author: JUSTICE SIMON JUSTICE UNDERWOOD,

text:
    (No. 56133.

      In re JAMES L. COBURN, Attorney, Respondent.

      Opinion filed October 22, 1982.

    UNDERWOOD and MORAN, JJ., dissenting.
    James J. Grogan, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    William J. Martin and Robert A. Merrick, Jr., of Chicago, for respondent.
   JUSTICE SIMON

delivered the opinion of the court:

On March 11, 1981, the respondent, James L. Co-burn, was found guilty of filing false Federal income tax returns in violation of title 26, United States Code, section 7206(1). He was fined $15,000 and given a three-year suspended sentence, with the special condition of probation that he file all delinquent returns and perform some public service under court supervision for a period of 15 hours a week. Shortly thereafter, the Administrator of the Attorney Registration and Disciplinary Commission filed a complaint with the Commission’s Hearing Board, praying that the respondent be suspended from practice because of this conviction. The Hearing Board found the respondent’s conviction for filing false returns to be conclusive evidence of his guilt of a crime involving moral turpitude and recommended that he be suspended from practice for two years. Both sides filed exceptions, but the Review Board affirmed. The respondent now asks this court to be more lenient than the hearing and review boards.

The respondent does not dispute that his behavior warrants discipline. There is little doubt that the respondent’s attempt to evade the payment of income taxes is ground for official action of some kind. (See In re Andros (1976), 64 Ill. 2d 419; In re O’Hallaren (1976), 64 Ill. 2d 426; In re Lacob (1972), 50 Ill. 2d 277.) But the respondent urges the court to look at the facts surrounding his case and to censure him rather than suspend him.

Respondent is 72 years old. The story of his tax problems covers many years. He was admitted to the bar in 1938, after working his way through college and law school in Chicago. When he could not then find a position in the Chicago area, he canvassed western Illinois in search of a town in need of a lawyer, and chose Galena, where he entered into a partnership with a retired judge. During that period of his life, his income was so low that he was not required to file income tax returns.

In 1941, he married and moved his practice to Elizabeth, Illinois. Gradually his income crept up to the point at which he should have filed an income tax return, but he did not. He testified that because he was so caught up in his work and his family he failed to notice when that happened. He claimed that, when he finally did notice, he continued not to file because of fear that if he did his previous failures would be brought to the attention of the tax authorities.

The respondent allowed this to go on for more than three decades, never filing an income tax return. No money was collected from the respondent for taxes until 1966, when he went to work for the Cook County State’s Attorney. After 1966, although taxes on the part of his income consisting of his salary were withheld, he continued to fail to file returns.

In 1977, apparently influenced by the large amounts of money he had earned administering two estates in his spare time, respondent decided to file tax returns for the years 1974, 1975 and 1976. The returns he filed, however, fraudulently neglected to state the substantial dividend and interest income he derived from securities he inherited from his parents and from savings accounts. At the time of his conviction, he had approximately $500,000 in interest-bearing bank accounts. This behavior aggravates the previous failure to file. It shows the respondent’s continued failure to file was not motivated solely by fear, but rather by a wanton disregard of his duties as a citizen. It was for these fraudulent filings that the respondent was convicted.

There is another side of the respondent’s character, however. During his long career, the respondent served as a master in chancery for Jo Daviess County, president of the board of education in Elizabeth, and a member of the local boards of both the Salvation Army and the Red Cross. He was president of the High Twelve Club in Freeport, which distributed free hospital beds and wheel chairs to the needy in Stephenson County. Twenty-three individuals, including five judges and 10 attorneys, attested to the respondent’s integrity and good character.

Taking into consideration all of these facts, we believe this case warrants some of the leniency the respondent requests. The respondent is an old man and in frail health. The longer he is suspended, the less likely he will be able to reestablish himself in his community as a productive citizen and lawyer. On the other hand, his misconduct is far too serious to be dismissed with only the censure the respondent requests, particularly because his fraudulent filing compounds, in our view' the seriousness of his previous failure to file extending over so many years. If we are to maintain the integrity of the legal profession in Illinois, we can ill afford to appear to take such actions lightly. We believe the hearing and review boards more than balanced the need for leniency against the need for the proper maintenance of discipline when they recommended a two-year suspension. In fact, we believe they were too lenient and that a longer suspension would be more appropriate. We therefore suspend the respondent from the practice of law for a period of three years.

Respondent suspended.

JUSTICE UNDERWOOD,

dissenting:

In my judgment any discipline short of disbarment is clearly inadequate and depreciates the seriousness of this respondent’s misconduct. For more than 30 years after he concedes his income became sufficient to require filing income tax returns, the respondent here failed to do so. That failure was compounded by the fact that when he finally decided to file he deliberately omitted from his returns the income on numerous bank accounts totaling about one-half million dollars and the dividends on significant amounts of corporate stock. No rent from the real estate he owned nor capital gain from the real estate he sold was ever reported.

Despite respondent’s advanced age, the absence of other disciplinary infractions and the indications that respondent was community minded and well regarded by those who knew him, it seems to me that the 30-odd years of misconduct of a criminal nature aggravated by the false returns which were finally filed demand that respondent be disbarred. In re Lambert (1970), 47 Ill. 2d 223.

JUSTICE MORAN joins in this dissent.


source: Caselaw Access Project

author: JUSTICE UNDERWOOD

license: Public Domain

text:
    (No. 55760.
    VIRGINIA ANN DOOLEY, Appellee, v. JAMES A. DOOLEY ASSOCIATES EMPLOYEES RETIREMENT PLAN et al., Appellants.

      Opinion filed October 22, 1982.
    Rehearing denied November 24, 1982.

      WARD and MORAN, JJ., took no part.
    William J. Harte, of William J. Harte, Ltd., and Myron M. Cherry and Peter Flynn, of Cherry & Flynn, P.C., all of Chicago, for appellants Mary Connelly, Michael Connelly, John D. Connelly, and Lorraine Jensen Grau.
    Clare J. Murphy, of Winnetka, and Sidney Z. Karasik, of Chicago, for appellant Herbert Jackson.
    Barnabas F. Sears and Wayland B. Cedarquist (Boodell, Sears, Sugrue, Giambalvo & Crowley, of Chicago, of counsel), for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

This is a contest between claimants to the retirement trust account of the late Justice James A. Dooley (decedent), a former member of this court, who had established the account while engaged in the active practice of law. Decedent had designated plaintiff, Virginia Ann Dooley, his daughter, as the sole beneficiary of that account in December 1973. On February 21, 1978, 12 days before his death, decedent worked on a new designation which named plaintiff and defendants, Mary Connelly, his sister, John D. and Michael Connelly, his nephews, and Hope Jackson and Lorraine Jensen Grau, his former secretaries, as beneficiaries. The issue before us is whether a change of beneficiaries was completed. The circuit court of Cook County held that decedent’s notes were ineffective as a change of beneficiaries and did not revoke the 1973 designation of plaintiff, declaring her the sole beneficiary of the account. Defendant claimants appealed and the appellate court affirmed. (100 Ill. App. 3d 389.) We granted leave to appeal.

A detailed factual statement is necessary. In 1962 decedent retained Joseph Reynolds, a CPA, to design and install a retirement plan for James A. Dooley Associates, decedent’s law firm. The plan was adopted and installed in 1963 and subsequently amended several times. Reynolds continued to manage the financial aspects of the plan and made annual reports to the participants, whose accounts were individually maintained. Decedent’s account was the largest single account, having a value exceeding $3 million at his death. In 1976, when decedent was elected to this court, the plan was amended and a wasting trust was established. Decedent and Reynolds were named as trustees. (Decedent’s wife apparently became a trustee after his death.) In 1976, decedent also stepped down as president of James A. Dooley Associates, and his long-time friend and confidant, John Cu-sack, assumed that position. Decedent moved his office for purposes of winding up his affairs with his former law firm, and disposed of his practice but continued to maintain some files relating to the trust.

After his death a file folder marked “Dooley Assoc. Retirement Trust (Beneficiary Slips)” and containing beneficiary designations of the participants was found in a locked file in decedent’s office. There was no testimony that decedent himself maintained the file. Reynolds testified that he and decedent’s secretary handled beneficiary designations. In the file was found decedent’s 1973 designation of plaintiff as his beneficiary, a designation of which Reynolds was previously unaware. There were two versions of this designation, which varied slightly in wording. One, dated December 12, 1973, was handwritten and signed. The other, dated December 13, 1973, was typewritten and signed. Both contained a revocation of prior designations as was required by the version of the plan in existence at that time. The plan, however, required neither a typewritten designation nor the participant’s signature. Also in the file was a 1963 designation of Virginia P. Dooley, decedent’s wife, as beneficiary, which was also typed and signed. The 1973 designation was made shortly after decedent and his wife separated.

Reynolds, who was apparently concerned about adverse tax consequences to a beneficiary paid in a lump sum, testified that he had encouraged decedent for some time to revise his beneficiary designation. In April 1977, decedent met Reynolds and discussed beneficiary changes, stating he wished to leave something to defendants. He made some notes which described specific bequests to plaintiff and defendants, changing the amounts several times, with the residue going to Virginia P. Dooley, his wife. Reynolds objected to specific dollar bequests because, if decedent drew on his retirement account, there might not have been sufficient funds with which to pay them. He also objected to the installment schedule indicated in the notes because of adverse tax consequences to the beneficiaries. Decedent told him “to work on it.”

Reynolds spoke with decedent over the telephone several times subsequently and, in May 1977, wrote him a four-page letter explaining various tax consequences and options. Page two set out a proposed designation and distribution scheme. Basically the proposal followed decedent’s notes made in April, the major change being that the specific bequests were converted to percentages.

Decedent apparently took no further action until February 21, 1978. On that date he met Reynolds and John Adams, his tax accountant, to discuss unrelated personal tax matters. However, before those matters were discussed, decedent took Reynolds’ May 1977 letter from his desk and began writing on page two. After 10 or 15 minutes he showed it to Reynolds. Decedent had lined out several portions of Reynolds’ proposal and had written in his changes. Hope Jackson’s and Lorraine Jensen Grau’s shares were changed from 3% to 5% and plaintiff’s was adjusted accordingly from 66% to 62%. Decedent changed plaintiff’s installment schedule from “331/s% at age 25, 331/s% at age 30 and the balance at age 35” to “installments over thirty years.” Virginia P. Dooley was deleted as contingent beneficiary of plaintiff’s share and in her place decedent’s nephews were designated as contingent beneficiaries of one-half and decedent’s “widow” of the other half. Virginia P. Dooley was also deleted as contingent beneficiary of the shares designated to two nephews and Hope Jackson, with Loyola University of Chicago being substituted. Lorraine Jensen Grau’s daughter took Virginia P. Dooley’s place as contingent beneficiary of Lorraine’s share. In the event that none of the named beneficiaries survived him, Loyola University was named as beneficiary.

After Reynolds read the changes he asked decedent several clarifying questions, determining that a figure was a “2” rather than a “3,” that plaintiff’s share was to be paid in annual installments, and that the nephews’ shares were also to be paid in 30 annual installments. Reynolds made notes in the margin of the page. Then, satisfied he understood what decedent meant, he wrote “Per J. A. D. instructions on 2/21/78” and his initials at the bottom of the page. Reynolds testified that he told decedent that he would put it in “formal style for him to prepare it for his signature.” Decedent replied that there was no hurry because “he was more interested in these other matters that I [Reynolds] was there to discuss than he was in finishing this up.” On cross-examination Reynolds testified that he believed the corrected notations “embodied Dooley’s intent in regard to the distribution of his money in the pension fund.” Reynolds placed the letter on a stack of papers and the meeting turned to other matters. During the meeting, decedent’s secretary made copies of several documents, but Reynolds did not know if she copied the letter. When he left he took it with him, but Justice Dooley died some 12 days later before Reynolds had it typed.

John Adams testified that he was present at the meeting of February 21 and that he saw decedent make the changes and heard him tell Reynolds what each beneficiary was to receive. Adams testified decedent had asked Reynolds to get the material typed up, telling Reynolds that “there was no rush because we had some other things that he felt were more important to do.”

John Cusack, an intimate friend of decedent, testified that he met decedent on February 22, 1978, and that decedent handed him a copy of the letter and notes he had written the day before and told him it was his new beneficiary designation. Cusack stated that he asked if Reynolds had a copy of it and decedent said he had. Cusack told him that, as president of the company, he considered it a valid designation and he advised decedent to keep it with his other company files. The copy which Cusack said he saw was apparently never found. In rebuttal to this testimony, Reynolds testified that Cusack never mentioned having seen this letter or discussing it with decedent on either of the two occasions on which they met after decedent’s death. Some of the defendants were present during at least one of those meetings, and they testified that the letter had been a topic of discussion.

The provision of the plan governing a change of beneficiaries in effect at the time of decedent’s death stated:

“A Participant may designate the beneficiary of his choice to receive payments of amounts credited to his Company Contribution Account, his Employee Contribution Account, if any, and his Rollover Account, if any, at his death. The Beneficiary Designation must be in writing and filed with the Company and may include contingent or successive beneficiaries. A Participant’s Beneficiary Designation may be changed at any time or from time to time by the Participant’s filing a new Beneficiary Designation form with the Company. The revocation of a beneficiary’s designation shall not require the consent of any beneficiary.”

As noted earlier, the original plan required that a new designation revoke prior designations, but this language was deleted in 1977 just a few months prior to decedent’s death. It does not appear that there was a specific form provided by the company for beneficiary designations. The trustees take a neutral position in this litigation, and the parties have apparently agreed that the new plan required only that a beneficiary designation be “in writing and filed with the Company.”

The trial court’s written judgment contained no specific findings, but declared that plaintiff was the beneficiary under the valid 1973 designation, which decedent’s notations on the letter were ineffective to replace. The court did render a short oral opinion which in part stated:

“The language of the trust is clear, and it is agreed by the parties that a change in designation of the beneficiary must be in writing, filed with the company.
* * *
While Justice Dooley may have expressed a desire to make changes, he, above anyone else, a brilliant lawyer, a Justice of the Supreme Court of Illinois, knew what was necessary to properly effectuate a change of beneficiary. In fact, he had effected several changes prior thereto.
And, each time he effected a change, each time he made a new designation, it was typewritten, signed and filed in a specific file of the company.
The evidence is uncontradicted that, on February 21, 1978, Justice Dooley took the letter sent to him by Mr. Reynolds on May 21, 1977, relative to proposed distributions in the event of his death from his desk and made some typewritten [sic: handwritten] directions on it, crossed out other typed portions and gave it to Mr. Reynolds who, after further discussion with Justice Dooley, made some notes on it and then said he would take it with him, put it in a formal style for him to prepare it for his signature. ***
I am forced to conclude that, had Justice Dooley felt that he had complied with the requirements to make the changes, he would have responded immediately to that statement differently than he did. You will recall that the response that he made to that statement was, ‘Well, there is no hurry about it. There are other things that I am more interested in that you could take care of.’
Justice Dooley knew, in this Court’s judgment, that what was done then was not a valid, effectual change of the beneficiary nor did he intend that it take effect at that time. Justice Dooley did not need Mr. Reynolds, nor anyone else, to prepare a change of beneficiary.
If he intended it to take effect at that time, he could have signed it, filed it, or he could have had it retyped, signed it and filed it as he did on several other occasions.”

The appellate court held that although under other circumstances decedent’s notes could constitute a written designation and that Reynolds was an appropriate person with whom to file a designation, there was sufficient evidence “to indicate that the alleged 1978 designation had not been finalized by the decedent.” (100 Ill. App. 3d 389, 394.) Consequently it held the trial court’s conclusion was not against the manifest weight of the evidence. We agree.

In our opinion the crux of this case is whether Justice Dooley regarded the beneficiary changes he noted on the Reynolds’ letter as his final, effective decision. If so, there are numerous cases indicating that what was done here sufficed to accomplish a change of beneficiary. Many of the insurance cases, which we consider relevant here, apply explicitly or implicitly, a “substantial compliance with the policy requirements” test in determining whether steps taken by a decedent were sufficient to change the beneficiary. (See, e.g., Atkinson v. Metropolitan Life Insurance Co. (1926), 114 Ohio St. 109, 150 N.E. 748; Connecticut General Life Insurance Co. v. Gulley (7th Cir. 1982), 668 F.2d 325; Criscuolo v. United States (7th Cir. 1956), 239 F.2d 280; John Hancock Mutual Life Insurance Co. v. Douglass (7th Cir. 1946), 156 F.2d 367; Nye v. Mutual Benefit Life Insurance Co. (2d Cir. 1945), 148 F.2d 509; Saunders v. Stevers (1963), 221 Cal. App. 2d 539, 34 Cal. Rptr. 579; Rindlaub v. Travelers Insurance Co. (1962), 119 Ohio App. 77, 196 N.E.2d 602, aff'd (1963), 175 Ohio St. 303, 194 N.E.2d 577; Sun Life Assurance Co. of Canada v. Williams (1936), 284 Ill.App. 222; Supreme Council of the Royal Arcanum v. Huckins (1911), 166 Ill. App. 555; Shenandoah Life Insurance Co. v. Harvey (D. Md. 1965), 242 F. Supp. 680; New York Life Insurance Co. v. Lawson (D. Del. 1955), 134 F. Supp. 63; Aetna Life Insurance Co. v. Parker (E.D. Mich. 1955), 130 F. Supp. 97; see also cases cited at Annot., 19 A.L.R.2d 5, 30-41 (1951).) Other cases apply a somewhat stricter test, whether the decedent “did all he could” to effectuate the change. (See, e.g., Young v. American Standard Life Insurance Co. (1947), 398 Ill. 565; Sun Life Assurance Co. of Canada v. Sutter (1939), 1 Wash. 2d 285, 95 P.2d 1014; Inter-Southern Life Insurance Co. v. Cochran (1935), 259 Ky. 677, 83 S.W.2d 11; Tomaneng v. Reeves (6th Cir. 1950), 180 F.2d 208; Logan v. State Farm Life Insurance Co. (1978), 61 Ill. App. 3d 770, 772; Donahey v. Sweigart (1949), 336 Ill. App. 366; Saiter v. Miller (1940), 108 Ind. App. 373, 27 N.E.2d 900; Page v. Page (E.D. Okla. 1978), 451 F. Supp. 956.) Still others seem to combine the two tests, inquiring whether the decedent did all he could to effect the change in order to determine whether there was substantial compliance with the requirements. See, e.g., Grayson v. Gilley (Ky. 1969), 443 S.W.2d 240; Vaughn v. Baker (Ky. 1969), 438 S.W.2d 517; Henderson v. Adams (1941), 308 Mass. 333, 32 N.E.2d 295; English v. English (1977), 34 N.C. App. 193, 237 S.E.2d 555; Mutual Savings Life Insurance Co. v. Cowan (E.D. Tenn. 1960), 188 F. Supp. 148.

In most of the reported cases the courts have not discussed the decedent’s intent, but have dwelt upon whether he took sufficient steps to effectuate the change. It appears, however, that the overriding concern in these cases, the threshold question, is the firmness of decedent’s intent as to the changes. (See, e.g., Prudential Insurance Co. of America v. Bannister (W.D. Pa. 1978), 448 F. Supp. 807, 809.) Indeed, where the courts have been convinced that no doubt as to decedent’s intent existed, that intent has been implemented despite what would appear to be substantial noncompliance with formal requirements. (See, e.g., Vaughn v. Baker (Ky. 1969), 438 S.W.2d 517 (oral request; agent prepared forms but insured did not sign them); Atkinson v. Metropolitan Life Insurance Co. (1926), 114 Ohio St. 109, 150 N.E. 748 (agent’s letter sufficient); Criscuolo v. United States (7th Cir. 1956), 239 F.2d 280 (unsigned note on scratch paper); English v. English (1977), 34 N.C. App. 193, 237 S.E.2d 555 (notation on “insurance review form”); Aetna Life Insurance Co. v. Parker (E.D. Mich. 1955), 130 E Supp. 97 (pencilled change on certificate).) However, where factors exist which tend to indicate some equivocation — to cast some doubt upon decedent’s intent — the courts have generally held that the decedent did not substantially comply with all requirements, or did not do all he could to effectuate the change, or both. See, e.g., Young v. American Standard Life Insurance Co. (1947), 398 Ill. 565 (omission of date and relationship of insured to new beneficiary; form was altered after insured’s death; insured specifically requested change to be effective only upon endorsement); Tomaneng v. Reeves (6th Cir. 1950), 180 F.2d 208 (insured did not execute forms as he had in the past); Logan v. State Farm Life Insurance Co. (1978), 61 Ill. App. 3d 770 (new beneficiary signed forms for insured claiming she had his authority); Sun Life Assurance Co. of Canada v. Secoy (N.D. Ohio 1947), 72 F. Supp. 83 (insured wrote several times requesting a change but never returned the company form).

While certainty of intent is essential, it will not suffice without more. There must be a combination of intent to make the change and positive action towards effecting that end.

“Substantial compliance requires (a) a clear expression of the insured’s intention to change beneficiaries, plus (b) his concrete attempt to carry out his intention as far as was reasonably in his power. Intent alone is not sufficient. In addition, the insured must have done all he reasonably could do under the circumstances to carry his intention into execution.” 7 Williston, Contracts sec. 916, at 484-85 (3d ed. 1963).
“The mere fact that the insured takes preliminary steps with the intent of ultimately effecting a change of beneficiary does not in itself constitute substantial compliance and a change of beneficiary does not result therefrom.” 5 Couch, Insurance sec. 28:75, at 179 (2d ed. 1960).

Requiring that the evidence establish an unequivocal intent on the insured’s part and that he take positive action to change his beneficiary serves two purposes: doubt as to the intent is eliminated and concrete evidence of that intent is provided the payor. In 5 Couch on Insurance section 28:72, at 175 (2d ed. 1960), it is stated that compliance must be “sufficient to give assurance of the authenticity of the insured’s desire to bring about a change and to provide trustworthy evidence of that desire to the insurer.” The trustees here occupy a position akin to that of an insurer and they have taken a neutral position, since all of the claimants are before the court. In similar situations defendants have urged that the original beneficiary is not entitled to assert the lack of compliance with formal policy (plan) requirements. (See, e.g., Sun Life Assurance Co. of Canada v. Sutter (1939), 1 Wash. 2d 285, 95 P.2d 1014; Atkinson v. Metropolitan Life Insurance Co. (1926), 114 Ohio St. 109, 150 N.E. 748; Prudential Insurance Co. v. Glasgow (2d Cir. 1953), 208 F.2d 908; cases cited at Annot., 19 A.L.R.2d 5, 101-09 (1951).) What defendants overlook, however, is that such cases generally do not involve any question of decedent’s intent to effect the change. The cases are few in which a reviewing court has questioned a trial court’s finding that the decedent did not intend a change, and these seem to be distinguishable. (E.g., Rindlaub v. Travelers Insurance Co. (1963), 175 Ohio St. 303, 194 N.E.2d 577 (insufficient evidence to support inference drawn by trial court); Nye v. Mutual Benefit Life Insurance Co. (2d Cir. 1945), 148 F.2d 509 (improperly excluded evidence required remand for new trial); English v. English (1977), 34 N.C. App. 193, 237 S.E.2d 555 (question submitted to trial court on stipulations for ruling on motion for summary judgment did not require finding on intent). The trial court here has held that Justice Dooley did not intend his notations on the Reynolds letter to be effective. We cannot say that holding is contrary to the manifest weight of the evidence.

The evidence here clearly indicates decedent was contemplating changing beneficiaries and had done some work in that regard. However, the evidence can also be considered as indicating he knew his work was not complete. Clearly decedent contemplated reviewing the typed version before signing it and contemplated signing a document in a form similar to his previous designations. We do not suggest that the plan required either a certain form or a signature, but only that the facts that decedent had signed typewritten designations in the past and contemplated doing so again support a finding that he did not intend what he had done to be effective. Not only had he not done “all he could,” he had not done all he contemplated doing.

It seems to us, too, that in contrast to the factual situations in the cases cited by defendants, the evidence here as to decedent’s intent is not unequivocal. Some ambivalence was manifest in the dollar apportionments during the 1977 conversation with Reynolds when decedent first fixed the daughter’s share at $1 million, then $1.5 million and then $2 million. Some uncertainty is also apparent in the 1978 percentage apportionment where the percentages were altered from those first suggested as paralleling the dollar figures originally fixed by decedent. It is significant, too, that decedent indicated he was in no hurry for the typed version and that there were other more important matters. That statement does not impress us as emanating from one who has reached a final and effective decision which he wishes placed in final form. While it can, perhaps, be argued that this statement may also be interpreted as indicating a belief by decedent that he had completed the beneficiary-changing project and there was no hurry about the formality of a typed, signed form, that interpretation does not square with the absence from the beneficiary-designation file of any reference to this substantial change.

It is also clear that Reynolds could not have typed decedent’s notes verbatim in preparing the beneficiary change document. He would have had to interpret and expand upon those notes to some extent, exercising some discretion in the process, a fact which decedent undoubtedly understood when either decedent or Reynolds suggested that the material be typed up. Too, there is no evidence other than the Cusack testimony that a copy of his notes was retained by decedent, and both the trial and appellate courts appear to have attached little probative value to that testimony in view of the witness’ failure to mention, during subsequent discussions, that decedent had shown him the letter. Finally, there is no evidence at all that anything was placed in the file containing all of the beneficiary designations. Had decedent regarded the changes he had noted on Reynolds’ letter as then representing an effective designation, it would seem that, had he retained a copy, it would have been placed in the file with the other designations.

The combined effect of these factors, in our judgment, is to demonstrate that a holding that decedent did not regard his notes as representing his final decision or an effective designation of new beneficiaries cannot be said to be contrary to the manifest weight of the evidence, and that the judgment of the appellate court, affirming the circuit court, must be affirmed. Village of Wilsonville v. SCA Services, Inc. (1981), 86 Ill. 2d 1, 15; Greene v. City of Chicago (1978), 73 Ill. 2d 100, 110.

Judgment affirmed.

WARD and MORAN, JJ., took no part in the consideration or decision of this case.


author: JUSTICE MORAN

text:
    (Nos. 55679, 55680 cons.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant and Appellee, v. PHILIP KLINE, Appellee and Appellant.

      Opinion filed September 30, 1982.

    Rehearing denied November 24, 1982.

      SIMON, J., took no part.

      Tyrone C. Fahner, Attorney General, of Springfield, and Edward F. Petka, State’s Attorney, of Joliet (Michael B. Weinstein and Jack Donatelli, Assistant Attorneys General, of Chicago, and John X. Breslin and Rita Kennedy Mertel, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Shelvin Singer, of Chicago, for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

Philip Kline, Arthur Garza and Glenn Schultz, Jr., were joined in an indictment for the offense of murder in violation of section 9 — 1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 9—1(a)(1)). Each was tried separately. This appeal involves Philip Kline (defendant), who, following a bench trial in the circuit court of Will County, was found guilty as charged. He was sentenced to a term of 50 to 100 years’ imprisonment. (Garza and Schultz, who were tried and convicted after defendant, were sentenced to prison terms of 15 to 25 years and 20 to 25 years, respectively.) A majority of the appellate court affirmed defendant’s conviction, but remanded the cause to the trial court for resentencing. (99 Ill. App. 3d 540.) We granted both the State and defendant leave to appeal, and consolidated the causes for purposes of review.

The following issues are raised by defendant: (1) Do the statutory provisions which authorize prosecution of a felony by either indictment or a preliminary hearing violate defendant’s rights to equal protection and due process? (2) Did the State knowingly conceal exculpatory information in violation of defendant’s right to due process? (3) Did the trial court abuse its discretion in restricting defendant’s cross-examination of the State’s principal witness? (4) Was defendant proved guilty beyond a reasonable doubt? The State, in its appeal, raises the additional question of whether the appellate court’s order remanding the cause for resentencing was proper.

The record discloses that Bridgette Regli, a student at Crete-Monee High School, was bludgeoned to death on December 6, 1973. Her body was discovered two days later in a field in Will County. A pathologist testified that death resulted from a blow to the left rear of the victim’s head, which could have been administered by a tree limb. Although not fatal, there was also a penetrating wound on the forehead which was caused by a rounded or ovoid object. The witness indicated that the wound could have been inflicted with the shaft of a golf club. On re-cross-examination, he stated that other items with a similar circumference may have administered the blow. There were also a number of superficial cuts, scrapes and abrasions on the victim’s body and certain marks on her neck. According to the pathologist, the marks indicated an attempted strangulation, although death was not caused by choking. The witness further stated that the death occurred between four and six hours after the decedent’s last meal, which was at approximately 6:45 a.m.

Germaine Einhorn, another witness for the State, testified that she attended band class with the victim from 12 p.m. until 1 p.m. on the date in question. It was their last class, after which they generally went home for lunch. The witness also stated that the decedent was a photographer for the school yearbook and carried a camera nearly every day.

Valinda Avey, who was acquainted with Bridgette, attended a junior high school located near Crete-Monee High School. She testified that, on the day of the murder, she was working at school as an office aide. At approximately 1 p.m. she happened to gaze out the window and observed the victim walking down the street. She was carrying books and a “bulky” object which the witness could not identify. Avey further testified that she saw a car stop just ahead of the victim. The witness described the car as being a cream or other light color with a dark interior. She could not recall if it was two-toned, but noted that it was a two-door vehicle and resembled a Mustang.

She further indicated that a man got out on the passenger side of the car. She stated that he was a Mexican or “other nationality” of about high school age. He was not obese and had dark, shoulder length hair. According to other testimony, this description matches that of Arthur Garza. The victim entered the car, apparently voluntarily, and it was driven away in a southerly direction.

The State’s principal witness was Anna Kline, the estranged wife of the defendant. She testified that she became acquainted with the defendant in September of 1973. They lived together sporadically from 1974 through February 1976, at which time they were married. She stated that defendant was a narcotics user and that he occasionally sold drugs in the high school parking lot.

The crux of Anna’s testimony concerned certain conversations which she had with defendant prior to their marriage. She testified that in November of 1975, defendant discussed with her the murder. He stated that Garza murdered the victim by striking her with a golf club. He admitted that he was present during the killing, but said that he never touched her. He indicated that Garza killed her because she had taken a picture of a drug transaction. Defendant also said that, after attempting to destroy the film, he put the camera in his car trunk. During a subsequent conversation, defendant stated that when he took the camera he felt like choking the victim, but he did not.

Anna further testified that she saw the defendant and Garza during the early evening of December 6, 1973. They were selling albums in order to raise money for a Florida trip. At the conclusion of her testimony, she indicated that she still loved the defendant. She also stated that the police initially contacted her concerning the murder.

The focus of cross-examination was to discredit Anna’s testimony. The defense established that she used narcotics and occasionally sold them. She admitted that in December of 1978, when she first informed the police of defendant’s incriminating statements, she was taking 30 milligrams of valium each day. She further stated that, although she heard rumors in 1973 of defendant’s involvement in the offense, she never questioned him about it until 1975. Also established was that, subsequent to her marriage, defendant went to California with another woman. Later, the witness wrote to defendant, while he was in custody, and informed him that she planned to divorce him and marry someone else.

The defense mainly consisted of attacks on Anna’s credibility. Her sister testified that Anna said she no longer wanted to testify against defendant, and that she initially planned to do so out of revenge. Two other witnesses stated that they heard Anna tell defendant’s sister that she would get revenge on defendant for going to California with another woman.

In 1978, while separated from defendant, Anna resided with Mark Pascarella. Pascarella testified that he moved out of her apartment following an argument. Sometime thereafter, Anna called him requesting rent money. He refused, and Anna later informed the police that he had sexually molested her daughter. He denied the accusation, and no charges were filed. Anna’s sister-in-law testified that Anna said she accused Pascarella of attacking her daughter because he would not pay any rent money.

In a further effort to establish Anna’s lack of credibility, defendant’s mother related a conversation which she had with her in January of 1979. At that time, Anna telephoned Mrs. Kline at the family-owned corporation requesting defendant’s alleged share of the company. Mrs. Kline refused to give Anna any money, at which point Anna threatened that she would see defendant “rot in jail.” An employee of the Klines, who was listening to the discussion on an extension phone, confirmed that this conversation took place.

Jeff Beasley, an investigator for the public defender’s office, testified that he interviewed Anna in May of 1979. At that time, she said that defendant initially denied any involvement in the killing; that he only admitted complicity when he was under the influence of narcotics; and that she informed the police about defendant’s alleged involvement in the crime because she was “high on valium.” Anna further informed Beasley that an officer told her she would lose her children and be charged with withholding information if she refused to cooperate. On the witness stand, Anna denied some of these statements and attempted to explain others.

Defendant also called two witnesses to the stand in an effort to establish an alibi for his whereabouts at the time of the offense. Bernice Clark and James Roberts, who were defendant’s classmates in high school, testified that they were with him on December 6, 1973. Clark stated that she was with defendant until 1:30 p.m. that afternoon. Roberts testified that he was at defendant’s home until about 3 p.m. He admitted to having taken LSD (lysergic acid diethylamide), that day. Both Clark and Roberts occasionally purchased drugs from defendant.

Defendant took the stand in his own behalf and initially stated that he had four prior felony convictions. He denied any knowledge of or involvement in the murder. Defendant testified that he was with friends nearly all day on December 6, and that night he and Garza left for a trip to Florida. He stated that he had been planning the trip because of problems with his parents. He left that particular night because he was going to be confined to his home for a month starting that weekend. Defendant said he brought his golf clubs with him in the trunk of his car because he planned to earn money golfing in Florida. He also brought a camera which he claimed was his, and which he allegedly sold to an elderly couple on a beach in Miami.

Defendant further testified that he first learned of the murder on December 14, 1973, when he called his parents from Florida. He said that he and Garza immediately hitchhiked home to clear themselves of suspicion.

During cross-examination, defendant admitted that, on the morning of the murder, he smoked a marijuana cigarette in the high school parking lot. He stated that he may have passed it to a friend. Further, his testimony concerning the events which transpired on December 6 was impeached by . a number of prior inconsistent statements he had given to the police. For instance, defendant testified that, on December 6, he left school after attending two classes. He then drove a friend to Dolton, Illinois, arriving there between 10:30 and 11 a.m. From there, defendant and some friends went to his house, at approximately 12 p.m. In a statement which defendant made to a police officer on December 16, 1973, he initially stated that he attended classes on the day of the murder from 7:30 a.m. until noon. From there he and some friends went to a McDonald’s restaurant in Steger, Illinois. When the officer told defendant that the school records indicated he left school at 9:15 a.m., defendant then stated he left school at 9:30 a.m.

Further, defendant testified that he was at his or a friend’s home almost all afternoon. In his statement, he told the officer that he went to a railroad salvage yard to sell copper. Defendant also testified that he brought his friend to Dolton to see his mother. However, in the statement he indicated that they went there to purchase marijuana. Also contrary to his testimony, defendant said that, on December 6, he purchased LSD from a friend.

A police officer, John Watters, testified for the State in rebuttal. He said that he interviewed Bernice Clark and James Roberts prior to trial. At that time, they gave statements regarding their activities on December 6 which are inconsistent with their testimony at trial. For example, Clark had stated that she was with the defendant and Garza from 11 a.m. until approximately 12:30 p.m., at which time defendant brought her home. In the interim, she said that they went to Dolton, Illinois, to purchase marijuana, which they smoked on the ride back home. (We note also that, in a statement which Clark made to another police officer, she stated that she was with the defendant from 7 a.m. until 3 p.m. on the day in question.) In Robert’s prior statement to Waiters, he initially said that he met with defendant around 1:30 p.m. on December 6. Later, however, he indicated to the officer that he was in defendant’s company from 9 a.m. until 9 p.m.

We first consider whether the statutory provisions which authorize prosecution of a felony by either indictment or a preliminary hearing (Ill. Rev. Stat. 1971, ch. 38, pars. 111—1, 111—2) violate defendant’s rights to equal protection and due process. Defendant suggests that those individuals who receive a preliminary hearing have an unfair advantage over those who are indicted. He points out that defendants afforded a preliminary hearing are entitled to have counsel present, to cross-examine witnesses, and to have access to evidence enabling them to prepare a better defense. In support of his position, defendant cites cases from two other jurisdictions which hold that a probable-cause hearing is required even where an accused has been indicted. Hawkins v. Superior Court (1978), 22 Cal. 3d 584, 586 P.2d 916, 150 Cal. Rptr. 435; People v. Duncan (1972), 388 Mich. 489, 201 N.W.2d 629.

We note initially that the purpose of both the indictment and the preliminary hearing is to determine probable cause. Section 7 of article I of the 1970 Illinois Constitution provides, in part:

“No person shall be held to answer for a crime punishable by death or by imprisonment in the penitentiary unless either the initial charge has been brought by indictment of a grand jury or the person has been given a prompt preliminary hearing to establish probable cause.” (Emphasis added.) (Ill. Const. 1970, art. I, sec. 7.)

This provision, worded in the disjunctive, clearly establishes that a defendant is not entitled to a preliminary hearing when he is charged by indictment. (See also 7 Record of Proceedings, Sixth Illinois Constitutional Convention 2600.) All that is required is that an accused “be afforded a prompt probable-cause determination of the validity of the charge either at a preliminary hearing or by an indictment by a grand jury.” (People v. Howell (1975), 60 Ill. 2d 117, 119, citing People v. Kent (1972), 54 Ill. 2d 161; People v. Hendrix (1973), 54 Ill. 2d 165; see also People v. Redmond (1977), 67 Ill. 2d 242; People v. Adams (1970), 46 Ill. 2d 200, aff'd on other grounds (1972), 405 U.S. 278, 31 L. Ed. 2d 202, 92 S. Ct. 916; People v. Franklin (1979), 80 Ill. App. 3d 128; People v. Arbogast (1976), 41 Ill. App. 3d 187.) We see no reason to depart from this well-established rule.

Further, our constitution specifically empowers the General Assembly to “abolish the grand jury or further limit its use.” (Ill. Const. 1970, art. I, sec. 7.) Section 111 — 2 still authorizes the prosecution of felonies by indictment. (Ill. Rev. Stat. 1973, ch. 38, par. 111 — 2.) For all of these reasons, we decline to impose a requirement that every defendant be afforded, in addition to the grand jury indictment, a preliminary hearing for purposes of again determining probable cause.

Defendant next contends that the State knowingly concealed exculpatory information in violation of his right to due process. He argues that the evidence presented in his trial improperly differed from the evidence at Garza’s trial. We have no record to verify what evidence was introduced at Garza’s later trial. However, since the State does not dispute that the evidence differed in the following respects, we will answer defendant’s contentions. Defendant first points out that, at his trial, the State argued that the decedent was struck with the shaft of a golf club. During Garza’s trial, it was claimed that she was struck with a tire iron.

The nature of the wound located on decedent’s forehead supported both theories. The pathologist testified that the blow could have been administered by the shaft of a golf club, or other object with a similar circumference. Neither weapon was introduced into evidence at the trials, and defendant has failed to produce any evidence which established the instrument used or that the State had knowledge or possession of the weapon involved. As noted by the appellate court, if the State, in this case, had the tire iron in its possession, and failed to disclose this evidence, defendant’s charge of misconduct might well be supported. On the facts before us, however, we cannot say that the State knowingly concealed evidence of the weapon involved in the offense.

Defendant also contends that the State improperly concealed the fact that no camera was missing from decedent’s home. This fact was apparently established at Garza’s trial. At defendant’s trial, the State argued that a camera was taken from the victim on the day of the murder. In support of his concealment charge, defendant points out that the police reports failed to reveal that a camera was not missing from the Regli home. However, there is no proof that, at the time of the instant trial, the State was aware of this evidence. Therefore, the alleged omission in the police report does not establish improper concealment on the part of the State.

Defendant further points out that the State objected to a defense question regarding the victim’s ownership of a camera. He implies that the objection was made in order to conceal the fact that no camera was missing. As defendant concedes, the question, asked during re-cross-examination, went beyond the scope of the redirect examination. Therefore, the objection was proper and does not imply an effort on the State’s part to conceal information. For these reasons, People v. Murdock (1968), 39 Ill. 2d 553, cited by defendant, is inapposite.

In Murdock, the State argued a theory of the case without revealing a witness’ statement which contradicted that theory. This court reversed defendant’s conviction because it was clear that the State intentionally concealed the evidence. In the instant case, there is no proof that the State purposefully withheld relevant information concerning the camera. We find that defendant has failed to support either of his concealment charges.

It is next contended that the trial court abused its discretion in restricting defendant’s cross-examination of the State’s principal witness. Specifically, it is urged that defendant should have been permitted to inquire into conversations Anna Kline had with an attorney regarding a possible divorce. The trial court apparently determined that these conversations were protected by the attorney-client privilege. We need not decide whether, as defendant suggests, the evidentiary privilege must yield to the right of effective cross-examination. The reason for the attempted cross-examination was to establish that the witness was seeking a divorce, and thus did not love defendant, as she claimed.

Anna admitted that she wrote to the defendant, informing him that she was planning a divorce. In addition, defendant’s father testified that he received a letter from her attorney regarding a divorce action and property settlement. This letter was introduced into evidence. On these facts, we cannot say that defendant was prejudiced by the court’s ruling disallowing the testimony. Consequently, such ruling does not constitute reversible error. See People v. Coles (1979), 74 Ill. 2d 393, 396.

Defendant also asserts that the trial court erred in refusing to allow him to cross-examine Anna concerning her alleged nervous breakdown in 1978. It is argued that this evidence is relevant because that was the year in which Anna informed the police officers about defendant’s admissions. Hence, as noted by the appellate court, the purpose in eliciting this testimony was to establish Anna’s lack of stability.

“ ‘As a general rule the latitude to be allowed in cross-examination of witnesses rests largely in the discretion of the trial court. *** [I]t is only in a case of clear abuse of such discretion, resulting in manifest prejudice to the defendant, that a reviewing court will interfere.’ ” People v. Gallo (1973), 54 Ill. 2d 343, 356; quoting People v. Halteman (1956), 10 Ill. 2d 74, 86; see also People v. Coles (1979), 74 Ill. 2d 393, 396; People v. Nugara (1968), 39 Ill. 2d 482, 487-88, cert. denied (1968), 393 U.S. 925, 21 L. Ed. 2d 261, 89 S. Ct. 257.

We note initially that this was a bench trial. The court had before it ample evidence from which to assess Anna’s credibility. The evidence established that she both used and sold narcotics; that she engaged in adulterous relationships; that she made a number of prior inconsistent statements; and that she possibly harbored feelings of revenge against the defendant. It is clear that the defense was afforded considerable opportunity to establish Anna’s lack of credibility. While it may have been error to disallow the evidence in question, still we find, under the facts related, that there was no prejudice to defendant sufficient to con-statute reversible error.

Finally, defendant contends that the evidence was insufficient to prove him guilty beyond a reasonable doubt. We disagree. The trial court was faced with conflicting evidence. Under these circumstances, credibility assessments assume special significance. As this court stated in People v. Manion (1977), 67 Ill. 2d 564, 578:

“Where ‘the evidence is irreconcilably conflicting, it is the peculiar prerogative of the trier of fact *** to ascertain the truth.’ (People v. Hammond (1970), 45 Ill. 2d 269, 278.) A reviewing court may not substitute its judgment for that of the trier of fact ‘on questions involving the weight of the evidence or the credibility of the witnesses * * * t ft

In the instant case, the trial judge chose to believe Anna Kline rather than the defendant. We cannot say this decision was erroneous. Although Anna was impeached with certain prior inconsistent statements, so too were the defendant and his alibi witnesses. Further, her testimony was corroborated in certain particulars.

The evidence indicated that defendant was in the company of Garza on the day of the murder. Anna testified that defendant had stated Garza was involved in the offense. He admitted to smoking a marijuana cigarette in the high school parking lot and said he possibly passed it to a friend. According to Anna, the motive for the offense was that the victim had taken a picture of a drug transaction. She also stated that the victim was struck with the shaft of a golf club. Defendant always carried his clubs with him, and a pathologist testified that one of the wounds could have been caused by the shaft of a golf club. Anna also stated that defendant said he felt like choking the victim, but did not. There were marks on her neck which the pathologist testified were consistent with an attempted strangulation.

Defendant left for Florida on the evening of the murder. He testified that he brought with him a camera which he subsequently sold. Although he stated the camera was his, the court was not required to believe him. Further, the evidence established that defendant drove a 1970 two-door Mustang, with a tan-colored interior. The body of the car is white or light colored, and it has a dark top. Valinda Avey testified that the car which the victim entered was a two-door and it resembled a Mustang. Although she could not recall if it was two-toned, she said the car was light colored. She also testified that the interior was a dark color. Photographs of defendant’s car, in the record, reveal that the interior does appear dark in comparison to the exterior. Contrary to defendant’s assertion, we believe Avey’s description substantially matched that of defendant’s car. Further, the man whom the witness described as a passenger in the car fits the description of Garza.

We are not unmindful of the evidence indicating Anna’s bias against defendant, and her possible desire for revenge. However, we agree with the appellate court “that while revenge may have been the motive behind her disclosure of [defendant’s] admissions, such evidence of her bias does not establish that the substances of her disclosures were fabricated for the purposes of revenge.” 99 Ill. App. 3d 540, 548.

It is well-established that a “ '*** finding of guilty will be disturbed only where the evidence is so unreasonable, improbable or unsatisfactory as to leave a reasonable doubt as to the defendant’s guilt. [Citation.]’ ” (People v. Durley (1972), 51 Ill. 2d 590, 593, quoting People v. Adams (1970), 46 Ill. 2d 200, 209; see also People v. Ellis (1978), 74 Ill. 2d 489, 496; People v. Yarbrough (1977), 67 Ill. 2d 222, 227; People v. McDonald (1975), 62 Ill. 2d 448, 456.) There was evidence presented to the court which, if believed, was sufficient to establish defendant’s guilt beyond a reasonable doubt.

The State raises the additional issue of whether the appellate court erred in remanding the cause for resentencing. The instant offense was committed in 1973, and defendant was not brought to trial until 1979. The same judge who sentenced defendant Kline to a term of 50 to 100 years’ imprisonment later sentenced defendant Schultz to a prison term of 20 to 25 years. Defendant Garza, sentenced by a different judge, received a prison term of 15 to 25 years.

The appellate court cited a number of cases which hold “that defendants similarly situated may not receive grossly disparate sentences.” (People v. Henne (1973), 10 Ill. App. 3d 179, 180.) It nevertheless indicated a willingness to affirm defendant’s sentence on the basis of his criminal record. Specifically, at the time defendant was sentenced, he had been convicted of two murders and one attempted murder arising out of the same incident. However, during the pendency of the instant appeal, defendant’s convictions in the other case were reversed, and the cause was remanded for a new trial. (People v. Kline (1980), 90 Ill. App. 3d 1008.) The appellate court, determining that there was no longer a basis for defendant’s disparate sentence, held that he was entitled to a new sentencing hearing.

This conclusion ignores the crucial fact that, in imposing sentence on the defendant, the trial court did not consider the murder and attempted-murder convictions. Indeed, the judge specifically stated:

“We have a situation [here] where an offense was committed a number of years ago with conviction coming approximately six years after the offense was committed.
In the intervening period, there have been convictions of the defendant. The Court is going to consider this offense and what the Court wguld have felt would have been a proper sentence as if the conviction on this charge was the first and only conviction on the charge of murder of this defendant
The Court is aware that it can consider the other two offenses and the third offense of Attempt Murder, as well as the robbery.
However, this Court feels that in view of the testimony that was elicited at trial, that the Court, if it had tried this offense prior to the convictions in Cook County for two Counts of Murder and one Count of Attempt Murder and the Robbery conviction out of California, this Court would have sentenced this defendant to serve a period of fifty to one hundred years in the Department of Corrections.” (Emphasis added.)

Under these circumstances, the fact that defendant’s convictions in Cook County were subsequently reversed is simply not relevant.

There is a further reason which counsels against remanding this cause for resentencing. Although an arbitrary and unreasonable disparity between the sentences of codefendants is impermissible (People v. Godinez (1982), 91 Ill. 2d 47, 55), the mere fact that one defendant receives a substantially longer sentence than another does not, by itself, establish a violation of fundamental fairness. For example, “[a] disparity between sentences will not be disturbed, *** where it is warranted by differences in the nature and extent of the concerned defendants’ participation in the offense.” (91 Ill. 2d 47, 55; citing People v. Martin (1980), 81 Ill. App. 3d 238; People v. Olmos (1979), 77 Ill. App. 3d 287; People v. Johnson (1978), 59 Ill. App. 3d 640.) Recognizing the need to compare defendant’s circumstances with those of his codefendants’, the appellate court correctly stated:

“The question of maintenance or modification of the sentence of defendant Kline is subject to the test as to the criminal record of defendant Kline as compared with the criminal records of the other participants in the crime. Also, in addition to a review of the criminal records of the parties, consideration should also be focused upon the relative participation of the respective parties in the crime for which they have been convicted.” 99 Ill. App. 3d 540, 554.

Defendant apparently failed to provide the appellate court with any records relative to his codefendants. Nevertheless, the court reversed and remanded defendant’s sentence without any proof that it was unfairly disparate. This procedure, we believe, was improper.

It is the defendant’s burden to produce a record from which a rational comparison of sentences can be made. (People v. Gangestad (1982), 105 Ill. App. 3d 774; People v. Holman (1976), 43 Ill. App. 3d 56; People v. Hansen (1971), 132 Ill. App. 2d 911; People v. Haynes (1971), 132 Ill. App. 2d 130.) Because he has failed to do this, we cannot determine, as we must, whether the trial court abused its discretion in imposing the sentence. (See People v. Willingham (1982), 89 Ill. 2d 352, 364; People v. Cox (1980), 82 Ill. 2d 268, 280; People v. Perruquet (1977), 68 Ill. 2d 149, 154; People v. Allen (1974), 56 Ill. 2d 536, 547.) We are unaware of the factors which the court relied on in sentencing Garza and Schultz. It therefore cannot be determined whether or not the disparity in sentences is justified. Since defendant did not provide the information necessary for a proper consideration of his contention, the appellate court erred in remanding the cause for resentencing.

Accordingly, the judgment of the appellate court is affirmed in part and reversed in part, and the judgment of the circuit court of Will County is affirmed.

Appellate court affirmed in part and reversed in part; circuit court affirmed.

JUSTICE SIMON took no part in the consideration or decision of this case.


author: JUSTICE GOLDENHERSH JUSTICE SIMON,

text:
    (No. 56751.
    DONALD ESTEP et al., Appellees, v. THE DEPARTMENT OF PUBLIC AID et al., Appellants.

      Opinion filed September 30, 1982.

    Rehearing denied November 24, 1982.

    SIMON and CLARK, JJ., dissenting.
    Jeremiah Marsh, Special Assistant Attorney General, of Springfield (John L. Rogers III, John N. Gavin, and David O. Toolan, of Hopkins & Sutter, of Chicago, of counsel), for appellants.
    Thomas Johnson, Robert E. Lehrer, Dveera Segal, Marianne Smigelskis, Mark C. Weber, and Robert Burns, all of Chicago, for appellees.
    James P. Chapman, of Chicago, for amicus curiae the People Organized for Welfare and Employment Rights.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

This action was filed in the circuit court of Cook County by plaintiffs, Donald Estep, Betty Hodges and Annie Stewart, who describe themselves as persons receiving adult General Assistance benefits from the Illinois Department of Public Aid. In their complaint against defendants, the Department of Public Aid and its Director, Jeffrey C. Miller, plaintiffs allege that they sue “individually and on behalf of a class of similarly situated persons.” They sought a declaratory judgment that proposed reductions of adult General Assistance benefits violated the Illinois Public Aid Code (Ill. Rev. Stat. 1979, ch. 23, par. 12—4.11), the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1979, ch. 127, par. 1005) and the equal protection clauses of the Illinois and United States constitutions. They also sought the issuance of preliminary and permanent injunctions restraining defendants from implementation of the proposed reductions. Plaintiffs allege that prior to January 1, 1982, the named plaintiffs received, as benefits, substantially larger sums, and that under the reduction proposed by defendants the benefits which they will receive will be reduced from $162 per month to $139 per month. They allege further that if the formula for computation of benefits which defendants proposed were accurately applied, the monthly benefit which each would receive is $162 per month.

On February 17, 1982, defendants filed with the office of the Secretary of State a notice of emergency rule-making and Emergency Rule 3.5191. The rule established effective March 1, 1982, a single adult person benefit of $139 per month.

On February 19, 1982, plaintiffs filed a motion for temporary restraining order or a preliminary injunction, and the motion was set for hearing on February 24, 1982. Following the hearing the circuit court found that the reduction from $162 to $139 per month of the adult General Assistance benefit embodied in the notice of emergency rulemaking and Rule 3.5191 would cause plaintiff class members irreparable injury. It found that the plaintiff class members had demonstrated a likelihood of success on the merits and that they possessed rights which merited protection under the law. It found further that the threatened injury to plaintiffs from the proposed reduction of benefits outweighed any harm that the preliminary injunction might inflict on the defendants, that granting a preliminary injunction will serve the public interest, and that plaintiffs had met the prerequisites for class certification set forth in section 57.2 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57.2). It enjoined defendants from reducing adult General Assistance benefits below $162 per month pursuant to its Rule 3.5191. The defendants filed notice of interlocutory appeal. (73 Ill. 2d R. 307(a).) On March 12, 1982, the appellate court denied defendants’ motion for a stay of the circuit court’s order.

On May 19, 1982, defendants filed in the circuit court a document styled “Report to the Court” in which they stated that pursuant to the prior order they had maintained single adult General Assistance benefits of $162 per month and that “as a result, all funds in the appropriation for General Assistance benefits were exhausted on or about May 10, 1982”; that the General Assembly on May 14, 1982, adopted House Bill 2211 which authorized the transfer of $19,700,000 to the General Assistance appropriation (apparently from the appropriation for medical assistance — group care); that “The debates on House Bill 2211 clearly reflect the General Assembly’s awareness and intent that the amount appropriated would provide benefits at the $144 level rather than at the $162 level.” Accompanying the report was a motion that the court clarify its order of February 24, 1982, so as to provide that single adult General Assistance benefits for May and June be paid at the rate of $144 per month. It stated further that all necessary steps had been taken to dismiss the appeal pending in the appellate court “so that there will be no question concerning the jurisdiction of this court.”

The motion described the procedures which must be followed in order to implement the payments at the rate of $144 per month. Some recipients had received only $139, and a supplemental payment would be required in those cases. The motion concluded with the statement that unless otherwise instructed by the court the Department would implement the payments to the recipients at the rate of $144 per month for May and June.

On May 21, 1982, the circuit court entered an order which required payment at the rate of $162 per month for May and $126 per month for June. Defendants appealed, and upon allowance of defendants’ motion made pursuant to Rule 302(b), the appeal was taken directly to this court. We stayed the effect of the circuit court order, set an accelerated briefing schedule, and heard oral argument on June 10,1982.

The record shows that pursuant to section 5.01 of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1979, ch. 127, par. 1005.01) the defendants filed Rule 3.5161 (establishment of assistance standards; income maintenance, G.A.); Rule 3.5171 (amount of assistance standards; income maintenance); Rule 3.5181 (establishment of payment standards; income maintenance); and Rule 3.5191 (payment standards; income maintenance). These were published in the Illinois Register on October 9, 1981, and were filed and became effective on January 14, 1982. Rule 3.5171 established as the amount of assistance standard the sum of $220 per month; Rule 3.5181 provided that the payment standards would be set on the basis of consolidated flat grant amounts and that the amounts to be paid persons able to engage in employment would be lower than the payments to persons unable to engage in employment. Rule 3.5191 established a payment standard of $141 per month for employable persons and $162 per month for persons unable to engage in employment. Peremptory Rule 3.5191, effective February 11, 1982, stated that in litigation pending in the Federal court the Department had been enjoined from paying employable recipients lower grants than unemployable recipients and that effective February 11, 1982, the payments to all eligible recipients would be $162. Section 5.02 of the Illinois Administrative Procedure Act provides:

“Sec. 5.02. Emergency rulemaking. ‘Emergency’ means the existence of any situation which any agency finds reasonably constitutes a threat to the public interest, safety or welfare. Where any agency finds that an emergency exists which requires adoption of a rule upon fewer days than is required by Section 5.01, and states in writing its reasons for that finding, the agency may adopt an emergency rule without prior notice or hearing, upon filing a notice of emergency rulemaking with the Secretary of State pursuant to Section 6.01 of this Act. Such notice shall include the text of the emergency rule and shall be published in the Illinois Register. Subject to applicable constitutional or statutory provisions, an emergency rule becomes effective immediately upon filing pursuant to Section 6, or at a stated date less than 10 days thereafter. The agency’s finding and a statement of the specific reasons therefor shall be filed with the rule. The agency shall take reasonable and appropriate measures to make emergency rules known to the persons who may be affected by them.
An emergency rule may be effective for a period of not longer than 150 days, but the agency’s authority to adopt an identical rule under Section 5.01 of this Act is not precluded. No emergency rule may be adopted more than once in any 24 month period. Two or more emergency rules having substantially the same purpose and effect shall be deemed to be a single rule for purposes of this Section.” (Ill. Rev. Stat. 1981, ch. 127, par. 1005.02.)

On February 17, 1982, defendants filed an emergency rule providing that commencing March 1, 1982, and continuing through the balance of the fiscal year ending June 30, 1982, “the amount of the General Assistance grants for a single adult person employable or unemployable is established at $139.”

In the posture in which this matter comes before us, the only issue presented is whether the circuit court abused its discretion in its ruling on defendants’ motion to clarify the order of February 24, 1982. (Lonergan v. Crucible Steel Co. of America (1967), 37 Ill. 2d 599, 612.) Emergency Rule 3.5191 purported to remain in effect only through the balance of the fiscal year ending June 30, 1982. The preliminary injunction and the order entered on May 21, 1982, affected only payments to be made for the months of May and June 1982. The questions whether defendants were possessed of the authority to reduce the payments and whether such reduction was in violation of any constitutional or statutory provision remain for decision.

“This court will not review cases merely to establish a precedent or guide future litigation” (Madison Park Bank v. Zagel (1982), 91 Ill. 2d 231, 235), and this case presents no question which justifies our making an exception to the mootness doctrine.

For the reasons stated the appeal is dismissed and the cause is remanded to the circuit court of Cook County for further proceedings.

Appeal dismissed; cause remanded.

JUSTICE SIMON,

dissenting:

I find the court’s distaste for dealing with the merits of this case and the disposition it reaches troublesome. The ruling extends the mootness doctrine beyond all limits traditionally recognized by courts of review. Because it does nothing to resolve an ongoing controversy, it is a ruling which I predict will thoroughly confuse both the parties involved in this case and the circuit court of Cook County, whose order this court stayed on May 28,1982.

It is difficult to discern from the majority opinion’s brief discussion what rendered this case moot. The majority appears to reason that since the strict subject of controversy was the propriety of an injunction order and because that order was tailored only to May and June of 1982, the passage of time beyond those months rendered the injunction order a nullity, regardless of whatever underlying rights the parties possessed, and extinguished the object of the dispute. It was my understanding from the briefs and the oral arguments that the parties considered their underlying legal rights to be at issue in this litigation. Defendants argued at length that they were not required by statute to continue paying benefits of $162 per month if funds were unavailable for that purpose and that the legislative intent behind the funding measure passed at defendants’ behest on May 14, 1982 (House Bill 2211), was to require defendants to pay only $144 per month for May and June. In an actual as well as a practical sense, the subject of the controversy was the monetary amount which the defendants owed the plaintiffs for May and June; the circuit court injunction which was stayed by this court was merely a vehicle for enforcing payment of $162 in May based on the assumption that $162 was the proper monetary amount, rather than requiring the plaintiffs to go without the full payment in that month and sue for the arrearage later. To hold that this cause is mooted by the expiration of the order is tantamount to saying that the amount owing in May ceases to be owing altogether once May ends. This is not realistic.

The case cited by the majority, Madison Park Bank v. Zagel (1982), 91 Ill. 2d 231, stands only for the general proposition that this court will not review cases when they are in fact moot, and is of little help here. We declared that case moot when we discovered that the taxpayer had already paid the Department of Revenue everything it claimed without protest, so that no matter how the case was decided no money would change hands. In this case the issues of whether defendants had the authority to reduce monthly aid payments from $162 to $144 and whether the claimed deficiency is owing for May and June remain in dispute: the defendants not only have not paid any of the disputed arrearage but have vigorously advocated their authority not to do so throughout this litigation and have every reason to continue to do so now, as more payments have come due" since the end of June to which the same issues appear to apply.

Even if the instant controversy can be viewed as involving nothing broader than a circuit court injunction good only for the months of May and June, the case is moot only because this court made it moot by issuing its stay order in the May 1982 term of court and then postponing resolution until the next term of our court in September 1982. The issue of the propriety of the order was certainly a live one in May when this court stayed its effect and agreed to hear the case instead of allowing it to be executed or go to the appellate court, where it might have been decided sooner on the merits of the issue.

The majority recognizes that “[t]he preliminary injunction and the order entered [by the circuit court] affected only payments to be made for the months of May and June 1982. The questions whether defendants were possessed of the authority to reduce the payments [from $162 to $144] and whether such reduction was in violation of any constitutional or statutory provision remain for decision.” (Emphasis added.) (92 Ill. 2d at 515.) Having accepted this case by direct appeal, we should not avoid deciding these questions by characterizing them as moot or by adopting the view that they were not really the essence of the case. There are two reasons. First, our interference has precluded decisions on these questions which might otherwise have been made by the circuit court or the appellate court before the June payments were completed. Second, as I have mentioned above, the State may be liable for additional payments for May and June as well as for any succeeding months in which less than $162 was paid if it turns out that it reduced the General Assistance payments for May and June without statutory authorization. Far from being moot, the controversy and the underlying issues on which its resolution will turn are very much alive. It is unseemly and a waste of time and judicial resources for us to avoid deciding them after having interfered with their decision by the circuit judge or the appellate court.

The cost to the plaintiffs and to the legal system of the majority’s action is underscored by the fact that when the plaintiffs requested the circuit court in July to issue an order declaring that they were entitled to a monthly payment of $162 in that month, the circuit judge refused to act on the request on the ground that an issue involving the proper level of the May and June payments was then pending before the supreme court and that our disposition of that case would affect his ruling. He apparently based his conclusion that his decision as to July would be governed by our decision as to May and June on the language in section 12 — 4.11 of the Public Aid Code that “[a]id payments shall not be reduced” (Ill. Rev. Stat. 1981, ch. 23, par. 12—4.11). His reasoning seems to have been that if the State was entitled to pay $144 in May or June, it was entitled to continue to do so in July, but not otherwise. The circuit judge, unenlightened by our decision as to what the State was entitled to do in May or June, will now presumably have to decide that himself in order to resolve satisfactorily the issue of what the plaintiffs are entitled to in July — and once he issues an order pertaining to July, the appellate court and this court will presumably be prevented from reviewing the order by this court’s novel view of the mootness doctrine, since the month of July is already over.

The merits of this case should have been addressed and resolved in favor of the plaintiffs. I base this on section 12 — 4.11 of the Public Aid Code, which provides in relevant part:

“The standards [by which grant amounts and need for public aid are determined] shall provide a livelihood compatible with health and well-being for persons eligible for financial aid under any Article of this Code. They shall include recognition of any special needs occasioned by the handicaps and infirmities of age, blindness, or disability. Standards established to determine the eligibility of medically indigent persons for aid under Articles V or VII shall take into account the requirements of the spouse or other dependent or dependents of the applicant for medical aid.
The quantity and quality of the items included in the standards established for food, clothing, and other basic maintenance needs shall take account of the buying and consumption patterns of self-supporting persons and families of low income, as determined from time to time by the United States Department of Agriculture, the United States Bureau of Labor Statistics, and other nationally recognized research authorities in the fields of nutrition and family living.
The items in the standards shall be priced annually for changes in cost, as provided in Section 12 — 4.15, and prices of the standards adjusted as indicated by the findings of such surveys. The Department, with due regard for and subject to budgetary limitations, shall establish grant amounts for each of the programs, by regulation. The grant amounts may be less than the prices of the standards and may vary by program, size of assistance unit and geographic area and may be established in the form of a percentage of the standards for any or all programs.
Aid payments shall not be reduced except for changes in (1) cost of items included in the standards, or (2) the expenses of the recipient, or (3) the income or resources available to the recipient, or (4) grants resulting from adoption of a consolidated standard.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 23, par. 12—4.11.

Section 12 — 4.11 was amended in 1980 to provide for annual rather than periodical pricing for changes in costs and to add the italicized portion of the third paragraph quoted. (1980 Ill. Laws 3982, 3987-88, effective Jan. 1, 1981.) Defendants argue that the italicized provision authorizes them to revise the payment level as needed to prevent expenditures from exceeding the sums appropriated. However, the General Assembly, in amending the section, left intact the provision in the last paragraph quoted concerning changes which would authorize a reduction in aid payments. Had it intended that reductions be effected because of “budgetary limitations” without the occurrence of one of the four changes listed in that paragraph, it would have been a simple matter to so provide. Statutes must be read as a whole, and a court may not read a statute so as to render any sentence meaningless or superfluous. (People v. Warren (1977), 69 Ill. 2d 620, 627; Coalition for Political Honesty v. State Board of Elections (1976), 65 Ill. 2d 453, 466.) The only construction of the statute which would preserve the meaning of the paragraph concerning changes authorizing reductions in aid payments, which is phrased in exclusive language, is to interpret the provision upon which defendants rely as applying only to the establishment of grant amounts for future years where inflation might otherwise indicate an increase in such amounts through the operation of the second paragraph quoted. In other words, the provision on which the defendants rely was designed to control increases in payments, not to authorize reductions. This interpretation seems the more natural, in that the provision in question occurs in the paragraph requiring annual pricing of standards rather than at the beginning or end of the section or in the paragraph dealing with reductions in aid payments. The provision does not authorize the State to reduce aid payments in the absence of one of the four changes enumerated in the paragraph dealing with reduction.

Defendants also point to House Bill 2211, the measure which provided funding for public aid payments over May and June 1982, as embodying the intent of the General Assembly that benefit levels for those months be $144 rather than $162. The State musters support for this claim by referring to statements in the legislative debate of Senator Schaffer and Representatives Wolf, Matijevich, Currie, Bullock, Levin, and Jaffe expressing a belief that the measure mandated monthly payment at the $144 level, and a similar statement made by Governor Thompson on signing the bill. However, this belief as to the purport of the measure was by no means unanimous: other representatives, including Representatives Currie, Matijevich and Levin in the same passages cited by defendants, referred to the llth-hour nature of the bill and stressed that its only purpose was to provide some funds for General Assistance where otherwise there would be none. The statements by individual legislators concerning their belief as to the effect of the bill, if it is ever an accurate indicator of the intent of the legislature as a whole, is certainly a misleading guide in this case, where so many members of the General Assembly expressed contrary opinions.

More significant is the fact that the bill, as passed, contained no provisions purporting to set the level of payment at $144 per month but simply transferred a sum of money originally appropriated for Group Care to the line appropriation for General Assistance. The same bill amended other budgetary items not related to the needs of the Department of Public Aid. Passage occurred in the 11th month of the 1982 fiscal year, and the legislative debate reveals that it was the result of at least one emergency request for funds.

The evidence indicates to me that the legislature intended the bill as an emergency appropriations measure and did not mean to make any changes in the monthly payment level or the standards of assistance. The bill, once viewed as an appropriation, cannot constitutionally be interpreted as changing the State’s substantive duty under section 12 — 4.11 to maintain the General Assistance payment level at $162. (Ill. Const. 1970, art. IV, sec. 8(d); Benjamin v. Devon Bank (1977), 68 Ill. 2d 142.) This rule is designed to prevent minorities in the legislature from taking advantage of the crisis-like atmosphere so typically created by budgetary shortfalls late in the fiscal year to force passage of substantive changes in existing laws where those changes might not otherwise command enough votes to pass.

Finally, I find nothing in the 1980 amendment to section 12 — 4.11, the appropriations bill of May 1982, or the regulations adopted by the Department of Public Aid for the 1982 fiscal year which could be construed as a “[change] in *** grants resulting from adoption of a consolidated standard” so as to permit reduction of aid payments under the terms of section 12 — 4.11. (Ill. Rev. Stat. 1981, ch. 23, par. 12—4.11.) While it is true that the notice of adopted rules issued by the Department and published in the Register on October 9, 1981, regarding Rules 3.5161, 3.5171, 3.5818, and 3.5191 expresses an intention to base payment standards on consolidated or flat-grant figures rather than on individual determinations of need, as had been done in the past, there is nothing in the record to indicate that any change in payment levels actually arose “from [the] adoption of [the] consolidated standard.”

JUSTICE CLARK joins in this dissent.


author: JUSTICE SIMON

text:
    (No. 56239.
    WILLIAM E. KOEPPEL, County Clerk, et al., Appellants, v. MARY IVES, Appellee.

      Opinion filed October 22, 1982.

      John A. Barra, State’s Attorney, of Peoria (Roberta L. Szydlowski, Assistant State’s Attorney, of counsel), for appellants.
    Bartley, Fraser, Parkhurst, Hession & Renner, of Peoria, for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

This is a direct appeal under our Rule 302(a) (73 Ill. 2d R. 302(a)) from a decision of the circuit court of Peoria County holding section 162a of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 643a) unconstitutional on the ground that it conflicted with article VII, section 11, of the 1970 Illinois Constitution (Ill. Const. 1970, art. VII, sec. 11). We reverse the decision of the circuit court.

Section 162a provides that “propositions to establish tax rate limits either higher or lower than those otherwise applicable shall not be submitted more often than once in any one year.” This controversy arose when the county clerk for Peoria County received requests that tax-rate propositions be submitted to the voters at two separate elections scheduled to be held in the calendar year 1982.

On November 30, 1981, the Peoria county board adopted a resolution pursuant to section 162a calling for a referendum on a proposal to increase the maximum tax rate for the general corporate fund of Peoria County from .0900% of the equalized value to .1125%. The resolution which was filed the same day with the county clerk directed that officer to make arrangements to submit the question to the voters at the election to be held on November 2,1982.

. On December 28, 1981, respondent, Mary Ives, filed a petition pursuant to section 162a calling for an election on a proposal to decrease the maximum tax rate for the general corporate fund of Peoria County from .0900% of the equalized value to .0675%. This petition requested that the county clerk árrange for presentation of the question to the voters at the regular election to be held on March 16,1982.

On January 19, 1982, the county clerk petitioned the circuit court of Peoria County for a declaratory judgment as to whether the once-a-year limitation contained in section 162a permitted Ives’ question to be presented to the voters at the March 16, 1982, election. If the court found that section 162a did permit Ives’ question to be presented, the county clerk also asked the court to determine the status of the county board’s request for a tax-rate election in November 1982. The county clerk was granted an emergency hearing on his petition.

Although neither party questioned the constitutionality of the statute in the pleadings or during the argument at the emergency hearing, the circuit court held that the limitation contained in section 162a on the number of tax-rate elections that may be held in any one year was unconstitutional because it prevented the effective use of voter-initiated referenda authorized by article VII, section 11, of the 1970 Illinois Constitution. The circuit court consequently ordered the clerk to submit the Ives’ question to the voters at the March 16, 1982, election. On that date the tax-rate reduction received a majority of the votes cast.

This court has often observed that the courts must not lightly declare that a legislative enactment is unconstitutional. In Hubbard v. Dunne (1917), 276 Ill. 598, for example, this point was emphasized:

“ ‘It is not for the courts to amend or change the law under the guise of construction.’ (36 Cyc. 1103.) The presumption is always in favor of the validity of the law, and unless it is in plain and obvious conflict with the constitution this court will not pronounce against its constitutionality, and in doubtful cases the doubt will be resolved in favor of the legislative power.” (276 Ill. 598, 610.)

The courts especially should avoid unnecessary interference with the system of taxation established by the legislature. See, e.g., Berry v. Costello (1976), 62 Ill. 2d 342, 345-46; People ex rel. Kutner v. Cullerton (1974), 58 Ill. 2d 266, 273.

In this case, the limitation on tax-rate elections contained in section 162a presents no conflict with article VII, section 11(a), of the Constitution of Illinois. Section 11(a) provides:

“Proposals for actions which are authorized by this Article or by law and which require approval by referendum may be initiated and submitted to the electors by resolution of the governing board of a unit of local government or by petition of electors in the manner provided by law.” (Emphasis added.) (Ill. Const. 1970, art. VII, sec. 11(a).)

This language demonstrates that the right of voter initiative created by section 11(a) is a limited one which is subject to reasonable regulation by the legislature. Section 162a, therefore, is a permissible limitation on tax-rate referenda. It reasonably limits the consideration of such propositions to one election in each year, thereby permitting local officials to engage in orderly fiscal planning.

Section 162a does not conflict with article VII, section 11(b), either. The language of section 11(b) refers only to “[r]eferenda required by this Article.” (Ill. Const. 1970, art. VII, sec. 11(b).) Tax-rate referenda are permitted by section 162a and not required by article VII of our constitution. The provisions of section 11(b), therefore, have no bearing on the constitutionality of section 162a. Cf. Hoogasian v. Regional Transportation Authority (1974), 58 Ill. 2d 117, 136-37 (section 11(b) inapplicable where referendum required by RTA Act and not by article VII).

Although we hold that section 162a is constitutional, the precise application of that section in the context of this case requires consideration. Because the case is already here, judicial economy as well as the exigencies which accompany this appeal, in view of the proximity of the November election, militate in favor of our resolving the issues which require clarification. Ives interprets the language of section 162a providing for limiting elections on tax rates to one a year to mean that the first tax-rate election held in a calendar year will supersede any tax-rate election already scheduled for later in that year. Thus, she argues that the tax-rate election requested by the county board and scheduled for November 1982 could not have been held after she petitioned the county clerk for a tax-rate election at the earlier March 1982 date.

We reject this interpretation of section 162a. It would most often, perhaps invariably, result in tax-rate elections being confined to the earliest regular election in a calendar year. We do not think that the legislature intended such a restrictive result. Rather, we believe that the legislature intended that the party who first properly initiates a request for a tax-rate election to be held in a calendar year has priority over any party who subsequently submits a request for a tax-rate election to be held on a different date in the same calendar year.

The legislature has expressly adopted a similar priority system in an analogous context. Section 28 — 1 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 28—1) provides that no more than three public questions may be submitted to referendum with respect to a political subdivision at the same election. If more than three propositions are timely initiated, “the first 3 validly initiated, by the filing of a petition or by the adoption of a resolution or ordinance of a political subdivision, as the case may be, shall be printed on the ballot and submitted at that election.” (Ill. Rev. Stat. 1979, ch. 46, par. 28—1.) We believe that the legislature intended for a similar first-to-initiate priority to apply in the context of section 162a.

Moreover, in People ex rel. Hathorne v. Morrow (1899), 181 Ill. 315, this court recognized a similar priority system for annexation and incorporation proceedings. In Morrow, village incorporation proceedings had been initiated with the filing of a petition with a county judge, requesting him to submit the question whether the voters of the territory desired to organize the same as a village. The judge scheduled the election on the question but, on the day before the election was to be held, an adjoining municipality annexed the territory which was to have become the new village. Even though the annexation was undertaken pursuant to statutory authority it was held invalid. In its opinion the court observed that “[i]t cannot, we think, be presumed that the legislature intended to give citizens and legal voters of certain territory the power to organize a village, and at the same time authorize other parties, by a subsequent proceeding, to defeat that right; and it is clear that to hold otherwise would be to bring into conflict, resulting in confusion, the two opposing powers, or, speaking in a general sense, jurisdictions.” (181 Ill. 315, 322.) Thus, this court decided that the first party to initiate an annexation or incorporation proceeding would have a priority over the territory against all parties initiating such proceedings at a later date. See also In re Organization of Byron Park District (1978), 67 Ill. App. 3d 61, 64.

A similar priority system in the context of section 162a best comports with the legislature’s intention to provide for the orderly submission of tax-rate propositions to the voters. We therefore hold that under section 162a whenever a party properly initiates a request for the submission of a tax-rate proposition at a specified election during a calendar year, other tax-rate propositions may not thereafter be scheduled for any other election during that year. The submission of the tax-rate proposition to the voters of Peoria County in March 1982 conflicted with section 162a because the defendants initiated that proposition almost a month after the Peoria county board had requested a tax-rate election for November 2, 1982. We, therefore, declare the results of the March 16, 1982, election relative to the maximum tax rate of the general corporate fund of the county of Peoria to be void and of no effect. We also declare that the county board’s proposal for an increase in the maximum tax rate is appropriate for placement on the ballot for the November 1982 election.

For the foregoing reasons we reverse the decision of the circuit court of Peoria County and remand this case for further proceedings consistent with this opinion.

Reversed and remanded.