author: JUSTICE MORAN

text:
    (No. 55842.
    JEAN ROSENBAUM, Appellant, v. THE INDUSTRIAL COMMISSION et al. (The Board of Education of the City of Chicago, Appellee).

      Opinion filed November 18, 1982.
    Rehearing denied January 28, 1983.

      Jean Rosenbaum, pro se.

    Patricia J. Whitten, of Chicago (Reginald D. Taylor, of counsel), for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

Claimant, Jean Rosenbaum, sought workmen’s compensation as the result of an alleged injury she sustained while in the employ of the respondent, the Chicago board of education. Claimant appeared pro se throughout the proceedings. An arbitrator found that she failed to prove her injury arose out of or in the course of her employment and therefore denied compensation. On review, the Industrial Commission affirmed and adopted the decision of the arbitrator. The circuit court of Cook County confirmed the decision of the Commission, and claimant brought a direct appeal to this court (73 Ill. 2d R. 302(a)).

The primary issues raised on review are: (1) whether the arbitrator erred in failing to issue a dedimus potestatem\ and (2) whether claimant’s injury arose out of and in the course of her employment.

Claimant testified that on November 3, 1975, she was employed by respondent as a substitute teacher. She signed out at the office at 3 p.m. that afternoon and proceeded home. When she was approximately one-half block from school, and on the other side of the street, two youths stole her purse. During the scuffle, claimant was knocked to the ground and hit her head on the sidewalk. She visited Michael Reese Hospital the following day because of possible back and leg injuries. She made no complaint concerning her head. The doctor informed claimant that she should rest. She subsequently took a leave of absence from her employment and returned to work in January of 1976.

Claimant further testified that on March 20, 1976, she developed an infection. Two days later she experienced a sudden deafness in her left ear. She consulted a doctor the following day, who indicated that her condition was due to a cold, and ear-wax buildup. He prescribed eardrops, and claimant subsequently visited another doctor, who removed the ear wax. He stated that her hearing loss was probably caused by a virus, and claimant was thereafter hospitalized. After she was released from the hospital, she consulted another physician, who also believed that her condition resulted from a viral infection. Certain hospital records and a letter written by one of claimant’s doctors indicate that there is no known cause for claimant’s hearing loss.

Dr. Irving Abrams, a witness for respondent, was the only physician who testified before the arbitrator. He testified that, as an assistant to the Chicago Health Department, major communicable diseases of pupils are brought to his attention. He stated that a great percentage of hearing losses are idiopathic (result from an unknown cause), and that teachers are no more prone to a hearing loss than the public at large.

On cross-examination, Dr. Abrams testified that teachers may be more exposed to childhood diseases than other individuals. He also stated that childhood diseases could cause temporary hearing loss, but “communicability from a child with a common contagious disease to an adult as a general rule would not cause loss of hearing in an adult.”

Claimant first contends that, pursuant to her request, the arbitrator was required to issue a dedimus potestatem to secure the testimony of her treating physicians. Section 16 of the Workmen’s Compensation Act provides, in part:

“The Commission upon application of either party may issue dedimus potestatem directed to a commissioner, notary public, justice of the peace or any other officer authorized by law to administer oaths, to take the depositions of such witness or witnesses as may be necessary in the judgment of such applicant. Such dedimus potestatem may issue to any of the officers aforesaid in any state or territory of the United States.” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 48, par. 138.16.)

This provision does not automatically require issuance of a dedimus potestatem any time an applicant requests the same. The wording of the statute indicates that the Commission may, in its discretion, allow evidence to be presented by way of deposition. In the instant case, the physicians were located in Illinois and were otherwise available to testify. Claimant could have subpoenaed the doctors. She refused to do so because of the cost involved; because she claimed they were unaware of the cause of her illness; and because doctors are “busy” men and it is therefore “unfair to doctors to drag them in.” Confronted with these reasons, the arbitrator was justified in refusing to issue the requested dedimus potestatem.

In a related contention, claimant argues her constitutional rights were violated in that the arbitrator erroneously determined that the “in-person” testimony of a physician is necessary to support an award. The record does not support this contention. The arbitrator merely advised claimant to secure medical testimony because “if you don’t bring in doctors, you weaken your own case.” Throughout the proceeding, claimant was warned that she was failing to submit relevant evidence establishing a relationship between her hearing loss and employment conditions. Further, the arbitrator agreed to allow claimant to submit medical reports, upon agreement with respondent, in lieu of medical testimony. Similarly, neither the arbitrator nor the Commission “coerced” claimant into retaining counsel to represent her. They merely pointed out that it would be in her best interests to do so. Contrary to claimant’s assertion, we do not believe that the arbitrator violated any of her constitutional rights.

The final issue is whether claimant proved that her injury arose out of and in the course of her employment. Claimant presents two theories in support of her position that her hearing loss is causally related to her employment. First, she argues that her injury resulted from the blow to her head suffered during the robbery on November 3, 1975. Alternatively, she claims that her hearing loss is a result of her teaching duties because: (1) She was exposed to numerous students with childhood diseases; (2) the schools in which she taught maintained unsanitary conditions; and (3) the school rooms were overheated and she was thus exposed to extreme hot and cold temperatures when she left the school building.

Respondent argues that claimant failed to adduce any competent evidence to prove that her injury arose out of and in the course of her employment. It submits that her theories of causation are improperly based upon speculation and conjecture. We agree.

It is well established that “[t]he burden is upon the party seeking an award to ‘prove by a preponderance of credible evidence the elements of his claim, particularly the prerequisite that the injury complained of arose out of and in the course of his employment.’ ” (Illinois Institute of Technology v. Industrial Com. (1977), 68 Ill. 2d 236, 245-46, quoting Hannibal, Inc. v. Industrial Com. (1967), 38 Ill. 2d 473, 475.) An injury may be said to “arise out of” employment when it is “related to a risk inherent in or incidental to the [claimant’s] employment duties.” (Greene v. Industrial Com. (1981), 87 Ill. 2d 1, 5; Wise v. Industrial Com. (1973), 54 Ill. 2d 138, 142.) There must be a causal connection between the employment and the injury. (Asso dated Vendors, Inc. v. Industrial Com. (1970), 45 Ill. 2d 203, 205.) An injury occurs “in the course of” employment when it is sustained during the period of employment and while the claimant is performing duties reasonably connected to his occupation. E.g., Segler v. Industrial Com. (1980), 81 Ill. 2d 125, 128.

Contrary to claimant’s assertion, we do not find that the robbery arose out of or in the course of her employment. At the time she was attacked, claimant had completed her teaching duties for the day. Indeed, the robbery did not even take place on school property; it occurred one-half block away on the opposite side of the street. Under these circumstances, the physical assault was not a risk inherent in, or incidental to, her teaching duties. Rather, it was a hazard to which other members of the public could be equally exposed. (See State House Inn v. Industrial Com. (1965), 32 Ill. 2d 160, 163-64.) Further, there was no evidence indicating that the blow to her head resulted in claimant’s hearing loss.

Likewise, there is insufficient evidence that claimant’s hearing loss is causally connected to her teaching duties. As previously noted, the only doctor who testified at the hearing indicated that teachers are no more prone to a hearing loss than other members of the public. Although evidence tended to establish that claimant’s condition is due to a virus, there is simply no indication that she contracted the illness from a child with a contagious disease. Nor does the evidence prove that her apparent infection resulted from overheating or unsanitary conditions at the schools in which she taught. All of claimant’s theories represent “mere possibilities, which [are] not sufficient under the Act to establish a connection between the employment activities and the claimant’s condition.” County of Cook v. Industrial Com. (1977), 68 Ill. 2d 24, 31, citing Sanitary District v. Industrial Com. (1931), 343 Ill. 236.

On review, this court is limited to a consideration of whether the Commission’s decision is contrary to the manifest weight of the evidence. (Greene v. Industrial Com. (1981), 87 Ill. 2d 1, 6; Peavey Co. Flour Mills v. Industrial Com. (1976), 64 Ill. 2d 252, 256; Irving v. Industrial Com. (1974), 59 Ill. 2d 207, 210.) The Commission determined that claimant’s injury did not arise out of or in the course of her employment, and this decision is supported by the evidence.

Accordingly, for the reasons given, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: JUSTICE UNDERWOOD

license: Public Domain

text:
    (No. 55931.
    FIRST NATIONAL BANK AND TRUST COMPANY OF EVANSTON, Trustee, Appellee, v. EDWARD J. ROSEWELL, County Treasurer, et al., Appellants.

      Opinion filed November 18, 1982.
    Rehearing denied January 28, 1983.

      Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey, Deputy State’s Attorney, and Thomas J. McNulty, Assistant State’s Attorney, of counsel), for appellants.
    James A. Rooney, of Chicago, for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Plaintiff, the First National Bank and Trust Company of Evanston, as trustee, brought this action in the Cook County circuit court against County Treasurer Edward J. Rosewell seeking to enjoin the collection of 1978 real estate taxes upon the trust property. Also joined as defendants were the then members of the county board of tax appeals, Harry H. Semrow and Seymour Zaban, against whom a claim for damages under 42 U.S.C. section 1983 (1976) was asserted. The circuit court dismissed the damage action but reduced the assessed valuation of the real estate from $8 million to $3.9 million. The appellate court affirmed (101 Ill. App. 3d 459), and we granted the defendants’ petition for leave to appeal.

Plaintiff holds title to certain Evanston real property in trust for American Plaza Associates (hereafter taxpayer), a limited partnership having as its principal asset the 18-story building on the trust property. In mid-1978 when the building was new and still only partially rented, the Cook County assessor notified the taxpayer that the property’s assessed value had increased from the 1977 level of $2 million, which was established when the building was under construction, to $8 million. Because the assessment rate was 40%, this indicated that the assessor regarded the building’s fair cash market value as approximately $20 million. The taxpayer then sought to persuade the assessor to decrease the assessment, arguing that the assessor usually used an income-capitalization approach when valuing newly constructed buildings and that the taxpayer’s building did not produce sufficient income to justify an $8 million assessment. The assessor agreed to a reduction which the taxpayer considered unsatisfactory; accordingly, it submitted further information to the assessor in early November. After reviewing the new financial data, the assessor notified the taxpayer that a new assessed value of $3.4 million had been calculated. The Evanston tax rolls for 1978, however, had been certified to the board of appeals before the assessor substituted the new figure. Once certified, the assessor can no longer change assessments. See Ill. Rev. Stat. 1977, ch. 120, par. 603.

Consequently, and pursuant to section 113 of the Revenue Act of 1939 (Ill. Rev. Stat. 1977, ch. 120, par. 594(1)), the taxpayer then filed a complaint with the board of appeals. The assessor thereafter submitted a recommendation to the board suggesting that the assessment be lowered to $3 million and that the property be reassessed in 1979. The taxpayer’s petition to the board, however, included information that the construction cost of the building was approximately $17 million. Additionally, it is undisputed that the property had been mortgaged for some $20 million, and that objections were sustained to a May 1977 letter from a deceased general partner to a major tenant referring to the latter’s $25 million offer for the property, and the mortgagee’s “intense interest” in purchasing at a $30-32 million figure. Although the board requested an audited financial statement for calendar 1978, it was informed that the taxpayer was audited on a fiscal-year basis, and that an audited calendar-year statement was unavailable. The taxpayer did, however, submit a financial report prepared by an accounting firm. Commissioner Semrow testified that the board, upon considering the conflicting evidence of value, had determined that the taxpayer’s evidence was insufficient to justify the conclusion that the certified assessment was incorrect; consequently, the board declined to decrease the assessment.

Instead of pursuing the payment-under-protest tax-objection remedy provided by the statute (Ill. Rev. Stat. 1977, ch. 120, par. 675) the taxpayer paid only $516,000, representing that portion of the taxes it considered fair, and filed its three-count equitable action. Count I alleged that the board of appeal’s decision was constructively fraudulent and constituted a denial of equal protection under both the Federal and State constitutions. It sought an injunction against the collection of any further taxes for 1978. The taxpayer also alleged that it would have to borrow the amount of any unpaid taxes and that requiring it to pay interest on that sum, and to forgo interest in the event that a refund was forthcoming, rendered the legal remedy of payment under protest inadequate. Count II alleged that the decision of commissioners Semrow and Zaban had infringed upon the taxpayer’s equal protection rights in violation of 42 U.S.C. sections 1981 and 1983 (1976) and sought both an injunction against any further collection and $100,000 in damages from these two defendants. Count III sought a writ of certiorari to the board of appeals, asserting that this was the only way by which the taxpayer could obtain judicial review.

Because we consider the tax-objection route to be an adequate legal remedy in this case, it is unnecessary to consider whether the board of appeal’s decision constituted constructive fraud which violated the taxpayer’s constitutional rights. This court has consistently held that independent grounds for equitable jurisdiction in cases involving real estate taxes exist only when an unauthorized tax is levied or when exempt property is taxed, neither of which is true here. (See, e.g., Hoyne Savings & Loan Association v. Hare (1974), 60 Ill. 2d 84; Clarendon Associates v. Korzen (1973), 56 Ill. 2d 101.) In all other situations, equity will assume jurisdiction only when no adequate legal remedy is available. Hoyne Savings & Loan Association v. Hare (1974), 60 Ill. 2d 84, LaSalle National Bank v. County of Cook (1974), 57 Ill. 2d 318; Clarendon Associates v. Korzen (1973), 56 Ill. 2d 101; White v. City of Ottawa (1925), 318 Ill. 463.

The facts of this case are readily distinguishable from the circumstances which led to the granting of equitable relief in Hoyne Savings & Loan Association v. Hare (1974), 60 Ill. 2d 84, upon which plaintiffs rely. Unlike the unusual situation in Hoyne, where the 1971 and 1972 assessments were predicated upon nonexistent improvements, the increased assessment in this case followed very substantial improvement in the property. While the plaintiff in Hoyne was unaware of the 1971 increased assessment until after the tax rolls had closed, the taxpayer in this case received notice of the 1978 increase long before the assessments were certified. Although equitable intervention was approved as to the 1971 assessment in Hoyne, this court held that equitable relief was inappropriate as to the 1972 assessment because the plaintiff knew of the increase long before the 1972 tax bills became due and simply “elected not to pursue the remedy provided by statute.” (60 Ill. 2d 84, 91.) The same can be said of the taxpayer in this case.

It is argued that the payment-under-protest tax-objection remedy provided by section 194 of the Revenue Act of 1939 (Ill. Rev. Stat. 1977, ch. 120, par. 675) is inadequate because the taxpayer’s principal asset — the property being taxed — did not generate sufficient income to pay the taxes under protest. Alternately, the taxpayer argues that it would have to borrow at high interest rates the money with which to pay. This, without more, is insufficient to render the legal remedy inadequate. Illinois law imposes joint liability, even though limited as to some, for the obligations of the partnership. (Ill. Rev. Stat. 1977, ch. 106½, par. 15(b).) Nothing in the record here indicates that they would be unable to supply the necessary funds. Indeed, Joseph Beale, one of the general partners, testified that one of the limited partners had supplied most of the funds used to pay part of the 1978 tax bill. Moreover, we agree with defendants’ suggestion that, if adequacy of the tax-objection remedy turned upon whether the property being taxed produced sufficient income to pay the protested tax, countless equitable actions might well be brought by the owners of vacant lots and other low-income properties to forestall the payment of their taxes. Such circumstances serve only to promote instability in local government finances, since property taxes are a principal source of revenue for local governments. (See Advisory Commission on Intergovernmental Relations, Significant Features of Fiscal Federalism 53, 56, 78 (1980).) As we noted in Clarendon, the absence of a requirement that tax objections be accompanied by payments under protest during the depression years resulted in great numbers of people refusing to pay their taxes and filing objections, thus severely impairing the functioning of governmental units. Clarendon Associates v. Korzen (1973), 56 Ill. 2d 101, 106.

Nor do we find persuasive the taxpayer’s argument that failure to provide interest upon refunded tax payments renders the payment-under-protest remedy inadequate. Although the General Assembly has recently amended the Revenue Act to provide for such interest payments (see Pub. Act 82—598, “An Act to amend Sections 192(a) and 194 of the ‘Revenue Act of 1939’, filed May 17, 1939, as amended”), that action does not indicate that the remedy was previously inadequate. Indeed, this court has specifically held that the lack of interest on refunded payments did not render the remedy inadequate. (Clarendon Associates v. Korzen (1973), 56 Ill. 2d 101; Lakefront Realty Cory. v. Lorenz (1960), 19 Ill. 2d 415.) The Supreme Court agreed with that conclusion when it recently overturned a lower court injunction restraining tax collection. Rosewell v. LaSalle National Bank (1981), 450 U.S. 503, 67 L. Ed. 2d 464, 101 S. Ct. 1221.

Raised here for the first time is the taxpayer’s contention that the failure to provide interest on refunds constitutes a taking in violation of the fifth amendment. In support of this argument, the taxpayer cites the recent decision in Webb’s Fabulous Pharmacies, Inc. v. Beckwith (1980), 449 U.S. 155, 66 L. Ed. 2d 358, 101 S. Ct. 446, in which the Supreme Court found that a Florida county clerk’s failure to refund interest earned on a sum deposited with him pending resolution of an inter-pleader action constituted an improper taking. Unlike this case, however, Webb’s involved only private funds, and Florida law provided a separate statutory fee as compensation for the clerk’s services. Significantly, the Supreme Court carefully limited its holding to those narrow circumstances and concluded by stating: “We express no view as to the constitutionality of a statute that prescribes a county’s retention of interest earned, where the interest would be the only return to the county for services it renders.” (449 U.S. 155, 165, 66 L. Ed. 2d 358, 367, 101 S. Ct. 446, 452.) In light of the absence of any service charge in connection with the Revenue Act’s remedy of payment under protest (Ill. Rev. Stat. 1977, ch. 120, par. 675), we view the retention of accrued interest as not constitutionally prohibited.

Because of our conclusion that the equitable action was improperly allowed it is unnecessary to address the merits of the taxpayer’s civil rights claim in count II, which was brought in equity for the same reasons alleged in count I. We find this court’s statement in La Salle National Bank v. County of Cook (1974), 57 Ill. 2d 318, 324, particularly apposite: “The legal remedy by way of payment under protest followed by objections to the application for judgment for delinquent taxes provides an adequate remedy at law wherein the alleged irregularities and violations of plaintiffs’ constitutional rights may be litigated and, if warranted, relief granted. This court has held that it is proper to raise constitutional questions arising from alleged improper assessments in this manner. People ex rel. Callahan v. Gulf, Mobile and Ohio R.R. Co., 8 Ill. 2d 66, at 69; People ex rel. Ross v. Chicago, Milwaukee, St. Paul and Pacific R. R. Co., 381 Ill. 58, at 61.” In a similar section 1983 action, the Supreme Court found the equitable action improper and cited this court, noting: “There is no doubt that the Illinois state-court refund procedure provides the taxpayer with a ‘full hearing and judicial determination’ at which she may raise any and all constitutional objections to the tax. LaSalle National Bank v. County of Cook, 57 Ill. 2d 318, 324, 312 N.E. 2d 252, 255-256 (1974).” (Rosewell v. LaSalle National Bank (1981), 450 U.S. 503, 514, 67 L. Ed. 2d 464, 474, 101 S. Ct. 1221, 1229-30.) Accordingly, the taxpayer should have pursued its section 1983 claim in a legal action rather than in equity.

Similarly, this case does not present circumstances appropriate for issuance of a writ of certiorari. It has long been established in Illinois that a writ of certiorari may not be had when another adequate remedy is available. (Jacobson v. Gunzburg (1894), 150 Ill. 135; Glennon v. Burton (1893), 144 Ill. 551; Goodfriend v. Board of Appeals (1973), 18 Ill. App. 3d 412; Barden v. Junior College District No. 520 (1971), 132 Ill. App. 2d 1038, cert. denied (1972), 406 U.S. 920, 32 L. Ed. 2d 120, 92 S. Ct. 1777. See Kinsloe v. Pogue (1904), 213 Ill. 302. See also 7 Ill. L. & Prac. Certiorari sec. 6 (1954).) In view of the judicial review afforded the taxpayer in the tax-objection remedy, issuance of the writ of certiorari was erroneous.

For the reasons stated above, that portion of the appellate court’s decision affirming the trial court’s injunction is reversed. Its affirmance of the dismissal of count II is affirmed. The cause is remanded to the circuit court of Cook County with directions to dismiss the complaint.

Affirmed in part and reversed in part and remanded, with directions.


author: JUSTICE CLARK

text:
    (No. 56169.
    S. J. GROVES & SONS COMPANY, Appellee, v. THE STATE OF ILLINOIS, Appellant.

      Opinion filed November 18, 1982.
    Rehearing denied January 28, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield (Patricia Rosen, Assistant Attorney General, of Chicago, of counsel), for the People.
    Thomas C. Clark and Theodore T. Davis, Corporate Counsel, of Minneapolis, Minnesota, for appellee.
    Mark H. Kruger, of Clayton, Missouri, for amicus curiae Pensoneau Excavating Co., Inc.
   JUSTICE CLARK

delivered the opinion of the court:

This action was brought by S. J. Groves & Sons Company against the State of Illinois in the circuit court of Peoria County on February 23, 1981, for an alleged breach of contract. The trial court granted a motion to dismiss filed by the State, finding that it lacked subject matter jurisdiction to entertain this action. An appeal was filed with the appellate court, where the decision of the circuit court was reversed (103 Ill. App. 3d 538). The appellate court held that the State, in entering into a contract for highway construction, consented to be sued on that contract. We granted the defendant’s petition for leave to appeal (73 Ill. 2d R. 315(a)). We now reverse the appellate court and find that the circuit court properly dismissed the action.

Section 4 of article XIII of the 1970 Constitution abolished sovereign immunity. It provides: “Except as the General Assembly may provide by law, sovereign immunity in this State is abolished.”

Pursuant to section 4 of article XIII the legislature enacted Public Act 77—1776 (Ill. Rev. Stat. 1979, ch. 127, par. 801), which provides that the State may not be made a defendant or a party in any court except as set forth in the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, par. 439.1 et seq.). Public Act 77—1776 became effective on January 1, 1972, the same date section 4 of article XIII was to become effective (Ill. Const. 1970, Transition Schedule, sec. 1(e)). As this court said in Sass v. Kramer (1978), 72 Ill. 2d 485, the legislature, “acting under the authority of the 1970 Constitution, specifically prohibited making the State of Illinois a defendant or party in any court.” 72 Ill. 2d 485, 490.

Section 8(b) of the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, par. 439.8(b)) gives the Court of Claims exclusive jurisdiction over contract claims brought against the State of Illinois:

“The court shall have exclusive jurisdiction to hear and determine the following matters:
* * *
(b) All claims against the state founded upon any contract entered into with the State of Illinois.” Ill. Rev. Stat. 1979, ch. 37, par. 439.8(b).

The roots of sovereign immunity lie in the common law of England. The State of Illinois adopted the common law of England as it existed “prior to the fourth year of James the First.” (Ill. Rev. Stat. 1979, ch. 1, par. 801). In early English common law no action could be maintained against the Crown. (11 Halsbury’s Laws of England par. 1401, at 743 (4th ed. 1976).) And as the United States Supreme Court pointed out in Feres v. United States (1950), 340 U.S. 135, 139, 95 L. Ed. 152, 157, 71 S. Ct. 153, 156:

“While the political theory that the King could do no wrong was repudiated in America, a legal doctrine derived from it that the Crown is immune from any suit to which it has not consented was invoked on behalf of the Republic and applied by our courts as vigorously as it had been on behalf of the Crown.”

No suit could be brought against the King because no court could have jurisdiction over him. 1 W. Blackstone, Commentaries 242. The reasoning behind the sovereign being exempt from suit is that “there can be no legal right as against the authority that makes the law on which the right depends.” (Kawananakoa v. Polyblank (1907), 205 U.S. 349, 353, 51 L. Ed. 834, 836, 27 S. Ct. 526, 527.) A petition of right developed for claims against the Crown as the sovereign began to assent to proceedings asserting legal or equitable rights in its own courts. (See 11 Halsbury’s Laws of England par. 1411, at 747 (4th ed. 1976); 9 W. Holdsworth, A History of English Law 22 (1926).) While the petition could not compel the sovereign to satisfy a debt (Thomas v. Queen (1874), L.R 10 Q.B. 31), the Bankers case in 1699 ((K.B. 1699) 87 Eng. Rep. 500) allowed for the satisfaction of contractual debt through the petition. (Bankers deprived of their credit had been granted annuities by King Charles II under a covenant binding the King and his successors. Because the annuities were not being paid, the bankers sued by a petition of right for the debt owed them by the Crown.)

In the United States, sovereign immunity has been justified as a rule which embodies a policy that protects the State from interference in its performance of the functions of government and preserves its control over State coffers. Block, Suits Against Government Officers and the Sovereign Immunity Doctrine, 59 Harv. L. Rev. 1060, 1061 (1946).

Section 26 of article IV of the 1870 Illinois Constitution prevented the State from being subject to suit. Delegates to the constitutional convention expressed hesitancy at allowing the State to be exposed to an adversary proceeding in a court of law. (See 6 Record of Proceedings, Sixth Illinois Constitutional Convention 647 (hereinafter cited as Proceedings).) There was an expression among the delegates that an administrative hearing would protect the State against exaggerated claims while allowing for more flexibility than would be available under the rules of procedure in a court of law. See 6 Proceedings 647.

A Commission of Claims was created in 1877 to hear claims against the State (1877 Ill. Laws 64) with awards to be presented to the General Assembly for a final determination. The Act of 1877 was amended and expanded in 1889 and repealed by the Court of Claims Act of 1903 (1903 Ill. Laws 140).

The court had exclusive jurisdiction to hear claims against the State, and the legislature would only appropriate funds to pay awards in those cases where such a recommendation was issued by the Court of Claims. (1903 Ill. Laws 140-42.) The Court of Claims Act of 1917 repealed the previous act, substituted the Secretary of State for the Auditor of Public Accounts as ex officio secretary, but again gave the court exclusive jurisdiction to rule upon claims against the State. 1917 Ill. Laws 325-27.

In 1945 the legislature passed the Court of Claims Act of 1945; it was amended in 1951 and remained in a similar form until after the adoption of the 1970 Constitution. Its operation had been analogous to that of the court created by the 1903 act. See 6 Proceedings 647-59; Novoselsky and Peterson, State Immunity in Illinois: The Court of Claims, 15 De Paul L. Rev. 340 (1965).

The comments of the General Government Committee of the 1970 constitutional convention that proposed language abolishing sovereign immunity, except as provided by the legislature, are indicative of a clear intent to put aside an anachronistic doctrine (6 Proceedings 640) while leaving the legislature with the opportunity to establish the procedure for processing any claims against the State. 6 Proceedings 636.

The plaintiff correctly points out that in a growing number of other jurisdictions the doctrine of sovereign immunity has been held not to be applicable to contracts: South Carolina: Kinsey Construction Co. v. South Carolina Department of Mental Health (1978), 272 S.C. 168, 249 S.E.2d 900; North Carolina: Smith v. State (1976), 289 N.C. 303, 222 S.E.2d 412; Oklahoma: State Board of Public Affairs v. Principal Funding Corp. (Okla. 1975), 542 P.2d 503; Iowa: Kersten Co. v. Department of Social Services (Iowa 1973), 207 N.W.2d 117; Missouri: V. S. DiCarlo Construction Co. v. State (Mo. 1972), 485 S.W.2d 52; New Jersey: P.T.L. Construction Co. v. Department of Transportation (1972), 60 N.J. 308, 288 A.2d 574; Idaho: Grant Construction Co. v. Burns (1968), 92 Idaho 408, 443 P.2d 1005; Delaware: George & Lynch, Inc. v. State (Del. 1964), 197 A.2d 734; California: Souza & McCue Construction Co. v. Superior Court (1962), 57 Cal. 2d 508, 370 P.2d 338, 20 Cal. Rptr. 634; Colorado: Ace Flying Service, Inc. v. Colorado Department of Agriculture (1957), 136 Colo. 19, 314 P.2d 278; Montana: Meens v. State Board of Education (1954), 127 Mont. 515, 267 P.2d 981; Nebraska: Todd v. Board of Educational Lands & Funds (1951), 154 Neb. 606, 48 N.W.2d 706; Michigan: Hersey Gravel Co. v. State (1943), 305 Mich. 333, 9 N.W.2d 567; Georgia: Regents v. Blanton (1934), 49 Ga. App. 602, 176 S.E. 673; Indiana: Carr v. State ex rel. DuCoetlosquet (1891), 127 Ind. 204, 26 N.E. 778. The rationale behind many of those decisions is that when a State voluntarily enters into a contractual relationship, it impliedly consents to be sued on that contract. In none of those jurisdictions, however, was immunity provided for by the legislature pursuant to the kind of express language of section 4 of article XIII of the 1970 Illinois Constitution.

The plaintiff argues that the General Assembly, in authorizing the State to enter into contracts for the construction of highways (Ill. Rev. Stat. 1979, ch. 121, par. 4—201.4), is consenting to be sued on those contracts. The plaintiff contracted with the Department of Transportation for highway construction work that called for earthmoving, grading, clearing and paving on the part of the plaintiff. The language on which it relies is that giving the Department of Transportation the power to “enter into contracts covering all matters and things incident to the location, relocation, construction, repair and maintenance of State highways.” Ill. Rev. Stat. 1979, ch. 121, par. 4—201.4.

The plaintiff is correct in asserting that both parties to a contract must be bound for the agreement to be a valid contract. While there must be mutuality of obligation between contracting parties (Welsh v. Jakstas (1948), 401 Ill. 288; Allied Delivery System, Inc. v. Illinois Commerce Com. (1981), 93 Ill. App. 3d 656, 665; see also Carter v. Kaskaskia Community Action Agency (1974), 24 Ill. App. 3d 1056, 1059), it is only required to the extent that “ ‘both parties to an agreement are bound or neither is bound.’ ” (Kraftco Corp. v. Koblus (1971), 1 Ill. App. 3d 635, 638, quoting from 12 111. L. & Prac. Contracts sec. 7 (1955).) If the requirement of consideration has been met “mutuality of obligation is not essential.” Armstrong Paint & Varnish Works v. Continental Can Co. (1921), 301 Ill. 102, 108. See Restatement (Second) of Contracts sec. 79 (1981) .

The appellate court in Garber v. Harris Trust & Savings Bank realized that “where there is no other consideration for a contract, the mutual promises of the parties constitute the consideration, and these promises must be binding on both parties or the contract fails for want of consideration.” (Garber v. Harris Trust & Savings Bank (1982), 104 Ill. App. 3d 675, 680.) There is, however, no requirement that parties to a contract have mutual remedies in the event of a breach. (5 A. Corbin, Contracts sec. 1179 (1964); Restatement (Second) of Contracts sec. 363, comment c (1981).) Because the State is obligated under a contract it signed does not mean that a remedy to institute a suit in a circuit court for a breach is implied.

Consent to be sued cannot be implied when there is an express statutory provision to the contrary. Whether the State is liable on a particular contract is a different question from whether the State is immune from being sued by an aggrieved party on that contract. It has been recognized that “[t]he rights and responsibilities of a state under an ordinary business contract are, with few exceptions, the same as those of individuals. Although it cannot be sued without its consent, the state, when making a contract with an individual, is liable for a breach of its agreement in like manner as an individual contractor. And while it may refuse to respond in damages, and leave a claimant without any remedy, as it may refuse to pay its bonds, the obligation remains.” (72 Am. Jur. 2d States, Territories, and Dependencies sec. 88 (1974).) We agree with the defendant that the absence of a remedy that would be available to a contracting party in instituting a suit in the circuit courts does not demonstrate that the State is not bound by its contracts. The contractual obligation remains; it is the remedy for any recovery on a claim that is limited.

The plaintiff argues persuasively as to why the State of Illinois should not be allowed to invoke the doctrine of sovereign immunity when a private party asserts that the State has breached a contract. It is in essence the legislature — the body called upon to fund any awards — that is deciding through the Court of Claims the merits of the claims before it. The Court of Claims Act effectively sees to it that, while the State can proceed in circuit court against a private party, when a private party wants to assert its contractual rights against the State, exclusive jurisdiction remains in the Court of Claims.

We agree with the plaintiff that a State government should be required to observe the same rules of conduct that it requires of its citizens. But it is the legislature’s task to codify public policy; we refrain from undertaking such impermissible judicial legislation. See People v. Chambers (1976), 66 Ill. 2d 36, 44; 72 Am. Jur. States, Territories, and Dependencies secs. 73, 91 (1974).

In 1978 the Pennsylvania Supreme Court abolished the doctrine of sovereign immunity in a Pennsylvania tort case. (Mayle v. Pennsylvania Department of Highways (1978), 479 Pa. 384, 388 A.2d 709.) Article 1, section 11, of the Pennsylvania Constitution is similar to section 4 of article XIII of the Illinois Constitution in allowing suits brought against the State “in such manner as the legislature may by law direct.” The majority of a sharply divided Pennsylvania Supreme Court held that article 1, section 11, did not preclude the court from abrogating the doctrine of sovereign immunity. The court said:

“[T]he historic arguments *** reflect obsolete legal thinking. ***
Once the ‘errors of history, logic and policy’ which underlie both sovereign immunity and the commonwealth’s constitutional interpretation have been laid bare, we see no reason to perpetuate them.” 479 Pa. 384, 399, 405, 388 A.2d 709, 716, 719.

While we acknowledge that there is no longer a King and agree that all of us, including the State, who enter into contracts should have an independent forum stand in judgment of contractual obligations, we see no reason for usurping a function of government that is not ours.

The language of Justice Pomeroy in his dissent from the holding that abrogated sovereign immunity by the Pennsylvania Supreme Court in Mayle epitomizes our reasoning here:

“ ‘When by their Constitution the people *** have expressly delegated to 'the legislative branch of government the task of determining in what manner and in what court and in what cases the Commonwealth may be subjected to suit ***, I fail to see how this Court can properly hold that it has a right to preempt this legislative function. A proposition that had its ancient origin in the common law of England and colonial America was elevated to constitutional status ***. To ignore this development would be to warp the plain meaning of the Constitution to suit societal ends which now *** the entire membership of this Court thinks are much to be desired. We may lament the legislative failure to correct before the present date an inequitable situation, but impatience should not cause us to upset the balance of power in our tripartite system of government by making the correction ourselves.’ ” (Mayle v. Pennsylvania Department of Highways (1978), 479 Pa. 384, 409, 388 A.2d 709, 721 (Pomeroy, J., dissenting), quoting from Brown v. Commonwealth (1973), 453 Pa. 566, 574-75, 305 A.2d 868, 873 (Pomeroy, J., concurring).)

It is not our province to take action to make the remedy more palatable for the aggrieved contracting party.

The plaintiff goes on to raise a number of other objections to the Court of Claims Act that plaintiff asserts rise to the level of violating both the United States and Illinois constitutions. However, the plaintiff prefaces its arguments with an admission that this court must first reach the conclusion that the State of Illinois can be sued in circuit court on a contractual claim by a private party. Having concluded that the State of Illinois cannot be sued on a contract in a circuit court, the thrust of the plaintiff’s ancillary-arguments is lost, since the foundation upon which they rest is missing.

Our most recent consideration of the Court of Claims Act was in Seifert v. Standard Paving Co. (1976), 64 Ill. 2d 109, where actions against the State, sounding in tort, were filed in the circuit court of Cook County alleging negligence on the part of agents or employees of the State. In upholding the dismissal of those complaints we found the Act does not violate the separation-of-powers provision of the Illinois Constitution; persons proceeding against the State are not entitled to a trial by jury, a right to appeal, or a right to subpoena or cross-examine witnesses. We believe that even though this action is in contract, those findings in Seifert are of equal force here.

If the inequities inherent in the doctrine of sovereign immunity are to be remedied, it is for the legislature and not this court to act. The complaint was properly dismissed.

Appellate court reversed; circuit court affirmed.


text:
    (No. 56122.

      In re MANUAL JAMES BERKOS, Attorney, Respondent.

      Opinion filed December 17, 1982.

      David Beckerman, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    John P. Coghlan, of Chicago, for respondent.
   JUSTICE MORAN

delivered the opinion of the court:

The Administrator of the Attorney Registration and Disciplinary Commission filed a two-count complaint charging the respondent in count I with neglect of a legal matter, and in count II with neglect, dishonesty, fraud, deceit, misrepresentation, and unethical, unprofessional conduct. The Hearing Board concluded that the allegations of count I were established by clear and convincing evidence that the respondent neglected a legal matter entrusted to him. However, it found the evidence on the charges in count II insufficient and dismissed it. The Hearing board recommended a 60-day suspension. The Review Board agreed with the findings of the Hearing Board, but instead recommended a one-year suspension.

The facts reveal that in August of 1970, the respondent was treated for depression as a result of litigation over an unsuccessful business venture. Additional litigation was brought against him in 1971 and 1972. He testified that during this period he was frequently away from his office and his consumption of alcohol began to increase.

In May of 1972, the respondent represented Kenneth Murray in a jury trial on charges of armed robbery and aggravated assault. The jury returned a verdict of guilty, and on June 21, 1972, Murray was sentenced to a 20- to 50-year prison term. On the same day the respondent filed a notice of appeal. He later filed an amended notice of appeal, a $25 appearance fee, and a motion for release on bond pending appeal. In October of 1972, the respondent learned that the bond motion was denied.

In December 1972, the respondent’s secretary removed the Murray file from the “active file” drawer and secreted it in her desk. Thereafter she intercepted all correspondence and met personally with Murray’s mother whenever Mrs. Murray came to respondent’s office. She received $2,000 from Mrs. Murray between January and March 1973 and placed it in respondent’s bank account. Two of the receipts, totaling $1,900, contained notations that they were for Murray’s appeal.

Murray sent five letters to the respondent’s office in 1973 requesting an update on the status of his appeal. The record reveals that the secretary sent a letter on respondent’s stationery to Murray in April of 1973. This letter indicated that the respondent was in the process of preparing the appeal, but was still waiting for the trial transcript. The record also shows that the respondent’s mental condition further deteriorated during this period. In July of 1973, the respondent testified that he saw a psychiatrist for anxiety, hopelessness, drinking, domestic problems and depression.

On November 6, 1973, the appellate court dismissed Murray’s appeal for want of prosecution. A copy of the mandate of the appellate court was sent to the respondent’s office on May of 1974. One year later, the respondent’s physical health began to fail. He was hospitalized for chest pains in May and June of 1975. On September 10, 1975, respondent’s secretary composed and sent a letter, on his stationery, to Murray falsely indicating the reasons why the appeal was dismissed. The secretary testified that she researched and quoted Illinois cases in support of the court’s dismissal, and signed respondent’s name.

The respondent’s physical condition continued to deteriorate. He was hospitalized again for chest pains in November 1975 and April 1976. In June of 1976, the respondent had surgery to repair a cerebral aneurysm. He testified that recuperation took several months. Finally, in December of 1976 or January of 1977, the respondent’s secretary for the first time told the respondent what she had done with his case. He then instructed her to turn the file over to another attorney. Subsequently, the case was assigned to the appellate defender.

The Administrator argues that the hearing and review boards’ findings of neglect of a legal matter are supported by clear and convincing evidence. He points out that the respondent filed a notice of appeal, his appearance and a bond motion, and had accepted fees for pursuing the appeal. The Administrator contends that respondent’s failure to withdraw or find substitute counsel and his abandoning of the appeal resulting in its dismissal, constitute neglect of a legal matter. The Administrator asserts that the letters sent by respondent’s secretary on his stationery furthered Murray’s belief that this appeal was being actively handled. He concludes that the respondent is responsible for the malfeasance of his secretary.

The respondent argues that he had no knowledge of the action taken by his secretary in the Murray case, and that she acted without his authority or consent. He contends that he thought the $2,000 received from Mrs. Murray was for previous trial fees. Respondent stated that he had never prosecuted an appeal in a criminal case beyond filing a notice of appeal, and that he had informed Murray of this fact. He asserts that he thought he was being retained by Murray only to pursue the motion to set bond pending appeal. He claims that he made a mere error in judgment by his failing to see that a substitution of attorney was filed. The respondent concludes that the facts in this case do not constitute clear and convincing evidence that he neglected a legal matter.

The respondent further indicates that even assuming he neglected a legal matter in this instance, a one-year suspension under these facts is excessive. He points out the fact that he previously had never been charged with neglect of a legal matter and emphasizes his deteriorating physical and mental condition during this period.

What respondent characterizes as a mere error in judgment resulted in the dismissal of his client’s appeal. Respondent, having acknowledged that he made a practice of never following through with an appeal, should have withdrawn. (See 87 Ill. 2d R. 13, Committee Comments.) He must have realized that his failure to withdraw would result in the dismissal of the appeal for want of prosecution. Until he withdrew it, it was respondent’s duty to see that his client’s rights were protected. This he failed to do. Contrary to respondent’s oral understanding with Murray concerning his limited representation, the actions of his secretary led Murray to believe otherwise. While his secretary’s actions and his physical and mental condition may explain the respondent’s actions, they do not excuse them. (In re Simpson (1971), 47 Ill. 2d 562.) This court has repeatedly said that “[t]he traditionally high standards of the legal profession impose upon an attorney the duty to represent a client with zeal and diligence, and *** ‘neglect in the performance of an attorney’s duties to a client can be sufficient to warrant disciplinary action.’ ” In re Levin (1979), 77 Ill. 2d 205, 210; In re Chapman (1978), 69 Ill. 2d 494, 501.

We agree with the hearing and review boards that respondent’s failure to adequately supervise his employee’s malfeasance and his neglect in failing to file either a withdrawal or a substitution of attorney were both shown by clear and convincing evidence and constitute neglect of a legal matter.

This court has said that “[w]hile a degree of uniformity in the application of attorney discipline is desirable, each case must still be determined on its own merits.” (In re Andros (1976), 64 Ill. 2d 419, 425-26.) But more recently this court has emphasized a keen awareness of “the necessity for consistency in the imposition of discipline in similar cases.” (In re Porcelli (1979), 77 Ill. 2d 473, 479.) In the case of In re Saladino (1978), 71 Ill. 2d 263, 275, the rationale for this consistency was stated as follows:

“Although appropriate factors may always be considered in mitigation, predictability and fairness require a degree of consistency in the selection of sanctions for similar types of misconduct. That degree of consistency can only be achieved if sanctions are based on articulated standards of conduct. These standards must be ‘derived from the underlying purposes of our disciplinary process, which are to safeguard the public, maintain the integrity of the profession, and protect the administration of justice from reproach.’ (In re Kien (1977), 69 Ill. 2d 355, 366 (Clark, J., concurring in part and dissenting in part); In re Nowak (1976), 62 Ill. 2d 279, 283.)”

In In re Chapman (1978), 69 Ill. 2d 494, the court suspended the attorney for three months for neglect of a legal matter. He had failed to prosecute three appeals. This was mitigated by his ill health, domestic problems and prior good record. In In re Levin (1979), 77 Ill. 2d 205, the attorney was suspended for three months for neglect. He had delayed filing interrogatories, failed to act diligently to complete a settlement, failed to make arrangements to produce his client for a deposition, which led to dismissal of the case, and failed to file a timely motion to vacate a prior dismissal order. This was mitigated by no previous misconduct.

In selecting the appropriate sanction in this case, we note the unusual circumstances presented. The respondent was unaware of the secretary’s actions in the Murray case. The facts also show a medical history of physical and mental ill health during the pendency of the appeal. Taken together, these circumstances mitigate what might otherwise have resulted in more severe disciplinary action. In our opinion, an appropriate sanction in this case is suspension for three months.

Respondent suspended.


author: JUSTICE GOLDENHERSH

text:
    (No. 55651.
    UNITED ELECTRIC COAL COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Charles Bertetto, Appellee).

      Opinion filed November 18, 1982.
    Rehearing denied January 28, 1983.

      Henry D. Noetzel & Associates, Ltd., of Peoria (Henry D. Noetzel and Steven J. Hohmann, of counsel), for appellant.
    No appearance by appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

An arbitrator for the Industrial Commission found that on November 3, 1975, petitioner, Charles Bertetto, in the course of his employment by respondent, United Electric Coal Company, was last exposed to the hazards of an occupational disease, that said exposure resulted in an occupational disease, and that as a result petitioner sustained a disablement which was compensable under the Workmen’s Occupational Diseases Act (Ill. Rev. Stat. 1975, ch. 48, par. 172.36 et seq.). The arbitrator awarded petitioner compensation for the permanent partial loss of hearing in both ears. On review, the Industrial Commission reduced the percentage of loss of hearing and otherwise affirmed the award. On certiorari the circuit court of Fulton County confirmed and respondent appealed. 73 Ill. 2d R 302(a).

Petitioner testified that prior to his retirement at the age of 65 in January of 1976 he had been employed by respondent for approximately 32 years. For approximately 30 years prior to his retirement petitioner worked as a welder. Most of his work consisted of repairing large stripping shovels in the pit of a strip mine. Until the last two or three years of his employment the electric motors and generators on the stripping machines were kept running while petitioner worked on the equipment. Petitioner testified that the noise conditions were not “too bad” until he put the hood down on his welding helmet, which he always wore when welding. Petitioner testified that he could still hear the noise after he went home nights. When not working in the pit petitioner worked in the repair shop with two other workers. In the shop one or two workers would be welding and the other would be repairing equipment, using such machinery as grinders and chipping hammers. During the 15 years prior to his retirement, petitioner wore small rubber ear plugs while doing certain repair jobs. No other ear protection was worn. Petitioner testified that he worked seven days a week. In 1972 petitioner contacted his family physician because of a “sizzling” in his right ear. His family physician sent him to a specialist, Dr. Morris H. Cohen. Petitioner was examined by Dr. Cohen in May and August of 1972, at which time hearing tests were made. Petitioner was again examined by Dr. Cohen in October of 1976.

On the basis of petitioner’s testimony that he was examined by Dr. Cohen, petitioner’s counsel offered into evidence the reports and audiograms made by Dr. Cohen. Over respondent’s objection on the ground that the evidence was hearsay, the arbitrator admitted petitioner’s exhibits. Exhibit No. 1 consisted of the audiograms made by Dr. Cohen on May 24, 1972, and August 22, 1972, and a letter dated July 26, 1976, written by Dr. Cohen to petitioner’s attorney. In the letter of July 26, 1976, Dr. Cohen stated that he had seen petitioner on two occasions, May 24, 1972, and August 22, 1972, and that “[t]he first examination involved ear symptoms following the ‘flu,’ as well as some hearing loss related to previous noise exposure.” Dr. Cohen stated that his diagnosis in 1972 was bilateral sensorineural hearing loss, and that “[t]he basic loss I feel is his previous noise exposure, the difference in hearing acuity in the ears possibly related to the episode with influenza.” Dr. Cohen concluded that petitioner should be examined again to determine his current status. Exhibit No. 2 consisted of an audiogram made by Dr. Cohen on October 19, 1976, and a letter written by Dr. Cohen to petitioner’s attorney dated October 22, 1976. In the letter of October 22, 1976, Dr. Cohen indicated that a recently taken audio-gram showed that petitioner’s hearing in both ears had deteriorated since his examination in 1972, and that petitioner had no hearing in the right ear and limited hearing in the left ear. Dr. Cohen stated:

“[Petitioner] has bilateral sensory neural hearing loss which is related basically to his previous noise exposure and aggrivated [sic] by the passage of time. *** Just what part the flu had to play in this current situation I cannot state but I doubt if it has any serious and significant contributing factors to the current situation. There is no treatment for this particular problem and I feel there is going to be very slow progression of the hearing loss of both ears due to the age factor. I think that the basic cause of his hearing loss is previous noise exposure.”

Respondent presented no evidence at arbitration. The arbitrator found that petitioner was exposed to the hazards of an occupational disease in the course of his employment by respondent which resulted in the complete and permanent loss of hearing in the right ear to the extent of 100% and the permanent and complete loss of hearing in the left ear to the extent of 50% and awarded petitioner compensation in the sum of $200 per week for a period of 75 weeks.

At the hearing before the Industrial Commission respondent offered into evidence the deposition of Dr. M. Reese Guttman, taken on October 17, 1979. Dr. Guttman examined petitioner on July 18, 1978, at which time he performed various tests, including an audiogram. Dr. Guttman’s diagnosis was that petitioner had a bilateral sensorineural hearing impairment. According to Dr. Guttman, the results of the tests performed on petitioner were inconsistent with a finding that petitioner’s hearing impairment was caused by noise exposure. Dr. Guttman gave the following bases for this opinion, first, the audiogram did not show the presence of an acoustic notch, a unique characteristic of noise-induced hearing impairment; second, there was no evidence of recruitment, a condition peculiar to two causes of hearing loss, one cause being exposure to acoustic trauma; third, petitioner had a markedly depressed discrimination score, uncharacteristic of noise-induced hearing impairment; and fourth, petitioner’s complaints of tinnitus postdated his hearing loss. After examining the audio-grams made by Dr. Cohen, Dr. Guttman stated that the tests reinforced his finding that petitioner did not suffer from noise-induced hearing impairment. The Commission modified the arbitrator’s award to provide that petitioner was entitled to the sum of $200 per week for a period of 38 weeks because the injury sustained caused the permanent and complete loss of hearing in the right ear to the extent of 22% and the permanent complete loss of hearing in the left ear to the extent of 16%. On certiorari the circuit court of Fulton County confirmed the decision of the Industrial Commission.

Respondent’s contentions on review are that petitioner’s exhibits 1 and 2 were improperly admitted into evidence because they were hearsay and that the decision of the Industrial Commission is against the manifest weight of the competent evidence. Respondent asserts that petitioner’s exhibits 1 and 2 should not have been admitted because respondent had no opportunity to subject Dr. Cohen to cross-examination concerning the statements contained in the reports and because Dr. Cohen’s statements were not made under oath. Respondent submits that these exhibits constitute the sole medical evidence presented by petitioner and without this evidence the finder of fact would have to find the causal connection between the on-the-job exposure to noise and petitioner’s hearing loss by inferring it from petitioner’s testimony alone and rejecting totally the testimony of respondent’s medical expert.

The rule against the admission of hearsay is not absolute; under certain circumstances the probability of accuracy and trustworthiness may serve as a substitute for cross-examination under oath. (See 5 Wigmore, Evidence sec. 1422 (Chadbourn rev. ed. 1974).) Although necessity is often an element of exceptions to the hearsay rule, it is not required. (See 5 Wigmore, Evidence sec. 1423 (Chadbourn rev. ed. 1974).) In Fefferman v. Industrial Com. (1978), 71 Ill. 2d 325, this court found trustworthy and admissible a letter from an examining physician concerning a petitioner’s claim. In so doing the court distinguished the decision in American Smelting & Refining Co. v. Industrial Com. (1933), 353 Ill. 324, where a letter “said to have been written by a physician who attended” (353 Ill. 324, 326) the petitioner was considered properly excluded. The reports and audiograms at issue here were based on examinations performed upon petitioner by a specialist to whom he had been referred by his family physician for evaluation and treatment. There is no challenge to their authenticity. Moreover, the audiograms were examined by respondent’s medical witness, whose evaluation of them, to some extent, formed the basis for his opinion concerning the cause of petitioner’s condition. Under the circumstances we believe the information contained in the challenged exhibits was trustworthy and conclude that the arbitrator did not err in admitting the exhibits into evidence.

The Industrial Commission’s decision concerning nature and extent and causation of disability will not be set aside unless contrary to the manifest weight of the evidence. (Fernandez v. Industrial Com. (1978), 71 Ill. 2d 283, 287; Parris v. Industrial Com. (1977), 69 Ill. 2d 31, 37), and on this record we cannot say that it is.

For the reasons stated, the judgment of the circuit court of Fulton County is affirmed.

Judgment affirmed.


author: JUSTICE SIMON CHIEF JUSTICE RYAN,

text:
    (56334.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. BILLY WAYNE YARBROUGH, Appellant.

      Opinion filed December 17, 1982.
    Rehearing denied January 28, 1983.

      RYAN, C.J., dissenting.
    G. Joseph Weller, Deputy Defender, and Paul J. Glaser, Assistant Defender, of the Office of the State Appellate Defender, of Elgin, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield, and Daniel D. Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Cynthia N. Schneider, of the State’s Attorneys Appellate Service Commission, of Elgin, of counsel), for the People.
   JUSTICE SIMON

delivered the opinion of the court:

The defendant, Billy Wayne Yarbrough, was sentenced to a six-year prison term after a jury in the Winnebago County circuit court found him guilty of armed robbery. The principal issue raised by this appeal is whether the defendant should receive a new trial because immediately after the jury verdict was received the trial judge suggested that the State give the defendant a polygraph exam and then withheld decision on defendant’s post-trial motions until after inquiring into the results of the exam. The defendant’s post-trial motions set forth several grounds, including insufficiency of the evidence. The defendant relies heavily on our recent decision in People v. Baynes (1981), 88 Ill. 2d 225, in which we held that polygraph evidence adverse to the defendant was not admissible in a criminal trial even when the parties, prior to the polygraph test, had stipulated that the results would be admissible. The decision in Baynes turned upon what this court regarded as the inherent deficiencies of the polygraph instrument. The defendant also relies on section 8b of the act relating to lie-detector tests (Ill. Rev. Stat. 1979, ch. 38, par. 155—11), which provides that in the course of a criminal trial the court shall not suggest that the defendant submit to a polygraph test.

The only substantive evidence offered against the defendant was the testimony of the two victims of the robbery. One of them was the owner of a disco in South Beloit and the other was his employee. In brief, they testified that they were accosted by an armed robber in the parking lot of the disco at 2:30 a.m. after they had closed it and were leaving the premises. The robber forced them back inside the disco, where the owner opened the safe. The robber removed two money bags and fled. The owner and the employee both described the robber to the police.

Six days later the police showed photographs of seven men, including the defendant, to the disco owner and the employee, and they each picked out the defendant. At the preliminary hearing the disco owner failed to identify the defendant, but the employee did point him out. At the trial, both the owner and the employee identified him.

The defense was an alibi. One witness testified that he and the defendant left South Beloit by automobile for Atlanta, Georgia, the afternoon before the robbery, arrived there approximately five hours after the robbery and stayed in Georgia for the next four days. The defendant testified to the same effect. The defendant and his friend both claimed they were on Interstate 65 headed south when the robbery took place. Relatives of the witness who said he traveled to Georgia with the defendant came from Georgia to appear at the trial. They testified that the defendant and his friend were in Atlanta a few hours after the robbery and in Georgia during the next four days.

The trial judge suggested a polygraph examination immediately after the jury was polled. He said:

“I am going to say this to the prosecution, again without any reflection on the facts of this case, and whatever they do is certainly up to them, and I am not — I don’t want to know whether you do anything or not; but in some cases of this type where there is only identification by eyewitnesses and there is no other corroborating evidence and there appears to be an alibi, that from time to time the state’s attorney’s office has given lie detector tests to a Defendant to ensure that they do have the right man. While that isn’t a sole test, by any means, nor is it one that is admissible in evidence, there are times when that can be used, along with all the other available facts that the State has, to determine whether, in fact, an innocent man may have been convicted. I want to make it clear that I am not stating an innocent man is convicted. I’m just saying under the evidence there is no corroboration. I would suggest that. I don’t want to know the answer whether you do it or you don’t do it, because it is only a matter that the State, if it conducts a lie detector test, felt that it was conclusive, the State would come in and move to vacate. The Court does not want to know the results or even whether you conducted one, because I cannot take that into consideration, but I suggest it. I know it has been done in the past in the state’s attorney’s office.”

During argument on the defendant’s timely filed motion for a new trial, which the trial court denied, the following colloquy took place:

“THE COURT: Thank you, Mr. Beu [defense counsel]. I take it, Mr. Fuenty [assistant State’s Attorney], that there is no new evidence subsequent to the trial that would, in the interest of justice, be beneficial to the Defendant?
MR. FUENTY: Certain investigative procedures were performed subsequent to the trial. As a result of these investigative procedures which Mr. Beu participated in, there is no new evidence available to the Defendant. In fact, all the results of that investigative procedure are in the hands of Mr. Beu.”

The trial judge again addressed himself to the subject of a polygraph exam when he denied the defendant’s request for an appeal bond. On that occasion, he said:

“The Court considered in the motion for new trial the evidence in the case. The jury heard the facts, and I indicated to both lawyers at the conclusion of the trial and after the jury came in that in any of these type [sic] of armed robbery cases where there are eyewitnesses, sometimes it is in the interest of justice as to the benefit of the State as well as the Defendant that they take other means to explore whether there has been a just conviction. I don’t know the results of any other investigation other than, apparently, as stated in open court, there was some investigation and that was made available to the defense.”

The appellate court affirmed the conviction (103 Ill. App. 3d 967), and we allowed the defendant’s petition for leave to appeal.

The People concede, as the appellate court concluded, that the trial judge’s suggestion regarding a polygraph test was error, but urge that the error was harmless. Had the trial judge in this case, without suggesting such a test, denied the motion for a new trial, no one could find fault with his call. But that does not make the error harmless. A defendant is entitled not only to a fair trial, but to an objective and unbiased appraisal of the points he raises in his post-trial motion as well. The problem in this case is that we have no way of knowing the extent to which the trial judge’s judgment was affected by his knowledge of the polygraph results or what his decision would have been had he not suggested a polygraph test. The judge must have had some misgivings about the sufficiency of the evidence. Otherwise, he would not have brought up the subject of the polygraph. People v. Nimmer (1962), 25 Ill. 2d 319, 321.

The guidance provided by People v. Baynes is controlling in this case. There the defendant was given a new trial not because the evidence was close but rather because we regarded the use of polygraph evidence as rising to the level of plain error. We explained the new trial we granted by saying that the error in admitting polygraph evidence, even pursuant to a stipulation of the parties, “infringes upon the integrity of our judicial system.” Our renunciation of polygraph evidence in order “to protect and preserve the integrity and reputation of the judicial process” is as relevant to its use in connection with disposition of post-trial motions as to its use during the actual trial. Our emphatic and unequivocal conclusion in Baynes that polygraph evidence is not reliable enough to be given consideration in any manner applies to its use by any participant in the trial process, whether it be by the trial judge in passing upon post-trial motions or by the finder of fact, be it judge or jury. It would be anomalous for this court to hold that while the trier of fact is not permitted to hear polygraph evidence even when the defendant stipulates to its admission, as we did hold in Baynes, the trial judge is still free to refer to that type of evidence in deciding whether the evidence is sufficient.

We are confronted in this case not only by the possibility, as in Baynes, that polygraph results were relied upon, but also by a disregard of the statute which directs trial judges not to suggest that the defendant submit to such a test. The People note that this statute does not mandate automatic reversal and that in fact it specifies no remedy for a violation of its terms. Therefore, the People suggest, we should turn to our plain error rule, Rule 615 (73 Ill. 2d R. 615(b)), to determine what remedy is appropriate. That is the precise rule we applied in Baynes in deciding that resort to polygraph evidence is not permissible. We think it is as much plain error when presented to a trial judge as it is when presented to a jury. Thus, in reliance upon the strong reservations about the use of polygraph evidence we announced in Baynes, we believe the defendant was entitled to have his post-trial motion passed upon without reference to whether he had or had not taken the polygraph test or whether he had passed or failed it. The suggestion by the trial judge in Nimmer that the defendant submit to a lie-detector test was enough to cause this court to order a new trial on the ground it violated the clear direction of the statute. In that case the judge made the suggestion after a bench trial and after announcing that under the evidence he would have to find the defendant guilty. Here, by his polygraph suggestion, the trial judge transgressed into areas which both Baynes and the statute forbid him to explore.

The People seek to avoid the impact of Baynes in two ways. First they intimate that after initially suggesting the polygraph test, the trial judge never thereafter inquired whether the test had been given and that he was kept in the dark as to the results of the test, if there was one. We find this suggestion unpersuasive because, once having suggested a polygraph exam as the People concede the trial judge did, it would be unrealistic to assume that he had no further interest in learning whether one had been given. We read the prosecutor’s response quoted above to the court’s inquiry during the hearing on the motion for a new trial referring to “certain investigative procedures” as having been “performed subsequent to the trial” and his further statement that “the results *** are in the hands of” the defense counsel to refer to a polygraph exam. The judge knew that if the results of the exam favored the defendant, his counsel would so inform the court. Although the trial judge, in suggesting the polygraph examination, said he did not want to know the results or even if a test had been conducted, we believe the record shows that, upon the judge’s invitation, the prosecutor conveyed to him the message that the exam had been taken and that the results were not beneficial to the defendant.

Second, the prosecution argues that the part of the post-trial motion attacking the sufficiency of the evidence was equivalent to a motion to direct a verdict of acquittal and that in resolving such a motion the trial judge is precluded from reweighing the evidence or reassessing the credibility of witnesses. On the contrary, the People contend, that type of motion requires the trial judge to view the evidence and inferences in the light most favorable to the prosecution. Thus, the People reason that applying these standards it was clear without regard to the polygraph results that the identification by the two robbery victims was sufficient to establish the defendant’s guilt and reference to the polygraph results was harmless error.

Regardless of the standards a trial judge should follow in reviewing the sufficiency of the evidence, it is clear that the judge is confined to the record before him and his impression of the witnesses. Due process does not permit him to go outside the record, except for matters of which a court may take judicial notice, or conduct a private investigation in a search for aids to help him make up his mind about the sufficiency of the evidence. (People v. Harris (1974), 57 Ill. 2d 228, 231; People v. Wallenberg (1962), 24 Ill. 2d 350, 354; People v. Cooper (1947), 398 Ill. 468, 471-72; People v. McGeoghegan (1927), 325 Ill.337, 355; Rizzi, The Period After Closing Arguments—An Important But Overlooked Part Of A Trial, 69 Ill. B.J. 548, 559 (1981).) In Cooper, after a bench trial which resulted in the defendant being found guilty of murder and while her motion for a new trial was pending, the trial judge visited the premises where the homicide occurred. He then denied the new trial motion. In reversing the conviction, this court said:

“The point is that neither the defendant, pursuing her motion for a new trial, nor this court on review can ascertain or determine the basis for the trial court’s denial of the motion for a new trial. Exclusive of certain matters of which the court may take judicial notice, the deliberations of the trial judge are limited to the record made before him in open court. In short, any private investigation by a court pending a motion for a new trial constitutes a denial to the defendant of the constitutional guarantee of due process of law.” People v. Cooper (1947), 398 Ill. 468, 472.

The rule prohibiting a judge from referring to matters outside the record in disposing of a motion for a new trial obviously precludes reference to the results of a polygraph test which was not offered at trial and which would have been inadmissible if offered. The trial judge has failed to discharge his obligation to appraise the sufficiency of the evidence without going outside the record for assistance. As noted above, he apparently had concerns about the sufficiency of the evidence; otherwise he would not have suggested the polygraph and then referred to it twice thereafter. In view of those concerns, we should not attempt to review the evidence and substitute our judgment for judgment of a type he should have made but did not. We should especially refrain from applying our judgment to the motion for a new trial because it was the trial judge who saw and heard the witnesses. The trial judge has the inherent power to grant a new trial (People v. Preston (1931), 345 Ill. 11, 16), and in determining whether to exercise that power he must confine himself to the record. The defendant was entitled to a decision of the trial judge on his motion for a new trial arrived at in a proper manner. The reference to the polygraph was not harmless.

For these reasons we reverse the judgment and remand this cause for a new trial. In view of this decision, it is unnecessary to consider the other matters raised by the defendant in this appeal, including that a post-trial assertion by the defendant’s brother that he and not the defendant committed the robbery mandated a new trial.

Reversed and remanded.

CHIEF JUSTICE RYAN,

dissenting:

I agree with my colleagues that the trial court erred in its apparent use of polygraph-test results in passing on the defendant’s motion for a new trial. I do not think, however, that the defendant’s conviction should be set aside and a new trial granted. The use of the polygraph information in no way tainted the verdict of the jury.

In the interest of judicial economy, I would, in this case, consider the merits of the defendant’s contention raised in his motion for a new trial and determine whether the trial court’s denial constituted an abuse of discretion. This, in essence, was the procedure followed by the appellate court in this case. (103 Ill. App. 3d 967.) As stated by the appellate court, the jury in this case was the trier of the facts and the trial court’s only function in passing on the defendant’s motion was to determine, as a matter of law, whether the verdict could stand. In doing this, the court was required to view the evidence and inferences in the light most favorable to the State. In considering the merits of the defendant’s motion, I find that the evidence and inferences considered in this light support the verdict of guilty. The trial court’s denial of the motion for a new trial was therefore not an abuse of discretion and the error committed by the trial court must be considered as harmless error.

The majority opinion relies on People v. Nimmer (1962), 25 Ill. 2d 319, and People v. Cooper (1947), 398 Ill. 468. Neither case is in point. Both cases were bench trials where the conduct of the judge tainted the actual finding of guilt. In neither case was the error involved committed in passing on a motion for a new trial.

Since the verdict of the jury in our case was not tainted by the error of the judge, I can see no reason for granting a new trial. The complete record is before us. We can determine whether the judge’s action in denying the defendant a new trial was an abuse of discretion. By applying the same standards that we apply in all criminal cases, we can finalize this litigation here and now. The opinion of my colleagues needlessly launches this case on another journey through the trial court, the appellate court, and again, ultimately, to this court. This additional caseload should not be imposed upon the judicial system of this State when we are, at this time, in a position to determine the merits of the defendant’s contentions. I, therefore, dissent.


text:
    (No. 55745.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. HARRY KELLER et al., Appellees.

      Opinion filed November 18, 1982.
    Modified on denial of rehearing January 28, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Joel A. Stein, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

The defendants, Harry Keller and Jonas McGhee, were charged by indictment on December 28, 1978, in the circuit court of Cook County with eight counts of theft, three counts of possession of stolen vehicles, and two counts of possession of motor vehicle component parts. (Ill. Rev. Stat. 1977, ch. 38, pars. 16—1(a)(1), 16—1(d)(1); Ill. Rev. Stat. 1977, ch. 95½, pars. 4—103(a), 4—103(d).) At the beginning of trial, on April 5, 1979, the defendants made motions to suppress. No argument was heard on those motions at that time; the court took them under advisement. Objections were made periodically by the defendants at trial to the introduction of evidence regarding the search of a garage, but were overruled. After the State presented its case, the State rested. The court then asked the defendants if they had any evidence to present on the motions to suppress. The defendants declined to present any witnesses, but did argue that the entry into the garage by a police officer on May 4, 1978, had been without probable cause and in the absence of exigent circumstances. At trial, on April 5, 1979, the court denied the defendants’ motions to suppress without any argument from the State, based upon its determination that probable cause had existed and that exigent circumstances were present which justified the warrantless search of the garage. Defendants’ motions for directed findings were also denied at trial on April 5, 1979. The court found the defendants guilty and sentenced each of them to an extended term of 10 years.

On appeal by the defendants, the appellate court reversed the defendants’ convictions, holding that the trial court had erred in failing to grant defendants’ motions to suppress. (100 Ill. App. 3d 255.) The State filed a petition for leave to appeal (73 Ill. 2d R. 315(a)), which was granted.

On appeal before this court, the State asserts that the appellate court erred in holding that the motions to suppress were improperly denied. The State contends (1) that it did not waive its right to raise the issue of the defendants’ lack of standing on appeal, and (2) that the defendants did lack standing to challenge the search of the garage.

On May 4, 1978, two Chicago police officers, John Walls and James Pubins, were traveling eastbound in an unmarked squad car on 58th Street near Ada Avenue in Chicago when they saw three men walking out of the door of a commercial garage building. Walls testified at trial that he had spoken with one whom he believed to be the owner or lessee of the garage approximately one month prior to May 4, 1978, and had been informed that he intended to vacate the garage in one week. Walls further testified that he therefore assumed that the garage had been vacated prior to May 4, 1978. On that date, as the officers drove up to the garage, they saw three men leave and stand on the sidewalk. When the officers were approximately 100 or 125 feet from the men, one of them, later identified as Robert Wilson, yelled “police,” and the three men ran back into the garage. Defendants Keller and McGhee were identified at trial by Walls as the other two men.

The officers then pulled their squad car up to the door and saw the three men run to the rear of the garage. Officer Pubins testified that he stood at the front door and observed the three men kicking at the back door. From where he stood, he testified, he could see a van, a truck and three cars and some motors lying on the ground. One of the cars, an Oldsmobile, had its door open, and Pubins could see that the seats were not in the car. Another car was missing its front bumper and front quarter panels. While Pubins continued to look through the building he observed the three men exit through the back.

During the time that the three men were running through the garage, Walls had run through a vacant lot adjacent to the garage. When Walls reached the rear of the building he observed two doors swing open and the three men attempt to run past him into the alley. Walls apprehended defendant Keller, but Wilson and defendant McGhee climbed over a fence and ran through a gangway towards the front of the garage. As the two men ran away from Walls, he saw Wilson drop a set of keys to the ground. One of the keys, it was later determined, fit the main front door of the garage. As McGhee and Wilson ran towards the front of the building, Walls called to Pubins that the two men were approaching. Pu-bins apprehended the two men, and Walls then brought Keller to the front of the garage.

Walls testified that defendant McGhee kept asking the officers why he and the others had been stopped when they had not done anything. Walls responded by asking them what they were doing in the garage. Defendant Keller said, “What garage?” and Walls told him the garage they had just exited. Defendant Keller stated that he was never in the garage.

Walls further testified that he left the gangway and went to the rear of the garage to inspect the premises for additional persons. He entered through the back door and observed several late-model cars in various stages of dismantling. He also observed a motor on the floor that had its serial number torched off. Three of the vehicles that Walls observed, which were not totally dismantled, were later checked by their serial numbers and found to be stolen. Seven transmissions were also found with their identification numbers torched off. Cutting torches and tools were found throughout the garage. After Walls observed the identification numbers that had been torched off, he placed the defendants under arrest.

At trial, stipulations were entered into by the parties which established that the three cars which were found in the garage were stolen and were in the possession of the defendants and Wilson without the owners’ consent. It was further stipulated that two car engines and transmissions which were found in the garage were from two cars that had recently been stolen and that the owners had not given the two defendants or Wilson consent to possess them.

As previously mentioned, after the State presented its evidence, it rested. The defendants did not present any witnesses but argued that their motions to suppress should be granted. The trial court denied the defendants’ motions to suppress, and the defense rested. The court found the defendants guilty and imposed sentence.

On appeal, the appellate court held that the trial court had erred in failing to grant the defendants’ motions to suppress because there was no probable cause and there were no exigent circumstances justifying the warrantless search of the premises. In view of its determination that the evidence of the stolen vehicles and vehicle parts should have been suppressed, the appellate court held that there was no evidence upon which to sustain the defendants’ convictions. The appellate court further held that the State, by failing to raise the issue of the defendants’ lack of standing in the trial court, had waived its right to raise the issue on appeal. The court therefore reversed the convictions.

In the instant case, the trial court had held that the warrantless search of the garage was justified because exigent circumstances were present so as to establish probable cause. However, an issue preliminary to a determination of whether probable cause and exigent circumstances were present is whether the defendants possessed standing to raise the absence of a warrant.

The appellate court, in support of its holding that the State had waived its right to raise the issue of the defendants’ lack of standing on appeal, relied upon this court’s recent decision in People v. Holloway (1981), 86 Ill. 2d 78. Holloway, however, is readily distinguishable from the instant case. In Holloway, the defendant had prevailed on the motion to suppress, not the State. The State had made no objection on the basis of standing during its argument on the motion to suppress or in the motion to reconsider the court’s ruling on the motion to suppress. Therefore, the court held that it would be unfair to require the defendant, the prevailing party, to rebut a new theory raised for the first time on appeal. (86 Ill. 2d 78, 91-92.) In Holloway, the court relied on People v. McAdrian (1972), 52 Ill. 2d 250, for the proposition that the State could not raise an issue for the first time on appeal. (86 Ill. 2d 78, 91.) But in McAdrian, as in Holloway, the State had not been the prevailing party and the court had reasoned that it would be unfair to allow the State to adopt a new theory on appeal. In the instant case, it would be unfair to hold that the State, as the prevailing party, had waived any reason it might conceivably have argued in support of the trial court’s favorable ruling. The State should not have been precluded from raising the issue of standing on appeal under the circumstances in this case.

In the recent case of Steagald v. United States (1981), 451 U.S. 204, 68 L. Ed. 2d 38, 101 S. Ct. 1642, the United States Supreme Court held that the government may lose its right on appeal to raise factual issues, such as standing, when (1) it has made contrary assertions in the courts below, (2) when it has acquiesced in contrary findings by those courts, or (3) when it has failed to raise such questions in a timely fashion during the litigation. The government in the Steagald case had asserted, in the court below, that a house which had been searched was directly connected with the petitioner. It had also acquiesced in statements by the court below characterizing the search as one of the petitioner’s residence. Two years after petitioner’s trial the government sought to return the case- to the district court for a reexamination of the issue of standing. ■ The court concluded that the government, through its assertions, concessions, and acquiescence, had lost its right to challenge petitioner’s assertion that he possessed a legitimate expectation of privacy in the searched home. Steagald v. United States (1981), 451 U.S. 204, 211, 68 L. Ed. 2d 38, 45, 101 S. Ct. 1642, 1647.

In the instant case, the State had not made any contrary assertion regarding standing because, without arguing, it had prevailed on the motions to suppress on the grounds that probable cause and exigent circumstances existed justifying the warrantless search. There had been no acquiescence on the State’s part because the defendants never asserted that they had a legitimate expectation of privacy in the garage. If the State in the instant case had argued against the defendants’ motions to suppress, the issue of standing might have been addressed. Or if the defendants had asserted, as the petitioner did in Steagald, that they had a legitimate expectation of privacy, then the State might have challenged the assertion. Since neither situation occurred in the case at bar, a comparable holding as to waiver is not warranted. The State did not waive the right to raise the issue of the defendants’ lack of standing herein.

We turn next to the question of whether the defendants lacked standing to challenge the search of the garage in this case. In Jones v. United States (1960), 362 U.S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725, the United States Supreme Court held that anyone who was legitimately on the premises where a search or seizure occurred should be able to challenge its legality by a motion to suppress, without having to allege or establish a proprietary or possessory interest in the premises searched or the things seized. The “automatic standing” rule of Jones was based upon the rationale that when the offense charged was the possession of the property seized, unless the accused had automatic standing, the accused would have to admit an element of the offense in order to have standing to challenge the search and seizure. Later, however, in Alderman v. United States (1969), 394 U.S. 165, 22 L. Ed. 2d 176, 89 S. Ct. 961, the court stated that a fourth amendment violation could only be successfully urged by those whose rights were actually violated by the search itself, not by those who were aggrieved solely by the introduction of damaging evidence. The Alderman court held that fourth amendment claims against unreasonable searches and seizures were personal claims which could not be vicariously asserted. 394 U.S. 165, 174, 22 L. Ed. 2d 176, 187, 89 S. Ct. 961, 966-67.

In People v. McNeil (1972), 53 Ill. 2d 187, this court reasoned that in Illinois our views in this evidentiary area should stand in accord with Federal decisions. Therefore, the court held that in light of Alderman, the Illinois courts should “adhere to the rule requiring a defendant to establish the manner in which his constitutional rights have been violated before permitting him to challenge the validity of a search and seizure.” 53 111. 2d 187, 192.

The defendants in the instant case were in a garage that was not owned or leased by them; therefore they did not have a proprietary or possessory interest in it. There was also no evidence presented at trial to establish that these defendants were legitimately on the premises. So even under the automatic standing rule in Jones, since there was no showing here that these defendants were legitimately on the premises, they lacked standing to assert a violation of their fourth amendment rights in order to challenge the search of the garage. Also, even though there was testimony that the defendants were accompanied by a person, Robert Wilson, who possessed a key to the garage, these defendants cannot assert his fourth amendment rights or claim that they had any legitimate expectation of privacy in the garage. This is true particularly in light of the fact that these defendants denied to the police ever having been in the garage. It is clear that these defendants lacked standing to assert a violation of their fourth amendment rights.

Accordingly, for all the reasons stated, the judgment of the appellate court is reversed. However, the cause is remanded to the appellate court for resolution of the remaining issues which were raised by the defendants in the appellate court, but which the appellate court found unnecessary to address since it held that a fourth amendment violation had occurred.

Reversed and remanded.