text:
    (No. 83-CV-1117

      In re Application of Maria Pacheco.

      Opinion filed January 11, 1984.

    Maria Pacheco, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Faith S. Salsburg, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This claim arises out of an incident that occurred on April 4, 1983. Maria Pacheco, mother of the deceased victim, Carmen Pacheco, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on May 23, 1983, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That the Claimant’s deceased daughter, Carmen Pacheco, age 26, was a victim of a violent crime as defined in section 2(c) of the Act (Ill. Rev. Stat. 1979, ch. 70, par. 72(c)), to wit: arson (Ill. Rev. Stat. 1979, ch. 38, par. 20 — 1).

2. That on April 3, 1983, the victim died of smoke inhalation as a result of an intentionally set fire in her basement apartment at 1535 North Central, Chicago, Illinois. The victim was taken to St. Anne’s Hospital where she expired shortly thereafter.

The police investigation was able to determine that there were three points of origin and that the fire was started with a high boiling petroleum distillate. The offender has not been apprehended.

3. That the Claimant seeks compensation under the Act for funeral expenses only. The Claimant was not dependent upon the victim for support.

4. That funeral and burial expenses were paid by the Claimant in the amount of $3,673.00. Pursuant to section 2(h) of the Act funeral and burial expenses are compensable to a maximum of $2,000.00. Ill. Rev. Stat. 1979, ch. 70, par. 72(h).

5. That the Claimant has complied with all pertinent provisions of the Act and qualifies for compensation thereunder.

6. That pursuant to section 10.1(e) of the Act, this Court must deduct $200.00 from all claims (except in the case of an applicant 65 years of age or older), and the amount of benefits, payments or awards payable under the Workers’ Compensation Act, Dram Shop Act, Federal medicare, State public aid, Federal Social Security Administration burial benefits, Veterans Administration burial benefits, health insurance, or from any other source, except annuities, pension plans, Federal social security payments payable to dependents of the victim and the net proceeds of the first $25,000.00 (twenty-five thousand dollars) of life insurance that would inure to the benefit of the applicant. Ill. Rev. Stat. 1979, ch. 70, par. 80.1(e).

7. That the Claimant has received no reimbursements as a result of the victim’s death that can be counted as applicable deductions.

8. That after making all the applicable deductions under the Act, the Claimant’s loss is in excess of the $2,000.00 maximum award deemed compensable under the Act for funeral benefits.

It is hereby ordered that the sum of $2,000.00 (two thousand dollars) be and is hereby awarded to Maria Pacheco, mother of the deceased victim, Carmen Pacheco, an innocent victim of a violent crime.


source: Caselaw Access Project

author: POCH, J.

license: Public Domain

text:
    (No. 83-CV-1192

      In re Application of Georgia Curtis.

      Opinion filed August 18, 1983.

    Georgia Curtis, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Faith S. Salsburg, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This claim arises out of an incident that occurred on July 30,1982. Georgia Curtis, Claimant, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on June 21, 1983, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That the Claimant, Georgia Curtis, age 71, was a victim of a violent crime, as defined in section 2(c) of the Act (Ill. Rev. Stat. 1979, ch. 70, par. 72(c)), to wit: battery (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 3).

2. That on July 30, 1982, the Claimant was knocked to the ground by an unknown offender during a purse snatching. The incident occurred on the street at 319 West Prairie, Decatur, Illinois. The Claimant was taken to Decatur Memorial Hospital for treatment of her injuries.

3. That the Claimant seeks compensation for medical/hospital expenses only.

4. That section 2(h) of the Act states that loss of earnings shall be determined on the basis of the victim’s average net monthly earnings for the six months immediately preceding the date of the injury or on $750.00 per month, whichever is less. Ill. Rev. Stat. 1979, ch. 70, par. 72(h).

5. That the Claimant was not employed for the six months immediately preceding the date of the incident out of which this claim arose and therefore suffered no loss of earnings compensable under the Act.

6. That the Claimant incurred medical/hospital expenses in the amount of $277.95, none of which was paid by insurance, leaving a balance of $277.95.

7. That the Claimant has complied with all pertinent provisions of the Act and qualifies for compensation thereunder.

8. That pursuant to section 10.1(e) of the Act, this Court must deduct $200.00 from all claims (except in the case of an applicant 65 years of age or older), and the amount of benefits, payments or awards payable under the Workers’ Compensation Act, Dram Shop Act, Federal medicare, State public aid, Federal Social Security Administration burial benefits, Veterans Administration burial benefits, health insurance, or from any other source, except annuities, pension plans, Federal social security payments payable to dependents of the victim and the net proceeds of the first $25,000.00 (twenty-five thousand

dollars) of life insurance that would inure to the benefit of the applicant. Ill. Rev. Stat. 1979, ch. 70, par. 80.1(e).

9. That the Claimant has received no reimbursements that can be counted as applicable deductions.

10. That the Claimant is over 65 years of age and, therefore, pursuant to section 10.1(e) of the Act, she is exempt from the $200.00 deductible.

11. That the Claimant is entitled to an award for compensation of her medical expenses in the amount of $277.95.

It is hereby ordered that the sum of $277.95 (two hundred seventy-seven dollars and ninety-five cents) be and is hereby awarded to Georgia Curtis, an innocent victim of a violent crime.


text:
    (No. 84-CV-0015

      In re Application of Donald Bolte.

      Opinion filed January 17, 1984.

      Amended opinion filed June 20,1984.

    Donald Bolte, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Faith S. Salsburg, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This claim arises out of an incident that occurred on April 28,1983. Donald Bolte, Claimant, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on July 6, 1983, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That the Claimant, Donald Bolte, age 41, was a victim of a violent crime as defined in section 2(c) of the Act (Ill. Rev. Stat. 1979, ch. 70, par. 72(c)), to wit: aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4).

2. That on April 28, 1983, the Claimant was shot during an apparent robbery attempt by an unknown offender. The incident occurred while the Claimant was on the porch of 652 Henry, Joliet, Illinois. The Claimant was taken to Silver Cross Hospital for treatment of a severe gunshot wound. The Claimant is quadriplegic as a result of the injuries suffered in this shooting. A suspected offender has been apprehended and is being prosecuted.

3. That the Claimant seeks compensation for medical/hospital expenses and for loss of earnings.

4. That as of September 2, 1983, the Claimant had incurred medical/hospital expenses in the amount of $90,347.39, $74,384.95 of which was paid by insurance and $9,895.89 of which will be covered by public aid, leaving a balance of $6,066.55. To date, the Claimant has paid $317.37 of this balance, leaving $5,749.18 due. All other medical expenses will be covered through public aid.

5. That the Claimant was employed by Joyce Beverages Company prior to the injury and his average monthly earnings were $1,148.22. The Claimant suffers from quadriplegia as a result of the incident and is permanently disabled and unable to return to work.

6. That section 2(h) of the Act states that loss of earnings shall be determined on the basis of the victim’s average net monthly earnings for the six months immediately preceding the date of the injury or on $750.00 per month, whichever is less. Ill. Rev. Stat. 1979, ch. 70, par. 72(h).

7. That the Claimant was 41 years of age at the time of the crime. According to the U.S. Department of Health, Education and Welfare, Vital Statistics of the United States, 1978, Life Tables, volume II, his life expectancy would have been 73.3 years. Based on $750.00 per month, the projected loss of earnings for 32.3 years is $290,700.00.

8. That the Claimant has complied with all pertinent provisions of the Act and qualifies for compensation thereunder.

9. That pursuant to section 10.1(c) of the Act, this Court must deduct $200.00 from all claims (except in the case of an applicant 65 years of age or older), and the amount of benefits, payments or awards payable under the Workers’ Compensation Act, Dram Shop Act, Federal medicare, State public aid, Federal Social Security Administration burial benefits, Veterans Administration burial benefits, health insurance, or from any other source except annuities, pension plans, Federal social security payments payable to dependents of the victim and the net proceeds of the first $25,000.00 (twenty-five thousand dollars) of life insurance that would inure to the benefit of the applicant.

10. That the Claimant has received disability benefits in the amount of $2,300.00, which can be counted as an applicable deduction. Also, effective November 3, 1983, the Claimant was entitled to an amount of $538.00 per month from social security disability benefits, which must be counted as a deduction. This amount may increase over the course of the Claimant’s entitlement to these benefits, which can be projected over his life expectancy of 73.3 years.

11. That after considering the applicable deductions against the Claimant’s loss of future earnings, his loss is in excess of $15,000.00, which is the maximum amount compensable under section 10.1(f) of the Act. Ill. Rev. Stat. 1979, ch. 70, par. 80.1(f).

12. That pursuant to section 18(c) of the Act, the Court may order that all or a portion of an award be paid jointly to the applicant and provider of services. In the instant case, the Court finds this section applicable and orders that joint payment be made.

13. That as the Claimant’s full award exceeds the $15,000.00 maximum compensable award, the Court orders that the award be paid pursuant to section 8(c) as follows:

Rehabilitation Institute of Chicago $ 3,807.96

Northwestern Memorial Hospital 210.22

Dr. Paul Meyer 460.00

Northwestern Medical Faculty Foundation 250.00

St. Joseph’s Hospital 366.75

Dr. Steven Nemeth 120.00

Medical Personnel Pool of Joliet 534.25

Loss of earnings and paid medical expenses 9,250.82

Total $15,000.00

It is therefore, hereby ordered that the sum of $9,250.82 (nine thousand two hundred fifty dollars and eighty-two cents) be and is hereby awarded to Donald Bolte, an innocent victim of a violent crime, to be paid and disbursed to him as follows:

(a) $2,250.82 (two thousand two hundred fifty dollars and eighty-two cents) to be paid in a lump sum;

(b) fourteen (14) equal monthly payments of $500.00 (five hundred dollars) each.

It is further ordered that the sum of $3,807.96 (three thousand eight hundred seven dollars and ninety-six cents) be and is hereby awarded to Donald Bolte and Rehabilitation Institute of Chicago.

It is further ordered that the sum of $210.22 (two hundred ten dollars and twenty-two cents) be and is hereby awarded to Donald Bolte and Northwestern Memorial Hospital, account N13045085.

It is further ordered that the sum of $460.00 (four hundred sixty dollars) be and is hereby awarded to Donald Bolte and Dr. Paul Meyer.

It is further ordered that the sum of $250.00 (two hundred fifty dollars) be and is hereby awarded to Donald Bolte and Northwestern Medical Faculty Foundation.

It is further ordered that the sum of $366.75 (three hundred sixty-six dollars and seventy-five cents) be and is hereby awarded to Donald Bolte and St. Joseph’s Hospital.

It is further ordered that the sum of $120.00 (one hundred twenty dollars) be and is hereby awarded to Donald Bolte and Dr. Steven Nemeth.

It is further ordered that the sum of $534.25 (five hundred thirty-four dollars and twenty-five cents) be and is hereby awarded to Donald Bolte and Medical Personnel Pool of Joliet.

AMENDED OPINION

Poch, J.

This claim arises out of an incident that occurred on April 28, 1983. The Claimant, Donald Bolte, sought compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.

The Claimant was awarded compensation by Order of the Court issued on January 17, 1984. At the time of that award, the Court found that the Claimant was entitled to the maximum award of $15,000.00 under the provisions of section 10.1(f) of the Act (Ill. Rev. Stat. 1979, ch. 70, par. 80.1(f)). This claim is now before the Court pursuant to a check for part of the award which was returned to the Court.

The Court has carefully reviewed its prior order in this cause and the returned check. Based upon this review the Court finds:

1. That in the Court’s order of January 17, 1984, the amount of $366.75 was ordered paid in a joint check payable to the Claimant and St. Joseph’s Hospital.

2. That upon the Claimant’s receipt of this check, he attempted to sign this check over to St. Joseph’s Hospital and found that this amount has been written off by that institution.

3. That the Claimant has returned this check to the Court and this check has been redeposited with the Comptroller’s office.

4. That the Claimant is permanently disabled and eligible for the maximum award under section 10.1(f) for both medical expenses and loss of earnings. Therefore, this amount of $366.75 should be considered within the Claimant’s loss of earnings and should be reissued in a check payable to him.

It is therefore, hereby ordered that the sum of $366.75 (three hundred sixty-six dollars and seventy-five cents) be awarded to Donald Bolte.


text:
    (No. 84-CV-0200

      In re Application of Jeannine Rolnick.

      Opinion filed June 20, 1984.

    Jeannine Rolnick, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Faith S. Salsburg, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This claim arises out of an incident that occurred on June 21, 1983. Jeannine Rolnick, Claimant, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on August 26, 1983, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That the Claimant, Jeannine Rolnick, age 40, was a victim of a violent crime, as defined in section 2(c) of the Act (Ill. Rev. Stat. 1979, ch. 70, par. 72(c)), to wit: reckless conduct (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 5).

2. That on June 21, 1983, the Claimant was shot by an unknown offender while she was sitting on a beach. The incident occurred at 5810 North Sheridan Road, Chicago, Illinois. The Claimant was taken to Edgewater Hospital for treatment of her injuries.

3. That the Claimant seeks compensation for medical/hospital expenses only.

4. That the Claimant was not employed for the six months immediately preceding the date of the incident out of which this claim arose and therefore suffered no loss of earnings compensable under the Act.

5. That the Claimant incurred medical/hospital expenses in the amount of $2,213.50, none of which was paid by insurance, leaving a balance of $2,213.50. To date, the Claimant has paid $107.00 towards this balance.

6. That the Claimant has complied with all pertinent provisions of the Act and qualifies for compensation thereunder.

7. That pursuant to section 10.1(e) of the Act, this Court must deduct $200.00 from all claims (except in the case of an applicant 65 years of age or older), and the amount of benefits, payments or awards payable under the Workers’ Compensation Act, Dram Shop Act, Federal medicare, State public aid, Federal Social Security Administration burial benefits, Veterans Administration burial benefits, health insurance, or from any other source, except annuities, pension plans, Federal social security payments payable to dependents of the victim and the net proceeds of the first $25,000.00 (twenty-five thousand dollars) of life insurance that would inure to the benefit of the applicant. Ill. Rev. Stat. 1979, ch. 70, par. 80.1(e).

8. That the Claimant has received no reimbursements that can be counted as applicable deductions.

9. That pursuant to section 18(c) of the Act, the Court may order that all or a portion of an award be paid jointly to the applicant and provider of services. In the instant case, the Court finds this section applicable and orders that joint payment be made. Ill. Rev. Stat. 1979, ch. 70, par. 88(c).

10. That after applying the applicable deductions, the Claimant’s loss for which she seeks compensation is $2,013.50, based upon the following:

Less %

Compensable of $200.00

Amount Deductible Total

Edgewater Hospital $1,596.50 72% $1,452.50

Northside Physicians and Surgeons 310.00 14% 282.00

Dr. J. G. Panchuk 200.00 9% 182.00

Medical expenses paid by Claimant 107.00 5% 97.00

Total $2,213.50 100% $2,013.50

It is hereby ordered that the sum of $97.00 (ninety-seven dollars) be and is hereby awarded to Jeannine Rolnick, an innocent victim of a violent crime.

It is further ordered that the sum of $1,452.50 (one thousand four hundred fifty-two dollars and fifty cents) be and is hereby awarded to Jeannine Rolnick and Edgewater Hospital, account No. 370321-2.

It is further ordered that the sum of $282.00 (two hundred eighty-two dollars) be and is hereby awarded to Jeannine Rolnick and Northside Physicians and Surgeons, account No. 401117.

It is further ordered that the sum of $182.00 (one hundred eighty-two dollars) be and is hereby awarded to Jeannine Rolnick and Dr. J. G. Panchuk, account No. 081023.


text:
    (No. 84-CV-0228

      In re Application of Launa Shepherd.

      Opinion filed February 8, 1984.

    Launa Shepherd, pro se, for Claimant.

      Neil F. Hartigan, Attorney General (Faith S. Salsburg, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This claim arises out of an incident that occurred on September 14, 1981. Launa Shepherd, wife of the deceased victim, Robert Shepherd, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on September 6,1983, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That the Claimant’s deceased husband, Robert Shepherd, age 53, was a victim of a violent crime as defined in section 2(c) of the Act (Ill. Rev. Stat. 1979, ch. 70, par. 72(c)), to wit: murder (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1).

2. That on September 14, 1981, the victim was stabbed repeatedly during an attack by an unknown offender. The incident occurred on a rural road near Pittsfield, Illinois. Police investigation determined that the offender attacked the victim after the victim had given the offender a lift in his car. The victim was pronounced dead at the scene. The offender was apprehended, prosecuted and convicted of murder.

3. That the Claimant seeks compensation for funeral, expenses and for loss of support for herself. The Claimant has listed her daughter, Tammy, as an applicant for loss of support on the application. However, Tammy was born on January 20, 1963, and had attained the age of majority prior to the incident and is, therefore, not eligible for loss of support.

4. That the Claimant incurred funeral and burial expenses in the amount of $2,905.85. Pursuant to section 2(h) of the Act, funeral and burial expenses are compensable to a maximum award of $2,000.00. Ill. Rev. Stat. 1979, ch. 70, par. 72(h).

5. That the Claimant was totally dependent upon the victim for support.

6. That prior to his death, the victim was employed by the Illinois Department of Corrections and his average monthly earnings were $982.80.

7. That section 2(h) of the Act states “. . . loss of support shall be determined on the basis of the victim’s average net monthly earnings for the six months immediately preceding the date of the injury or on $750.00 per month, whichever is less.”

8. That the victim was 53 years of age at the time of the crime. According to the U.S. Department of Health, Education and Welfare, Vital Statistics of the United States, 1978, Life Tables, volume II, his life expectancy would have been 75.2 years. The projected loss of support for 22.2 years is in excess of $15,000.00 which is the maximum amount compensable under section 10.1(f) of the Act. Ill. Rev. Stat. 1979, ch. 70, par. 80.1(f).

9. That this claim complied with all pertinent provisions of the Act and qualifies for compensation thereunder.

10. That pursuant to section 10.1(e) of the Act, this Court must deduct $200.00 from all claims (except in the case of an applicant 65 years of age or older), and the amount of benefits, payments or awards payable under the Workers’ Compensation Act, Dram Shop Act, Federal medicare, State public aid, Federal Social Security Administration burial benefits, Veterans Administration burial benefits, health insurance, or from any other source, except annuities, pension plans, Federal social security payments payable to dependents of the victim and the net proceeds of the first $25,000.00 (twenty-five thousand dollars) of life insurance that would inure to the benefit of the applicant. Ill. Rev. Stat. 1979, ch. 70, par. 80.1(e).

11. That the Claimant has received $450.00 in reimbursements from the Veterans Administration as a result of the victim’s death that can be counted as an applicable deduction under section 7.1(7) of the Act. Ill. Rev. Stat. 1979, ch. 70, par. 77.1(7).

12. That after making all the applicable deductions under the Act, the pecuniary loss resulting from the victim’s death is in excess of the $15,000.00 maximum allowed in section 10.1(f) of the Act. Ill. Rev. Stat. 1979, ch. 70, par. 80.1(f).

13. That the Claimant’s interest would be best served if the award hereunder would be paid pursuant to the installment provision of section 11.1 of the Act. Ill. Rev. Stat. 1979, ch. 70, par. 81.1.

It is therefore, hereby ordered that the sum of $15,000 (fifteen thousand dollars) be and is hereby awarded to Launa Shepherd, wife of Robert Shepherd, an innocent victim of a violent crime to be paid and disbursed to her as follows:

(a) $2,250.00 (two thousand two hundred fifty dollars) to be paid to Launa Shepherd;

(b) Seventeen (17) equal monthly payments of $750.00 (seven hundred fifty dollars) each to be paid to Launa Shepherd;

(c) In the event of the death or marriage of the Claimant, it is the duty of the personal representative of the Claimant to inform this Court in writing of such death or marriage for the purpose of the possible modification of the award.


author: Roe, C.J.

text:
    (No. 6272
    Elder Mack, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 24, 1984.

    Wiseman, Shaikewitz, McGivern & Wahl, P.C. (S. Russell Meyer and Andrew J. Miofsky, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

Claimant brought this action pursuant to section 8(c) of the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.8(c)), hereinafter referred to as the Act, seeking compensation for time allegedly unjustly served in a State prison. On or about August 1,1968, he was arrested and charged with murder. He was tried for the offense in Madison County, Illinois, and was convicted and incarcerated in the Madison County jail on December 3, 1968. Thereafter he was transferred to Menard Penitentiary where he remained until approximately February 26, 1970, at which time his conviction was reversed on appeal to the First District Appellate Court of Illinois. Following the reversal he was removed to the Madison County jail where he remained incarcerated until July 31, 1970, at which point he was released on a recognizance bond. He was tried a second time, but the trial ended in a hung jury. On March 3, 1971, a third trial resulted in his acquittal.

The complaint in this case was filed August 31,1971. At the time it was filed, the Court of Claims Act (Ill. Rev. Stat., ch. 37, par. 439.1 et seq.) provided that the Court shall have exclusive jurisdiction to hear and determine:

“All claims against the State for time unjustly served in prisons of the State where the persons imprisoned prove their innocence of the crime for which they were imprisoned

Effective October 1,1972, the Act was amended so as to read that the Court of Claims shall have exclusive jurisdiction to hear and determine:

“All claims against the State for time unjustly served in prisons of this State where the persons imprisoned shall receive a pardon from the Governor stating that such pardon is issued on the ground of innocence of the crime for which they were imprisoned

Following the change in the statute, the Court, by then Chief Justice Perlin, on its own motion, caused an order to be entered in this claim which took note of the statutory amendment and put it on general continuance status in order to allow the Claimant time to obtain, or attempt to obtain, a pardon from the Governor on the grounds of innocence, and stated that such a pardon was not a condition precedent to compensation for time unjustly served in prison. Claimant followed the Court’s directive and applied for and received a pardon on the grounds of innocence from then Governor Daniel Walker on December 20,1974.

Although Chief Justice Berlin’s order would seem to have disposed of the question, the threshhold issue raised in this case is under which of the two versions of the statute should this case be decided.

Basically, it is the Claimant’s position that the change in the statute was procedural in nature and therefore retroactive, that he acted in good faith in following the Court’s order by securing a pardon on the grounds of innocence, that to hold otherwise would in effect be penalizing him for complying with the Court order, and that by virtue of the pardon on the grounds of innocence the only issue remaining is the amount of damages to which he is entitled.

Respondent takes the position that the change in the statute was substantive in nature and therefore operates prospectively only. It would have us examine the record and determine if the Claimant proved his innocence of the crime by the preponderance of the evidence. Even if we find that the case should be decided under the amended version of the statute, Respondent would seem to contend that the pardon should not be considered in this proceeding based on an argument that it was a nullity because of certain constitutional infirmities.

Counsel for both sides cited cases seemingly directly on point which support their respective positions in their briefs and sought to distinguish each other’s cases in the course of oral argument. While we appreciate counsel’s efforts, we have reviewed every case decided in this Court on the issue of unjust imprisonment and must conclude that the decisions are irreconcilable.

This Court has struggled with the statute since the day it became effective in its original version. The first case decided was Dirkans v. State (1965), 25 Ill. Ct. Cl. 343, rehearing denied (1966). It took over six years to be finally resolved. It points out the problems the Court had when the statute was first enacted and set forth the rule upon which all the unjust imprisonment cases were decided up until the statutory change. We also feel that it is relevant to this case from a historical perspective on the issue of legislative intent.

During the Dirkans litigation the Court unanimously issued an order for a general continuance, prior to which it had been consolidated with several other pending cases of the same type. In that order, after first reciting the statute, the Court stated:

“2. The above cases have been filed, and present diverse factual situations concerning ‘proof of innocence,’ and this Court is unable to determine the legislative intent insofar as ‘the persons imprisoned prove their innocence of the crime for which they were imprisoned.’
3. The Court, therefore, finds that it is unable to hear and determine such cases without further clarification of the statute by an act of the Legislature.
It is, therefore, ordered that all of the above cases be continued generally, without prejudice to either claimants or respondent, pending further action by the Legislature.” (Dirkans, supra, at 347.)

The Court’s obvious purpose was to obtain legislative clarification of the statute by amendment. A change in the law enacted at this point clearly would have been applied retroactively. However, after a year of inaction by the legislature, the Court released these hostage claims from general continuance and assigned them to commissioners to hold hearings apparently without any guidelines as to what the elements of the cause of action were.

However, in deciding Dirkans, the Court in effect made its specific recommendations for statutory change known. It pointed to the New York statute on unjust imprisonment which bears a striking resemblance to our present version of the Act, and commented that New York’s statute relieved the Court of a considerable burden. (Dirkans, supra, at 351.) The Court went on to state:

“It is the studied opinion of this Court that the Legislature of the State of Illinois in the language of . . . (the earlier version of our Act) . . . intended that a claimant prove his innocence of the 'fact’ of the crime. It was not, we believe, the intention of the General Assembly to open the Treasury of the State of Illinois to inmates of its penal institutions by the establishment of their technical or legal innocence of the crimes for which they were imprisoned. . . . The lawmakers of this State would not have intended to grant that recourse to narcotic addicts, murderers, kidnappers, rapists, and other felons who obtain a reversal of their convictions upon a legal or technical basis, such as insanity at the time of commission of the crime, or the running of the Statute of Limitations against said crime. We believe it was the intention of the Legislature in creating Sec. 439.8C of the Court of Claims Act to provide a method of indemnification of persons innocent of the 'fact’ of the crime who have been unjustly imprisoned.” (Emphasis by Court.) Dirkans, supra, at 352-53.

Those observations were made after the Court issued the following rule which would be applied in all of the then-pending and future cases up to the time of the change in the law:

“The burden is upon the Claimant to prove by a preponderance of the evidence (1) that the time served in prison is unjust; (2) that the act for which he was wrongfully imprisoned was not committed by him; and, (3) the amount of damages to which he is entitled.” (Citing cases which dealt with the burden of proof in tort claims.) (Dirkans, supra, at 351.)

After reviewing the record, the Court in Dirkans found that the Claimant had failed to sustain his burden of proof.

A reading of the opinions in the cases decided during the period after Dirkans up to the time of the change in the law (and in certain cases even after the law was changed) illustrates the difficulties encountered by the Court, the Respondent, and the Claimants. The effect of the Dirkans rule was that a hearing on an unjust imprisonment case amounted to a trial de novo on the criminal charge, with the burden of proof being on the Claimant to prove that he did not do the act for which he was charged with having committed a crime. The Court would not retry the evidence in the original criminal trial. (Strong v. State (1965), 25 Ill. Ct. Cl. 231, 234.) No presumption of innocence existed in favor of the claimant, as the Court explained in Bender v. State (1967), 26 Ill. Ct. Cl. 383, rehearing denied (1968):

“Claimant’s petition for rehearing alleges that the Court has failed to consider the presumption of innocence that has never been overcome in Claimant’s case, as there is no lgeal conviction (Claimant had been twice convicted and secured reversals by the supreme court in both instances), and that by dismissing charges the State has conceded to the innocence rather than guilt of Claimant. This Court finds that Claimant has confused two separate forums and two separate theories of law. The original forum wherein the Claimant was tried for an alleged crime, and wherein the Claimant must have been proven guilty beyond a reasonable doubt, and the Court of Claims wherein the Claimant seeks to recover against the State under Sec. 8C of the Court of Claims Act (sic). There is no legal relationship between the findings of the supreme court as to whether or not the civil rights of Claimant were violated, and the finding of the Court of Claims wherein Claimant seeks recourse under a statutory provision in a semi-judicial forum, which was created by the legislature for the purpose of hearing causes of action against the State of Illinois that are constitutionally prohibited in normal courts of law. In this latter forum, rules of evidence and procedure and elements of proof are of a special nature often dissimilar to those rules prescribed in a court of criminal jurisdiction.” Bender, supra, at 388.

Numerous problems involving availability and credibility of witnesses were encountered by both sides, but especially by the Respondent. (Beard v. State (1972), 27 Ill. Ct. Cl. 390.) Witnesses previously unavailable to testify at the criminal trial appeared at Court of Claims hearings. (Dirkans, supra; Beard, supra; Nunes v. State (1970), 27 Ill. Ct. Cl. 250.) Due to the length of time between the criminal trial and the Court of Claims hearing (30 years in Conroy v. State (1969), 26 Ill. Ct. Cl. 303), exculpatory and accusatory witnesses had disappeared. See Napue v. State (1962), 26 Ill. Ct. Cl. 192, where, after having served 20 years in a penitentiary, Claimant’s conviction was reversed by the United States Supreme Court and he was unable to locate his wife who was described as “the one person who presumably could have testified as to Claimant’s whereabouts at the time of the robbery . . . Napue, supra, at 196.

In many instances the only real evidence of the Claimant’s innocence was his own uncorroborated testimony. This led to the Court’s holding that the legislature did not intend for such to be a sufficient basis for compensation. (Dirkans, supra; Bender, supra; Martin v. State (1968), 26 Ill. Ct. Cl. 371; Qualls v. State (1968), 26 Ill. Ct. Cl. 208; Conroy v. State, supra; Shook v. State (1969), 27 Ill. Ct. Cl. 29.

In addition to creating the factual problems, application of the Act and the Dirkans rule apparently did not enable the Court to achieve consistent decisions on matters of law and perceived legislative intent. In Munroe v. State (1966), 25 Ill. Ct. Cl. 286, the Claimant had been acquitted after his second trial on the grounds that he was insane at the time he committed the act. The Court applied Dirkans and denied his claim because he was not innocent of the “fact” of the crime, i.e. he did the act for which he was charged with having committed a crime. Because of his insanity, however, his commission of that act did not constitute a crime. In Beard v. State, supra, the Claimant had been convicted of murder but the case was remanded by the appellate court for a new trial which took place five years later and which resulted in an order of discharge. At his hearing before the Court of Claims, the Respondent made the argument that even if he was not guilty of murder, he was still guilty of a lesser included offense. Without reviewing the facts the Court held that the statute specifically referred to the “crime for which he was imprisoned.” This leads to the conclusion that a Claimant may do an act and such act may constitute a crime, but if it was not the crime for which he was imprisoned, then he could receive compensation. The Claimant in Beard did receive an award. In Smith v. State, (1969), 26 Ill. Ct. Cl. 290, the Claimant was released from prison where he was incarcerated for a parole violation on a writ of habeas corpus. The writ had been granted because, due to a technicality, he was not legally considered to have been on parole at the time he committed the Act. In granting an award the Court stated that, “While Claimant Smith’s imprisonment for parole violation was not technically an imprisonment for a ‘crime,’ as stated in the Court of Claims Act, it must be assumed that the word ‘crime’ as used in the statute encompasses any offense for which a person is illegally imprisoned.” (Smith, supra, at 298.) Smith committed the act for which he had been charged with a crime, but, it was not a crime. In Peterson v. State (1973), 29 Ill. Ct. Cl. 398, rehearing denied (1974), the Claimant had been charged with murder by abortion, pleaded not guilty, and then pleaded guilty to involuntary manslaughter. He was released on a writ of habeas corpus after the circuit court determined that there was no such crime as murder by abortion (because the Criminal Code of 1961 had abolished it), that involuntary manslaughter therefore could not be a lesser included offense, and that, therefore, no crime had been committed. Peterson’s claim was denied by an opinion written by the same judge who wrote the Smith opinion. In both cases, the Claimants committed the act for which they were charged with having committed a crime. In neither case did the act committed constitute a crime. Different conclusions were reached. The bases of the decisions in each of these four cases was the Dirkans rule that a determination be made of guilt or innocence of the “fact” of the crime. It is possible to draw distinctions among these four cases, but they serve to illustrate the problems faced by the Court with the language of the Act and the Court’s best efforts in interpreting it.

On October 1,1972, the Act was finally amended by deleting the requirement that Claimants must prove their innocence of the crime for which they were imprisoned and substituting the requirement that a pardon on the grounds of innocence be received from the governor. A review of the cases following the change also shows very uneven and inconsistent application.

Eighteen days after the new law went into effect, the Court rendered the opinion in Tyler v. State (1972), 28 Ill. Ct. Cl. 90. The earlier version of the Act was applied without any discussion of the change in the Act. Three weeks later the opinion on rehearing in Duncan, supra, was issued affirming the Court’s application of the earlier version without discussion of the change in the Act.

Then on August 20, 1973, two consolidated cases which were filed after the change in the law, McCray v. State (1976), 31 Ill. Ct. Cl. 423, and Dillard v. State (1976), 31 Ill. Ct. Cl. 424, were placed on general continuance by order of the Court to allow for time to obtain a pardon. The Court held that the change in the law was both retroactive and jurisdictional. Approximately two weeks later the case at bar, which was filed prior to the change in the law, was put on general continuance for the same reason. Counsel for the Respondent explained at oral argument that the same order of general continuance which was entered in the case at bar was entered in all pending cases of this type at the time. The language of the order would seem to so indicate:

“Inasmuch as the General Assembly of Illinois has changed the law under which this action was brought, an amendment which the court has found to be strictly procedural in nature and therefore retroactive in its effect, this claim and all other similar cases will be continued to allow the claimant adequate time to comply with the procedure now required by law.
Since there are numerous cases of this type now pending, and since the court’s position on the legal questions involved has been extensively explained in a recent order, a copy of our comments and conclusions in . . . (McCray and Dillard) ... is attached hereto and made a part of this order for informational purposes.”

An examination of the docket indicates that at this time there were 13 such claims pending, including Dillard, McCray, and the case at bar. Orders of general continuance to allow time to obtain a pardon were docketed in only five of those cases. In only one instance does the record reflect that a pardon had previously been obtained, Harpstreith v. State (1975), 30 Ill. Ct. Cl. 546, and it was not issued on the grounds of innocence.

The next opinion rendered was Washington v. State (1974), 29 Ill. Ct. Cl. 371. This claim had been filed before the statutory change, was pending at the time of the McCray and Dillard order, and was not put on general continuance. The Claimant was granted an award based on the earlier version of the Act and the Dirkans rule without any discussion of the change in the law or any mention of a pardon. Approximately one month later, the Court rendered the decision on rehearing in Peterson, supra, affirming, without discussion of the change in the Act, a decision applying the earlier version of the Act entered just eight days before McCray and Dillard were put on general continuance.

It was not until a year later that another decision on the unjust imprisonment issue was rendered. Valentine Harpstreith had been imprisoned from April of 1929 to July of 1949, a period of 20 years. He received a pardon in December of 1968 based upon “ ‘twenty years’ of service on the life sentence before parole eligibility occurred, plus the good record maintained during the nineteen years since (his) release on parole”. (Harpstreith v. State (1975), 30 Ill. Ct. Cl. 546, 547.) He filed his claim May 15,1969.

On May 8, 1975, the Court rendered its opinion on the matter. Calling it a case of first impression, the Court held that the Act, as it was originally drafted, did not operate retroactively, so as to create a cause of action based on alleged unjust imprisonment taking place prior to the Act’s becoming effective on July 9, 1959. The rationale was as follows:

“A ‘retroactive law’ has been defined as one which ‘takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect of transactions or considerations already passed.’ 82 C.J.S. Statutes, Sec. 412. There is no doubt that (the earlier version of the Act) . . . created a new obligation on the part of the State to compensate individuals wrongfully convicted and incarcerated, as no such duty existed at common law. See Campbell v. State, 62 N.Y.S.2d (1946).
Section 439.8(c) is silent as to whether it is to be applied retroactively. By contrast, Art. 2, Sec. 9(3a) of the Court of Claims Act of New York grants that Court jurisdiction,
‘To hear and determine the claim for damages against the State of any person heretofore or hereafter convicted of any felony or misdemeanor against the State and sentenced to imprisonment, who, after having served all or any part of his sentence, shall receive a pardon which is issued on the ground of innocence of the crime for which he was sentenced.’ (Emphasis added.)
The Illinois statute contains no comparable language, and under general rules of statutory construction, such words are necessary if a statute is to be given retroactive application....
We can find no clear direction from the Legislature in (the earlier version of the Act) . . . that the statute is to be applied retroactively, and in the absence of such express direction we are compelled to give the statute only prospective application.
One additional aspect of this issue merits attention, although it has not been raised by either party. Section 22 of the Court of Claims Act, 37 Ill.Rev.Stat., Sec. 439.8, provides in pertinent part:
‘Every claim cognizable by the court arising under subsection C of Section 8 of this Act shall be forever barred from prosecution therein unless it is filed within 2 years after the person asserting such claim is discharged from prison, or is granted a pardon by the Governor, 00*.’ (Emphasis added.)
Since Claimant did file this action within two years of receipt of a gubernatorial pardon, it may be contended that Section 22 authorized his cause of action.
The answer to any such contention is found, we believe, in the language of Section 22 referring to claims ‘cognizable by the court arising under subsection C of Section 8 of this Act.’ We have concluded that Section 8(c) of the Act cannot be applied retroactively. Therefore, Claimant does not have a ‘claim cognizable by the court’.” Harpstreith, supra, at 551-52.

From that reasoning it is clear that under the earlier version of the Act, a Claimant must have been released from prison subsequent to the effective date of the Act in order to have a cause of action under the Act. Although the Court was under the impression (as noted above) that this was a case of first impression, the issue was present but not dealt with in Munroe, supra, and Smith, supra, the latter wherein an award was made.

Respondent relies heavily on certain dicta contained in Harpstreith which was not necessary to the conclusion reached. Without any reasoning the Court observed that at the time the Claimant filed his claim, the later version of the Act was not in effect and therefore the Claimant would have born the burden of establishing his innocence of the “fact” of the crime by a preponderance of the evidence. (Harpsreith, supra, at 550.) However, by even deciding that the Claimant did not have a cognizable cause of action under the Act the Court applied the earlier version.

Five days after the Harpstreith opinion was filed the Court rendered the decision in Mostafa v. State (1975), 30 Ill. Ct. Cl. 567. The Claimant therein had been imprisoned from May 6, 1969, to February 2,1972, and filed his claim on July 31,1972 (all prior to passage of the amended version of the Act). He obtained a pardon on the grounds of innocence in May of 1974. The Court found as follows:

“Since the Claimant in this instance has received such a pardon, the sole obligation of the Court is to find the amount that is due the Claimant and also fix the attorney’s fees that should be paid by Claimant.” Mostafa, supra, at 569.

It is therefore clear that it was decided under the later version of the Act. Procedurally, Mostafa, is the same as the case at bar, except for the fact the docket does not reflect that it was ever continued generally to allow the Claimant time to attempt to obtain a pardon and the fact that the Respondent stipulated to the granting of an award therein.

Pirovolos v. State (1976), 31 Ill. Ct. Cl. 82, was the next decision to be rendered on an unjust imprisonment case. The Claimant was released from prison on June 18, 1970, filed his claim on February 14,1972 (again all prior to the effective date of the later version of the Act), and after a general continuance was allowed to enable Claimant to try to obtain a pardon, did receive a pardon on September 21,1974. The Court applied the amended version of the Act in granting Claimant’s motion for judgment on the pleadings in making an award. Procedurally, this case is also similar to the case at bar.

McCray, supra, and Dillard, supra, were the next two unjust imprisonment cases to be decided. Although these cases were filed shortly after the Act was amended, both Claimants had been released from prison while the original version of the Act was in effect. During the aforementioned general continuance both had obtained pardons on the grounds of innocence. Joint stipulations by the parties as to facts and to the making of an award were filed, and accordingly the Court granted compensation on September 22, 1976. In so doing the Court applied the amended version of the Act.

Seven months later the next unjust imprisonment case was decided, Coffey v. State (1977), 31 Ill. Ct. Cl. 350. Although the claim was filed prior to the effective date of the amended version of the Act, the Court again applied the amended version in deciding the case.

Less than two months later the opinion in Hammond v. State (1977), 31 Ill. Ct. Cl. 362, was filed. The Claimant had been released from prison on October 8, 1969, and filed his claim on August 3,1972. There was no mention of a pardon ever having been received and the docket indicates that nothing happened in the case between October 10, 1972, and the date of the opinion. The Court applied the original version of the Act without explanation and made an award. One month later, in a case filed before the statutory change, the Court rendered the opinion in Dixon v. State (1977), 32 Ill. Ct. Cl. 36, and again applied the original version of the Act without explanation or mention of a pardon.

On May 12, 1978, Young v. State, 32 Ill. Ct. Cl. 78, was decided. The Claimant had been released from prison in the late 1960’s and filed his claim sometime in 1972. Although the docket sheet indicates that it was filed on December 15,1972, the file contains documents predating the effective date of the amended version of the Act. The case was continued generally at the same time as the case at bar to permit the Claimant to attempt to obtain a pardon. Claimant did not obtain the pardon but moved for restoration to active status arguing that a pardon was unnecessary because an appellate court had reversed his conviction. The Court found that:

“[I]n failing to obtain a pardon on the grounds of innocence since September 5, 1972, when this cause was continued generally to permit him to do so, Claimant has failed to prosecute this action. The Court further finds that in the absence of a pardon on the grounds of innocence, it is without jurisdiction to consider this claim.” (Young, supra, at 79, 80.)

Earlier in that case the Court stated that the amendment had made a pardon on the grounds of innocence a condition of jurisdiction.

Less than four months later, Miller v. State (1978), 32 Ill. Ct. Cl. 444, was decided. Claimant Miller was released from prison on November 19, 1970, and filed his claim on May 17, 1971. Just as in Harpstreith, supra, the Court recalled the problems it faced under the older version of the Act and without providing a rationale stated:

“However, at the time Claimant instituted this action, this amendment was not in effect, and Claimant therefore bears the burden of establishing by a preponderance of the evidence, his innocence of the ‘fact’ of the crime for which he was imprisoned (citing Harpstreith, supra).” (Miller, supra, at 448.)

The Court applied the Dirkans rule and denied the claim. No mention was made of a pardon or a general continuance to get one. Miller too is similar to the case at bar with respect to the time periods of the release and filing date.

The cases cited above all involved situations where the Claimant was released from prison prior to the effective date of the amended version of the Act and most were filed before that time. There is no pattern nor does one case appear to overrule another. Other than the mere statement that because a certain claim was filed before the change in the law the earlier version would apply, there was no rationale given for application of one version or the other. In Harpstreith, supra, the Court did apply the original version in finding that the Act did not apply retroactively, but if the same rationale applied to the amended version, all of those cases pending on the effective date of the amended version should have been dismissed.

With this precedential background we now must decide the first issue in the case at bar. Because the previous decisions have clearly been inconsistent in their interpretations and application of the Act, we do not feel constrained to follow a certain precedent. However, we do not think the issue should be decided from a tabula rasa either. We feel that the proper decision should be based upon the intent of the legislature, policy, and historical experience.

When the original version of the Act was first passed, the Court foresaw the difficulties which would be encountered in the course of litigation and attempted to hold the claims in abeyance until the language could be clarified. (See the interim order entered in Dirkans, supra, quoted above.) Any change at that time clearly would have been applied retroactively because there would have been no other purpose for the order. The three years of experience of deciding cases based on the Dirkans rule illustrated the foreseen difficulties. Also in Dirkans, the Court made known what constructive changes should be made by comparing New York’s version of the statute and commenting that a great burden on the Court could be easily and effectively lifted and the legislative goals of compensation to truly innocent parties and denial of compensation to guilty persons could be furthered. Although not with the alacrity originally envisioned by the Court, the legislature did acquiesce and changed the statute in accordance with the suggestions made in Dirkans.

Following the effective date of the amendment, the first occasion the Court took to rule on the legal effect of the amendment was the unpublished order by Judge Burks in McCray, supra, and Dillard, supra, which continued those claims generally. The order contains a discussion of the Court’s experience with the original version of the Act and the Court’s personal knowledge of the legislative intent. The lengthy comments contained therein were expressly made for general informational purposes, future reference, and to provide guidance in similar cases.

In that order the Court held that the amendment was both retroactive and jurisdictional. Interestingly, the Claimants were contending that the amendment was substantive rather than procedural in effect, and that a retroactive application would deprive them of a vested property right. Addressing that argument the Court stated:

“After carefully analyzing the cases cited by the parties, we must conclude that the claimants had no vested property rights which were denied them by the amendment to Sec. 8(c). We believe the applicable rule is that stated by the Illinois Supreme Court in People v. Lindheimer, 371 Ill. 367, 21 N.E.2d 318, 321.
(Vested rights) ‘must be something more than a mere expectation based upon an anticipated continuance of the existing law. It must have become a title, legal or equitable, to the present or future enjoyment of demand, or a legal exemption from a demand made by another. If, before rights become vested in particular individuals, the convenience of the State induces amendment or repeal of the laws, these individuals have no cause to complain.’
In the case at bar, claimant’s rights under the old Sec. 8(c) would not be ‘vested’ until they had been adjudicated by this court.”

They had not yet “proved their innocence of the crime” in the Court of Claims, as the version of the Act under which they were claiming their right to compensation had required.

The Court went on to discuss the problems it had faced with proof of innocence under the earlier version and said that it was to remedy those situations that the amended version was enacted. The legislature could have repealed the Act outright and made no provision whatsoever for compensating prisoners who served time unjustly. If it had done so, the effect would have been to obliterate the cause of action completely as if it had never been passed. Instead, the Court said, the Act was amended by creating a different and, what is thought to be, a better procedure by which this Court can be satisfied as to a claimant’s innocence:

“We believe the legislature felt that the Parole and Pardon Board, with its comprehensive records on every prisoner and its investigative powers, should first make a recommendation to the Governor for a pardon ‘on the grounds of innocence’, and the pardon be issued as a condition precedent to an action for damages in this court.
The legislature obviously felt that the Governor would issue what amounts to a ‘Certificate of Innocence’ if the record clearly indicates that the prisoner was in fact not guilty of any crime that could have resulted in his imprisonment.”

Pursuant to article V, section 12, of the Illinois Constitution of 1970, whether or not a prisoner receives the pardon lies purely in the realm of gubernatorial discretion and such discretion is unfettered by legal technicalities and evidentiary problems.

In addition to finding the amendment procedural, the Court also found it to be jurisdictional. Upon the effective date of the amendment, the Court felt that its jurisdiction to hear and determine only such claims based upon unjust imprisonment immediately changed and it then had jurisdiction to hear and determine only such claims as were filed in conformity with the amended version of the Act. In this regard the Court noted that it would therefore be appropriate to dismiss the claims with leave to reinstate upon compliance with the jurisdictional requirement, but it did not do so for reasons of convenience only. Rather, it put the claims on general continuance. Significantly, it also noted that a general continuance would be unnecessary to toll the statute of limitations. Compare Harpstreith, supra.

We find the Court’s discussion in that order of the effect of the amendment persuasive. We think that the intent of the legislature as described therein was accurate. The Court had the benefit at that time of personal contact with the legislature and personal knowledge of what it had intended to do. From both the policy perspective and the perspective of the historical experience of the Court of Claims, application of the amended version of the Act is a more desirable and better procedure on the whole, arguments of the Respondent, to the effect that legislative confidence in the Prison and Parole Board and the Governor was misplaced, notwithstanding. We think that if we were to hold that the original of the Act applies we would be perpetuating a burdensome and problematical situation thought to have been remedied long ago. Accordingly, we hold that the case at bar should be decided under the amended version of the Act.

Having decided that the amended version of the Act applies, the next step in this case is to determine whether the person imprisoned, the Claimant, received a pardon from the Governor on the grounds of innocence of the crime for which he was imprisoned. The record is clear that on December 20,1974, Governor Walker issued such a pardon. However, Respondent contends that under the Constitution of the State of Illinois of 1970, the Governor exceeded his authority in granting the pardon. The Constitution provides as follows:

“The Governor may grant reprieves, commutations, and pardons, after conviction, for all offenses on such terms as he thinks proper. The manner of applying therefore may be regulated by law.” (Emphasis added.) (Ill. Const. 1970, art. V, sec. 12.)

Respondent reasons that because of the appellate court’s reversal of Claimant’s conviction and his subsequent acquittal at trial, Claimant technically and legally stood convicted of nothing at the time the pardon was granted and therefore the pardon was not granted “after conviction,” nor was there anything for which Claimant could be pardoned.

This is the first instance that this precise issue has been raised in this Court, although it would seem to have been similarly present in one form or another in nearly every claim brought under the Act after it was amended. In not one of the cases ever decided in this Court since the cause of action was first created in 1959, do the records indicate that a person was released from a State prison solely by virtue of a pardon by the Governor. In only one case, Harpstreith, supra, was a pardon granted while a conviction still stood. In that case the pardon was granted approximately 20 years following the Claimant’s release from prison, and was not based upon his innocence of the crime for which he was imprisoned, but on his “twenty years of service on the life sentence before parole eligibility occurred, plus the good record maintained during the nineteen years since his release on parole.” (Harpstreith, supra, at 547.) In every other case where a person had been convicted at one time and a pardon was granted, it was granted after the conviction had been removed by post-trial relief obtained through the courts, e.g., convictions reversed on appeal (McCray, supra; Dillard, supra; McKibben v. State (1977), 32 Ill. Ct. Cl. 147; Hading v. State (1978), 32 Ill. Ct. Cl. 125.) In one case where the Claimant had what would seem to be the ideal factual situation in his favor, new evidence in the form of a confession by another to the murder of which the Claimant was convicted, a motion for a new trial was filed. After evaluation by the State’s Attorney the motion was acquiesced in, the court granted it, and the State then nolle pressed the charges. He was then granted a pardon. (McDonald v. State (1980), 33 Ill. Ct. Cl. 45.) It is clear that issue is of importance not only in this case but, as historically foreshadowed, future potential claims as well.

The initial question which must be answered in deciding the issue is whether or not this is the proper forum in which to raise it. It is the Claimant’s position that it is not. He contends that the appropriate place for such an issue to be argued is at the hearing on the pardon and, regardless of whether or not the pardon should have been given, the fact is that it was and is now part of the record.

Claimant apparently was referring to the hearing procedure before the Parole and Pardon Board, which, at the time Claimant applied for his pardon, was empowered to make recommendations to the Governor as to whether or not a pardon should be granted, pursuant to the grant of authority contained in section 3 — 3—13 of the Unified Code of Corrections. (Ill. Rev. Slat., ch. 38, par. 1003 — 3—13.) This statute provided as follows:

“Sec. 3 — 3—13. Procedure for Executive Clemency.
(a) Petitions seeking pardon, commutation or reprieve shall be addressed to the Governor and filed with the Parole and Pardon Board. The petition shall be in writing and signed by the person under conviction or by a person on his behalf. It shall contain a brief history of the case and the reasons for executive clemency.
(b) Notice of the proposed application shall be given by the Board to the committing court and the state’s attorney of the county where the conviction was had.
(c) The Board shall, if requested and upon due notice, give a hearing to each application, after which it shall, without publicity advise the Governor by a written report of its recommendations which shall be determined by a majority vote. The Board shall meet to consider such petitions no less than 4 times each year.
(d) The Governor shall decide each application and communicate his decision to the petitioner and to the Board.” (Emphasis added.)

As the Claimant pointed out at oral argument, several people are supposed to be given notice of the application for the pardon and presumably would be allowed to be present and to argue at a hearing. The Attorney General is not one of those people who are to be notified. As the law currently reads, in certain instances the sheriff of the county from which the offender was sentenced and certain municipal law enforcement officials are also entitled to notice, but only after a pardon has been granted. However, in view of the Illinois Supreme Court’s opinion in Smith v. Jenkins (1927), 325 Ill. 372, 156 N.E. 290, it is at least open to question whether these notice provisions, if challenged, can pass constitutional muster. Interpreting a provision of the Constitution of 1870 granting the Governor pardon powers which is substantially similar to the present pardon provision, the Court stated:

“The only restriction which the legislature may impose upon the Governor’s power refers to regulations relative to the manner of applying for reprieves, commutations and pardons, and the act on that subject does not purport to, and does not, restrict the Governor’s authority except to that extent. The giving of statements or opinions by the judge or prosecuting attorney is not made a condition precedent to the Governor’s action, and the requirement of them does not hamper his freedom in any way, for the Governor may act without such statements for any reason satisfactory to him. The publication of notice may also be dispensed with by the Governor when, in his judgment, justice or humanity requires.” Smith, supra, at 291-92.

The supreme court has also examined the nature and duties of the Parole and Pardon Board. In Abner v. Kinney (1964), 30 Ill. 2d 201, 195 N.E.2d 651, the Court said:

“The Parole and Pardon Board has two separate and distinct functions. One is to act as the Governor’s agent in hearing applications for executive clemency, in which the Board has no power to grant a pardon, reprieve or commutation, but merely to submit a recommendation to the Governor, who is free to accept or reject the recommendation. The other is when it sits as an administrative body with the power to make final decisions in parole matters. The latter power has been granted it by the legislature.” (Abner v. Kinney, supra, at 205.)

Using the Court’s analogy to agency principles, the Parole and Pardon Board, when functioning in the former capacity mentioned above, was but an extension of its principal, the Governor, with the persons it dealt with on notice that its authority was ultimately qualified or limited. It could only make recommendations and its recommendations were in no way binding.

Moreover, there were no statutorily or judicially defined standards of persuasion for the decision-making processes of the Parole and Pardon Board. It was free to make a recommendation either way on any petition. (See Attorney General’s Opinion No. S — 727, issued March 22, 1974.) As explained therein, the General Assembly intentionally declined to formulate substantive standards to guide the Parole and Pardon Board in the performance of its duties regarding pardons because it recognized that since the Governor is free to accept or reject the recommendations of the Board, he should be the one to formulate substantive standards for its operations insofar as pardons are concerned, and it decided that any attempt by the legislature to set substantive standards might be construed as an unconstitutional infringement upon the pardoning power granted to the Governor. By the same reasoning, recommendations by the Board and decisions by the Governor concerning pardons were not subject to judicial review under the terms of the Administrative Act, nor are recommendations made by the Board’s successor agency and decisions by the Governor reviewable under the terms of Article III of the Code of Civil Procedure, the legislation succeeding the Administrative Review Act.

Although it may have been an appropriate place in which to begin, we do not think that the Parole and Pardon Board was the exclusive forum for making the argument raised in this case. To find otherwise would be tantamount to saying that the Governor was the sole interpreter of the extent of his constitutional authority. Pardons have been challenged in other forums in this State, including the Court of Claims.

In Deneen v. Gilmore (1905), 214 Ill. 569, 73 N.E. 737, and Johnson v. George (1900), 186 Ill. 122, 57 N.E. 804, the supreme court held that attorneys might be disbarred because of a conviction of a crime involving moral turpitude, notwithstanding the fact that a pardon had been granted prior to the institution of the disbarment proceeding. Although the court in Gilmore also found misconduct after the pardon, the court in George found the pardon to have little or no effect on the moral character required for the practice of law. It stated:

“But the pardon could not efface the moral turpitude involved in the crime. It could not obliterate the moral stain upon his character. That remains.” George, supra, at 806.

The George case arose as a result of an information being filed against the respondent therein and was before the court on a rule to show cause. Gilmore was before the court on a petition for disbarment originally filed there.

In People v. Rongetti (1946), 395 Ill. 580, 70 N.E.2d 568, rehearing denied (1947), the defendant was convicted of practicing medicine without a license. One of the issues raised was whether or not he had a right to practice medicine by virtue of a pardon granted by the Governor, restoring his rights of citizenship, which had been forfeited by a prior conviction of manslaughter. The supreme court made a determination as to the effect of the pardon on his later conviction and declined to accord it the effect claimed by the defendant.

In Symonds v. Gualano (1970), 124 Ill. App. 2d 208, 260 N.E.2d 284, the issue presented was whether or not the restoration of the defendant’s rights of citizenship, granted by the Governor, removed his ineligibility to hold public office created by his prior convictions for an infamous crime. The appellate court decided that the effect of the pardon was such that the ineligibility was removed. Its decision was on an appeal of an order, entered pursuant to the mandate of the appellate court, ousting the defendant from public office. The defendant had obtained a pardon after the mandate.

In People v. Chiappa (1977), 53 Ill. App. 3d 639, 368 N.E.2d 925, the defendant had been found guilty of involuntary manslaughter following a jury trial. Subsequent to this conviction, but before oral argument of the appeal of the conviction, he received a pardon from the Governor. The penultimate issue on appeal was whether the appeal had been rendered moot due to the pardon.

In People v. Glisson (1978), 69 Ill. 2d 502, 372 N.E.2d 669, the supreme court was called upon to decide the effect of a gubernatorial pardon on a petition for expungement made pursuant to section 5 of “An Act in relation to criminal identification and investigation.” (Ill. Rev. Stat., ch. 38, par. 206 — 5.) The petitioner had been convicted, subsequently received a pardon, and sought an expungement order from the circuit court. The circuit court granted the petition, the order was affirmed on appeal, and the- supreme court granted certiorari. The issue involved the language in the expungement statute cited above limiting the availability of expungement to those persons “not having previously been convicted of any criminal offense or municipal ordinance violation, (who have) been charged with a violation of a municipal ordinance or a felony or misdemeanor, (and are) acquitted or released without being convicted.” In deciding the effect of the pardon with respect to the expungement statute, the court stated that, “The petitioner, because of his conviction, is obviously beyond the statute’s reach.”

The litigation over the pardons involved in the cases discussed above involved the effect that was to be accorded the pardons. The authority of the Governor to grant the pardons was not challenged nor were the pardons themselves. The only reported case from the judicial system on the authority of the Governor to grant pardons in absence of an outstanding conviction which we could locate dates back to 1846. In Ex parte Birch (1846), 8 Ill. 134, the Illinois Supreme Court, acting on a petition for a writ of habeas corpus stated that the Governor cannot pardon before conviction according to the Constitution of the State of Illinois as it then existed. In that case, however, the court was not sitting in review of a fait accompli of the Governor in that it was not being asked to overturn a pardon already granted, but acting on a petition of a prisoner to be released instead of being tried for an offense for which he alleged entitlement to be pardoned.

At the least, it can be concluded from those cases discussed above that the proper forum for deciding the effect to be given a pardon is any court having jurisdiction over the cause of action wherein the effect of the pardon is at issue. Clearly, then, the Court of Claims is a proper forum for the Respondent to litigate the effect to be given to a pardon in a claim for unjust imprisonment.

We turn now to the merits of the Respondent’s argument. It is uncontested that the Claimant did receive a pardon from the Governor on the grounds of innocence of the crime for which he was imprisoned. We think it a proper determination for this Court to make as to what effect this pardon is to have on the claim at bar. A plain reading of the Act would seem to indicate that the Claimant has demonstrated his entitlement to an award thereunder. However, we decline to accord the pardon that effect. We agree with the Respondent that the Governor was acting beyond the scope of his authority in granting a pardon under the circumstances involved here. The Governor is only authorized by the Constitution to grant a pardon after there has been a conviction, and the Claimant stood convicted of no crime at the time pardon was granted. Our position herein is consistent with that in Coffey v. State, wherein the Court stated:

“Thus, the Governor’s power to pardon for an offense is expressly conditioned upon there having been a conviction for that offense, and the jurisdiction of this Court to entertain a claim for unjust imprisonment is expressly conditioned upon a Claimant first having received a pardon. It, therefore, appears self-evident that we cannot entertain a claim for unjust imprisonment unless there has first been a conviction, and then a pardon issued in accordance with . . . the Constitution, which conditions the Governor’s power to pardon upon the existence of a conviction.” Coffey v. State (1977), 31 Ill. Ct. Cl. 350, 352.

In maintaining this position we are not reviewing and overturning a purely discretionary act of the Governor. Obviously, this Court cannot act in such a manner. We have not and will not consider the merits of the Governor’s actions. In declining to give the Governor’s pardon its purported effect vis á vis the Act, we are fulfilling the Court’s role as an advisory body of the legislature.

For the reasons stated herein, it is hereby ordered that this claim be, and hereby is, denied.


text:
    (No. 75-CC-1344
    Helen Preikschat, Donna J. Pikey, Jamie Pikey, a minor, by her mother and next friend, Donna J. Pikey, and Timothy Preikschat, a minor, by his father and next friend, Orton Preikschat, Claimants, v. The State of Illinois and The Illinois Department of Transportation, Highways Division, Respondents.

      Opinion filed January 2, 1985.

    Helen Preikschat and Donna J. Pikey, pro se, for Claimants.
    Neil F. Hartigan, Attorney General (Terence E. Kiwala, Assistant Attorney General, of counsel), for Respondents.
   POCH, J.

This is a claim for personal injuries sustained by Claimants as a result of an automobile accident which occurred on August 19,1973, at 1-70 at mile post 15.46, 3/4 mile east of Illinois Route 159, Collinsville, Madison County, Illinois.

Claimants allege in their complaint that at the time of the accident Respondent was engaged in construction work in the area of the accident.

Claimant, Donna J. Pikey, was operating an automobile in an easterly direction upon 1-70. Her passengers were Claimants, Helen Preikschat, Jamie Pikey, a minor, and Timothy Preikschat, a minor. At that time Herbert Buehneman was driving along the same highway in a westerly direction and Tina L. McGhee was driving in an easterly direction along the same highway.

Claimants allege that the highway, at that time and place, was under construction and that Respondent negligently maintained the highway by leaving the surface “slick and slippery with loose material, loose gravel, oil and tar and covered with holes and soft shoulders,” and further, that Respondent failed to give any notice to motorists of the dangerous condition of the highway and failed to post signs reducing the speed of vehicles. As a result, Herbert Buehneman and Tina L. McGhee were caused to lose control of their vehicles and strike the automobile occupied by Claimants.

Claimants’ case consisted of the testimony of Claimants Preikschat and Pikey.

Mrs. Preikschat had no direct testimony as to the allegations of negligence of the Respondent.

Mrs. Pikey testified that when she was in her car she observed gravel upon the highway as well as an “oily substance.” She also testified that she observed a sign reducing the speed limit on the highway, a detour sign and barricades on the highway indicating that she was entering a detour or construction zone. She testified that her automobile was struck by both the Buehneman vehicle and the McGhee vehicle. There was no testimony on the part of any Claimant as to holes or soft shoulders on the highway and no evidence was produced by Claimants showing or tending to show that the gravel or oily substance upon the highway proximately caused the accident.

Claimants produced no medical evidence or medical bills whatsoever, although Claimants testified about their own injuries.

Respondent produced witnesses by way of evidence depositions and former testimony as follows:

Richard Baker, an independent eyewitness who was travelling upon the highway in question, noticed no abnormal conditions on the surface of the road. He testified that the road surface was dry and that the accident was caused by Buehneman crossing over the center line at a fast rate of speed. He further testified that barrels and signs reducing speed were present.

Walter Robinson, an independent witness, also testified that the highway surface at the scene of the accident was normal and that the Buehneman car went over the center line striking Claimants’ automobile at about 60 miles per hour.

Howard Tritt, safety coordinator for Hoeffken Brothers, the highway contractor on the job, testified that all of the signs, barricades and lights required by State law were erected and in place.

Hoyt Simmons, the resident highway engineer employed by the State of Illinois Highway Department, testified that he and his assistants inspected the pertinent portion of the highway daily and never observed any contractual deviations by the contractor and never observed that the highway was dangerous to the public.

The Court has consistently held that the State is chargeable with a duty to maintain its roads in a reasonably safe condition for the purpose for which they are intended. It follows, therefore, and we have so held, that in order for Claimants to prevail in a case of this nature, they must prove by a preponderance of the evidence that the Respondent breached its duty and that said breach proximately caused the injuries complained of. We find that Claimants have failed to so prove both the breach of duty and causation.

Based on the foregoing, it is hereby ordered that this claim be and hereby is denied.


text:
    (No. 76-CC-1699
    Consolidated Freightways, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 14, 1985.

    Craig & Craig (Richard C. Hayden and Millard S. Everhart, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   POCH, J.

This is a claim for damages arising out of three accidents involving three vehicles owned by Claimant. All of these accidents occurred approximately one mile east of Barry, Illinois, on U.S. Route 36.

A hearing was conducted before Commissioner Richard H. Parsons who heard testimony of witnesses, and received evidence and the briefs and arguments of counsel. The commissioner has duly filed his report, together with the transcript of evidence exhibits and briefs now before us.

The accidents occurred on the following dates:

On April 21, 1974, tractor trailer driven by Billy J. Platt, on October 27, 1974, tractor trailer driven by David H. Allen, and on November 3,1974, tractor trailer driven by Jack N. Dodd.

Testimony of the drivers disclosed that all accidents occurred when the drivers encountered a section of the highway which was slippery and wet in each occurrence, each driver was unable to control the truck that he was operating, and as a result each truck slid from U.S. Route 36 and crashed along an area north of said highway. The section of the highway in question had a strip of tar which, on becoming wet, became extremely slippery. There were no warning signs alerting the motoring public of said condition.

The testimony of the police officers who investigated these three accidents was that the road was wet and very slippery due to the tar on said road. One of the officers testified that there were other accidents that occurred due to the slippery condition of the road. Some time after the occurrence of these accidents, an asphalt overlay was placed over the general area because it was deemed necessary due to the fact that the area was bad, had wheel lanes and alligator crack.

After reviewing the complete record in this case we find that although the State is not an insurer of all accidents which occur on a highway, it does have an obligation to keep its roads in a reasonably safe condition and the duty to place signs warning of unusual conditions which motorists may encounter.

Despite numerous accidents on U.S. Route 36 east of Barry, Illinois, during the same or similar weather conditions, the State failed to warn the motoring public of the dangerous condition. Therefore, due to the negligence of the State, the Claimant is entitled to an award.

Claimant is hereby awarded the sum of thirty eight thousand one hundred fifty nine ($38,159.00) dollars.


author: Patchett, J.

text:
    (No. 77-CC-0610
    Robert Schneider and Floyd Harris, Administrators of the Estate of Lloyd Harris, Deceased, Claimants, v. The State of Illinois, Respondent.

      Opinion filed May 17, 1985.

    Jones, Ottesen, Feickert & Derango, for Claimant Floyd Harris.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This case is an action by two Claimants, Robert Schneider and Lloyd Harris’ estate, for injuries sustained on April 22,1975, as a result of a fall from a scaffold. The scaffold was set up in order to allow them to paint a State-owned traffic bridge located at the U.S. Route 50 overpass of the L & N railroad tracks in St. Clair County, Illinois. This opinion applies to the case of Lloyd Harris’ estate only. A separate opinion will be written for Robert Schnieder.

The facts are basically undisputed. Lloyd Harris fell some 20 feet after the scaffold he was working on collapsed. This was the result of the scaffold cables being attached to certain rollers, one of which came loose. This allowed the scaffold from which he was working to fall to the ground. The bridge was owned by the State of Illinois. Mr. Harris was working for the Gus T. Handge Company of St. Louis, Missouri. The Handge Company had a contract with the State of Illinois to paint the bridge. Mr. Larry Lipe, a resident engineer employed by the State of Illinois, inspected the bridge work on a daily basis.

Mr. Harris’ injuries were severe. There was significant damage to his left tibia and ankle joint. As a result of the injury, the Claimant’s decedent lost 65 actual working weeks and underwent surgery for the insertion of Steinman pins and manipulation. As of July 7, 1980, the Industrial Commission found him to have a 75% disability of the left leg.

The Structural Work Act does apply to the State of Illinois. This was settled in the case of Hosey v. State (1965), 25 Ill. Ct. Cl. 144. Further, from the facts presented, it is clear that there was a wilful violation of the Structural Work Act, as that term is used under that Act in this case. Therefore, we find that liability by the Respondent exists.

In this case Lloyd Harris died on July 21, 1980, through unrelated causes. Parties hereto have stipulated that in the event of a finding of liability, his estate would have stipulated that the only additional elements of damage would be the pain and suffering of the Claimant’s decedent and the difference in wage loss between money paid to him by workers’ compensation and what he would have made had he worked. All other claim for damages has been waived by the estate.

It is clear that the compensation awarded to Mr. Harris under the Workers’ Compensation Act totals $30,647.72, which consists of medical expenses in the amount of $5,860.42, lost time of $9,'787.30, and disability of $15,000.00. We hereby award that amount plus wage differential of $16,990.70. This sum reflects the difference between what Mr. Harris would have made had he not been injured, assuming a 40-hour week, and the amount paid to him by workers’ compensation. In addition, we award the sum of $25,000.00 to reflect his pain and suffering during the five years from the date of the accident until his death.

Therefore, we find that liability exists on behalf of the Respondent. It is hereby ordered that the estate of Lloyd Harris be and hereby is awarded the sum of $72,638.48.


author: POCH, J. Poch, J. Poch, J.

text:
    (No. 77-CC-1300
    I & D Pharmacy, Inc., Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 2, 1984.

      Order on motion for reconsideration filed October 4, 1984.

      Order on motion seeking interest filed March 18, 1985.

    Lisco & Field, for Claimant.
    Neil F. Hartigan, Attorney General (Paul M. Sengpiehl and Robert J. Sklamberg, Assistant Attorneys General, of counsel), for Respondent.
   POCH, J.

The Claimant and Respondent had entered into a contractual agreement many years prior to 1976 wherein the Claimant, a retail pharmacy, was to participate in the medical assistance program and fill medical prescriptions for public aid recipients. This contractual relationship went on for many years, and in early 1976 the Respondent, through the Illinois Department of Public Aid, undertook an investigation into certain claimed irregularities. After a hearing the Department of Public Aid, acting at the order of its director, affirmed the decision of the hearing officer that Claimant had been making misrepresentations about the quantity of its services and had been submitting altered prescription forms for payment by the Respondent. The director then terminated the Claimant’s contract with the State.

The Claimant appealed this action, and the Claimant and the Department of Public Aid entered into a settlement agreement which included termination of the contract. While the appeal was pending the Claimant filled 10,725 prescriptions for public aid recipients for which Claimant alleges that it is owed $68,320.00 for such services.

The Respondent asserts that the Claimant is not entitled to payment for services after the original termination of the contract and that the Claimant’s acts constituted a fraud upon the State which bars the claim.

The Respondent’s initial defense is that the services rendered after the contract was terminated by the director on February 26, 1976, are not entitled to payment. The director took such action without referral of the claimed fraud to the Attorney General for prosecution. Section 12 — 16 of the Illinois Public Aid Code (Ill. Rev. Stat. 1975, ch. 23, par. 12 — 16) provides that the Attorney General shall have the right to initiate court action against a vendor. While the director has the authority to promulgate rules governing the quality and quantity of medical services rendered by vendors (Ill. Rev. Stat. 1975, ch. 23, par. 12 — 13), there is no statutory authority for the director to act as he did in the instant case in terminating Claimant’s rights under the contract.

The Supreme Court of Illinois has had occasion to review the statutory duties and rights at issue. In BioMedical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 370 N.E.2d 223, the court found that the director of the Department of Public Aid did not have authority to suspend a vendor’s right to continued participation in the medicaid program. We find this authority to be persuasive and controlling. The Claimant’s contract was terminated by the director. While this decision was being appealed, the Claimant continued to fill prescriptions for public aid recipients, which totaled 10,725 during the time the appeal was pending. We therefore find that the director’s action was improper and that the Claimant could continue to fill prescriptions until the date it voluntarily terminated its participation in the medical assistance program.

The Respondent additionally interposes the defense that the Claimant’s alleged fraudulent acts relieve the State from any duty to pay Claimant any amounts for prescriptions filled. The Claimant offered into evidence its 10,725 prescriptions to justify its claim. The Respondent produced two witnesses to attempt to prove the Claimant presented fraudulent and altered prescriptions. The evidence is clear that there was no actual proof of fraud. The State never attempted to verify the correctness of the amount of medication prescribed or whether the recipients ever received the medication prescribed. None of the physicians who issued the prescriptions were interviewed or called by the State as witnesses.

While there is no dispute that fraud perpetrated by a Claimant will bar a claim (Ill. Rev. Stat. 1979, ch. 37, par. 439.14), the Respondent had the burden of proving such an affirmative defense. Where the State alleges that a claim is barred by the Claimant’s fraud, such defense must be proved by clear and convincing evidence. Altmer v. Zamora (1981), 94 Ill. App. 3d 651, 418 N.E.2d 506; Turzynski v. Libert (1970), 122 Ill. App. 2d 352, 359, 259 N.E.2d 295.

The Respondent’s reliance on Bethune Plaza, Inc. v. Department of Public Aid (1980), 90 Ill. App. 3d 1133, 414 N.E.2d 183, is misplaced. That decision does not change the standard of proof of fraud by clear and convicing evidence in order to constitute an affirmative defense. In Bethune, a hearing examiner found that there was fraud perpetrated by the plaintiff. The appellate court, in reversing the circuit court, found that the decision was based on speculation. Such a holding does not modify the well established principle that fraud must be established by clear and convincing evidence.

A review of the evidence adduced by the Respondent fails to prove the affirmative defense of fraud by clear and convincing evidence. While the State can speculate that there is attempted fraud, that is not sufficient reason to deny the claim herein. The State has not met its burden of proof that the Claimant has presented some fraudulent or altered claims for payment. The State claims that $35,809.57 of the claims is improper. They have not proved this by clear and convincing evidence. The Respondent had ample opportunity during the pendency of this claim to make independent verification of claimed alterations and misrepresentations.

The Claimant has met its burden of proof. The Claimant is, therefore, entitled to payment of its claim in the sum of $68,320.00.

It is hereby ordered:

That the Claimant, I & D Pharmacy, Inc., be awarded the sum of sixty-eight thousand, three hundred twenty ($68,320.00) dollars.

ORDER ON MOTION FOR RECONSIDERATION

Poch, J.

This cause coming to be heard upon the motion of the Respondent for reconsideration of this Court’s opinion entered on July 2, 1984, entering an award in favor of the Claimant, due notice being given and the Claimant filing his reply and objection thereto, and this Court being fully advised.

Finds:

That there are no new factual or legal issues that have been raised by the Respondent that would cause this Court to vacate its previous opinion granting an award in favor of the Claimant.

It is hereby ordered:

That the motion of the Respondent for reconsideration of the opinion of this Court of July 2, 1984, be and the same is hereby denied.

ORDER ON MOTION SEEKING INTEREST

Poch, J.

On July 2,1984, this Court entered an award for the Claimant in the amount of $68,320.00. The Claimant brought a motion seeking interest pursuant to section 2— 1303 of the Code of Civil Procedure (Ill. Rev. Stat., ch. 110, par. 2 — 1303) and costs under section 5 — 118 of the Code of Civil Procedure (Ill. Rev. Stat., ch. 110, par. 5— 118). The applicable sections of the Code are set forth as follows:

“§2 — 1303. Interest on Judgment. Judgments recovered in any court shall draw interest at the rate of %% per annum from the date of the judgment until satisfied or 6% per annum when the judgment debtor is a unit of local government, as defined in Section 1 of Article VII of the Constitution, a school district, a community college district, or any other governmental entity. When judgment is entered upon any award, report or verdict interest shall be computed at the above rate, from the time when made or rendered to the time of entering judgment upon the same, and included in the judgment. The judgment debtor may by tender of payment of judgment, costs and interest accrued to the date of tender, stop the further accrual of interest on such judgment notwithstanding the prosecution of an appeal, or other steps to reverse, vacate or modify the judgment.”
“§5 — 118. Costs on dismissal. Upon the action being dismissed, or the defendant dismissing the same for want of prosecution, the defendant shall recover against the plaintiff full costs; and in all other civil cases, not otherwise directed by law, it shall be in the discretion of the court to award costs or not; and the payment of costs, when awarded, may be collected in the same manner as judgments for the payment of money are enforced.”

The Illinois Supreme Court has held that interest is only recoverable against the State if it is specifically provided in a statute. “Interest statutes, like statutes imposing costs, are in derogation of the common law and must be strictly construed. Nothing is to be read into them by intendment or implication.” City of Springfield v. Allphin (1980), 82 Ill. 2d 571, 413 N.E.2d 394.

Consistent with the foregoing, it is the opinion of this Court that these sections of the Code do not specifically include the State of Illinois. In other sections of the Code involving costs, the legislature has specifically included the State of Illinois. Section 2 — 611 which imposes expenses and attorney fees states as follows: “The State of Illinois or any agency thereof shall be subject to the provisions of this section in the same manner as any other party.” (Ill. Rev. Stat., ch. 110, par. 2 — 611.) This Court, therefore, finds that interest and costs are not recoverable against the State of Illinois under sections 2 — 1303 and 5 — 118 of the Illinois Code of Civil Procedure because these sections do not specifically and clearly name the State of Illinois.