.

III. The Restitution Order

Evidence presented at the July 3, 1991, hearing revealed that defendant still owed a balance of $943 in restitution. However, the September 1991 order of restitution failed to specify a particular sum defendant was to pay, instead referring to “the balance of fines, costs, and/or restitution previously ordered in the amount of $1,466 shall be paid within 12 months of defendant’s release from the Department of Corrections.” (Emphasis added.) Defendant argues that the order of restitution was defective because it did not specify the amount he must pay. We agree.

In People v. White (1986), 146 Ill. App. 3d 998, 1002-03, 497 N.E.2d 888, 891, this court held that the Code requires the trial court, when ordering restitution, to set forth in the sentencing order a definite amount that a defendant must pay. (See Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—6(b).) Accordingly, we remand to the circuit court with directions to amend the sentencing order by setting forth the precise sum of money that defendant must pay for restitution.

Defendant also argues that the trial court erred in ordering restitution because “the court completely failed to take into consideration [defendant’s] ability to pay in determining any schedule of payments.” We disagree. First, the trial court set out no schedule of payments, nor was it statutorily required to do so. Second, in People v. Lambert (1990), 195 Ill. App. 3d 314, 334, 552 N.E.2d 300, 313, this court held that the trial court, when ordering a defendant to pay restitution, was not statutorily required to consider his ability to make those payments. This court pointed out in Lambert that “[t]he defendant’s financial capacity is a required consideration only (1) when determining the manner of payment, and (2) if a petition to revoke restitution is filed.” (Lambert, 195 Ill. App. 3d at 334, 552 N.E.2d at 313.) Neither of these circumstances exists in this case.

Last, defendant argues the order of restitution was defective because it failed to take into account a pro rata reduction in the restitution he must pay due to amounts paid by the codefendants. In support of this argument, defendant cites section 5 — 5—6(c) of the Code, which reads as follows:

“In cases where more than one defendant is accountable for the same criminal conduct which results in out-of-pocket expenses, losses, damages, or injuries, each defendant shall be ordered to pay restitution in the amount of the total actual out-of-pocket expenses, losses, damages, or injuries to the victim proximately caused by the conduct of all of the defendants who are legally accountable for the offense.
(1) In no event shall the victim be entitled to recover restitution in excess of the actual out-of-pocket expenses, losses, damages, or injuries, proximately caused by the conduct of all of the defendants.
(2) As between the defendants, the court may apportion the restitution which is payable in proportion to each co-defendant’s culpability in the commission of the offense.
(3) In the absence of a specific order apportioning such restitution, each defendant shall bear his pro rata share of the restitution.
(4) As between the defendants, each defendant shall be entitled to a pro rata reduction in the total restitution required to be paid to the victim for amounts of restitution actually paid by co-defendants, and defendants who shall have paid more than their pro rata share shall be entitled to refunds to be computed by the court as additional amounts are paid by co-defendants.” Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 5—6(c)(1) through (c)(4).

Defendant argues that at his resentencing on September 3, 1991, when the court entered its current order of restitution, it did not consider a pro rata reduction in restitution for amounts actually paid by the codefendants. Citing section 5 — 5—6(c)(4), defendant claims that he was entitled to a pro rata reduction and the trial court should have determined what amounts his codefendants had paid.

The State responds to this argument by quoting the language from section 5 — 5—6(c) of the Code that “each defendant shall be ordered to pay restitution in the amount of the total actual out-of-pocket expenses, losses, damages, or injuries to the victim proximately caused by the conduct of all of the defendants who are legally accountable for the offense.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—6(c).) Thus, the State argues that the trial court’s September 1991 restitution order, requiring defendant to continue to pay all of the victim’s losses, complied fully with section 5 — 5—6(c) of the Code, as quoted above.

The State further argues that section 5 — 5—6(cX4) of the Code does not require the court at the sentencing hearing to compute the amounts that codefendants had already paid and credit those amounts against what defendant must pay in restitution. Instead, the State argues that section 5 — 5—6(c)(4) of the Code

“does not envision court involvement until the defendant and co-defendants have paid more money than that required to compensate the victim. At that point, the court computes the refund to which a defendant is entitled. Defendant is not entitled to a court determination of payments by co-defendants and a pro rata reduction until the victim has been completely compensated.”

We agree with both of the State’s arguments and find its views consistent with the goals of restitution as recently discussed by this court in People v. Nasser (1991), 223 Ill. App. 3d 400, 410-11, 584 N.E.2d 1010, 1016-17.

IV. Conclusion

For the reasons stated, we affirm the defendant’s sentence and remand to the circuit court with directions to amend the sentencing order in accordance with the views expressed herein.

Affirmed and remanded with directions.

GREEN, P.J., and LUND, J., concur.


author: JUSTICE UNVERZAGT

text:
      In re J.E., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. J.E., Respondent-Appellant).
    Second District
    No. 2—90—0225
    Opinion filed April 30, 1992.
    G. Joseph Weller, Manuel S. Serritos, and Anne S. Quincy, all of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Respondent, J.E., appeals from the January 2, 1990, order of the circuit court adjudicating her a delinquent minor and from all subsequent dispositional orders, including the order of February 26, 1990, which revoked her probation and committed her to the Department of Corrections for an indeterminate term. Respondent’s mother was not notified of the initial adjudicatory and dispositional hearings of January 2. At those hearings, respondent admitted the allegations in the State’s supplemental petition filed instanter when respondent appeared in court that day for a hearing on a rule to show cause in another matter. The petition alleged that respondent had committed armed robbery while armed with a baseball bat. Ill. Rev. Stat. 1989, ch. 38, par. 18— 2(a).

Because of the failure to notify her parents in advance of the adjudicatory and dispositional hearings held that day, respondent argues that the trial court was without jurisdiction and its subsequent orders were void. We agree that jurisdiction was lacking and therefore vacate the adjudicatory and dispositional orders of the court.

At the time of the proceedings, the respondent minor was a ward of the court. She had completed a prior probation on August 2, 1989, but was a dependent minor under the guardianship and custody of the Winnebago County juvenile probation department. J.E. was served with the petition in open court on January 2, 1990. Neither of her parents named in the petition appeared nor had they been served notice of the proceedings, although the mother’s and the stepfather’s addresses were listed on the petition. The natural father’s address was listed as unknown. J.E. had come into the juvenile court system two years before when her mother, Diane, entered a nursing home in Rockford, Hlinois. Inexplicably, after initiating the adjudicatory proceeding on January 2, the State requested and was granted leave to publish notice to the minor’s natural father, Robert; the court also ordered summons to issue to the minor’s mother.

At the January 2 hearing, pursuant to negotiations with the State, the minor, who was represented by counsel, admitted the allegations in the petition regarding the armed robbery. She was then adjudicated a delinquent, and a dispositional hearing followed immediately thereafter. The minor was placed on probation for two years, was given 20 days’ detention with credit for time served, and was ordered to be placed in the First Light Group Home the next day (January 3, 1990). The matter was set for review on February 7, 1990, regarding the publication notice to the father and the service to the mother.

On January 4, 1990, the State filed a petition to revoke the minor’s probation, alleging that she had run away from her court-ordered placement on January 3. Notice of the February 7 hearing was personally served on the mother on January 10, 1990. Beginning on January 31, notice to the natural father of the February 7 hearing was published in a Rockford newspaper.

At the February 7 hearing, the mother was defaulted, and the trial court heard testimony regarding the petition to revoke probation. The court found that the minor had left her court-ordered placement without permission and revoked her probation. On February 26, 1990, the court committed the minor to the Department of Corrections for an indefinite term. Respondent filed a notice of appeal on February 27, 1990.

The minor respondent argues on appeal that, because the summary adjudication and disposition on January 2 were conducted without proper service of process on her parents, the adjudicatory order and all subsequent orders stemming from that order should be held void for want of jurisdiction. The State argues that respondent’s appeal is untimely because it was taken more than 30 days after the order of January 2; that the failure to give notice of the hearing did not deprive the trial court of jurisdiction; and that the orders were not void. The State’s position is incorrect.

It is true that, where no direct appeal has been taken from the original order of probation and the time for appeal has expired, a court will be later precluded from collaterally reviewing the propriety of the initial order in an appeal from the revocation of that probation; however, if the order is void, it may be attacked at any time. (In re T.E. (1981), 85 Ill. 2d 326, 335.) It is well established that a judgment or order entered by a court which lacks jurisdiction of the parties or of the subject matter, or which lacks the inherent power to make or enter the particular order involved, is void and may be attacked at any time or in any court, either directly or collaterally. (City of Chicago v. Fair Employment Practices Comm’n (1976), 65 Ill. 2d 108, 112.) Therefore, the timeliness of this appeal is not at issue, since respondent argues that the trial court lacked jurisdiction to enter the final order based on prior void orders. (See People v. Meyerowitz (1975), 61 Ill. 2d 200, 206; People v. Cooper (1988), 177 Ill. App. 3d 942, 946.) Thus, where an order imposing probation upon a juvenile is void because the trial court lacked the statutory authority to enter the order, any subsequent order revoking probation is likewise void. (In re T.E., 85 Ill. 2d at 336; see also People v. McCarty (1983), 94 Ill. 2d 28, 40.) This is the situation in the case at bar.

In People v. R.S. (1984), 104 Ill. 2d 1, the supreme court held that the failure to give statutory notice of a hearing to the noncustodial mother, whose name and address were known to the State, voided the order of adjudication and all subsequent orders, including the order committing the minor to the Department of Corrections. The court stated that noncompliance with the statutory notice provisions constituted a due process violation of the rights of the parent and the child. The lack of notice failed to invoke the trial court’s jurisdiction and rendered subsequent orders void. The R.S. court cited People v. R.D.S. (1983), 94 Ill. 2d 77, 83, which stated that a pleading that does not name and notify a necessary respondent in a juvenile proceeding fails to invoke the jurisdiction of the court and thereby renders its orders void.

Recent appellate court decisions have subsequently followed the rule of R.S. that failure of service upon a parent whose address is known results in the court’s lack of jurisdiction and renders the court’s orders void. (See In re E.D. Mc. (2d Dist. 1991), 220 Ill. App. 3d 1093; In re J.K. (2d Dist. 1989), 191 Ill. App. 3d 415; People v. D.J. (1st Dist. 1988), 175 Ill. App. 3d 491; In re T.M.F. (4th Dist. 1987), 155 Ill. App. 3d 1026; cf. In re S.L.S. (4th Dist. 1989), 181 Ill. App. 3d 453 (acknowledged the rule of R.S. that service upon a parent determines subject matter jurisdiction, but court appears to hold that failure of service was at least reversible error when father appeared only at dis-positional hearing).) The State should by now be well aware that the failure of notice under these circumstances will result in a lack of jurisdiction and the entry of void orders.

Here, neither the mother nor the father was notified of the January 2 proceeding, but attempts to notify the parents were made after the adjudication and disposition of January 2. The adjudicatory and dispositional orders issued on January 2, 1990, are void for lack of jurisdiction. The subsequent order of adjudication of February 7, 1990, finding respondent in violation of probation and the dispositional order of February 26, 1990, revoking probation and committing respondent to the Department of Corrections are also void. These orders are hereby vacated.

Orders vacated.

WOODWARD and McLAREN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL L. HAMMER, Defendant-Appellant.
    Second District
    No. 2—91—0500
    Opinion filed May 13, 1992.
    Rehearing denied May 29, 1992.

      R. Daniel Lyons, of Hyatt Legal Services, of Lombard, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and David A. Fernandes, of Urbana (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Michael L. Hammer, appeals his conviction in the circuit court of Du Page County of unlawful possession of weapons by a felon (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 1.1(a)). On appeal, defendant contends that the court erred in admitting into evidence certain testimony by defendant’s son and that application of the theory of constructive possession to the facts of this case violated his due process rights.

On September 5, 1990, Du Page County sheriff’s deputy Paul Burgermeister arrived at the home of defendant and his wife, Rosemarie Hammer, in response to a report of a domestic disturbance. Rosemarie told the officers that she and defendant had been arguing and that defendant had threatened to get a gun and shoot her. Burgermeister asked her whether there were guns in the house, and she replied that there were. Her son, Scott Hammer, then led the officer into the marital bedroom and showed him the guns.

Burgermeister recovered five guns from the bedroom closet. Scott said there were two additional guns which he could not locate. Burgermeister then asked defendant to show him where the other guns were. According to Burgermeister, defendant entered the bedroom, identified the guns on the bed as his and stated that there were other guns. Defendant then recovered a .32 caliber handgun which was in the closet wrapped in a towel. He stated that he had given the remaining missing gun to his brother-in-law some time ago.

Defendant was arrested and charged with domestic battery. As he had a previous felony conviction, he was also charged with unlawful possession of weapons by a felon.

At trial, Rosemarie Hammer testified that the guns in the house were defendant’s. He had purchased them prior to their marriage and used them for hunting. She had never fired any of the guns and in fact did not even know how to use a gun.

She further testified that she had a firearm owners’ identification (FOID) card. She applied for the card at her husband’s suggestion. He told her that if they were going to keep guns in the house, one of them should have a FOID card. As he had previously been turned down for a card, he suggested that she apply as well.

Defendant and Rosemarie both submitted applications for FOID cards. Defendant’s application was again rejected, presumably because of the prior felony conviction, but Rosemarie received a card, which was still valid on September 5, 1990.

Scott Hammer also testified. He stated that he told the police officer where the guns were kept. One of the guns was one that defendant had given him one or two years before. A year and a half to two years before, Scott and defendant had discussed going hunting with one or more of the guns found in the closet. Scott had seen defendant take the guns from the closet, telling Scott he was going hunting with Scott’s grandfather.

Officer Burgermeister was the third and final State’s witness. He testified to being called to defendant’s home regarding a marital dispute. After Scott showed him where the guns were located, he removed them from the closet, took them out of their leather cases, checked to ensure that they were unloaded and laid them on the bed. He asked defendant if he would show him where the additional guns were. Defendant identified the guns already on the bed as “his guns” and then located the .32 caliber handgun wrapped in a towel. He stated that he had given one additional gun to his brother-in-law.

The court found defendant not guilty of domestic battery, but convicted him of the weapons charge. It sentenced defendant to two years’ probation, with the first 28 days to be served in the county jail. The court denied defendant’s post-trial motion, and he filed a timely notice of appeal.

Defendant’s primary contention on appeal is that his conviction based on a theory of constructive possession of the guns violates his right to due process of law (U.S. Const., amends. V, XIV; Ill. Const. 1970, art. 1, §2). Defendant’s argument is somewhat difficult to follow and requires some explication. He contends that, since the guns were located in the marital bedroom, it must be presumed that they were jointly possessed by defendant and Rosemarie. Since Rosemarie possessed a FOID card, it was not unlawful for her to own the guns. None of the guns were of a type which is inherently illegal (such as a sawed-off shotgun). Under these circumstances, defendant says he is guilty of no more than sleeping in the same bedroom where his wife kept the guns and, thus, application of the unlawful possession statute to him is unconstitutional.

Defendant likens his situation to a defendant convicted through police entrapment. Defendant explains that his wife was issued a FOID card by the Department of State Police. Both he and his wife submitted simultaneous applications. Thus, according to defendant, the State is chargeable with knowledge that guns were to be kept in the marital home, where defendant also lives. With this knowledge, the State issued Rosemarie a FOID card and now allegedly seeks to hold defendant responsible for what it knowingly permitted to occur. The State responds simply that constructive possession is a well-recognized basis of liability for possession type offenses and is appropriate in this case.

Defendant acknowledges the line of cases holding that constructive possession is sufficient for purposes of most unlawful possession statutes. He attempts to distinguish those cases, however, on the ground that they involved possession of “contraband,” such as drugs or weapons which could not be legally possessed under any circumstances. In the instant case, all of the weapons seized could have been legally possessed by anyone with a FOID card, such as his wife. Defendant contends that the State is attempting to prosecute him for nothing more than living in the same house where guns were kept by someone legally authorized to do so.

This argument might have some validity if, in fact, Rosemarie Hammer were the primary user of the guns and defendant did no more than sleep in the same room where they were kept. This was simply not the case, however. Rosemarie testified that defendant owned the guns prior to their marriage and that she never used them and in fact did not know how to use them. She applied for a FOID card, at her husband’s suggestion, merely as a subterfuge to avoid the fact that defendant could not be issued a permit due to his prior conviction. Scott Hammer also testified that he had discussed using the guns with defendant. Finally, Officer Burgermeister testified that defendant admitted that the weapons were “his guns” and located another gun which was hidden in a towel. This evidence clearly establishes that defendant did much more than merely sleep in the house where his wife kept the guns.

Defendant was convicted of violating section 24 — 1.1(a) of the Criminal Code of 1961, which provides as follows:

“It is unlawful for a person to knowingly possess on or about his person or on his land or in his own abode *** any firearm or any firearm ammunition if the person has been convicted of a felony under the laws of this State or any other jurisdiction.” (Ill. Rev. Stat. 1989, ch. 38, par. 24— 1.1(a).)

Both defendant and the State rely on cases arising under the unlawful use of weapons statute (Ill. Rev. Stat. 1989, ch. 38, par. 24— 1). Under that section, possession of the weapon may be either actual or constructive. (People v. Billings (1977), 52 Ill. App. 3d 414, 422; People v. O’Neal (1975), 35 Ill. App. 3d 89, 91.) To prove possession, it is sufficient to show that the contraband was under defendant’s dominion or control. To do so, the State must establish defendant’s knowledge of the contraband and his immediate and exclusive control of the area wherein it is located. (People v. Williams (1981), 98 Ill. App. 3d 844, 847.) Proof that others also used the premises is insufficient to overcome the finding of defendant’s exclusive dominion and control. Williams, 98 Ill. App. 3d at 848; People v. Janis (1977), 56 Ill. App. 3d 160, 164.

Curiously, neither defendant nor the State cites to a line of more recent cases which have explicitly applied the constructive possession theory to the offense of unlawful possession of weapons by a felon. To sustain a conviction under this section, the State need only prove defendant’s knowing possession of firearms and his prior felony conviction. (People v. Elam (1990), 197 Ill. App. 3d 8, 11-12; People v. Bond (1989), 178 Ill. App. 3d 959, 966.) These cases have consistently held that possession pursuant to this statute may be constructive. (Elam, 197 Ill. App. 3d at 12; Bond, 178 Ill. App. 3d at 966; People v. Rangel (1987), 163 Ill. App. 3d 730, 740.) As in other unlawful possession cases, constructive possession of a firearm by a felon is established by showing that defendant had knowledge of the weapon and that he exerted immediate and exclusive control over the area where the weapon was found. (Elam, 197 Ill. App. 3d at 12.) Although defendant’s mere presence near the weapon is insufficient, control over the location gives rise to the inference that defendant possessed the weapon, which inference is not undermined by the presence of others in the vicinity. Rangel, 163 Ill. App. 3d at 740.

In the instant case, defendant does not contend that the State failed to prove his prior conviction. Moreover, the evidence establishes that the guns were found in the closet of the marital bedroom, an area over which defendant unquestionably had dominion and control. The fact that his wife and son may also have had access to the closet is insignificant, particularly in light of their testimony that they did not use the guns and that defendant did.

In Elam, guns were found in the apartment of defendant’s girlfriend, which defendant frequented and in which he sometimes slept. As in the instant case, defendant supplied the officer with information concerning the location of the weapons. Although defendant testified at trial that the guns were his girlfriend’s and he did not know of their existence, the court found that the jury, as the trier of fact, was entitled to discredit this explanation and find defendant guilty. Elam, 197 Ill. App. 3d at 12-13.

Here the trial court, sitting without a jury, was entitled to find that defendant knew of the guns and that they were under his dominion and control. Finding defendant guilty under these circumstances does not offend due process.

Defendant also contends that the court erroneously admitted his son’s testimony regarding prior conversations with defendant concerning the guns. Defendant’s “argument” on this point is confined to one paragraph in his statement of facts and another paragraph in the argument portion under a subheading relating to the constructive possession argument. Except for two constitutional provisions, neither paragraph contains any citation to relative authority. Thus, this argument is waived. 134 Ill. 2d R. 341(e)(7).

Even if the argument were not waived, we would find no error in the admission of the testimony. Defendant postulates that since there was no evidence that he physically handled any of the weapons on September 6, 1990, his conviction must have rested on Scott’s testimony that his father discussed using the guns for hunting on a prior occasion “a year, two years ago,” and that he was prejudiced by the admission of testimony relating to an offense on a date not named in the charging instrument. We have already determined that the evidence was sufficient to establish defendant’s constructive possession of the weapons on September 6, 1990, the date named in the indictment. Moreover, defendant’s only objections to this testimony in the trial court were based on lack of foundation and relevance. The State promptly provided an adequate foundation. Furthermore, the evidence was relevant to show that defendant knew of the guns’ existence, as he had used them on prior occasions.

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

Affirmed.

McLAREN and DOYLE, JJ., concur.


author: PRESIDING JUSTICE INGLIS

text:
    HILDA-ANNE CRANE et al., Plaintiffs-Appellants, v. TRIANGLE PLAZA, INC., et al., Defendants-Appellees.
    Second District
    No. 2—91—0872
    Opinion filed April 30, 1992.

      John P. Martin and James P. Palermini, both of Huck, Bouma, Martin, Charlton & Zellner, P.C., of Glen Ellyn, for appellants.
    Stephen M. Kightlinger and Michael J. Pavlisin, both of McKenna, Storer, Rowe, White & Farrug, of Wheaton, for appellees Triangle Plaza, Inc., and West Chicago Ward Lumber Company.
    Kevin J. Kawa, of Querrey & Harrow, Ltd., of Wheaton, for appellee Arthur J. Lootens & Son, Inc.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Plaintiffs, Hilda-Anne and Edgar G. Crane (the Cranes), appeal after the trial court granted summary judgment in favor of defendants, Triangle Plaza, Inc., and West Chicago Ward Lumber Company (collectively referred to as Triangle) and Arthur J. Lootens & Son, Inc. (Lootens), in a “slip and fall” action. The Cranes contend on appeal that the trial court erred in granting summary judgment because there was evidence establishing duty, breach and proximate cause on the part of defendants. We affirm.

At approximately 6:15 a.m. on December 22, 1987, Hilda-Anne parked her car in a parking lot adjacent to the West Chicago train station in West Chicago, Illinois. The parking lot was owned by Triangle. Triangle charged a fee for patrons to park in the lot.

Hilda-Anne had backed her car into a space so that the back end of the car abutted a snow pile encircling the perimeter of the lot. Hilda-Anne exited the car holding her briefcase and a purse in her right hand and a cup of coffee in her left hand. As she walked in front of her car toward the train station, her right foot slipped, and she fell in front of the left headlight of her car. Hilda-Anne stated at her deposition that she was looking straight ahead at the time she fell.

While on the ground, Hilda-Anne felt around and determined that she was lying on an ice patch approximately two feet by four feet in diameter. The ice, as well as the entire lot, was covered by a “dusting” of snow. The snow cover obscured the ice patch beneath it. Hilda-Anne sustained a broken right leg, among other injuries.

Edgar viewed the area of the accident approximately three hours after the accident. He described the area as uneven and full of holes, some shallower than others, containing ice. Hilda-Anne stated that some of the depressions were up to one inch deep. Edgar had to clear the light snow to view the ground. Although Edgar described the gravel parking lot as uneven, he stated that it was generally level, with no incline.

The parking lot in question was comprised of gravel, sand and dirt. Lootens provided snow removal and regrading services pursuant to an oral contract with Triangle. The lot had last been plowed on December 16, 1987, six days before the accident, after approximately an eight-inch snowfall. Warren VanWallingham, an employee with Lootens, stated in his deposition that the plowing blade dragged along the gravel as snow was removed from the lot. VanWallingham also stated that some snow would remain after plowing.

The temperature in the area in the few days before the accident had fluctuated above and below the freezing mark. Approximately an inch of rain fell on December 20, 1987. The night before the accident, a light “dusting” of snow fell. Hilda-Anne stated the day before she fell there was no ice on the parking lot, but there were areas containing packed snow, melted snow and puddles of water. Hilda-Anne also stated that she was “99 and 99/100%” sure that the snow melted, collected in the depressions and froze.

The Cranes filed their original complaint on August 23, 1989. Hilda-Anne sought damages of a personal, pecuniary and permanent nature. Edgar sought damages for loss of society, companionship, conjugal relations and services. Defendants filed motions for summary judgment. Lootens claimed that it owed no duty to the Cranes because it contracted with Triangle to remove snow, not ice. Triangle claimed that the Cranes could not establish any act on its part that proximately caused Hilda-Anne’s injuries. The trial court granted summary judgment for defendants. The Cranes filed a timely notice of appeal.

The Cranes contend that there was evidence creating a genuine issue of material fact as to whether Lootens owed a duty to Hilda-Anne, whether each defendant breached a duty, and whether each breach was the proximate cause of her injuries. Lootens contends that the undisputed facts show that it owed no duty to plaintiffs. Lootens also contends that the Cranes have failed to present evidence that any act on its part created an unnatural accumulation of ice or snow. Finally, Lootens contends that the Cranes failed to demonstrate that any act of Lootens proximately caused Hilda-Anne’s injuries. Triangle’s contentions are restatements of Lootens’ contentions as to the unnatural accumulation of ice or snow, and proximate cause. Triangle also contends that plaintiffs failed to present evidence to show that Triangle had actual or constructive notice of the condition.

Summary judgment is a drastic means of disposing of litigation and should be allowed only when the right of the moving party to summary judgment is clear and free from doubt. (Mitchell v. Jewel Food Stores (1990), 142 Ill. 2d 152, 165.) The purpose of a summary judgment proceeding is to determine whether there are any genuine issues of material fact which should be tried. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) In making this determination, the evidence is to be construed strictly against the moving party and liberally in favor of the opponent. (Tersavich v. First National Bank & Trust (1991), 143 Ill. 2d 74, 80-81.) If the pleadings, depositions and affidavits reveal no genuine issue of material fact, then the moving party is entitled to summary judgment as a matter of law. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Vesey v. Chicago Housing Authority (1991), 145 Ill. 2d 404, 411.

In an action based on negligence, the plaintiff must set out sufficient facts establishing a duty owed by defendants to the plaintiff, a breach of the duty and that the injury was proximately caused by the breach. (Vesey, 145 Ill. 2d at 411.) If the court is unable to infer a duty on the part of defendants, no recovery by plaintiff is possible and summary judgment is proper as a matter of law. (Vesey, 145 Ill. 2d at 411.) In order to withstand a motion for summary judgment, plaintiffs must allege sufficient facts for a trier of fact to find that defendants were responsible for an unnatural accumulation of water, ice or snow which caused plaintiffs’ injuries. Stypinski v. First Chicago Building Corp. (1991), 214 Ill. App. 3d 714, 716.

We note that Triangle does not claim that it owed no duty to Hilda-Anne, and therefore we choose not to address that issue. Thus, we first address whether Lootens owed a duty to Hilda-Anne in this situation. The Cranes argue that Lootens had a common-law duty to perform a voluntary undertaking in a nonnegligent manner, relying on Eichler v. Plitt Theatres, Inc. (1988), 167 Ill. App. 3d 685. The Cranes also argue that Lootens’ duty was to remove all snow from the lot so as not to create an unnatural accumulation of ice, relying on McCarthy v. Hidden Valley Village Condominium Association (1989), 186 Ill. App. 3d 752.

Lootens argues that its duty under the oral contract with Triangle extended only to removing snow, not ice. Lootens also relies on Eichler, where the court granted summary judgment for the snow removal contractor because the contract did not call for the removal of ice. Eichler, 167 Ill. App. 3d at 692.

We find that Eichler is instructive here. As Eichler states, the snow removal contractor owes no duty to an injured party for injuries caused by a fall on the ice where the ice formed naturally. The plaintiffs in Eichler conceded that there was no unnatural accumulation of snow or ice at the time of the fall. (Eichler, 167 Ill. App. 3d at 688.) Here, the Cranes alleged in the pleadings that the unnaturally accumulated snow piles on the periphery of the parking lot created the ice that caused Hilda-Anne to fall. That allegation makes the holding in Eichler distinguishable.

Both Lootens and Triangle contend that the Cranes may not argue that the snow piles caused the ice formation as they did not rely on this theory in responding to the motions for summary judgment. Triangle relies on Schuman v. Pekin House Restaurant & Lounge (1981), 102 Ill. App. 3d 532, to support this argument. We find Schuman to be inapposite because in that case the new theory relied upon by the plaintiff was not contained in her complaint. Here, the Cranes’ complaint contained an allegation that the snow piles created by plowing caused the ice patch to form. The Cranes are not raising this theory for the first time on appeal, so it is not waived.

Although we found the Eichler case distinguishable on its facts concerning the unnatural accumulation of snow or ice, the case is helpful in addressing the Cranes’ argument that Lootens had a duty to remove all the snow on the parking lot. The Eichler court relied on Burke v. City of Chicago (1987), 160 Ill. App. 3d 953, as dispositive on this issue. In Burke, the city, pursuant to a written lease agreement with Northwest Airlines at Midway Airport, was to remove snow “as reasonably as may be done.” (Burke, 160 Ill. App. 3d at 955.) The plaintiff fell on ice that had formed from the snow remaining after plowing. The court affirmed summary judgment for the city because the duty extended to “reasonable” removal, not removal of all snow. (160 Ill. App. 3d at 957.) Here, although the oral contract is silent as to the extent of the duty to remove snow, the duty would at least extend to removing snow in a nonnegligent manner. “Negligence” is defined as “[t]he omission to do something which a reasonable man *** would do, or the doing of something which a reasonable and prudent man would not do.” (Emphasis added.) (Black’s Law Dictionary 1032 (6th ed. 1990).) Based on the Burke case, reasonable removal would not require removing all snow. Thus, because Lootens’ contract with Triangle required no more than removing the snow in a reasonable, nonnegligent fashion, Lootens’ duty did not extend to removing all the snow on the parking lot. See Timmons v. Turski (1981), 103 Ill. App. 3d 36, 38 (removal of snow that leaves an ice formation does not constitute negligence).

The Cranes’ reliance on McCarthy to support the argument that Lootens’ duty was to remove all snow is misplaced. In McCarthy, the plaintiff slipped and fell on an embankment of snow and ice on a portion of the driveway. Evidence was presented that the embankment extended 6 to 12 inches into the driveway. (McCarthy, 186 Ill. App. 3d at 757.) Thus, summary judgment was improper because there existed a question of fact as to whether the entire driveway was cleared of snow. The duty on the part of the snow removal contractor was to remove significant portions of snow, such as the remaining embankment. McCarthy simply does not stand for the proposition that every flake of snow be removed.

Lootens did not owe a duty to Hilda-Anne to remove ice caused by the natural accumulation of snow. (Eichler, 167 Ill. App. 3d at 692.) Also, Lootens did not owe plaintiffs a duty to remove all snow on the lot, but only to perform the job reasonably. The only duty Lootens owed plaintiffs was the duty to perform snow removal in a nonnegligent fashion. Absent facts that show this duty has been breached, summary judgment was proper.

We next determine whether a breach has occurred. To raise properly the issue of breach, the Cranes must show that the exposed ice upon which Hilda-Anne allegedly slipped and fell was an unnatural accumulation caused by the defendants. (Eichler, 167 Ill. App. 3d at 692.) The Cranes argue that they have shown that Lootens and Triangle allowed the unnatural accumulation of ice to form. The Cranes claim that the fact that unnatural snow piles existed, that a freezing-thawing cycle was occurring, that the parking lot contained some bumps and depressions, and that Hilda-Anne was nearly certain that the ice was unnaturally created raised the issue of breach as a matter of law.

Lootens and Triangle argue that the Cranes have not presented any evidence to support their assertion that the ice Hilda-Anne allegedly slipped and fell on was created by the unnaturally accumulated snow piles on the periphery of the parking lot. They claim that Hilda-Anne’s statement that she was “99 and 99/100%” sure that the ice was unnaturally created has no factual basis.

We find that the Cranes have failed to present a factual basis to support their assertion that the ice was created by an unnatural accumulation of snow. Thus, the trial court did not err in granting summary judgment for all defendants. “A finding of an unnatural or aggravated natural condition must be based upon an identifiable cause of the ice formation.” (Emphasis added.) (Gilberg v. Toys “R” Us, Inc. (1984), 126 Ill. App. 3d 554, 557.) Plaintiffs have failed to show a nexus between the snow pile on the periphery of the parking lot and the ice in the depressions of the lot. The only evidence truly linking these two physical realities was Hilda-Anne’s statement that she was “99 and 99/100%” sure that the ice was formed by the melting of unnaturally accumulated snow. This assertion, based on complete speculation, is not enough to raise a genuine issue of fact as to whether the ice was created by unnatural accumulation of snow.

The cases relied upon by the Cranes present no question as to the factual nexus between the unnatural accumulation of snow and the ice that was allegedly created by the run-off from that unnatural accumulation of snow. In Gilberg, summary judgment was upheld because the plaintiff presented no evidence as to the source of the ice. (Gilberg, 126 Ill. App. 3d at 558.) The question of a link between the source of the water and the creation of the ice was not relevant in Gilberg since no source was shown to exist.

In Johnson v. Sears, Roebuck & Co. (1989), 186 Ill. App. 3d 725, the store had allowed an open bag of garden soil to lie near the entrance of the store. The court found that the existence of the soil was sufficient to withstand summary judgment on the issue of whether an unnatural condition caused plaintiff to slip and fall inside the entrance of the store. (Johnson, 186 Ill. App. 3d at 727-28.) Here, there is no such clear-cut evidence that an unnatural condition contributed to Hilda-Anne’s fall.

Both Sims v. Block (1968), 94 Ill. App. 2d 215, and McCarthy (186 Ill. App. 3d 752) were cases in which the plaintiffs slipped and fell while walking on unnatural mounds of snow and ice created by the snow removal contractor. No factual nexus between the original source and the subsequent ice was needed. Moreover, both Fitzsimons v. National Tea Co. (1961), 29 Ill. App. 2d 306, and Webb v. Morgan (1988), 176 Ill. App. 3d 378, were cases where the slope of the parking lot was a material fact in evidence. The slope of the parking lot established the factual nexus between the source of the water and the ice that was created. However, we recognize that neither Fitzsimons nor Webb was a case decided on summary judgment.

Even the mere existence of a slope in the lot is not enough to defeat a motion for summary judgment. In Wells v. Great Atlantic & Pacific Tea Co. (1988), 171 Ill. App. 3d 1012, the court stated:

“When a plaintiff alleges that the design of a sloping surface created an unnatural accumulation of ice. there must be evidence presented of the dangerous nature of the slope, that the slope was the proximate cause of the plaintiff’s injuries and that the landowner had notice of the defect. [Citation.] Once such evidence has been produced, the issue of whether the slope was a dangerous condition which created an unnatural accumulation of ice is a question of fact.” (Wells, 171 Ill. App. 3d at 1015-16.)

Here, not only are the other allegations relating to the slope of the lot missing, but the Cranes do not claim that the parking lot was sloped. Edgar stated in his deposition that the lot was generally level with no incline. Hilda-Anne also stated that the area of the parking lot where she fell was “comparatively flat.” Thus, the issue of whether the lot was sloped is not disputed. Without such evidence, we have no link between the snow piles and the ice upon which Hilda-Anne allegedly slipped and fell.

Finally, the Cranes rely on Hankla v. Burger Chef Systems, Inc. (1981), 93 Ill. App. 3d 909, for the proposition that a parking lot which is rough and full of holes is an unnatural surface as a matter of law. (Hankla, 93 Ill. App. 3d at 911, citing Geraghty v. Burr Oak Lanes, Inc. (1955), 5 Ill. 2d 153.) The Cranes posit that a question of fact is always raised concerning “unnatural conditions” when ice exists on a rough, bumpy parking lot. Neither Hankla nor Geraghty stands for this proposition. The Geraghty case is inapplicable because the case did not involve a slip and fall on unnaturally accumulated ice or snow. There, the plaintiff fell over a pole and a railroad tie which were lying in the parking lot and concealed by weeds and grass. (Geraghty, 5 Ill. 2d at 156.) Although the grading and roughness of the parking lot was discussed in Geraghty, the court did not impose liability for the rough, bumpy condition of the lot, as the Hankla court suggests. Hankla, 93 Ill. App. 3d at 911.

We do not expect, nor does the law require, that plaintiffs prove their case at a summary judgment hearing, but they must present some facts to show that the ice was unnatural or caused by defendant. (Gilberg, 126 Ill. App. 3d at 558.) Here, the Cranes presented no factual basis to support their assertion that the unnaturally accumulated snow piles encircling the parking lot contributed to the formation of ice upon which Hilda-Anne allegedly slipped and fell. Without a factual link between the water source and the ice formation in question, summary judgment is proper since we determine that breach has not been adequately shown as a matter of law.

Because summary judgment is upheld on the issue of breach, we choose not to address the issues of whether Triangle had actual or constructive notice of the condition and whether proximate cause was adequately alleged.

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

Affirmed.

UNVERZAGT and NICKELS, JJ., concur.


author: PRESIDING JUSTICE McCULLOUGH

text:
    DANIEL J. YONIKUS, Appellee, v. THE INDUSTRIAL COMMISSION et al. (The Department of State Police, Appellant).
    Fifth District (Industrial Commission Division)
    No. 5—90—0578WC
    Opinion filed March 12, 1992.
    Rehearing denied June 2, 1992.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, of Chicago, of counsel), for appellant.
    William J. Meacham, of Smith, McGrady & Meacham, Ltd., of East Alton, for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Claimant, a State employee, filed suit in Madison County seeking judicial review of an adverse decision of the Industrial Commission (Commission). Motions to dismiss filed by the Commission and the State Police for lack of subject-matter jurisdiction were denied. The circuit court, nevertheless, certified a question of law for review and this court granted respondent’s petition for leave to appeal under Supreme Court Rule 308 (134 Ill. 2d R. 308).

The certified question of law is:

“Whether paragraph 138.19(f)(1) of the Illinois Workers’ Compensation Act bars judicial review of an Industrial Commission decision in a claim against the State of Illinois, in light of the adoption of the Illinois Constitution of 1970.”

The parties agree claimant is a State employee. In denying respondent’s motion to dismiss for lack of subject-matter jurisdiction, the circuit court concluded the doctrine of sovereign immunity was abolished by the 1970 Illinois Constitution, the legislature failed to specifically reenact the law reestablishing sovereign immunity in the area of State employee access to the judiciary in workers’ compensation cases, and the State failed to demonstrate a reasonable basis or classification upon which to differentiate State workers from all other public employees and other workers’ compensation claimants.

The State contends sovereign immunity bars claimant from seeking review of the Commission’s decision in the circuit court of Illinois. We agree.

Under the current and most recent constitutions of Illinois, the relevant portion of section 19(f)(1) of the Workers’ Compensation Act (Act) stated:

“Except in cases of claims against the State of Hlinois, in which case the decision of the Commission shall not be subject to judicial review, the Circuit Court *** shall *** have power to review all questions of law and fact presented ***.” (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(f)(1).)

(See also Ill. Rev. Stat. 1967, ch. 48, par. 138.19(f)(1).) The doctrine of sovereign immunity was firmly embedded in the 1870 Illinois Constitution, which stated: “The State of Hlinois shall never be made defendant in any court of law or equity.” (Ill. Const. 1870, art. IV, §26.) In construing the 1870 Hlinois Constitution, our supreme court consistently held that the doctrine of sovereign immunity acted as a “constitutional prohibition” against judicial review of Industrial Commission decisions. Raschillo v. Industrial Comm’n (1970), 47 Ill. 2d 359, 361, 265 N.E.2d 663, 665; Greenarch v. Industrial Comm’n (1957), 10 Ill. 2d 450, 453, 140 N.E.2d 665, 667.

The 1970 Constitution removed this “constitutional prohibition.” It provides: “Except as the General Assembly may provide by law, sovereign immunity in this State is abolished.” (Ill. Const. 1970, art. XIII, §4.) As a direct result of this new constitutional provision, the legislature enacted Public Act 77 — 1776, effective January 1, 1972 (1971 Ill. Laws 3446), the same date as section 4 of article XIII of the current constitution. It provided that the State may not be made a defendant or a party in any court except as set forth in the Court of Claims Act. (Ill. Rev. Stat. 1979, ch. 127, par. 801; S.J. Groves & Sons Co. v. State (1982), 93 Ill. 2d 397, 405, 444 N.E.2d 131, 135.) Thus, acting under the express authority of the 1970 Constitution, the legislature resurrected the doctrine of sovereign immunity by statute. Sass v. Kramer (1978), 72 Ill. 2d 485, 489-90, 381 N.E.2d 975, 976.

While our supreme court has repeatedly observed that sovereign immunity was abolished as a constitutional directive, it has also consistently held that, irrespective of its wisdom, the doctrine remains viable to the extent that the legislature has chosen to reassert it. (S.J. Groves, 93 Ill. 2d at 402, 444 N.E.2d at 133; Seifert v. Standard Paving Co. (1976), 64 Ill. 2d 109, 114, 355 N.E.2d 537, 538.) As the supreme court noted, “Consent to be sued cannot be implied when there is an express statutory provision to the contrary.” (S.J. Groves, 93 Ill. 2d at 404, 444 N.E.2d at 134.) Thus, sovereign immunity bars claimant’s lawsuit.

Notwithstanding the foregoing, claimant argues that after the adoption of the 1970 Constitution, the legislature was required to affirmatively reenact that portion of section 19(f)(1) of the Act for it to effectively bar State employees from seeking judicial review of Industrial Commission decisions. We disagree.

Since the effective date of the 1970 Constitution, the Act has been amended on numerous occasions although the relevant portion of section 19(f) precluding judicial review of State employee compensation claims has not. Respondent points to several general rules of statutory construction which bear on the question of claimant’s contention that the State was required to reenact section 19(f) in order for sovereign immunity to be effective against State workers. One such rule is that when portions of an old law are repeated or reenacted in an amending act, they are regarded as a continuation of the existing law. (Apex Motor Fuel Co. v. Barrett (1960), 20 Ill. 2d 395, 399, 169 N.E.2d 769, 772.) Likewise, an amendatory legislative act is to be construed as continuing in effect unchanged portions of the original act (Rasky v. Department of Registration & Education (1980), 87 Ill. App. 3d 580, 591, 410 N.E.2d 69, 79), and the fact that portions of a statute have remained unaltered through successive sessions of the General Assembly has been held to indicate a legislative acquiescence in a contemporary and continuous administrative interpretation thereof. People ex rel. Spiegel v. Lyons (1953), 1 Ill. 2d 409, 414, 115 N.E.2d 895, 898.

Also pertinent is section 9 of the transition schedule adopted as part of the 1970 Illinois Constitution, which provided, in part:

“The rights and duties of all public bodies shall remain as if this Constitution had not been adopted with the exception of such changes as are contained in this Constitution. All laws, ordinances, regulations and rules of court not contrary to, or inconsistent with, the provisions of this Constitution shall remain in force, until they shall expire by their own limitation or shall be altered or repealed pursuant to this Constitution.” (Ill. Const. 1970, Transition Schedule, §9.)

Since the provisions of section 19(f)(1) are not inconsistent with or contrary to the constitutional language abolishing sovereign immunity, except as reasserted by the legislature pursuant to Public Act 77— 1776, which became effective on the same date as the 1970 Constitution, the doctrine of sovereign immunity embodied in section 19(f)(1) remains in full force and effect without the need for the legislature to expressly reenact the statute.

Claimant also argues that the failure to permit him judicial review because of his status as a State employee constitutes a denial of equal protection under the fourteenth amendment to the United States Constitution and article I, section 2, of the 1970 Constitution. (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2.) Again, we disagree.

The United States Supreme Court has repeatedly held that the doctrine of sovereign immunity as asserted by the several States is not prohibited under the fourteenth amendment to the United States Constitution. (Will v. Michigan Department of State Police (1989), 491 U.S. 58, 67, 105 L. Ed. 2d 45, 55, 109 S. Ct. 2304, 2309 (and cases cited therein).) On this basis alone, claimant’s Federal claim must fail.

Moreover, our supreme court has recently summarized the relevant inquiry applicable to judge the merits of an equal protection claim raised in a State forum:

“As stated in Jenkins v. Wu (1984), 102 Ill. 2d 468, 477, ‘[t]he fourteenth amendment to the Federal Constitution requires equality between groups of persons “similarly situated.” It does not deny a State the power to treat different classes of persons differently.’ (Eisenstadt v. Baird (1972), 405 U.S. 438, 446-47, 31 L. Ed. 2d 349, 358, 92 S. Ct. 1029, 1034-35; People v. Mathey (1983), 99 Ill. 2d 292, 296; People v. Bradley (1980), 79 Ill. 2d 410, 416.) In fact, in the absence of a fundamental right or suspect classification, the legislature may even differentiate between persons similarly situated if there is a rational basis for doing so. (Massachusetts Board of Retirement v. Murgia (1976), 427 U.S. 307, 312-13, 49 L. Ed. 2d 520, 524, 96 S. Ct. 2562, 2566-67; People ex rel. Difanis v. Barr (1980), 83 Ill. 2d 191, 204; Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 578.) This is the traditional equal protection analysis that has been used by this court in assessing both Federal and State equal protection challenges. (Illinois Housing Development Authority v. Van Meter (1980), 82 El. 2d 116, 121; Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 578; S. Bloom, Inc. v. Mahin (1975), 61 Ill. 2d 70, 76.) Under this analysis, ‘ “[a] classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ ” ’ Eisenstadt v. Baird (1972), 405 U.S. 438, 447, 31 L. Ed. 2d 349, 359, 92 S. Ct. 1029, 1035, quoting Reed v. Reed (1971), 404 U.S. 71, 76, 30 L. Ed. 2d 225, 229, 92 S. Ct. 251, 254.” People v. Simmons (1991), 145 Ill. 2d 264, 267-68, 583 N.E.2d 484, 485.

State employees are not a suspect classification and claimant does not suggest otherwise. Furthermore, the right to judicial review of a workers’ compensation decision is not a fundamental right, and claimant concedes that judicial review of an administrative proceeding is not essential to the basic notions of due process of law. Thompson v. Cronin (1977), 48 Ill. App. 3d 752, 758, 363 N.E.2d 175, 179.

Claimant, however, maintains that the State has not articulated a reasonable basis for distinguishing between State workers and “similarly situated” municipal and local government employees and general citizens. This argument is without merit.

The common law doctrine of sovereign immunity is the fundamental and rational basis upon which to distinguish State employees from other workers. Irrespective of the wisdom of the State’s decision to assert the doctrine of sovereign immunity, it is a common law principle of unquestioned validity and an “established principle of jurisprudence” that the sovereign cannot be sued in its own court without its consent. (Beers v. Arkansas (1858), 61 U.S. (20 How.) 527, 529, 15 L. Ed. 991, 992.) Moreover, the United States Supreme Court has clearly indicated that a distinction in liability may rationally be drawn between those public entities which enjoy sovereign immunity and those which do not. Compare Will, 491 U.S. at 64, 105 L. Ed. 2d at 53, 109 S. Ct. at 2308 (holding that the State is not a person within the meaning of section 1983 of the United States Code (see 42 U.S.C. §1983 (1988)) based on sovereign immunity), with Monell v. Department of Social Services (1978), 436 U.S. 658, 683, 56 L. Ed. 2d 611, 631, 98 S. Ct. 2018, 2032 (finding that a municipality is a person under section 1983 of the United States Code (see 42 U.S.C. §1983 (1988))).

Claimant’s final argument is that respondents have shown no reasonable basis for excluding State employees from the right to judicial review enjoyed by all other persons engaged in the same endeavors who suffer the same injuries. This argument is without merit. State employees enjoy the substantive benefits of the Act. The so-called “right” to judicial review denied State employees is simply the absence of a particular procedural remedy which claimant concedes is not constitutionally mandated in the first instance. (Thompson, 48 Ill. App. 3d at 757, 363 N.E.2d at 179.) The fact that the State has altered the procedural process by which State employees avail themselves of the benefits of the Act does not demonstrate that the State has improperly denied its employees any fundamental right or otherwise deprived them of due process.

In conclusion, we answer the certified question in the affirmative. Sovereign immunity is a valid common law doctrine of unquestioned legitimacy. The legislature has asserted immunity consistent with the grant of authority bestowed upon it by the express provisions of the 1970 Elinois Constitution. For this reason, the legislature may legitimately curtail review of Commission decisions as they apply to State workers. Consequently, the circuit court lacked subject-matter jurisdiction to consider claimant’s petition for review.

Accordingly, the judgment of the circuit court of Madison County is reversed and the cause is remanded with directions to dismiss the petition for review due to lack of subject-matter jurisdiction.

Reversed and remanded with directions.

RAKOWSKI, WOODWARD, STOUDER, and LEWIS, JJ., concur.