author: JUSTICE SIMON

text:
    (No. 55146.

      In re HAROLD SILVERN, Petitioner.

      Opinion filed June 18, 1982.

      Jerome Larkin, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    Thomas P. Sullivan and Carol R. Thigpen, of Jenner & Block, of Chicago, for respondent.
   JUSTICE SIMON

delivered the opinion of the court:

Petitioner, Harold Silvern, was disbarred upon consent on April 11, 1974, shortly after the United States Court of Appeals affirmed his conviction on two counts of mail fraud and one of conspiracy (United States v. Silvern (7th Cir. 1973), 484 F.2d 879 (en banc)). He now seeks reinstatement. The hearing panel of the Attorney Disciplinary Commission that heard Silvern’s application found him to be “rehabilitated” and “morally and ethically fit to resume the practice of law,” and thus recommended his reinstatement. The Review Board, on the other hand, found that the petitioner had “failed to establish by clear and convincing evidence appropriate rehabilitation and good character,” and therefore refused to recommend reinstatement. The ultimate responsibility for attorney discipline lies with this court, and after reviewing the evidence, we agree with the hearing panel. We therefore accept its recommendation of reinstatement.

Petitioner is 59 years old. Educated in Chicago, he had been a member of the Illinois bar for 21 years before moving to Arizona in 1971. His practice was varied, encompassing estates and wills, workmen’s compensation, torts and contracts, with a special emphasis on personal injury during the latter part of his career. As an active member of the Chicago Tenant’s Council, he also undertook public interest work, often representing indigent tenants in matters involving evictions, rent control, and substandard housing.

He was convicted and disbarred for his part during the late 1960’s in a scheme to defraud insurance companies. In each instance, the petitioner paid a Chicago police officer to refer personal injury claimants to him. These claimants were in turn referred by the petitioner to Dr. William Becker for treatment. Dr. Becker, who apparently had similar arrangements with several other attorneys, supplied the petitioner with an inflated medical bill, which the petitioner used to secure an inflated settlement from insurance companies. He then withheld the amount of the medical bill from the client, and without the client’s knowledge split the inflated portion between himself and Dr. Becker. He was sentenced to 18 months in the Federal prison at Safford, Arizona.

The evidence of the petitioner’s rehabilitation is largely undisputed. What is in issue is the conclusion that should be drawn from it. The petitioner testified that his progress toward rehabilitation began even before his conviction. After arriving in Tucson in 1971, where he moved for reasons unrelated to the indictment brought against him later that year, he became active in a variety of civic activities. He was instrumental in organizing the Tucson Opera Company and youth programs for students to participate in opera. He also helped organize a learning program for deaf and blind children. The petitioner testified that there were days on which he devoted 10 or 12 hours to these charitable activities.

While in prison, the petitioner took an active role in improving the lot of his fellow inmates. He discovered that although many of the prisoners at Safford lacked a high school diploma, the prison had no educational programs. He discussed the problem with the prison commandant, and as a result the commandant contacted a representative from a local college. The petitioner and the college representative organized classes designed to prepare prisoners for a high school equivalency examination. He testified that he traveled from barracks to barracks encouraging inmates to enroll and to participate actively in the program. In addition, he helped to organize a chapter of the Jaycees at Safford, and he became its first president. One of the purposes of this group was to conduct discussions of the criminal justice system. All of this was in addition to his regular prison duties.

The petitioner was released from prison in November of 1974. A few months later, he joined Urban Engineering, an engineering firm, as its general business administrator, responsible for bookkeeping, checks, deposits, receipts, and accounts receivable. He performed his duties competently and honorably for a little over a year with no complaints from his partners, and left the position on good terms only when it became evident to him that his lack of an engineering background handicapped his firm. His work earned him the respect of his partners, one of whom wrote a letter on his behalf calling him “a very hard worker, honest and of the highest character.”

Silvern later applied to the Arizona Department of Real Estate for a real estate license. In his application, he disclosed his conviction. Although a license was initially refused, the petitioner requested a hearing and the hearing officer found the petitioner to be “a person of honesty, truthfulness and good reputation.” He stated:

“[Mr. Silvern] spoke with total candor regarding his conviction for mail fraud, the penalties he has paid since then, the demonstrable measures taken toward his rehabilitation and his desire to be able to expand his evident broad base of civic-oriented contributions to include a return to business endeavors, as well as his ability to do so.”

Concluding that the petitioner “will, if anything, go out of his way to conduct himself in the real estate profession in such a fashion as to be beyond reproach,” the hearing officer recommended that a real estate license be granted, and petitioner received one.

The petitioner became associated with the real estate firm of A.P. Brown & Company. He still holds that position. His work includes handling residential, commercial and industrial real estate.

Silvern has been spending much of his remaining time reading the law at the University of Arizona law library. Recently he reviewed all noteworthy articles, beginning with 1971 issues, appearing in the Illinois Law Journal.

At the hearing, the petitioner testified that he deeply regrets his actions. He placed $677, the amount of the fees involved in the cases for which he was convicted, in trust with his attorney for payment to the insurance companies, if they could be identified, or as a charitable donation. The money ultimately was given to the Legal Assistance Foundation of Chicago.

The petitioner’s long-time friend, Dr. Jerome Gross, testified on his behalf. Dr. Gross told the hearing panel that there was no question in his mind that the petitioner was ready to take his place again as a lawyer and conduct himself in an honorable and trustworthy way.

The Administrator presented no independent evidence of lack of rehabilitation. He argues, however, that the petitioner has failed to prove rehabilitation and fitness to practice law by clear and convincing evidence. While we agree that is the standard to which the petitioner must conform (In re Wonais (1979), 78 Ill. 2d 121), we believe that the petitioner has in fact met it.

The Administrator first points to the petitioner’s application for a real estate license as evidence of his lack of contrition. In the application, Silvern detailed the facts behind his conviction. He referred to the fact that he was given an en banc rehearing by Court of Appeals for the Seventh Circuit and called such proceedings “unusual.” He also referred to a certain special jury instruction known as an Allen charge given at his trial as “unfairly tending to coerce [juries into] a guilty verdict.” In doing so, however, he was only describing the conclusion of the United States Court of Appeals, which held that the particular Allen instruction given in his case should be banned in all future cases, but did not reverse Silvern’s conviction because it felt no prejudice had occurred. We do not agree that these statements show a lack of regret. It is undisputed that the petitioner freely admitted his guilt and regret to the Arizona authorities, just as he has in this case. The statements made on the application were made only to explain fully the circumstances surrounding his trial and appeal, as he was requested to do. They in no way indicate an intent to minimize his guilt.

Next, the Administrator argues that the petitioner has not demonstrated a current knowledge of the law, that his reading at the University of Arizona law library and his recent review of developments in Illinois law reported in the Illinois Law Journal are inadequate to prepare him to practice law. Someone with as much legal experience as the petitioner need not spend every waking hour keeping up with the law to qualify for readmission to the bar, especially when he must work in other pursuits for a living. The hearing panel found that the petitioner had kept abreast of the law; the Review Board did not disturb that finding. We believe it was established by clear evidence.

The Administrator is also dissatisfied with the petitioner’s attempts at restitution, pointing out that the petitioner made no effort to return the money taken from the insurance companies until he applied for reinstatement. The Administrator contends that the petitioner could have discovered the identity of the true victims of his crimes if he had tried harder. Although an early and full restitution to the true victims would have strengthened the petitioner’s case, we do not feel that this should be used to defeat Silvern’s petition. (See In re Thomas (1979), 76 Ill. 2d 185, 191 (restitution “not the controlling consideration”).) The delay was in part caused by the petitioner’s inability to remember which insurance companies were involved. Furthermore, we are not inclined to believe that the petitioner purposely slighted these true victims in favor of the Legal Assistance Foundation. Instead, it appears that he and his attorneys gave up on trying to identify them.

The central issue then is whether the petitioner has presented enough evidence for us to conclude with the requisite certainty that he has changed and now is unlikely to repeat his past mistakes. We believe that he has. In so finding, we are influenced by the fact that the petitioner’s co-conspirators, whose cases for reinstatement were no stronger than petitioner’s, have been readmitted. See, e.g., In re Reicin (1978), 77 — CH—26, approved M.R. 1650; In re Zalutsky (1978), 77 — CH—23, approved Docket No. 49024.

We do not intend by this opinion to establish a formula that the unscrupulous can mechanically follow in order to gain readmittance to the bar. Such a state of affairs would be intolerable and would seriously hamper proper administration of attorney discipline. Four major charitable activities, two responsible jobs, attempted restitution coupled with a charitable donation, and the study of law do not add up to certain reinstatement. Each case must be decided on its own facts.

Nonetheless, while we have no qualms about rejecting a petition which we believe shows that rehabilitation is more probable than not, but yet does not rise to the level of clear and convincing evidence, we must not reject a petition that does in fact demonstrate rehabilitation by clear and convincing evidence.

The only other issue raised by the Administrator is one of evidence. Various letters from civic and cultural leaders in Arizona were admitted for the purpose of corroborating Silvern’s testimony with regard to his community activities and contributions and to show how he is generally regarded in the community. The letters contained no information the petitioner had not already testified to. The hearing panel admitted the exhibits “for such value as it may have.” The Review Board found that this was error, agreeing with the Administrator’s contention that the letters are hearsay and therefore inadmissible.

In re Melin (1951), 410 Ill. 332, held that common law rules of evidence apply to disciplinary proceedings. In In re Heirich (1956), 10 Ill. 2d 357, 367, however, this court held that technical rules of evidence, including the hearsay rule, need not be mechanically followed in attorney discipline cases. Letters and affidavits have been considered in previous attorney discipline cases, apparently without the Administrator’s objection. (See, e.g., In re Wigoda (1979), 77 Ill. 2d 154; In re Thomas (1979), 76 Ill. 2d 185; In re Steinbrecher (1973), 53 Ill. 2d 413, 419-20.) Under the circumstances we believe that the hearing panel had the discretion to admit the letters into evidence. They were of minor significance to the petitioner’s case. There were more than a dozen of them, and the cost of bringing the authors to Chicago to testify would have been prohibitive. Moreover, the Administrator did not dispute any of the information contained in the letters.

For the foregoing reasons, we find that the petitioner has carried his burden in demonstrating his rehabilitation.

Petitioner reinstated.


source: Caselaw Access Project

author: JUSTICE "WARD

license: Public Domain

text:
    (No. 54907.
    RALPH A. ARDUINI, Appellant, v. THE BOARD OF EDUCATION OF PONTIAC TOWNSHIP HIGH SCHOOL, DISTRICT 90, LIVINGSTON COUNTY, Appellee.

      Opinion filed September 30, 1982.

      Ralph H. Loewenstein, of Drach, Terrell & Deffenbaugh, P. C., of Springfield, for appellant.
    Kenneth L. Strong and Alan M. Schrock, of Thompson, Strong & Blakeman, Ltd., of Pontiac, for appellee.
   JUSTICE "WARD

delivered the opinion of the court:

Ralph Arduini, the plaintiff, brought a breach-of-contract action against the defendant, the board of education of Pontiac Township High School, District 90, Livingston County, to recover money withheld from his salary. The plaintiff, who was employed as a teacher by the defendant, resigned during the 1979-80 school year. Upon his resignation the defendant, applying a “liquidated damages policy” it had adopted two months earlier, withheld 4% of his salary as damages for what it claimed was an improper failure to teach for the full school year. The circuit court of Livingston County entered judgment for the defendant, holding that the adoption of the “liquidated damages policy” was a valid exercise of the power granted the defendant under the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 1—1 et seq.). The appellate court affirmed, with one justice dissenting. (93 Ill. App. 3d 925.) We allowed the plaintiff leave to appeal to this court under Rule 315 (73 Ill. 2d R. 315).

At trial, the parties stipulated to what were deemed to be the relevant facts. The stipulation was to this effect: For some years prior to the 1979-80 school year Arduini was a teacher in good standing. He qualified for contractual continued service status, that is to say he was tenured for the 1979-80 school year. On September 13, 1979, the plaintiff received a notice from the defendant. It stated:

“CONTRACTUAL CONTINUED SERVICE NOTIFICATION
The Board of Education, School District No. 90, Livingston County, State of Illinois, hereby notifies Ralph Arduini , a tenure [sic] teacher in said high school of continued contractual service for the school term beginning August 27, 1979 and ending May 30, 1980, for the annual salary of $17,898.00 payable in 9 equal installments at the end of each pay period as scheduled by the Board.
The time schedule and duties of the employee will be assigned by the Superintendent. In general, the work assignment will be as follows: Industrial Art Club. Contract time: 9 months + 5 days. Five class periods, one planning period. Your status was reviewed on March 12, 1979 by the Board of Education. It is with pleasure that they invite you to continue your contractual service in Pontiac High School. This notification is executed in duplicate this 13 day of September ,1979.”

Attached to the contractual continued service notification was a sheet which read:

“RESIGNATIONS
All contracts between the Pontiac Township High School and certificated personnel are entered into in good faith with the intent that the obligations stated in or implied by the contract are to be met fully.
Procedures for resignations to be effective at the close of a contractual period are adequately covered in the statutes.
Resignations terminated during a contractual period are to be mutually agreed upon by the employee and the Board of Education. These resignations, when initiated by the employee, not only cause undue hardship on the students, but create additional concern for the Board of Education and necessitate the expenditure of funds in seeking a replacement.
When a resignation is initiated by an employee for reasons other than for extenuating circumstances, the resigned shall pay the school district four (4) per cent of contract salary as liquidated-damages for breach of employment contract. Employee initiated resignations will not be honored until a satisfactory replacement assumes the duty of the resigner.
Reference to this policy shall be made in all certificated employee contracts and, or notices of continuance of employment.
Adopted August 6, 1979.”

Classes had begun on August 27, 1979, and as stated the plaintiff received the notification on September 13. He taught for 38 days in the 1979-80 school year and then submitted his resignation.

At the time he resigned, the plaintiff had been paid $1,988.66, and a balance of $1,590.94 was due for his services. The board withheld from the balance $715.92, which is 4% of $17,898. The plaintiff brought the breach-of-contract action for the sum withheld. The defendant filed a counterclaim, seeking a declaratory judgment that the described policy is legal and enforceable as part of the plaintiff’s contract.

In providing for teacher tenure, the School Code states:

“Any teacher who has been employed in any district as a full-time teacher for a probationary period of 2 consecutive school terms shall enter upon contractual continued service unless given written notice of dismissal stating the specific reason therefor, by registered mail by the employing board at least 60 days before the end of such period. ***
* * *
Contractual continued service shall continue in effect the terms and provisions of the contract with the teacher during the last school term of the probationary period, subject to this Act and the lawful regulations of the employing board. This Section and succeeding Sections do not modify any existing power of the board except with respect to the procedure of the discharge of a teacher and reductions in salary as hereinafter provided. Contractual continued service status shall not restrict the power of the board to transfer a teacher to a position which the teacher is qualified to fill or to make such salary adjustments as it deems desirable, but unless reductions in salary are uniform or based upon some reasonable classification, any teacher whose salary is reduced shall be entitled to a notice and a hearing as hereinafter provided in the case of certain dismissals or removals.” Ill. Rev. Stat. 1979, ch. 122, par. 24-11.

The purpose in granting tenure is to afford job security for teachers and to ensure continuity and stability of instruction for students. (Johnson v. Board of Education (1981), 85 Ill. 2d 338, 344.) A tenured teacher is under no obligation to enter into a new employment contract. (Bond v. Board of Education (1980), 81 Ill. 2d 242, 249.) Under the statute, if a teacher on contractual continued service status does not enter into an employment contract for the coming school year, the teacher will continue under the terms of his previous year’s contract. (Bond v. Board of Education (1980), 81 Ill. 2d 242, 249-50; Donahoo v. Board of Education (1952), 413 Ill. 422, 427.) Of course, “if an offer [is] properly made and unconditionally accepted, it would be in force according to its terms, but if not accepted or conditionally accepted, then the provisions of the Teacher Tenure Law apply.” Donahoo v. Board of Education (1952), 413 Ill. 422, 427.

The appellate court held that sometime after September 13, when the plaintiff received the contractual continued service notification, he did enter into a contract for the 1979-80 school year, in which he agreed to the liquidated-damages provision. The court said that the contractual continued service notification was, in fact, an offer of employment for the 1979-80 school year and the proposed salary of $17,898 and the liquidated-damages provision were terms of the offer. 93 Ill. App. 3d 925, 928.

The court considered that the plaintiff accepted this offer by accepting a paycheck for what it indicated was the increased salary stated in the offer. The court acknowledged that the record did not show that the plaintiff received or accepted a paycheck between September 13 and October 19, but it said that one must have been received because the School Code requires monthly payment of teachers’ salaries. Ill. Rev. Stat. 1979, ch. 122, par. 24—1.

The court held, too, that a school board has the authority to provide for a contract with a liquidated-damages provision. The plaintiff had conceded that if a teacher should breach an employment contract by resigning during the school year, nothing in the School Code would prevent the school board from bringing a breach-of-contract action against the teacher. If the board could bring an action for damages, the court reasoned, then it could provide for damages through a liquidated-damages agreement. The court found that the liquidated-damages provision was a valid one. 93 Ill. App. 3d 925, 930-31.

The contractual continued service notification constituted, as the appellate court held, an offer to the plaintiff for employment as a teacher for the 1979-80 school year. This was received by him on September 13, more than two weeks after classes had begun. The offer contained a term which was not in the existing contract, namely, the provision for liquidated damages. An offer exists for a reasonable time (1 Williston on Contracts sec. 54 (3d ed. 1957); Restatement (Second) of Contracts sec. 41 (1979)), and as we have observed above, under the School Code, if a tenured teacher does not enter into an employment contract for the coming school year, the teacher continues under the terms of his or her previous year’s contract. Bond v. Board of Education (1980), 81 Ill. 2d 242, 249-50; Donahoo v. Board of Education (1952), 413 Ill. 422, 427.

We deem that the appellate court erred in holding that the school board’s offer was accepted. The court concluded that an acceptance of a paycheck at an increased salary constituted an acceptance. The record, however, as the appellate court admitted, does not show that the plaintiff cashed, or even received, a paycheck during the period between September 13, when the offer was received by the plaintiff and became effective, and October 19 when he resigned. The appellate court observed that the School Code requires monthly payment of teachers’ salaries and concluded that the plaintiff must have received a paycheck. The record does not show this, and it would be a gratuitous assumption for us as a court of review to consider that he did.

We would note also that the “salary increase,” upon which the appellate court relied in judging that the plaintiff had agreed to the liquidated-damages term, was in fact assumed by the court without discussion. The plaintiff’s complaint alleges that his salary for the 1978-79 school year was $17,898. As the dissent to the appellate court’s opinion observed, the record does not show that the salary stated in the September 13, 1979, offer was greater than the salary to which the plaintiff was entitled prior to receiving the notice or offer. (93 Ill. App. 3d 925, 935 (Craven, J., dissenting).) The parties stipulated that the defendant is obligated to pay the plaintiff’s salary of $17,898 for the 1979-80 year. The stipulation does not contain any statement as to the salary provided in the preceding school year.

Too, the appellate court speculated that the plaintiff may be considered as having accepted the offer “by merely continuing his duties after September 13.” (93 Ill. App. 3d 925, 929.) That reasoning is unconvincing. The plaintiff was already in the course of teaching in the 1979-80 school year when he received the offer, and, as shown by the statute and cases cited above, he had the right to continue to teach under the terms of his prior contract without entering into a new contract. As this court recognized in Donahoo, “The Teacher Tenure Law does not make it mandatory upon the teacher to either accept or reject [a tendered offer].” (413 Ill. 422, 427.) In such circumstances we cannot agree that the plaintiff’s continuing to teach could reasonably be construed as an acceptance of the offer.

Though in view of the disposition we have made it is not necessary to address the question of whether the school board had authority to include the liquidated-damages provision in its employment contract, we consider that it was empowered to do so. The board has statutory authority to engage teachers (Ill. Rev. Stat. 1979, ch. 122, par. 24 — 1) and to make agreements with tenured teachers relative to resignations during the school year (Ill. Rev. Stat. 1979, ch. 122, par. 24—14). Authority to provide for liquidated damages in teachers’ contracts can be found in that statutory authority. Resignations that are submitted by teachers and that are to be effective during the academic year obviously present severe problems for school administrators. They impose instructional problems for students and vexing difficulties for the administration in obtaining qualified replacements. In some areas the securing of qualified replacements upon unexpected resignations by teachers will be difficult. This court in Bond v. Board of Education (1980), 81 Ill. 2d 242, held that a school board may, by contract, treat teachers who were willing to sign contracts containing a no-strike clause on a different basis than those who refused to sign such contracts on the ground that the no-strike clauses would assist school administrators in providing an efficient school system. If school administrations can act to protect themselves and the school system against strikes by teaching personnel, it is not unreasonable to say that there is authority to tender contracts with liquidated-damages provisions to be effective in the event of unexpected and unjustified resignations.

The School Code (Ill. Rev. Stat. 1979, ch. 122, par. 24—14) does provide that a tenured teacher who resigns during the school year may be liable for the suspension of his or her teacher’s certificate as a penalty. We do not perceive, however, any legislative intention that this statutory provision for penalty is the school board’s only remedy in the event of an unjustified resignation during the school year. It is common knowledge that there are dissatisfied teachers who leave their profession and for whom a suspension of teaching certificates would be a matter of indifference or small concern.

We reject, too, the defendant’s contention that even if the plaintiff did not assent to the provision for liquidated damages, it was binding upon him as a salary regulation. The defendant points to the portion of the School Code’s tenure provision that states, “Contractual continued service status shall not restrict the power of the board *** to make such salary adjustments as it deems desirable, but unless reductions in salary are uniform or based upon some reasonable classification, any teacher whose salary is reduced shall be entitled to a notice and a hearing as hereinafter provided in the case of certain dismissals or removals.” (Ill. Rev. Stat. 1979, ch. 122, par. 24-11.) The provision, which the defendant refers to as a “policy,” however, is not an administrative salary adjustment but is a proposal for a contractual liquidated-damages clause.

The concept of a liquidated-damages provision is a contractual one. It involves a contract and a term by which the parties provide for the measurement of damages in the event the contract is breached. The provision is agreed upon by the parties. It cannot be imposed by one party to the contract. The school board’s statutory authority to make salary adjustments clearly was not authority to fix terms in a teaching contract without the teacher’s consent.

For the reasons given, the judgment of the appellate court is reversed. The judgment of the circuit court, too, is reversed and the cause is remanded to the circuit court for entry of a judgment consistent with this opinion.

Reversed and remanded, with directions.


author: JUSTICE CLARK

text:
    (No. 55839.

      In re ESTATE OF E. W. MORRISON (Gaither Collier, Indv. and as Adm’r, Appellant, v. Edward Rosewell, County Treasurer, et at., Appellees).

      Opinion filed September 30, 1982.

      Marsha F. Weis, of Stuart M. Weis and Associates, Ltd., of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and Peter S. Coorlas, Assistant State’s Attorneys, of counsel), for appellees.
   JUSTICE CLARK

delivered the opinion of the court:

This action was brought by Gaither Collier, individually and as administrator of the estate of Warner Collier, to have letters of administration issued upon the presumption of death of E. W. Morrison. The Cook County treasurer is holding funds in the amount of $3,815.13 for the benefit of E. W. Morrison, which were deposited under the estate of Nettie Stevenson, who died intestate in 1971, and left E. W. Morrison and Warner Collier as her sole heirs.

A one-half interest in a parcel of Illinois real estate was also distributed to Morrison as a result of the Nettie Stevenson estate proceedings.

The plaintiff, Gaither Collier, is the sole heir of the estate of Warner Collier. If E. W. Morrison is presumed dead the plaintiff is entitled to the funds held by the Cook County treasurer.

The circuit court of Cook County found that E. W. Morrison is presumed dead as of January 1, 1937. Letters of administration were thereupon issued to the plaintiff. The appellate court reversed the trial court’s order issuing letters of administration upon the presumption of death, finding that the evidence was clearly insufficient to establish the prerequisites for a presumption of death. 100 Ill. App. 3d 891.

The record indicates that Morrison was an unmarried man without children in 1929, whose parents were both deceased. As of 1932, Morrison had three living relatives: Adelia Morrison Bland, his sister; Nettie Stevenson, Adelia Morrison Bland’s daughter, his niece; and Warner Collier, his nephew, the now deceased husband of the plaintiff.

It is necessary to recount the testimony of Gaither Collier to establish the facts upon which the trial court relied in determining that a legal presumption of death had arisen in the case of E. W. Morrison.

Gaither Collier married Morrison’s nephew, Warner Collier, in 1932. She had known Warner Collier since approximately 1925. The plaintiff had met Morrison on two occasions in 1929. She met E. W. Morrison for the first time in Earle, Arkansas, where the Colliers resided. The plaintiff met E. W. Morrison for the second and last time at his home in Memphis, Tennessee. At that meeting the plaintiff indicated that Morrison, then approximately 28 or 29 years old, appeared to be sick. After 1929 Warner and Gaither Collier never again saw, heard from, or heard anything about E. W. Morrison.

From 1929 to 1935 Warner and Gaither Collier traveled to Memphis, which was about 30 miles from Earle, Arkansas, at least once or twice a year. In 1935 the Colliers moved to Chicago, but continued to travel to Memphis approximately once a year. During these trips Mr. and Mrs. Collier visited Mrs. Collier’s relatives but never attempted to contact E. W. Morrison.

In or around 1946 the plaintiff lived in the same apartment with the three living blood relatives of E. W. Morrison: Adelia Morrison Bland, Nettie Stevenson and Warner Collier. To the best of her knowledge, none of them had seen or heard from Morrison or received any letters or phone calls from or any information about him.

In 1972, when questions arose concerning the estate of Nettie Stevenson, Warner Collier attempted to contact E. W. Morrison (43 years had now elapsed since their last meeting). Accompanied by a friend, Leo Armstrong, Warner Collier traveled to Memphis to look for Morrison. Leo Armstrong testified as to the details of the trip. Upon arriving in Memphis, Armstrong and Collier went to an address on East Iowa Street where Morrison had lived in 1929. They found a vacant lot at that address. Armstrong and Collier then went to see a friend, John Thomas, and told him about their search for E. W. Morrison. He suggested that they have an announcement placed on a local radio station asking for any information concerning Morrison. John Thomas called a Memphis radio station to have the announcement aired, but no listeners ever called with any information about Morrison. Collier, Armstrong and Thomas went to the site of the Goldcrest Brewery where E. W. Morrison had worked in 1929. Upon their arrival they discovered that the brewery had burned down. Subsequently, they went to a cafe a couple of blocks away from the site of the brewery. Inquiries were made at the restaurant, but no information was gained about Morrison. Warner Collier then contacted the Missing Persons Bureau, the Social Security Administration and the police department. He was unable to obtain any information regarding E. W. Morrison.

The plaintiff testified that in 1973 she asked her niece, Perlie Mae Gillum, who lived in Memphis, to make an inquiry at the local courthouse for any information concerning E. W. Morrison. We do not know how extensive that inquiry was. We do know Miss Gillum’s search did not reveal any information. The plaintiff also wrote to the city of Memphis seeking information about Morrison. The city responded that all efforts to locate E. W. Morrison were without success.

The trial court record also shows that the plaintiff’s attorneys attempted to obtain a death certificate from the proper authorities in Memphis. The authorities indicated that there was no death record on file for E. W. Morrison.

The trial court found that E. W. Morrison has been missing since 1929, that he has not communicated with those with whom he would naturally communicate, that diligent inquiries have been made at his last known address in an attempt to discover his whereabouts, and that the inquiries did not reveal any information that would indicate that E. W. Morrison is alive. The appellate court reversed the trial court’s judgment, concluding that the evidence was clearly insufficient to establish the prerequisites for a presumption of death.

The issues before this court are: (1) What are the necessary prerequisites to raise a presumption of death? and (2) Was the evidence clearly insufficient to establish those prerequisites?

The plaintiff asserts that Illinois case law on the subject of presumptions of death is contradictory and incomprehensible. To the contrary, while the rule as announced in our decisions and decisions of our appellate court varies to some degree in the form of expression, it is clearly deducible from a careful reading of our case law what is required to establish a presumption of death.

The presumption of death is raised where (1) a person has disappeared or is continuously absent for seven years from his home without explanation, (2) those persons with whom he would likely communicate have not heard anything from him or about him, and (3) a diligent search has been made at his last known place of abode without obtaining information that he is alive. (Kennedy v. Modern Woodmen of America (1910), 243 Ill. 560, 566; Donovan v. Major (1911), 253 Ill. 179, 181; Presbyterian Church v. St. Louis Union Trust Co. (1974), 18 Ill. App. 3d 713, 720; Blodgett v. State Mutual Life Assurance Co. (1961), 32 Ill. App. 2d 155; McNaghten v. Northwestern Mutual Life Insurance Co. (1943), 318 Ill. App. 390, 400; Carey v. Metropolitan Life Insurance Co. (1940), 305 Ill. App. 308, 312; Mueller v. John Hancock Mutual Life Insurance Co. (1935), 280 Ill. App. 519, 523; Piersol v. Massachusetts Mutual Life Insurance Co. (1931), 260 Ill. App. 578, 587.) The presumption of death needs to be established only by a preponderance of the evidence (Kennedy v. Modern Woodmen of America (1910), 243 Ill. 560, 575), although it is a rebuttable presumption that can be disproved by evidence showing the person presumed to be dead is alive (Presbyterian Church v. St. Louis Union Trust Co. (1974), 18 Ill. App. 3d 713).

Death may also be inferred if survival of the person to the date in question would be beyond human expectation or experience. (22 Am. Jur. 2d Death secs. 299, 305 (1965); 19 Am. Jur. Proof of Facts 2d 391 (1979); In re Katz’s Estate (1930), 135 Misc. 861, 239 N.Y.S. 722.) But an absent person’s old age, standing alone, if less than 100 years, has been held not to raise a presumption of death. (In re Estate of Holmlund, (1962), 232 Or. 49, 57, 374 P.2d 393, 396.) We cannot say on the basis of E. W. Morrison’s age alone (38 as of 1937) that he is dead.

There is no basis to presume E. W. Morrison was dead as of 1937, since there has not been a scintilla of evidence presented that E. W. Morrison was absent without explanation from his residence (Donovan v. Major (1911), 253 Ill. 179, 181) from 1929 to 1937. The plaintiff’s evidence is clearly insufficient to establish the first prerequisite. This court has said:

“[M]ere absence of a person from a place where his relatives reside, but which is not his own residence, and mere failure on the part of his relatives to receive letters from him for a period of seven years, are not of themselves sufficient to raise a presumption of death. The absence must be from his usual place of abode or resort.” (Hitz v. Ahlgren (1897), 170 Ill. 60, 64.)

The plaintiff cannot assert Morrison was absent or had disappeared simply because he had not communicated with any of his relatives. The trial court shows that Warner and Gaither traveled to Memphis at least once a year between 1929 and 1937. There is no indication that the plaintiff and her husband made any attempts to contact Morrison on any of those occasions. Because Warner and Gaither Collier had not returned to E. W. Morrison’s last known address in Memphis, one cannot therefore assume that E. W. Morrison had disappeared. (See Modern Woodmen of America v. Ghromley (1914), 41 Okla. 532, 139 P. 306.) One could just as reasonably conclude that E. W. Morrison continued to live on East Iowa Street in Memphis up until 1937. The first date as of which the plaintiff’s evidence shows that Morrison was absent from his last known address was 1972, when Warner Collier and Leo Armstrong discovered upon their inquiry that the residence on East Iowa Street had been demolished.

Since it was not demonstrated that Morrison was missing until 1972 it was clearly erroneous for the trial court to find that Morrison is presumed dead as of January 1, 1937. A person’s absence since 1972 from what was once known to have been his residence, which could conceivably satisfy the first prerequisite to raise a presumption of death in 1979, does not establish a sufficient basis to declare a presumption of death as of 1937.

We do, however, disagree with the appellate court’s holding that the plaintiff failed to establish the second prerequisite of the presumption of death — that E. W. Morrison failed to communicate with those with whom he would most naturally communicate. No known blood relative has heard from or about E. W. Morrison since 1929. It cannot be said that the plaintiff’s evidence was clearly insufficient as to the second prerequisite. It is, however, axiomatic to say that a person whose whereabouts is being questioned has not been shown to be missing through failure to communicate with those with whom he would be most likely to get in touch. Failure to communicate does not, in and of itself, demonstrate that the person has disappeared. By establishing the second prerequisite the plaintiff has not obviated the need to establish the first prerequisite — that E. W. Morrison has disappeared.

As to the third prerequisite to establish a presumption of death, we cannot find error in the finding of the circuit court that a diligent search was conducted. We have set forth the details of the search as related to the trial court by the testimony of Gaither Collier and Leo Armstrong. The fundamental requirement is that the search at the last known place of residence be diligent.

A diligent inquiry is one that a reasonably prudent person would make in similar circumstances. It should encompass all of the places where information is likely to be obtained and extend to all of the people who would be likely to hear from the missing person. (In re Estate of Holmlund (1962), 232 Or. 49, 374 P.2d 393; Donea v. Massachusetts Mutual Life Insurance Co. (1945), 220 Minn. 204, 209, 19 N.W.2d 377, 381.) As we review what was and what was not done in the search for E. W. Morrison, we share the defendant’s concern over certain deficiencies. No inquiries were made as to whether a marriage certificate was issued in his name in Memphis. E. W. Morrison was 29 years old the last time he was seen by the plaintiff. A check with the proper authorities for a certificate of marriage is an inquiry which should have been made. There was no evidence that indicates local postal authorities were contacted to inquire as to a forwarding address. No questions were asked of local utility companies to see if their records indicated the last time E. W. Morrison received their services. No attempt was made to find out when the house that E. W. Morrison lived in was tom down, and no attempt was made to contact the owners of the brewery at which E. W. Morrison worked in order to look at employment records. As we look at the record, the search does not appear to be the most comprehensive ever undertaken. However, because the course of inquiry suggested by the defendant is one that should have been followed, the failure to do all that we now see as constituting a completely thorough search need not be regarded as conclusive evidence that a diligent search was not made. (Lichtenhan v. Prudential Insurance Co. of America (1915), 191 Ill. App. 412, 416.) And while we would not characterize the inquiries made as being inordinately thorough, in considering all of the facts and circumstances of the case we cannot say that the circuit court’s finding that a diligent search was conducted was erroneous.

However, in view of our holding as to the lack of any evidence establishing E. W. Morrison’s absence from his home from 1929 to 1937, we must reverse the trial court’s order issuing letters of administration based upon the presumption of death as of January 1937.

Accordingly, the judgment of the appellate court reversing the order of the circuit court is affirmed.

Judgment affirmed.


author: JUSTICE CLARK JUSTICE UNDERWOOD, JUSTICE WARD,

text:
    (No. 54768.
    PAUL WILLIAM TEDDER, Appellee and Cross-Appellant, v. JAMES FAIRMAN, Warden, et al., Appellants and Cross-Appellees.—THOMAS BASS, Appellee and Cross-Appellant, v. GAYLE M. FRANZEN, Director of Corrections, et al., Appellants and Cross-Appellees.

      Opinion filed April 16, 1982.

    Rehearing denied May 27, 1982.

      UNDERWOOD and WARD, JJ., and RYAN, C.J., dissenting.
    Tyrone C. Fahner, Attorney General, of Springfield (Patricia Rosen, Assistant Attorney General, of Chicago, of counsel), for appellants and cross-appellees.

      Gary G. Johnson, of Normal, and Bruce P. Bower and John R. Porter, Jr., of Bloomington, for appellee and cross-appellant Paul William Tedder.
    Robert W. Gettleman and Arthur Don, of Chicago (D’Ancona, Pflaum, Wyatt & Riskind, of counsel), for appellee and cross-appellant Thomas Bass.
    Malvina Nathanson, of New York, New York, for amicus curiae National Legal Aid and Defender Association.
   JUSTICE CLARK

delivered the opinion of the court:

This consolidated case involves two petitions brought by inmates of the Pontiac Correctional Center against various officials and agents of the Department of Corrections. Paul William Tedder and Thomas Bass appealed from judgments in the circuit court of Livingston County entered on December 26, 1979, dismissing each of the petitioners’ complaints.

On August 17, 1979, Paul William Tedder filed a request as a pro se petition for a writ of mandamus or habeas corpus in the circuit court of Livingston County. Tedder alleged that he was deprived of needed medical assistance. On August 20, 1979, the circuit court entered an order appointing the public defender to represent Tedder. Defendants filed a motion to dismiss the petition for habeas corpus and the petition for mandamus. Tedder requested an extension of time to file a response to the motion to dismiss. On September 27, 1979, the circuit court informed Tedder that Mr. Blakeman, assistant public defender, had been appointed to represent him. On October 4, 1979, the circuit court granted the defendants’ motion to dismiss the petition for habeas corpus and granted defendants’ motion for a more definite statement of petitioner’s mandamus claim. Tedder was given 10 days in which to amend the petition.

Bass, in his pro se petition of October 25, 1979, filed in the circuit court, asserted that he had filed a grievance with the Inquiry Review Board prior to petitioning the court. Bass further states that the Inquiry Review Board on September 21, 1979, determined the grievance to be without merit. Tedder in his pro se petition asserts that he has done everything possible at the Pontiac Correctional Center to get the medical help he seeks. Tedder does not say whether doing everything possible included asking for an administrative review of the denial of medical assistance. While the Attorney General did not claim, in moving to dismiss, that the petitioner failed to file a grievance with the Inquiry Review Board, a request for internal review within the correctional institution must be made before a circuit court considers the petitioner’s complaint. (People ex rel. Willis v. Department of Corrections (1972), 51 Ill. 2d 382; In re Owen (1973), 54 Ill. 2d 104, 110.) On remand the circuit court should make a preliminary finding as to whether any petition on behalf of Tedder was presented to the Inquiry Review Board. If the petitioner has not sought review of his complaint at Pontiac, then the petition filed in the circuit court of Livingston County is premature, and dismissal without prejudice would be appropriate until the petitioner takes such action.

On October 25, 1979, the circuit judge wrote to Tedder informing him of the status of various cases he had filed in the circuit court. The assistant public defender also wrote to Tedder on October 18, 1979, to inform him of the status of his case. On November 28, 1979, the circuit court granted an extension of 14 days to amend his petition for mandamus. No amended pleadings were filed by the petitioner or his court appointed counsel.

On December 18, 1979, Tedder filed a petition for rehearing or notice of appeal on the dismissal of the mandamus portion of the original petition. The final order dismissing the petition for mandamus was entered December 26, 1979. According to the supporting affidavit of the December 18 petition for rehearing, the appointed public defender had refused to travel to Pontiac to discuss the case. Tedder maintained that his counsel had been ineffective and he had been unable to do his research or consult with an inmate lawyer.

Thomas Bass filed a pro se petition for a writ of mandamus in the circuit court of Livingston County on October 25, 1979. Bass sought a transfer because he asserted that he feared for his physical safety. On October 25, 1979, Assistant Public Defender Blakeman was also appointed to represent Bass. The defendants filed a motion to dismiss this petition for mandamus. On November 28, 1979, the petition was dismissed and Bass was given 14 days to amend his pleadings. No amended pleadings were filed, and the petition was dismissed on December 26, 1979. Bass was informed of this dismissal by letter on December 27, 1979. On January 11, 1980, Bass filed a notice of appeal.

The trial court appointed the State Appellate Defender to represent each of the prisoners on appeal. The Appellate Defender moved to withdraw as counsel on the basis that his duties do not include representation of indigent prisoners, except in criminal appeals. The appellate court ordered the motion taken with the case and directed the Appellate Defender to file briefs on behalf of the petitioners and address the issues of the Appellate Defender’s duty to represent prisoners in actions of this nature and the rights of prisoners to counsel on appeal. The Appellate Defender argued that indigent prisoners had no constitutional right to appointed counsel in civil cases, and the State agreed.

The appellate court allowed the Appellate Defender’s motion to withdraw, held that indigent prisoners bringing suits of this nature have no right to appointed counsel, either at trial or on appeal, reversed the trial court’s dismissal of the claimants’ petitions, and remanded to allow the complaints to be amended. (93 Ill. App. 3d 948.) The appellate court opinion provided that if plaintiffs show they have been deprived of the right of access to the courts, any appointed counsel would have to come from the private bar. The opinion further provided that any ruling requiring appointment of counsel as a constitutional right should only come from the State’s highest court. On April 6, 1981, the appellate court, on its own motion, issued a certificate of importance in this case to this court.

A prisoner may be subject to certain restrictions on and limitations of many privileges and rights. (Price v. Johnston (1948), 334 U.S. 266, 285, 92 L. Ed. 1356, 1369, 68 S. Ct. 1049, 1060; Wolff v. McDonnell (1974), 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963.) There are occasions when constitutional rights can be abridged provided it is necessary in order that the Department of Corrections may pursue legitimate and reasonable policies in maintaining institutional security and preserving internal order in a State institution. Pell v. Procunier (1974), 417 U.S. 817, 822, 41 L. Ed. 2d 495, 501, 94 S. Ct. 2800, 2804.

Nonetheless, a prisoner does not forfeit fundamental constitutional protections as the result of his conviction and custodial status. Any incarcerated man or woman retains some important basic rights which cannot be stripped away. Jones v. North Carolina Prisoners’ Labor Union, Inc. (1977), 443 U.S. 119, 129, 53 L. Ed. 2d 629, 641, 97 S. Ct. 2532, 2539-40; Meachum v. Fano (1976), 427 U.S. 215, 49 L. Ed. 2d 451, 96 S. Ct. 2532; Wolff v. McDonnell (1974), 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963; Pell v. Procunier (1974), 417 U.S. 817, 822, 41 L. Ed. 2d 495, 501, 94 S. Ct. 2800, 2804; Bell v. Wolfish (1979), 441 U.S. 520, 545-46, 60 L. Ed. 2d 447, 472-73, 99 S. Ct. 1861, 1877.

One guarantee which has become well established is a prisoner’s constitutional right of access to the courts. (Bounds v. Smith (1977), 430 U.S. 817, 821-23, 52 L. Ed. 2d 72, 78-79, 97 S. Ct. 1491, 1494-95.) The right is founded on the due process clause (Wolff v. McDonnell (1974), 418 U.S. 539, 579, 41 L. Ed. 2d 935, 964, 94 S. Ct. 2963, 2986) and was first addressed by the Supreme Court in Ex parte Hull (1941), 312 U.S. 546, 85 L. Ed. 1034, 61 S. Ct. 640.

In Ex parte Hull the Supreme Court took the first step in ensuring that prisoners, in spite of their incarcerated status, had the ability to present their claims and grievances in the courts. The court struck down a prison regulation which required inmates to obtain approval from a corrections official prior to filing a habeas corpus petition and concluded that a State could not impede prisoners from petitioning the courts to review the legality of the individual’s incarceration. 312 U.S. 546, 85 L. Ed. 1034, 61 S. Ct. 640.

A prisoner’s right to petition the court was further delineated in Johnson v. Avery (1969), 393 U.S. 483, 21 L. Ed. 2d 718, 89 S. Ct. 747, where the Supreme Court ruled that prison officials could not prohibit jailhouse lawyers from helping other inmates draw up habeas corpus petitions. The court recognized that “Cj]ails and penitentiaries include among their inmates a high percentage of persons who are totally or functionally illiterate, whose educational attainments are slight, and whose intelligence is limited” (393 U.S. 483, 487, 21 L. Ed. 2d 718, 722, 89 S. Ct. 747, 750), and noted that prisoners who could not afford counsel and who were so illiterate or so poorly educated that they were unable to prepare a petition were totally barred from access to habeas corpus by the regulation. The court held that “unless and until the State provides some reasonable alternative to assist inmates in the preparation of petitions for post-conviction relief, it may not validly enforce a regulation such as that here in issue, barring inmates from furnishing such assistance to other prisoners.” 393 U.S. 483, 490, 21 L. Ed. 2d 718, 724, 89 S. Ct. 747, 751.

The next case upholding the right of access to the courts was Younger v. Gilmore (1971), 404 U.S. 15, 30 L. Ed. 2d 142, 92 S. Ct. 250 (per curiam), where inmates challenged a California prison regulation which excluded State and Federal reporters and annotated codes from the prison library. The district court found that the prison authorities had a duty to devise “another system whereby indigent prisoners are given adequate means of obtaining the legal expertise necessary.” (Gilmore v. Lynch (N.D. Cal. 1970), 319 F. Supp. 105, 112.) Gilmore indicated that the State’s obligation required more than not impeding prisoners’ access to the courts, and in fact included an affirmative burden on the part of the State that access be provided. Fotuto, The Right of Prisoner Access: Does Bounds Have Bounds?, 53 Ind. L.J. 207, 208 (1977).

The decision in Wolff v. McDonnell (1974), 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963, extended the protection afforded habeas petitions in Avery to prisoners bringing civil rights actions (under 42 U.S.C. sec. 1983 (1976)). The court held that prisoners bringing such actions also have a right to some form of legal assistance to ensure that their access to the courts is meaningful (418 U.S. 539, 579-80, 41 L. Ed. 2d 935, 964, 94 S. Ct. 2963, 2986), stating that the due process clause “assures that no person will be denied the opportunity to present to the judiciary allegations concerning violations of fundamental constitutional rights” (418 U.S. 539, 579, 41 L. Ed. 2d 935, 964, 94 S. Ct. 2963, 2986).

Finally in Bounds v. Smith (1977), 430 U.S. 817, 52 L. Ed. 2d 72, 97 S. Ct. 1491, the court held that “the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” (430 U.S. 817, 828, 52 L. Ed. 2d 72, 83, 97 S. Ct. 1491, 1498.) The mandate in Bounds does not limit the methods by which the State can fulfill its obligation. “ ‘[Meaningful access’ to the courts is the touchstone.” (430 U.S. 817, 823, 52 L. Ed. 2d 72, 80, 97 S. Ct. 1491, 1495, quoting Ross v. Moffitt (1974), 417 U.S. 600, 611, 41 L. Ed. 2d 341, 351, 94 S. Ct. 2437, 2444.) An adequate law library is one of the constitutionally acceptable methods. Alternatives include paralegal help, law student clinical programs, or staff attorneys. 430 U.S. 817, 831, 52 L. Ed. 2d 72, 84, 97 S. Ct. 1491, 1499-1500.

While the appointment of counsel would undoubtedly measure up to the Bounds requirements, appointment of counsel is not the sole means of ensuring meaningful access. No court has read Bounds to require appointed counsel in a civil suit. We cannot find sufficient support in any of the United States Supreme Court holdings to say that an indigent prisoner has a constitutional right to appointed counsel in a civil suit either at trial or on appeal. The constitutional mandate is for “meaningful access.” In the case before us, the issue was properly framed in terms of the inmates’ access to the courts for the first time in the appellate court. There is not adequate evidence in the record concerning the procedures in effect at Pontiac to assist inmates in filing their claims. We are not therefore capable of reviewing whether Tedder’s or Bass’ constitutional guarantee of access to the courts has been met. The appendix to the defendant’s brief setting forth certain administrative regulations concerning library services does not provide sufficient information.

It is not possible therefore to evaluate the State plan at Pontiac as a whole. We remand to the circuit court for an evidentiary hearing to consider what means the Department of Corrections made available to Tedder and Bass for their petitioning of the court to present their claims.

This evidentiary hearing, as far as Tedder is concerned, is necessary, provided that there is a preliminary showing by Tedder that review of his grievance was sought at Pontiac before any action was taken in the circuit court.

The State carries the burden of demonstrating that its legal-assistance programs are adequate. (Novak v. Beto (5th Cir. 1971), 453 F.2d 661, 664, cert. denied (1972), 409 U.S. 968, 34 L. Ed. 2d 233, 93 S. Ct. 279.) While we recognize that jailhouse lawyering creates a real potential of a few writ writers practicing favoritism upon ignorant members of the prison population (Battle v. Anderson (10th Cir. 1980), 614 F.2d 251, 255; Henderson v. Ricketts (D. Colo. 1980), 499 F. Supp. 1066), we emphasize the need to establish some avenue of communication for pro se prisoners who can barely perceive the legal issues and are hard pressed to articulate them. For inmates who do not possess the intellectual abilities to permit reasonable comprehension of their legal claims, some provision must be made to allow communications with someone who is able to translate their complaints into cognizable petitions. Stevenson v. Reed (W.D. Miss. 1975), 391 F. Supp. 1375. See Wetmore v. Fields (W.D. Wis. 1978), 458 F. Supp. 1131, 1142; Cruz v. Hauck (5th Cir. 1980), 627 F.2d 710, 720.

While the trial court is under no duty to appoint an assistant public defender to represent the plaintiff in these pro se actions, the trial court did not abuse its discretion in doing so. The pertinent part of the statute provides:

“The Public Defender, as directed by the court, shall act as attorney, without fee, before any court within any county for all persons who are held in custody or who are charged with the commission of any criminal offense, and who the court finds are unable to employ counsel.” (Ill. Rev. Stat. 1979, ch. 34, par. 5604.)

Public defenders are expressly authorized by the statute to represent indigent persons “held in custody.” The public defender acts as a legal representative “as directed by the court.” Other jurisdictions specifically authorize representation by a public defender for indigent prisoners in actions attacking conditions of inmates’ confinement (e.g., Wis. Stat. Ann. sec. 977.05(4) (West Supp. 1981-82); Ind. Code Ann. sec. 33—1—7—2 (Burns 1975)). There is no legislative mandate that a public defender be appointed to represent an indigent prisoner in a case alleging deprivation of a prisoner’s civil rights in Illinois. However, the statutory language does not preclude such an appointment.

We understand the public defender’s reluctance to go forward in this action in the uncharted sea of civil litigation for prisoners, particularly in view of the heavy criminal caseload that each office carries. However, once a circuit court, in its discretion, has determined that appointment of the public defender is appropriate to represent an indigent prisoner, limited to a grievance relating to the conditions of his confinement, then that assistant public defender is expected to exercise due diligence in proceeding with the assigned case. Should the trial court on remand determine appointment of counsel to be in order, that counsel could be provided for by the public defender’s office.

Whatever the findings of the circuit court on remand in regard to “meaningful access” (Bounds v. Smith (1977), 430 U.S. 817, 823, 52 L. Ed. 2d 72, 80, 97 S. Ct. 1491, 1498) for these pro se prisoners, we hold that the complaints should not have been dismissed. Appointed counsel failed to amend the pleading in the face of the circuit court statements that both petitions were inadequate. We refrain from rendering a judgment on the merits of the unamended petitions for the writs of mandamus. Because the assigned assistant public defender failed to amend each of the petitioner’s pleadings the plaintiffs will be allowed to amend their complaints to attempt to state a cause of action.

The cause is remanded to the circuit court of Livingston County for proceedings consistent with this opinion.

Appellate court affirmed in part and reversed in part; cause remanded, with directions.

JUSTICE UNDERWOOD,

dissenting:

I agree with the majority’s conclusion that an indigent prisoner does not have a constitutional right to the appointment of counsel in civil cases. I cannot agree, however, with the court’s expansive interpretation of the statute delineating the duties of the public defender. By allowing trial courts discretion to appoint counsel to prosecute civil matters for indigent prisoners, the court has succumbed to the ever-present temptation to substitute its concept of desirable legislation in place of the objective interpretation of the legislature’s intent and the constitutionality of its action, which should be a court’s only concern.

The statute before the court for interpretation provides:

“The Public Defender, as directed by the court, shall act as attorney, without fee, before any court within any county for all persons who are held in custody or who are charged with the commission of any criminal offense, and who the court finds are unable to employ counsel.” (Ill. Rev. Stat. 1979, ch. 34, par. 5604.)

As recognized by the majority, the legislature clearly has not mandated appointment of a public defender for indigent persons in civil cases under the statute. Moreover, a careful reading of the statute in light of our rules of statutory interpretation fails to reveal any permissible basis for allowing courts to appoint public defenders in civil cases. In Illinois Power Co. v. Mahin (1978), 72 Ill. 2d 189, this court recently reiterated that “ ‘[i]t is a primary rule in the interpretation and construction of statutes that the intention of the legislature should be ascertained and given effect.’ ” (72 Ill. 2d 189, 194.) “In ascertaining this intent, the entire statute must be considered (People ex rel. Morrison v. Sielaff, 58 Ill. 2d 91, 93), and also ‘the evil to be remedied and the object to be attained’ (People ex rel. Simpson v. Funkhouser, 385 Ill. 396, 403).” People v. Bratcher (1976), 63 Ill. 2d 534, 543; see also Droste v. Kerner (1966), 34 Ill. 2d 495, 503; People ex rel. Pauling v. Misevic (1964), 32 Ill. 2d 11, cert. denied (1965), 380 U.S. 963, 14 L. Ed. 2d 154, 85 S. Ct. 1107; Lincoln National Life Insurance Co. v. McCarthy (1957), 10 Ill. 2d 489; People ex rel. Barrett v. Anderson (1947), 398 Ill. 480, 485.

The language of the statute restricts the public defender to representing “persons who are held in custody or who are charged with the commission of any criminal offense.” This limitation, in my judgment, clearly reveals that the legislators’ concern related to the due process requirement or providing defendants with counsel in criminal matters.

The legislature demonstrated its ability to clearly express its intent to authorize appointed counsel in civil matters when it enacted the only statute expressly providing for the appointment of counsel in a civil matter, the post-conviction hearing legislation (Ill. Rev. Stat. 1979, ch. 38, par. 122—1). While characterized as civil in nature, even those proceedings are the direct result of the defendant’s criminal conviction and involve only its validity. The fact that the legislature has chosen not to include similarly clear provisions in the statute under consideration is, to me, persuasive evidence that the legislature will indeed be surprised to learn that it intended this statute to authorize courts to appoint the public defender to prosecute civil matters for indigent prisoners.

Moreover, the majority’s expansion of appointed counsel’s duties is not desirable. The offices of the public defenders and the State Appellate Defender are presently experiencing severe problems in coping with their extremely heavy caseloads. (See, e.g., 1982 Fiscal Report, Office of the State Appellate Defender, at 44-48.) In fact, in an effort to reduce existing delay in those offices, this court has considered it necessary to solicit the assistance of volunteers through the organized bar, and a significant number of cases are presently being handled in that fashion. (See 1982 Fiscal Report, Office of the State Appellate Defender, at 2, 44-49.) Rather than add to that burden, thereby increasing the amount of delay, it seems to me that the representation afforded indigent prisoners by such groups as the Illinois Prisoners Association is sufficient to offer these individuals meaningful access to courts for the purposes of prosecuting noncriminal matters. (For a listing of the various groups offering legal services to indigent prisoners, see Directory, Prisoner’s Legal Services, State of Illinois, compiled by the Lawyers Committee for Civil Rights Under Law, Inc. (1978).) Indeed, because of the assistance provided by these groups, indigent prisoners may now enjoy greater access to courts than do law-abiding indigents or even some citizens who are neither prisoners nor indigents.

For the reasons stated, I consider the majority holding expanding the statute to be both undesirable and inconsistent with the well-established rules of statutory interpretation.

RYAN, C.J., and WARD, J., join in this dissent.

JUSTICE WARD,

also dissenting:

I join in Justice Underwood’s dissent. Public defenders’ offices, understaffed and overworked, will be dismayed at the majority’s action. They must now go forward, as the majority puts it, “in the uncharted sea of civil litigation for prisoners.” (92 Ill. 2d at 227.) It is more facilely said than done.

The involved statute, as has been stated, provides:

“The Public Defender, as directed by the court, shall act as attorney, without fee, before any court within any county for all persons who are held in custody or who are charged with the commission of any criminal offense, and who the court finds are unable to employ counsel.” (Ill. Rev. Stat. 1979, ch. 34, par. 5604.)

The language “for all persons who are held in custody” has been considered to mean those who were in custody and against whom no charges had been placed. Under those circumstances, relatives or friends of the prisoner, or the prisoner himself, might seek a court’s assistance, by way of habeas corpus or otherwise, to have the prisoner released or to have a charge filed against him so that a bond might be set. The language of the statute authorizes the court to appoint the public defender to act as attorney before the court for such persons who are unable to employ counsel. Following the order or the sequence of a criminal case, the statute then goes on to authorize a court to appoint the public defender to act also for persons who have already been charged with the commission of criminal offenses.

I agree with Justice Underwood that there was no legislative intention to authorize courts to appoint the public defender to prosecute civil matters for indigent prisoners. In instances where counsel should be appointed, counsel other than the public defender should be designated.

RYAN, C.J., and UNDERWOOD, J., join in this dissent.


author: JUSTICE GOLDENHERSH

text:
    (No. 55691.
    EDDIE SHARPE, Appellee, v. JACKSON PARK HOSPITAL et al., Appellants.

      Opinion filed September 17, 1982.

    Lord, Bissell & Brook, of Chicago (Williams P. Dorr and Hugh C. Griffin, of counsel), for appellant Jackson Park Hospital.
    Wildman, Harrold, Allen & Dixon, of Chicago (Donald Flayton, of counsel), for appellants Dr. Friedell, Dr. Lim, and Dr. David.
    Nevoral and Corrigan, Ltd., of Chicago (Bernard R. Nevoral, James A. Corrigan, and Bryon J. O’Connor III, of counsel), for appellees.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

On July 31, 1978, plaintiff, Eddie Sharpe, filed suit in the circuit court of Cook County against defendants, Jackson Park Hospital and six physicians, Dr. Friedell, Dr. Lim, Dr. David, Dr. Kasbekar, Dr. Lewis, and Dr. Pilandapark. In his second amended complaint plaintiff alleged that on or about July 11, 1976, while present at Jackson Park Hospital, he was referred to the defendant physicians for treatment of and surgery upon his severely lacerated arm and hand; that defendants rendered plaintiff negligent treatment and care and that plaintiff “first learned of the negligent acts of all defendants on or about September 9, 1976” when he was admitted to Cook County Hospital for treatment of the same injury; and that as a result of the misconduct of defendants, plaintiff’s right hand and forearm were amputated. Defendants Kasbekar, Lewis and Pilandapark do not appear to have been served with summons and filed no appearances in the circuit court. The circuit court allowed the motions to dismiss of defendants Friedell, Lim, David, and Jackson Park Hospital and entered judgment dismissing the action. Plaintiff appealed. The appellate court reversed and remanded (99 Ill. App. 3d 874), and we allowed defendants’ petition for leave to appeal. 73 Ill. 2d R. 315.

The question presented is whether, when a plaintiff knows of his injury within two years of the act or omission which caused his injury, the limitation period provided in section 21.1 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 22.1) commences to run from the date when he knew of his injury or the date on which the alleged malpractice occurred. Section 21.1 in pertinent part provides:

“No action for damages for injury or death against any physician or hospital *** shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known *** of the existence of the injury *** but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged *** to have been the cause of such injury ***.” (Ill. Rev. Stat. 1977, ch. 83, par. 22.1.)

This court has not previously considered the precise issue presented, and the decisions of the appellate court are not in agreement. See Walsh v. Swedish Covenant Hospital (1981), 97 Ill. App. 3d 1147; Kaufman v. Taub (1980), 87 Ill. App. 3d 134; Evans v. Bachman (1979), 78 Ill. App. 3d 1107.

Defendants contend that because plaintiff learned of his injury within two years of the occurrence and had ample time within the traditional two-year limitation period to file suit (see Ill. Rev. Stat. 1977, ch. 83, par. 15), and failed to do so, under Anderson v. Wagner (1979), 79 Ill. 2d 295, his action is barred. They argue that after plaintiff learned of his cause of action he had 21 months to file suit and that “the injustice which the discovery rule is intended to cure is not present.” Therefore, they argue, we should refuse to invoke it. Plaintiff contends that under the clear and explicit language of section 21.1 the only relevance of the date of last treatment to the computation of the period of limitations is to establish the four-year maximum limitation; that the injured party has a full two years from the date on which he knew or in the exercise of reasonable diligence should have known of the existence of the injury within which to bring the action and that in Anderson the court did not decide whether section 21.1 was applicable to a situation in which a plaintiff becomes aware of his cause of action within two years of the occurrence.

In Anderson the court rejected the contention that section 21.1 was invalid as special legislation proscribed by article IV, section 13, of the Constitution of 1970. The plaintiffs in one of the consolidated cases had alleged that the defendant had fraudulently concealed his negligent conduct from the plaintiffs, thus invoking section 22 of the Limitations Act, which provided:

“If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within five years after the person entitled to bring the same discovers that he has such cause of action, and not afterwards.” (Ill. Rev. Stat. 1977, ch. 83, par. 23.)

The court held that under the allegations of the amended complaint the statute of limitations would not have run for a minimum period of seven months or a maximum period of 16 months, and that the circuit court had not erred in holding that plaintiffs had failed to exercise due diligence after discovery of the alleged fraud. Anderson v. Wagner (1979), 79 Ill. 2d 295, 322.) The court expressly stated that it did not by its decision hold section 22 applicable to medical malpractice cases.

The language of section 21.1 clearly and unequivocally provides for a period of two years “after the date on which the claimant knew, or through the use of reasonable diligence should have known *** of the existence of the injury ***.” When this occurred is ordinarily a question of fact ('Withered v. Weimer (1981), 85 Ill. 2d 146, 156; Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 171) and as pleaded here is admitted for the purposes of defendants’ motions to dismiss.

The appellate court correctly construed the statute and the judgment is affirmed.

Judgment affirmed.


author: JUSTICE SIMON JUSTICE YARD,

text:
    (No. 55452.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MICHAEL A. YOUNG, Appellee.

      Opinion filed June 18, 1982.

    WARD, J., and RYAN, C.J., dissenting.
    Tyrone C. Fahner, Attorney General, of Springfield, and Jordan Gallagher, State’s Attorney, of Sycamore (Phyllis J. Perko, of the State’s Attorneys Appellate Service Commission, of Elgin, of counsel), for the People.
    Steven Clark, Deputy Defender, and Richard E. Cunningham, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

Defendant, Michael Young, was charged in the circuit court of De Kalb County with leaving the scene of an accident (Ill. Rev. Stat. 1977, ch. 951/2, par. 11—401(a)) and driving too fast for conditions (Ill. Rev. Stat. 1977, ch. 951/2, par. 11—601(a)). Immediately after the accident, witnesses reported to the police the license plate number of a car that fled the scene, and less than three hours later a police officer traced the license plate to Young. The officer called Young and asked him to come to the police station to talk about the accident. Young promptly complied with the request, appeared at the station, and made statements both before and after receiving Miranda warnings about the occurrence and having left the scene. The issue in this appeal is whether, consistent with section 11— 401(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 951/2, par. 11—401(b)), the statements a person makes within 48 hours after an accident, but after first being requested by a police officer to come to the police station to discuss the accident, may be used against him in a prosecution for leaving an accident scene. We conclude they may not.

Section 11 — 401(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 951/2, par. 11—401(a)) requires the driver of a vehicle involved in an accident resulting in injury or death to stop and remain at the scene until he has given his name and address, exhibited his driver’s license to the other persons involved in the accident, and rendered reasonable assistance to any person injured in the accident. The relevant portion of section 11—401(b) (Ill. Rev. Stat. 1977, ch. 951/2, par. 11—401(b)) provides:

“(b) Any person who has failed to stop *** shall, within 48 hours after such accident *** report the place of accident, the date, the approximate time, his name, address, the registration number of the vehicle driven, and the names of the occupants, if any,, of such vehicle, at a police station or sheriff’s office near the place where such accident occurred. No report made as required under this Subsection shall be used, directly or indirectly, as a basis for the prosecution of any violation of Subsection (a) of this Section.” (Emphasis added.)

Sections 11—401(c) and (d) (Ill. Rev. Stat. 1977, ch. 95V2, pars. 11—401(c), (d)) provide that a person who leaves the scene in violation of section 11 — 401(a) is guilty of a misdemeanor, while one who, after leaving the scene, fails to make the report required by section 11 — 401(b) is guilty of a felony. Thus, the statute permits a person who fails to remain at the scene to avoid prosecution for a felony by making the required report at a police station or sheriff’s office within 48 hours, and the report is not to be used by the State in a misdemeanor prosecution for leaving the scene.

The circuit court allowed Young’s motion to suppress his statements on the ground he had reported the accident to the police within 48 hours and thus section 11 — 401(b) prohibited the use of his report against him. An appeal by the State from the suppression order was dismissed by the appellate court, which held it was not an appealable order. (People v. Young (1979), 76 Ill. App. 3d 210.) This court reversed the dismissal and remanded the appeal to the appellate court for ruling on the merits, concluding that the State should be allowed to appeal from a pretrial suppression order which substantially impaired its ability to prosecute the case. (People v. Young (1980), 82 Ill. 2d 234.) On remand, the appellate court, in a split decision, held that Young’s statements could be used on the charge of driving too fast for conditions, but not in the prosecution for leaving the scene of an accident (98 Ill. App. 3d 585). The dissenting judge’s view was that the State could use Young’s statements in prosecuting both offenses. His reasoning was that because the statements were obtained as a result of the officer’s investigation and call to Young requesting him to come to the station, they did not constitute a report within the meaning of section 11 — 401(b) of the Illinois Vehicle Code and consequently were not entitled to the protection of that statute. The State advances essentially the same position in this appeal, contending that the statute is designed to encourage voluntary reporting as distinguished from police efforts which result in locating a person involved who leaves the scene of an accident and fails to initiate his report before the police contact Mm. The State also argues that Young’s statement covered more than the matters which the statute shielded, and that any statements Young made wMch the statute did not reqrnre him to report should not be suppressed.

Section 11 — ■401(b) requires all persons who leave an accident scene to report the occurrence within 48 hours. Its requirements are not limited to situations where the driver iMtiates the contact with the police in contrast with those where the iMtial contact is brought about by police efforts, as happened in Young’s case. A person contacted by the police and requested to come to a police station to report an accident who fails to respond is as guilty of violating section 11 — 401(b) as a driver who is never contacted and never reports. The statute directs all drivers who have fled the scene of an accident to report the pertinent information at a police station witMn 48 hours, and notMng in the wording of the statute justifies treating those who appear at a police station before being contacted by the police differently from those who come to the station following a police request. The plain wording of the statute neither lends itself to such a distinction nor suggests that police responsibility for the driver’s appearance at the station is a material factor in the application of the statute. All the statute commands is that a person who has failed to stop at the scene report the pertinent information at a police station within the reqmred time.

Similarly, section 11 — 401(b) provides a period of grace of 48 hours during which a driver who has fled from the accident can avoid felony prosecution by reporting the accident. Under the State’s interpretation, the police could reduce the length of this grace period by imtiating contact with a driver who has left the scene before he appears at the police station. But the statute on its face does not envision a race between police efforts to initiate contact with a missing driver and the driver’s decision to escape felony prosecution by going to a police station and making a clean breast of Ms involvement.

In its reply brief the State concedes that Young’s cooperation with the police may have immunized him from felony prosecution for violating section 11 — 401(b), but it nevertheless contends that because of the police initiative which brought Young to the station, his statements should not be accorded the shield from prosecution use provided by the second sentence of that paragraph. We find nothing in section 11 — 401(b) which justifies such a distinction between the immunity provided by the first sentence and the privilege provided by the second.

The statute’s purpose is to inform those who have been injured or damaged by a hit-and-run driver of the driver’s identity. This is accomplished by encouraging such drivers to take advantage of a second chance to come forward and reveal their identity. Those who do come forward will not be prosecuted for a felony, and their statements will not be used against them if they are prosecuted for the misdemeanor of leaving an accident scene. It is useful and effective to offer both of these inducements to those who cooperate after first receiving a nudge from the police as well as to those who come forward on their own initiative; no valid distinction can be drawn between them. Although the police in this case, for example, had a license number, they still needed Young's cooperation to confirm that the vehicle with that license number was involved in the accident and to find out who was driving. The statute should be construed to afford maximum encouragement to those contacted by the police to be forthright rather than to stonewall or attempt to elude the police. Permitting the State to use a driver’s report in its prosecution for leaving the accident scene discourages the driver both from coming forward and cooperating with police officers who may contact him first. To give the statute full scope in accomplishing what we believe it was intended to do, it is necessary to construe it in a way which affords the benefits of the prohibition against use contained in the second sentence to those who cooperate with the police either before or after being asked to do so.

The State urges that the provision prohibiting the State’s use of reports is an exception to the statutory scheme and, relying on People v. Lofton (1977), 69 Ill. 2d 67, argues that because it is an exception it must be strictly construed. The Lofton court was dealing with a statute which exempted a defined class of persons from the provisions of the unlawful use of weapons statute as long as the person claiming exemption was carrying documentation issued by the Department of Registration and Education. Unlike Lofton, the provision of the Illinois Vehicle Code applicable in this case is not an exemption statute, for it provides that a driver comes within the provisions of the statute and violates the law only upon his failure to comply with its provisions. It applies the statute to those who fail to comply; it does not extend an exemption to a statute of general application, as the statute in Lofton did. In any event, in arriving at the conclusion we do in this case we are following the Lofton directive of strict construction of the statute. We are construing it exactly as it reads, and we decline to add to it the conditions and exceptions the State advances, as they do not appear on the face of the statute and do not square with the statutory scheme.

The State finally argues that Young’s statement included information beyond that required by the statute and that the extra information should not be suppressed. The State failed to specify in the circuit court which portion of Young’s statement went beyond the statutory requirement. Its only contention in the circuit court was that it was entitled to use the information Young gave in its entirety. Moreover, the two statements which the State insists in this court it has the right to use are so closely related to the reporting requirements of the statute that it would be impossible to isolate them from those requirements. Young admitted he hit the other car, but in doing so he was merely admitting his participation in the accident, a condition of compliance with the statute. (See People v. Snodgrass (1968), 103 Ill. App. 2d 166.) Young also said he fled because he was frightened. It is clear that one who reports his name in violation of the statute does so because he has fled the scene; Young’s admission that he fled the scene is therefore an essential part of the report, and we do not see how the admission he was “frightened” can be separated from his admission that he fled.

Although the statute bars the use of Young’s statement in the prosecution for leaving the scene of the accident, there is no statutory or other bar to its use in connection with the charge of driving too fast for conditions. The circuit court erred in applying the suppression order to that charge.

Judgment affirmed.

JUSTICE YARD,

dissenting:

The ancient inquiry as to who is to watch the watchmen is raised by the majority’s opinion.

The doctrine of separation of powers of government is, of course, not an unreasonably rigid one (City of Waukegan v. Pollution Control Board (1974), 57 Ill. 2d 170). This court, however, has been vigilant in restraining the other branches of government where there has been a wrongful intrusion upon the functions of another branch. I consider that the majority here disregards the legislative intention and improperly invades the legislative area and violates the doctrine.

The cardinal principle of statutory construction is to ascertain the legislative intendment and follow it. It .is a cardinal offense for a court to fail to observe that intention.

I believe that the State’s position accurately reflects the legislative intendment. The State contends, to quote the majority’s language, “that the statute is designed to encourage voluntary reporting as distinguished from police efforts which result in locating a person involved who leaves the scene of an accident and fails to initiate his report before the police contact him.” YThere witnesses have reported the license plate number of the fleeing car and the police officer has phoned the defendant and asked him to come to the police station I consider it is a clear violation of the legislature’s intention to hold that the defendant will enjoy immunity under the statute. Certainly, it was not the legislators’ intention to immunize persons who report fleeing from the scene of a death or injury, not because of a quickening of conscience but as a result of a police investigation focusing on them.

A former policy of the United States Internal Revenue Service and the United States Department of Justice seems relevant to consider. The “voluntary disclosure” policy permitted an income tax violator to disclose his violation with the knowledge that a criminal prosecution would not result. The policy, however, required that the disclosure had to be complete and it had to be truly voluntary. That is, the disclosure had to be made before an investigation of the taxpayer’s return had begun. I feel certain that the legislature had a similar requirement in mind when enacting the statute here.

CHIEF JUSTICE RYAN joins in this dissent.


text:
    (No. 55382.

      In re PETER VICTOR PAPPAS, Attorney, Respondent.

      Opinion filed September 17, 1982.
    Rehearing denied November 24, 1982.

      MORAN, J., took no part.
    Mary M. Conrad, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    William J. Harte, Ltd., for respondent, and Peter Victor Pappas, pro se.

   JUSTICE CLARK

delivered the opinion of the court:

On October 29, 1976, the respondent, Peter V. Pappas, was convicted in the United States District Court for the Northern District of Illinois, Eastern Division, of conspiracy to commit mail fraud, mail fraud, and causing an individual to travel in interstate commerce with the intent to promote an unlawful activity (bribery). On March 31, 1977, he was suspended from the practice of law pursuant to Supreme Court Rule 761 (65 Ill. 2d R. 761). Respondent’s conviction was affirmed on appeal. Petition for certiorari was denied by the United States Supreme Court, and the mandate of the court of appeals issued on October 18, 1978.

A disciplinary hearing was scheduled for November 15, 1978. On November 14, respondent requested a stay pending appeal of the district court denial of his motion for a new trial. The Hearing Board of the Attorney Registration and Disciplinary Commission denied the request and rescheduled the hearing for December 14, 1978, at the Metropolitan Correction Center, where the respondent was incarcerated.

On April 19, 1979, the Hearing board unanimously recommended that the respondent be disbarred from the practice of law. The respondent filed exceptions with the Review Board and renewed his request to stay consideration pending the court of appeal’s decision concerning his motion for a new trial. The request was granted and the case was continued. In August of 1980 the Review Board was notified that the respondent’s motion for a new trial was denied. Oral arguments before the Review Board were scheduled for October 24, 1980. The respondent asked for and received a continuance until February 1981. In February the respondent filed a motion to remand the proceedings to the Hearing Board for a hearing on reinstatement. The motion was denied, oral arguments heard, and on June 30, 1981, the Review Board unanimously affirmed the recommendation of the hearing panel that the respondent be disbarred from the practice of law.

The facts particular to each disciplinary case are determinative in resolving what sanctions are to be ordered by this court. In re Taylor (1977), 66 Ill. 2d 567, 573; In re Nesselson (1966), 35 Ill. 2d 454, 461.

The court of appeals opinion in United States v. Craig (7th Cir. 1977), 573 F.2d 455, describes at length the details of the respondent’s conduct that led to his conviction.

The Northern Illinois Ready-Mix and Materials Association (hereinafter NIRMMA) is a trade association in the metropolitan Chicago area that represents the interests of the ready-mix-cement industry. In October of 1971 respondent was retained by NIRMMA to draft and steer the passage of a bill aimed at increasing the amount of ready-mix cement which industry trucks could haul legitimately on State roads.

At the time the respondent was employed as the administrative assistant to the Illinois Secretary of State. Shortly after being retained the respondent met with ready-mix industry representatives and indicated that his fee for drafting the legislation would be $5,000. The respondent also indicated that an unspecified amount of money would be required at a later time.

A good deal of money was required later to pay off some legislators to help get the legislation passed. On one occasion in late September of 1972 the respondent met with NIRMMA representatives in Westchester, Illinois, and accepted delivery of $30,000 in cash. The respondent acted as a conduit between some industry representatives and certain members of the Illinois legislature in orchestrating a major scheme of a mail fraud. Pappas saw to it that the right people were paid for their support.

When the respondent became aware of the Federal grand jury investigation he told one of the subpoenaed legislators, “Deny everything and if we all stick together, they won’t have any case ***.” Thirteen participants were convicted. Of the 13, the respondent was given the heaviest sentence — five years in prison and a fine of $10,000. The respondent’s conviction is conclusive on the question of guilt. In re Sherre (1977), 68 Ill. 2d 56; In re Hutul (1973), 54 Ill. 2d 209, 214.

Our concern in taking disciplinary action is to maintain the integrity of the profession. (In re Smith (1976), 63 Ill. 2d 250, 256.) While we are clearly not bound by the recommendations of the hearing panel, its findings are entitled to considerable weight as the trier of fact. (In re Hopper (1981), 85 Ill. 2d 318; In re Wigoda (1979), 77 Ill. 2d 154, 158.) The hearing panel unanimously recommended disbarment. The Review Board concurred. In affirming the recommendation of the Hearing Board the Review Board found that “[njothing in the record tends to mitigate the reprehensible conduct which resulted in this conviction and these proceedings.” We agree.

The final responsibility of determining what discipline should be imposed is ours. (In re Leonard (1976), 64 Ill. 2d 398, 406; In re Sherman (1975), 60 Ill. 2d 590, 593.) In In re Rosenthal (1978), 73 Ill. 2d 46, the court disbarred two attorneys who participated in an extortion scheme that culminated in a payoff being made to the secretary of the Chicago city council’s Committee on Building and Zoning. The extortion scheme in Rosenthal was initiated by the secretary and transmitted to a client that sought rezoning through the attorneys. Here the respondent initiated the scheme to bribe State legislators, brought the participants together, negotiated the amount of the bribe, and arranged the payoffs.

We seek to be fair in sanctioning attorneys before this court. In order to do so the court tries to be consistent in imposing sanctions for similar types of conduct. (In re Clayter (1980), 78 Ill. 2d 276, 283; In re Saladino (1978), 71 Ill. 2d 263, 275.) The misconduct of the respondent is more egregious than the respondents in Rosenthal. The facts of this case demand disbarment.

The respondent suggests that disbarment is inappropriate because such action by the court would mean the respondent would be required to wait a minimum of five years before filing a petition for reinstatement. (73 Ill. 2d R. 767.) This he asserts deprives him of any credit for the period from March 31, 1977, during which he has been suspended from practice. The respondent does not begin to persuade us; it is primarily his filings in Federal court and with the Hearing Board and Review Board that have caused the delay in this court’s reaching a final resolution.

Accordingly, the respondent is disbarred.

Respondent disbarred.

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