author:
      JUSTICE GOLDENHERSH
      JUSTICE UNDERWOOD,

text:
    (No. 55035.

      In re JAMES D. FREEL, Attorney, Respondent.

      Opinion filed February 19, 1982.

      UNDERWOOD, WARD and MORAN, JJ., dissenting.
    David Beckerman, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    James D. Freel, of Chicago, pro se.

   JUSTICE GOLDENHERSH

delivered the opinion of the court:

On May 9, 1980, the Administrator of the Attorney Registration and Disciplinary Commission (Commission) filed a one-count complaint against respondent, James D. Freel, who was admitted to the practice of law on November 19, 1954. A panel of the Hearing Board found that the Administrator had proved by clear and convincing evidence that respondent had failed to properly account for his client’s funds, had failed promptly, upon request, to pay and deliver the client’s funds, and had commingled the client’s funds with his own. The panel recommended that respondent’s license to practice law be suspended for three months. Both the Administrator and respondent filed exceptions to the report of the Hearing Board. The Review Board ordered that respondent be reprimanded. We allowed the Administrator’s petition for leave to file exceptions. 73 Ill. 2d R. 753(e).

On May 14, 1974, John Meyers was injured while working. Meyers retained respondent, and respondent negotiated a settlement of Meyers’ workmen’s compensation claim and was paid a fee. In 1975, Meyers asked respondent to represent him in a personal injury action against the company on whose premises he was injured. Meyers and respondent agreed orally to a one-third contingency fee. In' March 1976 respondent filed suit, and in November 1978 the case was settled for $2,500.

Respondent explained to Meyers that his former employer’s compensation carrier had claimed a lien on the settlement funds. Respondent negotiated a reduction of the lien to $1,000. The respondent received a check in the amount of $2,500 payable to Meyers and his wife, respondent, and the employer’s compensation carrier. Meyers and his wife endorsed the check in December 1978 and returned it to respondent. Respondent endorsed the check but did not send it to the employer’s insurance carrier until late February 1979. Between December 1978 and March 1979, Meyers telephoned respondent’s office and home at least two dozen times to inquire what had happened to the settlement money. Meyers also visited respondent’s Chicago office on two occasions, but was told each time that respondent was not in. During this period Meyers was unable to learn anything regarding the settlement. He mailed a complaint to the Attorney Registration and Disciplinary Commission, relating the foregoing events. The complaint was received by the Commission on March 7, 1979.

The employer’s compensation carrier received the fully endorsed check late in February. On March 1, 1979, it issued a check payable to Meyers and respondent in the amount of $1,500, the amount of the check less the amount agreed upon in settlement of the lien. On March 5, 1979, respondent mailed this check to Meyers for his endorsement. Meyers received the check after he had filed the complaint against respondent with the Commission. Nevertheless, on March 9, 1979, Meyers endorsed the check and returned it to respondent.

When respondent received the check he deposited $1,400 in his business account and took $100 in cash. Bank records admitted into evidence show a deposit in the amount of $1,400 on March 14, 1979. Respondent admitted that the account in which the money was deposited was his only business account. It was not a clients’ trust account or escrow account. Respondent did not prepare a settlement sheet or show Meyers receipts for court costs or doctor bills which were to be deducted from his share of the settlement.

Meyers again telephoned respondent about the settlement, but respondent, having learned of the complaint pending before the Commission, told Meyers to “buzz off.” He told Meyers that he would wait for the Commission to act before he disbursed any funds. In letters addressed to the Attorney Registration and Disciplinary Commission, dated March 23, 1979, and April 6, 1979, respondent stated that distribution of the funds awaited the directions of the Commission.

Meyers employed Sara Lyn Smith, an attorney, to recover the settlement funds. On September 26, 1979, respondent forwarded to Smith a check made out to Meyers and Smith in the amount of $468.25, the amount respondent asserted was due Meyers after deduction of expenses and court costs and respondent’s one-third contingency fee. The check was dated March 14, 1979. A handwritten settlement statement sent with the check showed that $498.75 was deducted for a “doctor’s bill” and $49.50 for “court costs.” Respondent had not previously mentioned the doctor’s bill to Meyers or Smith and had not shown either of them the bill. Smith deposited the check in her clients’ trust account, but the check, due to its “stale” date, was not paid.

Eileen Downey, an attorney sharing office space with Sara Lyn Smith, took over the matter and wrote respondent concerning the returned check. Respondent responded in a handwritten message stating, “I have placed the net proceeds previously tendered in the bank at Platteville, Wis. If you want it please advise. If you insist on more, file suit.” Downey testified that because of the vague language of the note and the fact that respondent did not indicate the name of the bank in which the funds were held, she did not consider this to be a settlement tender. She filed suit for $1,000, and the case was later settled for $700.

At the hearing before the Hearing Board panel, respondent explained that the check which he sent to Sara Lyn Smith on September 26, 1979, was dated March 14, 1979, because that was the date on which he had written in Meyers’ name, the date, and his signature. He did not calculate the amount due to Meyers and send him the check at that time because he hoped to negotiate a reduction of the doctor’s bill. When Smith demanded the money, he added her name to the check to secure her attorney’s lien and inserted the amount he thought was due and owing to Meyers.

Respondent testified that some time after depositing the funds he placed fourteen $100 bills with which he had intended to purchase “classical stamps” in an envelope and put the envelope in his file. He stated that he paid the doctor’s bill, in cash, out of these funds. The file in which this envelope was kept was lost for some time but was found shortly before the hearing.

Respondent also testified that after the check issued to Smith and Meyers was returned as a “stale” item, he went to Platteville and opened a bank account in the amount he felt was due and owing to Meyers. He stated that this was the account to which he referred in his communications to attorney Downey. He stated that, at the pretrial conference at which the suit filed by Downey was settled, she demanded cash. She refused to have the bank account handed over to her because respondent had indicated that there would be some delay in getting the proceeds of the account because it was a “90-day account.”

The hearing panel recommended that respondent be suspended from the practice of law for three months. On review, the Review Board of the Attorney Registration and Disciplinary Commission, in lieu of recommending disciplinary action by this court, issued a reprimand. The Review Board gave no reasons for its order.

The Administrator argues that the findings of the Hearing Board that the respondent had commingled his client’s funds with his own, had converted these funds to his own use, and had failed to account to his client concerning the handling of these funds were proved by clear and convincing evidence. He argues that the evidence also shows conversion of the funds and that respondent’s misconduct “warrants suspension from the practice.”

Respondent’s testimony is sufficient to support all three of the hearing panel’s findings. He admitted that he deposited the settlement check into his business account and not into a trust account. Rule 9—102 of the Code of Professional Responsibility provides that “all funds of clients paid to a lawyer or law firm, including funds belonging in part to a client and in part presently or potentially to the lawyer or law firm, shall be deposited in one or more separate identifiable trust bank accounts maintained in the State in which the law office is situated.” (81 Ill. 2d R. 9—102.) Respondent’s conduct clearly violated this rule. Respondent also admitted that he did not respond to his client’s inquiries as to what had happened to the settlement funds and, after learning of the complaint filed with the Commission, refused to turn over even the amount he believed was due and owing to his client. This violated subsection (c) of Rule 9—102:

“(c) A lawyer shall
* * *
(4) promptly pay or deliver to the client as requested by a client the funds *** in the possession of the lawyer which the client is entitled to receive.” 81 Ill. 2d R. 9—102(c).

The records of respondent’s bank account for the period from December 11,1978, to October 10,1979, were admitted into evidence. Except for eight days near the end of that period the balance shown exceeded the amount due Meyers. Average daily balances during any 30-day period ranged from a high of $6,944.31 to a low of $633.33. While it might be argued under In re Clayter (1980), 78 Ill. 2d 276, 283, that there was a “technical conversion” of the funds, the hearing and review boards did not err in refusing to find that respondent had converted his client’s funds.

Respondent’s contention that because he kept the funds in an envelope there was no commingling is not supported by the authorities. Similar practices were disapproved in In re Clayter (1980), 78 Ill. 2d 276, and In re Lingle (1963), 27 Ill. 2d 459.

Respondent was apparently of the opinion that after the filing of the complaint with the Commission it was proper for him to refuse to attempt to settle the dispute concerning his client’s funds. The pendency of the charge that an attorney is improperly withholding clients’ funds does not suspend the attorney’s duty imposed by Rule 9 — 102(c)(4) to immediately pay over clients’ funds upon request. As an attorney, respondent should have known that the Attorney Registration and Disciplinary Commission had no jurisdiction to issue orders concerning the disbursement of those funds.

We consider the question of the appropriate sanction to impose in this case. This court has consistently condemned the practice of commingling clients’ funds with those of the attorney. (In re Clayter (1980), 78 Ill. 2d 276, 281; In re Sherman (1975), 60 Ill. 2d 590.) While each case is unique, we have held that “Predictability and fairness require that there be a degree of consistency in the sanctions imposed for similar types of conduct ***." (In re Hopper (1981), 85 Ill. 2d 318, 324.) Sanctions should be imposed consistent with those imposed in cases with factual situations substantially similar to the case under consideration. (In re Clayter (1980), 78 Ill. 2d 276, 283.) Although it is not necessary that an attorney act with dishonest motives to warrant discipline (78 Ill. 2d 276, 283; In re Bloom (1968), 39 Ill. 2d 250, 254), cases involving infractions of the rules similar to those shown here have usually warranted censure of the attorney. (See In re Clayter (1980), 78 Ill. 2d 276, 283; In re Sherman (1975), 60 Ill. 2d 590, 592.) The facts in Clayter and Sherman are similar to those here. Respondent has practiced law since 1954, and this appears to be the only incident involving unprofessional conduct. We conclude that on this record the appropriate sanction is censure.

Respondent censured.

JUSTICE UNDERWOOD,

dissenting:

I cannot agree that no conversion occurred here, nor do I agree that censure is an adequate sanction for the insensitivity to his professional responsibilities which respondent has manifested.

It is undisputed that for two months after securing Meyers’ (his client’s) endorsement thereon respondent, for no apparent reason, delayed forwarding to the compensation insurer a check received in settlement of Meyers’ action against a third party. During that period he completely ignored the client’s numerous calls and visits inquiring about the settlement proceeds. After respondent finally acted and received the $1,500 due Meyers, it was deposited in respondent’s personal account, the balance in which subsequently fell below the amount owed the client.

Respondent received the $1,500 early in March 1979. He made no effort to distribute to Meyers the money to which he was entitled until Meyers employed other counsel to collect the funds. Respondent in September, six months late, forwarded to that attorney a check dated March 14 for an amount substantially less than anticipated by Meyers. Most of the difference was claimed by respondent to represent an unpaid doctor’s bill. Respondent’s check was not honored by the drawee bank because of its date. Respondent’s explanation of the stale date was that he had written the client’s name and the date on the check and signed it on March 14, but did not fill in the amount because he hoped to compromise the doctor’s bill.

Respondent also stated that when he deposited the client’s $1,500 check in his personal account he kept $100 in cash, and that he subsequently withdrew $1,400 in $100 bills which he placed in an envelope in his file. From this, he stated, he paid the doctor’s bill. Meyers eventually received $700 after being compelled to file suit to secure his money.

When a lawyer places money belonging to a client in his personal account, as respondent did here, instead of in a trust account, he has, of course, violated the prohibition against commingling codified in Rule 9—102 of the Code of Professional Responsibility (81 Ill. 2d R. 9—102). When that account is dissipated by him to the point where it no longer equals or exceeds the amount due the client, the commingling becomes conversion, as the Hearing Board held in this case, and as we have repeatedly indicated. (In re Grant (1982), 89 Ill. 2d 247; In re Clayter (1980), 78 Ill. 2d 276; In re Bloom (1968), 39 Ill. 2d 250.) Whether respondent might have been able to secure funds from other sources with which to pay the client may be a relevant argument in mitigation of punishment, but on the issue of conversion that argument was said by this court in In re Brody (1976), 65 Ill. 2d 152, 157, to be “groundless.” See also In re Kesler (1982), 89 Ill. 2d 151.

Even assuming the truth of respondent’s testimony that he had placed fourteen $100 bills in a file which was subsequently “lost” until just before the hearing, that money was apparently not intended for his clients, since he stated he intended to buy “classical stamps” with the balance remaining after his claimed payment of the doctor’s bill. In any event, such handling of clients’ funds has been consistently condemned by this court. In re Clayter (1980), 78 Ill. 2d 276; In re Lingle (1963), 27 Ill. 2d 459.

Phrased in its simplest terms, what we have before us is a lawyer who neglected for two months to collect a check due his client, meanwhile ignoring repeated phone calls and office visits by the client; then he finally acted but deposited the proceeds therefrom in his personal account, which was subsequently depleted to the point where it was insufficient to cover the amount owed the client; thereafter, he neither gave nor sent to the client even the amount respondent admitted owing until after the client secured another attorney and filed suit.

This court has frequently spoken of its responsibility to disclipline the legal profession. (In re Neff (1980), 83 Ill. 2d 20, 25; In re Zahn (1980), 82 Ill. 2d 489, 494; In re Sherman (1975), 60 Ill. 2d 590, 593.) In In re Abbamonto (1960), 19 Ill. 2d 93, 98, we said and repeated in In re Bloom (1968), 39 Ill. 2d 250, 254: “It is vital to the well-being of society that an attorney, who is an officer of the court and a part of our judicial system, should maintain the most scmpulous care in conducting his professional and business affairs.” If the protection to the public which our adoption of the Code of Professional Responsibility was intended to provide is to be meaningful, something more than censure is needed here.

WARD and MORAN, JJ., join in this dissent.


source: Caselaw Access Project

author: JUSTICE CLARK

license: Public Domain

text:
    (No. 54180.
    JUNIOR C. OSTENDORF et al., Appellees, v. INTERNATIONAL HARVESTER COMPANY et al. (International Harvester Company, Appellant).

      Opinion filed February 19, 1982.
    Modified on denial of rehearing March 25, 1982.

      Thomas, Mamer & Haughey, of Champaign, and Lord, Bissell & Brook, of Chicago (William J. Brinkman, Richard E. Mculler, and Hugh G. Griffin, of counsel), for appellant.
    Cook, Shevlin & Keefe, Ltd., of East St. Louis (Bruce N. Cook and Thomas Q. Keefe, Jr., of counsel), for appellees.
   JUSTICE CLARK

delivered the opinion of the court:

Junior C. Ostendorf was injured by fire on October 26, 1973, while operating an International Harvester model 806 tractor. The fire began when the fuel tank filler cap allegedly “blew off” under pressure, causing gasoline to gush out of the tank and ignite. Junior and his wife, Betty Ostendorf, filed suit against International Harvester and Joseph Brewer, owner of the tractor, on May 2, 1974, in the circuit court of Champaign County. Counts II and III of the multicount complaint were based upon strict products liability. They alleged that the design and manufacture of the gas tank and gas cap on the tractor rendered it unreasonably dangerous when put to its intended use. The jury returned a verdict in favor of both defendants. Judgment was entered on the verdict on December 17, 1975, and was affirmed on appeal. Ostendorf v. Brewer (1977), 51 Ill. App. 3d 1009, appeal denied (1978), 67 Ill. 2d 593.

On May 25, 1979, the Ostendorfs filed a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72) seeking to set aside the 1975 judgment in favor of International Harvester. The petition alleged that International Harvester had fraudulently concealed evidence during the earlier litigation which, if disclosed, would have enabled them to prove the existence of a design defect and prevented the court from entering judgment for International Harvester. Petitioners attached an affidavit and documents in support of their allegations that International Harvester had given false answers to interrogatories in the earlier action. Defendant Brewer was not involved in the section 72 proceeding.

International Harvester entered a special appearance and moved to dismiss the petition. As grounds for its motion, International Harvester asserted that the facts alleged in the petition, even if proved, would not constitute fraudulent concealment. It further asserted that the petition was untimely, since it had been filed more than two years after entry of the judgment sought to be vacated. Under section 72(3), the petition must be filed not later than two years after the entry of judgment, unless the running of the limitations period is tolled by the legal disability of the petitioner, by duress, or by fraudulent concealment of the ground for relief. (Ill. Rev. Stat. 1979, ch. 110, par. 72(3).) International Harvester contended that the limitations period had run on the Ostendorfs’ petition, and that since the allegations of the petition did not amount to fraudulent concealment, the statute had not been tolled.

The circuit court, after hearing the arguments of counsel, took the matter under advisement. On December 11, 1979, it granted International Harvester’s motion to dismiss, finding that the petition’s allegations of fraudulent concealment were “not sufficiently substantiated,” and that the petition was therefore not timely. The appellate court reversed and remanded the cause for an evidentiary hearing on the issue of fraudulent concealment, as well as the other issues raised by the petition. It expressed no opinion on the merits. (88 Ill. App. 3d 316, 319.) We granted leave to appeal. 73 Ill. 2d R. 315.

We first consider whether the circuit court properly dismissed the Ostendorfs’ petition. Although a section 72 petition is filed in the same action in which the judgment it seeks to vacate was entered, it is not a continuation thereof. (Ill. Rev. Stat. 1979, ch. 110, par. 72(2).) The petition is in fact a new action and is subject to the usual rules of civil practice. (Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 505; Davis, The Scope of Section 72 of the Civil Practice Act, 55 Ill. B.J. 820 (1967).) Where it fails to state a cause of action or shows on its face that the petitioner is not entitled to relief, a section 72 petition is subject to a motion to dismiss. (Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 505.) On a motion to dismiss, therefore, a section 72 petition is to be considered in the same manner as a civil complaint. Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 610; Glenn v. People (1956), 9 Ill. 2d 335, 340-41.

A motion to dismiss admits all well-pleaded facts. Its purpose is to raise an issue of law as to the legal sufficiency of the allegations of the complaint. (Brokaw Hospital v. Circuit Court (1972), 52 Ill. 2d 182, 185.) We have repeatedly held that a motion to dismiss should not be granted unless it clearly appears that no set of facts could ever be proved that would entitle the plaintiff to recover. Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 187, and cases there cited.

In granting International Harvester’s motion to dismiss, the circuit court concluded that, even taking the allegations of the Ostendorfs’ petition as true, International Harvester’s conduct as there described did not in law amount to fraudulent concealment. International Harvester has taken the same position in this court, arguing vigorously that the facts alleged in the petition, even if proved, would not establish fraudulent concealment. We disagree.

Petitioners alleged that International Harvester gave false answers to interrogatories and withheld test reports and other information demanded by the interrogatories. Specifically, it is alleged that petitioners’ interrogatory No. 17 asked for information concerning any tests conducted by International Harvester on the fuel system of the model 806 tractor. International Harvester responded, “Detailed records concerning specific tests are no longer available.” In other interrogatories, the Ostendorfs asked whether any officer or employee of International Harvester ever stated an opinion to any supervising or managerial employee recommending against the use of the gas tank incorporated in the 806 tractor, or in any other tractors utilizing the same or a similar system, and whether International Harvester had ever received any recommendations from any person or company against using the gasoline tank and electrical harness incorporated in the 806 tractor or in any prior or subsequent model years that used the same or similar systems because of the hazards they may have posed to the operator. In both cases International Harvester’s response was “Not to our knowledge.”

With their petition the Ostendorfs submitted documents obtained from International Harvester by petitioners’ current counsel, Bruce N. Cook. According to his affidavit, the documents were obtained during his representation of a different party in another matter (Gauges v. International Harvester Co., Civil No. 76L2050, Circuit Court of St. Clair County), apparently involving an incident similar to the one in this case. Among them is an eight-page report, dated August 21, 1964, of fuel loss by vaporization through the fuel cap vent and fuel tank pressures in the 806 tractor, conducted by International Harvester’s research engineers. It states in part, “Maximum fuel tank pressures ranged from 4.3 to 4.9 psi, constituting a definite safety hazard.” Another report, dated May 26, 1965, concerns recommendations of design changes for a prototype tractor which was to have a design similar to the 806, to avoid “all the fuel tank heating and vaporization problems that have arisen on other IH tractors with similar design.” The report refers to tests on various tractors, including the 806. It states in part: “Tests on an 806 gasoline tractor indicate that as much as 5% fuel can be lost due to vaporization during field operation. °°° Vaporization of the fuel raises the fuel tank pressure which constitutes a safety hazard. *** The Test Group strongly recommends that the fuel tank be relocated to eliminate the safety hazard.”

Taking, as we must, the petition’s allegations as true, we must assume that International Harvester had knowledge of the existence of the reports yet failed to produce them when requested. The existence of these reports, which are clearly material embraced by the interrogatories, demonstrates International Harvester’s failure to comply with the requirements of full and frank disclosure imposed by our discovery rules. In light of these documents, International Harvester’s responses were, if not outright falsehoods, half-truths of the type condemned in Buehler v. Whalen (1977), 70 Ill. 2d 51, 64-68. In the context of discovery, which is supposed to be conducted in good faith and a spirit of cooperation for the purpose of ascertaining the truth, such half-truths are equivalent to outright lies. They have the effect of affirmative concealment, since they imply that there is no information or evidence to be sought. They inevitably tend to mislead opposing counsel into the belief that further inquiry is not needed.

We have very recently reiterated our views of the purpose of discovery and the conduct expected of parties in the discovery process. Discovery is intended to be a mechanism for the ascertainment of truth, for the purpose of promoting either a fair settlement or a fair trial. It is not a tactical game to be used to obstruct or harass the opposing litigant. (Williams v. A. E. Staley Manufacturing Co. (1981), 83 Ill. 2d 559, 564-66, and cases there cited.) “Fractional disclosure” in discovery is not the disclosure contemplated by our discovery rules. (Buehler v. Whalen (1977), 70 Ill. 2d 51, 67-68.) We hold that, as a matter of law, failure to comply with the obligation of full and truthful disclosure imposed on litigants by our discovery rules constitutes fraudulent concealment for purposes of tolling a statute of limitations.

Since it did not clearly appear that petitioners could never have proved any set of facts that would entitle them to relief, the motion to dismiss should not have been granted. We therefore reverse the circuit court’s order dismissing the Ostendorfs’ petition.

This case is somewhat unusual in that the questions whether the statute of limitations was tolled and whether petitioners have a valid claim under section 72 overlap, since fraudulent concealment is an issue in both. The petition alleged that if the evidence concealed by International Harvester had been introduced at trial, it would have prevented the entry of judgment against the Ostendorfs. The motion to dismiss did not address this issue, nor was it considered by the circuit court. The appellate court, though it did not address the merits of the petition, briefly stated its views on the procedures to be followed after remand and what petitioners would have to prove to show themselves entitled to relief. As an aid to determination of the case on remand, we add our observations on these points.

In general, to be entitled to relief from judgment, the petitioner must prove (1) that if the ground for relief had been known at trial it would have prevented the entry of judgment against him, and (2) that failure to discover and present the ground for relief was not the result of his own lack of diligence. (Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 504-05; People v. Touhy (1947), 397 Ill. 19, 24-26; Davis, The Scope of Section 72 of the Civil Practice Act, 55 Ill. B.J. 820 (1967).) International Harvester has argued vehemently in this court that newly discovered evidence can never be a ground for setting aside a judgment under section 72. It is true that language to this effect can be found in many of our cases. (People v. Colletti (1971), 48 Ill. 2d 135, 137; Schuman v. Department of Revenue (1967), 38 Ill. 2d 571, 574; People v. Touhy (1947), 397 Ill. 19, 25.) However, closer examination reveals that in these cases and indeed in all the cases we have found in which newly discovered evidence was held not to be a sufficient ground for relief under section 72, it was for one of two reasons: either the losing litigant, through the exercise of ordinary diligence, could have discovered and produced the evidence at trial; or the evidence was not of so material and controlling a nature that it probably would have changed the outcome of the trial. (People v. Berland (1978), 74 Ill. 2d 286, 316; Crane Co. v. Parker (1922), 304 Ill. 331, 337; County Board of School Trustees ex rel. Hinsdale Township High School District No. 86 v. Association of Franciscan Fathers (1977), 49 Ill. App. 3d 686, 696; cf. Pritchett v. Steinker Trucking Co. (1968), 40 Ill. 2d 510 (motion for new trial on basis of newly discovered evidence).) The cases do not say that newly discovered evidence cannot be the basis for relief under section 72, but only that certain conditions must be satisfied before relief will be granted. As stated in Crane Co. v. Parker:

“If, however, a party has made every effort in his power to discover evidence and failed, when after-wards discovered courts of equity *** will, when satisfied that such newly discovered evidence would have produced a different result if it had been known in proper time and that the judgment is unjust, grant a new trial.” 304 Ill. 331, 337.

International Harvester also urges that newly discovered evidence that is “merely cumulative” of evidence already presented at trial is not sufficient grounds for setting aside a judgment. (Crane Co. v. Parker (1922), 304 Ill. 331, 337.) To say that new evidence is “cumulative” of evidence previously presented is simply to state the conclusion that, had the new evidence been introduced at trial, it would not have changed the result, because it added nothing to what was already before the jury. Especially in a products case it seems difficult to conclude that additional reports of tests and opinions of experts would not change the result. One expert opinion that a particular design feature constitutes a safety hazard is simply one opinion. But several similar opinions may add up to a design defect, especially when the experts are the manufacturer’s employees.

As regards petitioners’ diligence in discovering the ground for relief, we think a litigant exercises ordinary diligence in pretrial discovery when he poses interrogatories reasonably calculated to elicit the information important to his case. If his opponent then suppresses information within the scope of the interrogatories in such a way as to prevent the inquirer from realizing what has occurred, the failure to discover the information is the result of the former’s fault, not of the latter’s negligence. International Harvester points to County Board of School Trustees ex rel. Hinsdale Township High School District No. 86 v. Association of Franciscan Fathers (1977), 49 Ill. App. 3d 686, in which the school board gave a false answer to an interrogatory that asked about the existence and contents of a report by a former board member. The appellate court found there was no fraudulent concealment — but this was because the report in question was a public document which the petitioner could have obtained at any time. The distinction from the present case is obvious.

One of the guiding principles in the administration'of section 72 relief is that the petition invokes the equitable powers of the court, which should prevent enforcement of a judgment when it would be unfair, unjust, or unconscionable. (Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 613; Ellman v. De Ruiter (1952), 412 Ill. 285, 292.) We note that in both these cases the unfair conduct of counsel was a factor in the court’s determination that section 72 relief was warranted. As the court stated in Elfman, “ ‘Something more than the morals of a medieval market may reasonably be expected in the conduct of litigation.’ ” 27 Ill. 2d 609, 615, quoting Jansma Transport, Inc. v. Torino Baking Co. (1960), 27 Ill. App. 2d 347, 354.

The appellate court remanded this case with instructions to the circuit court to hold an evidentiary hearing involving the testimony of witnesses and the opportunity to cross-examine. This court has not previously discussed whether or when a trial judge is required to conduct an evidentiary hearing before granting or denying a section 72 petition. The appellate court has developed the rule that where the affidavits supporting and opposing a petition do not controvert one another, judgment may, in light of the language of section 72(2), be entered on the basis of the affidavits. (Isaacs v. Shoreland Hotel (1963), 40 Ill. App. 2d 108.) Where, however, the central facts of a section 72 petition are controverted, an evidentiary hearing must be held. Mercantile All-In-One Loans, Inc. v. Menna (1978), 63 Ill. App. 3d 931; McKinnon v. Yellow Cab Co. (1975), 31 Ill. App. 3d 316; Wilson v. Wilson (1965), 56 Ill. App. 2d 187.

We believe that this rule is sound. In a section 72 proceeding, as in a proceeding on a summary judgment motion, factual disputes may arise that cannot be resolved solely on the basis of pleadings, affidavits, and the record of the prior proceeding. Where there is a genuine dispute as to an issue of fact, that issue must be determined by the trier of fact. (Ray v. City of Chicago (1960), 19 Ill. 2d 593.) We do not in this case decide whether a full-blown trial-type hearing is always required when litigants present contradictory affidavits. Section 72 petitions are directed to the discretion of the trial judge, who must in the first instance decide whether a factual dispute is present.

In this case, however, we believe it was inappropriate for the appellate court to order the circuit court to conduct an evidentiary hearing. International Harvester has not yet answered the section 72 petition on the merits, or alleged any facts controverting petitioners’ contentions that it deliberately withheld material of which its employees had knowledge and which was within the scope of the interrogatories, and that the material would probably have prevented the entry of judgment against the Ostendorfs. Its motion to dismiss raised a legal issue rather than a factual one. Once International Harvester has answered, the circuit court will be in a position to determine whether a factual dispute exists as to these central issues and, if so, to hold an evidentiary hearing if the issues cannot be resolved on the basis of the pleadings, affidavits, and supporting materials submitted. Accordingly, we vacate the judgments of the appellate and circuit courts and remand the cause to the circuit court for further proceedings consistent with this opinion.

Judgments vacated; cause remanded.


author: JUSTICE MORAN

text:
    (No. 54796.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Appellee.

      Opinion filed February 19, 1982.
    Rehearing denied March 25, 1982.

      Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey, Deputy State’s Attorney, and Henry A. Hauser, Assistant State’s Attorney, of counsel), for- the People.
    Sidley & Austin, of Chicago (J. Robert Barr, Frederic J. Artwick, and Joanne M. Frasca, of counsel), for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

The State brought an action against defendant, International Business Machines Corporation (IBM), for nonpayment of $2,595,394.86 in personal property taxes pursuant to the Cook County assessor’s 1976 assessment. The circuit court of Cook County found constructive fraud in the assessor’s 1976 personal property assessment and entered judgment in favor of IBM. The appellate court affirmed (93 Ill. App. 3d 564), and we granted the State leave to appeal.

The issue is whether the trial court’s finding of constructive fraud in IBM’s 1976 personal property tax assessment is supported by clear and convincing evidence.

The parties stipulated to the admission of many facts and documents into evidence which were thoroughly enumerated by the appellate court. To summarize briefly, for the years 1972 through 1976, IBM timely filed corporate personal property tax returns which showed valuations for all classes of personal property owned by IBM and located, or having a business situs, in Cook County. For 1976, the assessor entered assessed valuations for all classes of personal property at IBM’s locations in the precise amount set forth on its return. However, the assessor increased the value of the portion of line-item 10, entitled “machines & tools used by IBM & with customers,” attributable to One IBM Plaza, from $26,709,080 to an assessed value, before equalization, of $47,376,414. IBM arrived at its valuation for line-item 10 in accordance with the 1976 Rules of Valuation published by the assessor. Those rules provided:

“Depreciable assets, Item Nos. 8 and 10 should be reported at 35$ of Net book value (Net book value is determined by deducting accumulated depreciation from original cost.) Assets depreciated to less than 20$ of their original value should be reported at 20$ as long as they possess some degree of utility to the owner.”

The assessed value entered by the Cook County collector was approximately 62$ of the net book value of IBM’s machinery and equipment as earlier quoted. IBM made available to the assessor its 1976 inventory of data processing machines with its 1976 personal property tax return. The inventory consisted of a three-volume computer printout showing the description, type and serial number, manufacturing cost, depreciated manufacturing cost, and the date of manufacture for each item of machinery and equipment owned by IBM and leased to customers located in Cook County on April 1, 1976.

IBM paid personal property taxes to the Cook County collector for 1976 in the amount of $3,591,925.68 based upon its assessment of personal property. The State sought an added $2,595,394.86 based on its assessment of defendant’s personal property.

The only evidence offered by the State was admitted pursuant to stipulation. It consisted of the 1976 tax bill, IBM’s 1976 personal property tax return and supporting documents, a worksheet of the assessor indicating the increase in valuation made by him, and a stipulation that $2,595,394.86 had not been paid. IBM offered the following documents, pursuant to stipulation, which the court admitted into evidence: The three-volume inventory printout described above, IBM’s personal property tax returns for 1972-76 and supporting documents filed therewith, and the Rules of Valuation of the Cook County assessor for each of the years 1972 through 1976.

IBM also offered the evidence deposition of James Meehan, which was admitted into evidence without objection. Meehan was chief of the personal property division of the Cook County assessor’s office and was principally responsible for the assessment of IBM’s personal property located in Cook County in 1972 through 1976. Meehan testified that on or about April 1, 1976, taxpayers were sent the 1976 Rules of Valuation along with personal property tax returns. The rules informed taxpayers of the procedure that should be followed in valuing their personal property. Meehan stated that for every year from 1972 through 1976 he calculated an increase that brought IBM’s total reported valuation for all personal property up to the previous year’s total assessed valuations. That total increase was added on to line-item 10. Meehan testified that $21,667,334 had to be added to bring the total 1976 valuation figure reported by IBM up to the 1972 through 1975 levels. He then stated that for some unknown reason he deducted $1 million from the increase, bringing it to $20,667,334. This amount was then added to line-item 10.

Meehan also testified that in 1972 IBM had submitted an inventory printout similar to the one in the instant case which he did not attempt to study because it would have been a “back-breaking job” and that one had been offered to him for the year 1973 which he refused to inspect. The 1976 computer printout was not submitted to the assessor, but was available to him. Meehan, however, did not attempt to obtain the printout nor did he tell IBM’s attorney what information would satisfy him. Rather, he used the previous year’s valuation figure. Meehan also stated that IBM’s attempts to explain its 1976 schedule were not “sufficient under the circumstances.” As the appellate court noted, Meehan was unable to identify any additional information that could be used to verify IBM’s reported valuation.

Richard Norcross, a tax analyst for IBM who prepared IBM’s Cook County personal property tax returns in 1976, testified as to how the three-volume printout containing the personal property information was compiled. Following compilation of that information, the total figures in the printout were transferred to IBM’s consolidated balance sheet. Norcross testified that these totals were used in completing the multiple-recap sheet submitted along with the 1976 return. He testified that the line-item 10 valuation was based upon (1) data processing machines with customers, (2) uninstalled machines at branch offices and warehouses, (3) IBM diagnostic tools at branch offices and warehouses, and (4) data processing machines at branch offices. The actual figure for line-item 10 was arrived at by taking 35% of the net book value of those items in accordance with the assessor’s rules. Nor cross also testified that the valuations for all the other line items of property on the multiple-recap sheet were determined by following a similar procedure, in each case applying the proper percentage in accordance with the Rules of Valuation. The total valuations for each class of property for all locations were then transcribed in the 1976 personal property tax schedule under “Owner’s Valuation.”

The return, after being reviewed, was sent to John Dixon, director of excise and property taxes at IBM, who signed it. Dixon testified as to how IBM arrived at the values for machinery and equipment. He explained that the original cost figure represented labor, overhead and material that was needed in fabricating, assembling and testing each of the units of equipment. Dixon testified that the figures for depreciated cost value on the printout were arrived at by deducting accumulated depreciation from the original cost. He stated that the depreciated cost reported on the personal property tax return was never less than 20% of original cost, as per the assessor’s Rules of Valuation.

The circuit court found that IBM had correctly reported the value of property on its 1976 return in accordance with the assessor’s Rules of Valuation and had offered to support its valuations with detailed data. It found that the assessor arbitrarily increased IBM’s assessment to that of the previous year, minus an unexplained $1 million. The court concluded that this constituted constructive fraud, and that IBM had rebutted the presumption that the assessment was proper with “clear and sufficient evidence.”

As noted by the appellate court, a property assessment for tax purposes will be reviewed only upon a showing of fraud or constructive fraud. (La Salle National Bank v. County of Cook (1974), 57 Ill. 2d 318, 323; People ex rel. Nordlund v. S.B.A. Co. (1966), 34 Ill. 2d 373, 376.) An assessment is presumed proper; the taxpayer must establish by clear and convincing evidence that fraud has been committed in the valuation of his property. Clarendon Associates v. Korzen (1973), 56 Ill. 2d 101, 104; People ex rel. Reinhardt v. McRoberts (1961), 22 Ill. 2d 282, 285; People ex rel. Johnson v. Robison (1950), 406 Ill. 280, 283.

Some guidelines have been established for the proof necessary to establish constructive fraud. Assessments that are disproportionately higher than those for similar property or assessments that are based on the assessor’s own private opinion showing a lack of knowledge or a lack of honest judgment are indicative of constructive fraud. (Clarendon Associates v. Korzen (1973), 56 Ill. 2d 101, 104-05; People ex rel. Nordlund v. Lans (1964), 31 Ill. 2d 477, 479; Aldrich v. Harding (1930), 340 Ill. 354, 358; People ex rel. Carr v. Stewart (1924), 315 Ill. 25, 30.) Similarly, overvaluation may be so excessive, under some circumstances, as to justify the conclusion that it was not honestly made and, therefore, is constructively fraudulent. (Clarendon Associates v. Korzen (1973), 56 Ill. 2d 101, 104-05; People ex rel. Paschen v. Hendrickson Pontiac, Inc. (1957), 12 Ill. 2d 477, 480; People ex rel. Callahan v. Gulf, Mobile & Ohio R.R. Co. (1956), 8 Ill. 2d 66, 69-70.) Once the presumption of the validity of the assessment is overcome, it becomes incumbent upon the assessor to produce evidence to justify the assessment. (People ex rel. Hillison v. Chicago, Burlington & Quincy R.R. Co. (1961), 22 Ill. 2d 88, 100.) Moreover, a determination of whether the assessor has committed constructive fraud depends upon the facts and circumstances of each particular case. People ex rel. Nordlund v. S.B.A. Co. (1966), 34 Ill. 2d 373, 378; Chicago & North Western Ry. Co. v. Department of Revenue (1955), 6 Ill. 2d 278, 283-84, cert. denied (1956), 351 U.S. 950, 100 L. Ed. 1474, 76 S. Ct. 844.

The State argues that the trial court’s finding of construe-live fraud in IBM’s 1976 personal property tax assessment was erroneous and unsupported by clear and convincing evidence. It contends that the assessor’s valuation did not constitute arbitrary behavior indicative of constructive fraud. To support this contention, the State points to IBM’s failure to challenge the assessment at the 1971 level until 1976, the failure by IBM to clear up the uncertainty as to what its figures really meant, and IBM’s application of 35% of the net book value, which it alleges did not accurately reflect the fair cash value of its personal property.

We find no merit to these points. We first note that IBM did not suddenly arrive at a valuation $20 million lower in 1976. IBM had submitted a valuation figure for each of the years 1972 through 1975 that was raised approximately $20 million by the assessor in order to reach the 1971 value. IBM’s decision to first challenge the assessment for 1976 in no way establishes that the valuation, which automatically placed its personal property at the previous year’s level, was justified.

As to IBM’s failure to clear up the uncertainty as to what its figures meant and its use of an allegedly improper method in arriving at a 1976 valuation, we note that the three-volume computer printout was available to the assessor. The printout listed the name, customer number and address of each customer that leased IBM equipment in Cook County. The printout further contained a description of each piece of leased equipment, its type and serial number, manufacturing cost, depreciated cost, and date of manufacture. The figures in the printout were used to compute the valuations entered on IBM’s consolidated balance sheet, multiple-recap sheet, and return schedule in 1976. Further, these figures were reached according to the assessor’s Rules of Valuation, rules which Meehan testified the assessor’s office followed and rules which were sent to all taxpayers along with the personal property tax schedules. These rules required each taxpayer to value its machinery and equipment at 35% of its net book value on its personal property tax schedule.

The State, in effect, is arguing that IBM should have ignored these rules and used another method in arriving at its valuation. Yet, the assessor neither looked at the printout nor advised IBM’s attorney what information would satisfy him. Instead, according to Meehan’s own testimony, the 1976 assessment was based solely on the total valuation for all IBM’s personal property entered in 1975 (which in turn was based on the total valuation of the previous years). There was no attempt by the assessor to make its assessment based upon the depreciated value of IBM’s personal property. Nor did the assessor present any evidence indicating that the prior year’s valuation reflected a more accurate portrayal of the fair cash value of IBM’s personal property than the valuation reached by using the net book value prescribed by the assessor’s own rules. Indeed, the assessor failed to demonstrate that the previous year’s valuation bore any relationship to the fair cash value of the property. See People ex rel. Rhodes v. Turk (1945), 391 Ill. 424, where this court stated in relation to a formula used by the assessor to determine the value of a 60-year-old building:

“There is nothing in the record to explain the formula, *** The assessor does not pretend to give an independent estimate of fair market value. By his. sole reliance upon a formula not explained, and not shown to have any relation to market value, the appellee is in the position of having no proof of value in the record, except what appears upon the assessor’s books.” 391 Ill. 424, 426.

See also People ex rel. Wangelin v. Gillespie (1934), 358 Ill. 40, 46-47, and Aldrich v. Harding (1930), 340 Ill. 354, 358-59 (cases in which assessments made solely on the basis of assessments from previous years, where the assessor refused to consider evidence reflecting recognized elements of value, were held to be arbitrary and constructively fraudulent).

The State also argues, based on Illinois Bell Telephone Co. v. Rosewell (1980), 82 Ill. App. 3d 975, that the assessor may properly rely on the prior year’s assessment when the schedules submitted by the taxpayer were unacceptable. However, as recognized by the appellate court in this case, Illinois Bell is clearly distinguishable. There, it was disputed whether the taxpayer supplied the assessor with proof of value based on any standard. Moreover, in that case, the taxpayer’s own records showed the actual cash value of its personal property was over $200 million more than it reported on its tax schedule for the year in question. Here, IBM made available to the assessor a comprehensive list detailing the value of its personal property as set out on its return, a list compiled pursuant to the assessor’s own rules. (Compare People ex rel. Tedrick v. Allied Oil Corp. (1944), 388 Ill. 219, and People ex rel. Reinhardt v. McRoberts (1961), 22 Ill. 2d 282, where the assessor’s valuations were not arbitrary and where the taxpayers failed to introduce any evidence supporting their reported valuations.) In addition, in this case the assessor arbitrarily and without explanation reduced the assessment by $1 million. As Meehan testified, “I just can’t account for it.”

The State argues that the trial court incorrectly ruled that the assessor was bound by the rules and valuation in assessing the property. As the appellate court noted, the trial court did not so rule; the trial court merely noted that the assessor failed to follow the instructions it mailed to taxpayers, but that the taxpayer IBM did follow them.

In People v. Commonwealth Edison Co. (1941), 376 Ill. 70, this court held that a personal property assessment in which the assessor arbitrarily cut the taxpayer’s reported depreciation from 40% to 20%, where the 40% depreciation had been determined in accordance with the assessor’s own rules of valuation, constituted constructive fraud. The court stated:

“Counsel for the appellant argue that the assessor is not bound by the items of valuation stated in the schedules but is empowered to fix the fair cash value of those items without regard to the amount returned, and this is true, but he has a duty to value the property by the exercise of honest judgment, and this with due consideration of the constitutional injunction pertaining to uniformity of taxation. No inspection was made by the assessor. No attempt was made to fix the fair cash value of appellee’s personal property but the assessor applied to the undepreciated original cost of that property as shown by appellee’s books, the arbitrary depreciation of twenty per cent. It is apparent from the examination of this record that the assessment made against appellee was discriminatory.” 376 Ill. 70, 79.

Similarly, in this case, not only did the assessor fail to follow his own rules, but the method he employed did not take into account the value of IBM’s personal property according to any recognized elements of value. Rather, the assessor’s assessment was arbitrarily based upon the previous year’s valuation. Further, the unexplained $l-million reduction in the 1976 assessment, dropping it below the prior year’s valuation, illustrates the arbitrary manner by which the entire assessment was determined.

We hold that defendant established by clear and convincing evidence that the 1976 assessment was constructively fraudulent. Inasmuch as the assessor presented no evidence to justify the assessment, the trial court did not err in concluding that IBM’s 1976 assessment was arrived at in a constructively fraudulent manner.

For the above-stated reasons, the judgment of the appellate court is affirmed.

Judgment affirmed.


author: JUSTICE WARD

text:
    (No. 53902.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. RANDY VAN CLEVE et al., Appellees.

      Opinion filed January 21, 1982.
    Rehearing denied March 25, 1982.

      • Tyrone C. Fahner, Attorney General, of Springfield, and Dennis P. Ryan, State’s Attorney, of Waukegan (Melbourne A. Noel, Jr., Michael B. Weinstein, Jonathan Strauss, and Herbert Lee Caplan, Assistant Attorneys General, of Chicago, and Phyllis J. Perko, of the State’s Attorneys Appellate Service Commission, of Elgin, of counsel), for the People.
    Mary Robinson, Deputy Defender, and Josette M. Skelnik, Assistant Defender, of the Office of the State Appellate Defender, of Elgin, for appellees.
   JUSTICE WARD

delivered the opinion of the court:

Randy Van Cleve and Donald Fields were found guilty by a jury in the circuit court of Lake County of rape (Ill. Rev. Stat. 1979, ch. 38, par. 11—1) and unlawful restraint (Ill. Rev. Stat. 1979, ch. 38, par. 10—3). The defendants moved to have the verdicts set aside because of insufficiency of the evidence. The court allowed the motions and entered a judgment of acquittal notwithstanding the verdicts. The appellate court dismissed an appeal of that judgment brought by the People. We granted the People’s petition for leave to appeal to this court. 73 Ill. 2d R. 315.

This appeal presents three questions: (1) whether our procedural law authorized the trial court to enter a judgment of acquittal following a verdict of guilty; (2) whether the People can appeal from the judgment in view of our constitution’s provision that “after a trial on the merits in a criminal case, there shall be no appeal from a judgment of acquittal” (Ill. Const. 1970, art. VI, sec. 6); and (3) if an appeal lies, whether the trial court erred, considering the evidence, in entering the judgment.

The evidence presented a contest of credibility between the defendants and the prosecutrix. She testified that on the night of June 2,1979, Van Cleve and Fields beat and raped her at the house of Lester Engleprite. She testified that she had gone to Engleprite’s in search of a friend, Ed Shebonick. After the attacks, she walked to another friend’s house over two miles away. She was aware that her own home and a police station were closer. It appears that the crime was not reported to the police until around noon on June 3.

Her testimony was corroborated in part by that of a physician, Dr. Charles Puig, who examined her on June 3. He testified that he found areas of discoloration and swelling, as well as abrasions on her body, including her face and arms.

A search of Engleprite’s house produced articles of clothing that she said were left there on the night of June 2. A laboratory analysis revealed blood on a torn shirt and bra found in the search. Other tests disclosed the presence of semen and spermatozoa on jeans she said she had worn after being raped, and in specimens taken during the physical examination of the prosecutrix by Dr. Puig on June 3.

Both defendants testified. They admitted to having intercourse with the prosecutrix, but said that she had consented to intercourse after an evening of drinking beer and smoking marijuana. Fields claimed that she had intercourse with him because he had implied that he would buy drugs for her.

The defense also presented Engleprite’s next-door neighbor, who testified that she heard no screams, although she was home with the windows open at the time of the crime charged. Her testimony was offered to contradict testimony of the prosecutrix that she screamed when she was being attacked.

A Lake County detective testified that he had met the prosecutrix at the hospital on the day Dr. Puig examined the prosecutrix. He said he observed no bruises or contusions on her face. A nurse present during Dr. Puig’s examination also offered testimony that she had not observed any bruises or marks.

At the close of all the evidence, the defendants moved for directed verdicts, which motions were denied. After the verdicts were returned, the defendants made motions for a new trial, claiming insufficiency of the People’s evidence. Van Cleve’s motion expressly asked for a judgment of acquittal. The trial court entered a judgment of acquittal notwithstanding the verdicts for both defendants. In entering judgment, the court disclaimed any intention of usurping the jury’s function as the finders of fact. The court said that the People had not introduced sufficient evidence to enable the jurors to find guilt beyond a reasonable doubt.

When the People filed a notice of appeal, the defendants moved to dismiss the appeal. They relied upon decisions of the appellate court which held that our constitution prohibits the appeal of judgments of acquittal notwithstanding the verdict (People v. Wallerstedt (1979), 77 Ill. App. 3d 677; People v. Augitto (1971), 1 Ill. App. 3d 78). The appellate court allowed the motion and dismissed the appeal.

We consider first whether the trial court had authority to enter the judgment of acquittal.

The Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 100—1 et seq.), unlike the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68.1(2)), does not provide expressly for a judgment notwithstanding the verdict. It does, however, state:

“When, at the close of the State’s evidence or at the close of all of the evidence, the evidence is insufficient to support a finding or verdict of guilty the court may and on motion of the defendant shall make a finding or direct the jury to return a verdict of not guilty, enter a judgment of acquittal and discharge the defendant.” (Ill. Rev. Stat. 1979, ch. 38, par. 115—4(k).)

An order of the judge directing a verdict is effective without the jury’s assent (73 Ill. 2d R. 240), and the refusal to grant the motion when appropriate can be alleged as reversible error on appeal (People v. Buxton (1935), 362 Ill. 157, 161).

The Code provides for two types of motion at the post-trial stage: (1) the motion in arrest of judgment, applicable where the indictment, information or complaint does not charge an offense or where the court lacks jurisdiction (Ill. Rev. Stat. 1979, ch. 38, par. 116—2), and (2) the motion for a new trial, for which the statute does not specify grounds (Ill. Rev. Stat. 1979, ch. 38, par. 116—1).

The People contend that because the Code of Criminal Procedure of 1963 does not provide expressly for a judgment of acquittal notwithstanding the verdict the trial court had no authority to enter that judgment. They correctly observe that the judgment notwithstanding the verdict was not available in criminal trials at common law. Commonwealth v. Heller (1942), 147 Pa. Super. 68, 24 A.2d 460; State v. Russell (Miss. 1978), 358 So. 2d 409, 412.

We consider, however, that the entering of the judgment by the trial court was not improper. It is true that the Code does not expressly speak of the judgment notwithstanding the verdict, but it does expressly provide for the directed verdict, which is a fairly recent development in criminal procedure. (See generally Comment, Judgments of Acquittal: The Right to a Non-Jury Trial, 24 U. Chi. L. Rev. 561 (1957).) In Illinois the motion for a directed verdict was recognized in the 1930’s. (Compare People v. Logan (1934), 358 Ill. 64, and People v. Bruner (1931), 343 Ill. 146, with People v. Zurek (1917), 277 Ill. 621.) An order directing a verdict and a judgment notwithstanding the verdict are in substance the same, because they provide the same relief and are applicable on the same insufficiency-of-evidence ground. See State v. Russell (Miss. 1978), 358 So. 2d 409; Pelletier v. Bilbiles (1967), 154 Conn. 544, 227 A.2d 251; Ill. Rev. Stat. 1979, ch. 110, par. 68.1(2).

Because the rulings have a common ground, a judgment notwithstanding the verdict entered by a judge who theretofore denied a motion for a directed verdict is often regarded as a reconsideration of the order of denial (e.g., Glowacki v. A. J. Bayless Markets, Inc. (1953), 76 Ariz. 295, 303, 263 P.2d 799, 804), or as a reserved ruling upon the motion for a directed verdict (e.g., Robinson v. Southern New England Telephone Co. (1953), 140 Conn. 414, 101 A.2d 491).

We consider that a trial judge who has denied a motion for a directed verdict at the close of the evidence can enter a judgment of acquittal following a guilty verdict, if the judge concludes that the refusal to direct a verdict was erroneous. The holding in State v. Halladay (1942), 68 S.D. 547, 5 N.W.2d 42, is applicable. There, as in this appeal, a statute authorized the direction of a verdict and the entering of a judgment of acquittal. In Halladay the defendants moved for directed verdicts at the close of the evidence, but the motions were denied. After verdicts of guilty were returned, the defendants filed motions for a new trial, which challenged the denial of their motions for directed verdicts. The court, in holding for the defendants, stated:

“In view of this broad power given to the Circuit Judge [by the statute authorizing the direction of a verdict], we are inclined to the view that on a motion for a new trial where a motion for a directed verdict is being reviewed it is within the contemplation of the statute and within the power of the trial judge, if he decides that error was committed in denying the motion for a directed verdict, to correct that error and dispose of the case in the manner contemplated by the statute, i.e., a ‘judgment of acquittal.’” 68 S.D. 547, 554, 5 N.W.2d 42, 45.

Similarly, in State v. Russell (Miss. 1978), 358 So. 2d 409, the court recognized the judgment notwithstanding the verdict, although no statute expressly authorized the judgment. The court stated that the motion for such a judgment is no more than a renewal of a motion for a directed verdict, which motion was authorized under the State’s criminal procedure. 358 So. 2d 409, 412-13.

Recognition of the motion for judgment notwithstanding the verdict is consistent with the judicial principle that a court possesses inherent power to correct its interlocutory rulings. See Roach v. Village of Winnetka (1937), 366 Ill. 578, 581 (reconsideration of ruling on motion for judgment on pleadings was not improper, because a court may correct an erroneous ruling any time before final judgment); Leon v. Kitchen Brothers Hotel Co. (1938), 134 Neb. 137, 277 N.W. 823 (trial court that denied motion for directed verdict had authority subsequently to enter judgment notwithstanding the verdict because it had the right to correct any of its orders made during term).

Next, we judge that the judgment of acquittal was not appealable. Our constitution provides:

“Appeals from final judgments of a Circuit Court are a matter of right to the Appellate Court in the Judicial District in which the Circuit Court is located except in cases appealable directly to the Supreme Court and except that after a trial on the merits in a criminal case, there shall be no appeal from a judgment of acquittal.” (Emphasis added.) Ill. Const. 1970, art. VI, sec. 6.

The People urge that the above provision should be interpreted to prohibit only those appeals that would be barred by the protections against double jeopardy in the Constitution of the United States (U.S. Const., amend. V), and the Constitution of Illinois (Ill. Const. 1970, art. I, sec. 10). They say that the proscription was intended to apply only to acquittals returned by juries and by judges after bench trials, as a reversal of those judgments would require retrial in violation of the protections against double jeopardy. The People submit that because Federal courts have held it is not a violation of the double jeopardy clause to allow an appeal from a judgment of acquittal notwithstanding a verdict of guilty (United States v. Blasco (7th Cir. 1978), 581 F.2d 681, 684, cert. denied (1978), 439 U.S. 966, 58 L. Ed. 2d 425, 99 S. Ct. 456; see United States v. Wilson (1975), 420 U.S. 332, 43 L. Ed. 2d 232, 95 S. Ct. 1013), it was error to dismiss their appeal.

We must observe that these Federal decisions are not relevant. They construe a Federal statute that permits the government to appeal in criminal cases except “where the double jeopardy clause of the United States Constitution prohibits further prosecution.” (18 U.S.C. sec. 3731 (1976).) The question here is not whether allowing the People to appeal would violate the double jeopardy clause. The question is whether the provision of our constitution proscribing appeal from judgments of acquittal was intended to confer rights and protections in a criminal proceeding beyond those provided by the double jeopardy clause.

The People acknowledge that it cannot cite any of the proceedings at the convention at which our constitution was drafted to support its contention. Nevertheless they contend that the background of the provision justifies their construction. Prior to the 1964 effective date of the judicial article of 1961 (Ill. Const. 1870, art. VI, sec. 7 (1964)), which included the constitutional provision we now consider, the People’s right to appeal from final judgments in criminal cases was limited to cases where an indictment had been dismissed. (See generally Fins, Analysis of Illinois Judicial Article of 1961 and Its Legislative and Judicial Implementation, 11 DePaul L. Rev. 185, 230-33 (1962).) The Illinois State Bar Association and the Chicago Bar Association had jointly submitted a draft of a proposed judicial article to the legislature in 1961 (text contained in 49 Ill. B.J. 24, 33-50 (1960)). That draft, omitting any proscription against appeals from judgments of acquittal, provided: “In all cases, other than those appealable directly to the Supreme Court, appeals from final judgments of a Circuit Court lie as a matter of right to the Appellate Court in the district in which the Circuit Court is located.” (The Proposed Judicial Article, sec. 8, 49 Ill. B.J. 24, 34 (1960).) The omission received some criticism on the ground that it endangered the protections against double jeopardy.

A judicial article proposed in 1957 had contained a provision that “after a trial on the merits in a criminal case, no appeal shall lie from a judgment of acquittal” (Proposed Judicial Article of 1957, sec.8, quoted in Fins, Ten Objections to the Proposed Illinois Judicial Article of 1961, 42 Chi. B. Rec. 261, 267 (1961)), and when the judicial article of 1961 was adopted this prohibition was made part of it. From this recital, the People conclude that we “must assume” that the constitutional provision under discussion was intended to be no more than a protection against the danger of double jeopardy. We should therefore read it as proscribing only appeals requiring retrials after “judgments of acquittal rendered by the designated trier of fact,” that is, retrials involving double jeopardy.

The ground for the People’s argument is too speculative and frail to allow so restricted a construction of the constitutional provision.

The Constitution of Illinois contains a provision which specifically provides protection against double jeopardy (Ill. Const. 1970, art. I, sec. 10). It is reasonable to conclude that the Constitution’s provision in article VI, section 6, was to provide rights and protections beyond those assured by the double jeopardy clause. We consider that the provision was intended to apply to the type of judgment of acquittal we have here, where there will not be a retrial of the defendant and therefore no involvement of the double jeopardy clause.

The statute authorizing a trial court to direct a verdict empowers the court to enter a “judgment of acquittal” upon the directed verdict. The People’s argument acknowledges that a judgment entered upon a directed verdict is nonappealable because of the Constitution’s proscription under article VI, section 6. There is no reason why a judgment entered by a trial court notwithstanding a verdict, which in effect is but a reconsideration of a motion for directed verdict, is other than a nonappealable judgment of acquittal. The appellate court correctly held that the judgment was not appealable.

As the dismissal of this appeal was proper, we do not reach the People’s contention that considering the evidence the trial court should not have entered a judgment notwithstanding the verdicts.

The appellate court’s judgment dismissing the appeal is affirmed.

Judgment affirmed.


author: JUSTICE CLARK CHIEF JUSTICE RYAN, JUSTICE UNDERWOOD,

text:
    (No. 54434.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ROBERT WAGNER, Appellant.

      Opinion filed February 19, 1982.
    Rehearing denied March 25, 1982.

      RYAN, C.J., and UNDERWOOD and GOLDENHERSH, JJ., dissenting.
    John H. Reid, Deputy Defender, and Randy E. Blue, Assistant Deputy Defender, of the Office of the State Appellate Defender, of Mt. Vernon, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield, and John Baricevic, State’s Attorney, of Belleville (Martin N. Ashley and Gillum Ferguson, of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.
   JUSTICE CLARK

delivered the opinion of the court:

On January 4, 1979, Robert Wagner was indicted by a St. Clair County grand jury for an alleged delivery on August 3,1978, of .4 grams of a substance represented to be a controlled substance (heroin), in violation of section 404 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1977, ch. 56½, par. 1404). Prior to trial the defendant moved to dismiss the indictment contending that section 404 was unconstitutional. The court denied the motion. On March 12, 1979, the defendant was found guilty after a trial before the court sitting without a jury. On May 4, 1979, he was sentenced to a two-year prison term. The appellate court, in a split decision, affirmed the conviction. (91 Ill. App. 3d 254.) We granted the defendant’s petition for leave to appeal.

According to the Illinois Controlled Substances Act (Ill. Rev. Stat. 1977, ch. 56½, par. 1100 et seq.) at the time of this offense, delivery or possession of a schedule IV or V controlled substance was punishable as a Class 4 felony permitting the following fines: $15,000 for possession of a schedule IV or V controlled substance; $10,000 for delivery of a schedule IV controlled substance; $5,000 for delivery of a schedule V controlled substance. Delivery of a noncontrolled substance represented to be a controlled substance constituted a Class 3 felony permitting a $15,000 fine (Ill. Rev. Stat. 1977, ch. 56½, pars. 1401(e), (f), 1402(b), 1404).

The legislature on September 14, 1979, by Public Act 81—583, amended sections 401(e) and (f) to make delivery of a schedule IV or V controlled substance a Class 3 felony. Possession or delivery of a noncontrolled substance under section 404 still subjects one to a greater fine than may be imposed under sections 401(e) or (f) (Ill. Rev. Stat. 1979, ch. 56½, par. 1401).

The State contends (1) that the defendant lacks standing to contest the constitutionality of section 404, (2) the issue was waived, and (3) the appeal is moot. The State’s contentions are not meritorious.

An individual has standing to challenge the constitutionality of a statutory provision if he is directly affected as one “within the class aggrieved by the alleged unconstitutionality.” (People v. Mayberry (1976), 63 Ill. 2d 1, 6; cert. denied (1976), 429 U.S. 828, 50 L. Ed. 2d 92, 97 S. Ct. 87.) Because the noncontrolled substance was represented to be heroin the prosecution contends that this should affect the defendant’s standing to challenge the provision under which he was convicted. The nature of the purported substance is irrelevant under section 404, provided the delivery involved a substance represented to be a controlled substance. (Ill. Rev. Stat. 1977, ch. 56½, par. 1404.) Whether it was held out to be amphetamine, barbiturate or narcotic in the form of speed, valium, cocaine or heroin is not relevant as long as it was “represented to be” any of those “controlled substances.” As a result of the enforcement of the penalty provision in question the defendant sustained the direct and palpable injury of incarceration. He clearly has standing to challenge the validity of the statute. 63 Ill. 2d 1, 8.

The defendant had moved prior to trial to dismiss the charge based upon the unconstitutionality of the statute. The defendant did not make a post-trial motion to dismiss in the trial court. The State argues that the defendant’s failure to do so effectively waived the issue of whether section 404 of the Illinois Controlled Substances Act violates the Illinois Constitution. This is not an instance where the trial judge is in a position to correct errors made at trial. The record clearly indicates that a pretrial motion was made and denied. Since the conviction here is under an unconstitutional statute and is therefore a nullity, it was not necessary for defendant to preserve the error by a post-trial motion. The conviction is void and can be attacked at any time. People v. Walker (1980), 83 Ill. 2d 306, 313; People v. Furman (1962), 26 Ill. 2d 334, 335; People v. Edge (1950), 406 Ill. 490, 494.

The appeal is not moot. Although the defendant has completed his term of imprisonment and supervised release, his conviction subjects him to the possibility of an extended term of imprisonment, should he be convicted of another felony within a fixed period of time (Ill. Rev. Stat. 1977, ch. 38, pars. 1005—5—3.2, 1005—8—2). This collateral legal consequence precludes any finding that this appeal is moot. In re Sciara (1974), 21 Ill. App. 3d 889; Sibron v. New York (1968), 392 U.S. 40, 20 L. Ed. 2d 917, 88 S. Ct. 1889. See People v. Nunn (1979), 77 Ill. 2d 243.

When this appeal was pending, we announced our decision in People v. Bradley (1980), 79 Ill. 2d 410. We held that section 402(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1977, ch. 56½, par. 1402(b)) violated article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, sec. 2). Section 402(b) had permitted a greater penalty for possession of a schedule IV controlled substance than section 401(e) permitted for delivery of the same controlled substance (Ill. Rev. Stat. 1977, ch. 56½, par. 1401(e)). We concluded in Bradley that since the legislature clearly intended to punish trafficking in drugs more severely than possession, section 402(b) was “not reasonably designed to remedy the evil which the legislature determined to be a greater threat to the public.” 79 Ill. 2d 410, 418.

The appellate court held in the instant case that the reasoning of Bradley did not apply. We disagree. It is applicable, persuasive and controlling. The legislature expressly “acknowledge [d] the functional and consequential differences between the various types of controlled substances and provide[d] for correspondingly different degrees of control over each of the various types.” (Ill. Rev. Stat. 1977, ch. 56½, par. 1100(4).) In view of that language the legislature need not expressly recognize the functional and consequential differences between harmful controlled substances and harmless noncontrolled substances. That distinction is obvious.

Fraudulent deliveries of noncontrolled substances are punishable “to discourage illicit traffic in narcotics.” (People v. Calcaterra (1965), 33 Ill. 2d 541, 545.) The plain purpose of the Illinois Controlled Substances Act is to deter the traffic in controlled substances by punishing the traffickers and/or profiteers more severely. (People v. Bradley (1980), 79 Ill. 2d 410, 418.) The defendant here was subject to a greater penalty for delivery of .4 grams of a harmless brown powder than a person who would have actually delivered any amount of a schedule IV or V controlled substance under sections 401(e) and (f). The defendant incurred the penal liability that attaches to a Class 3 felony while the latter offense constituted only a Class 4 felony. Just as delivery of a controlled substance represents a greater threat to the public under the Illinois Controlled Substances Act than the possession of a controlled substance, the delivery of a controlled substance represents a greater threat to the public than the delivery of a noncontrolled harmless substance. Here, as in Bradley, the less serious threat to the public carries á harsher punishment than the greater threat. We concur with the appellate court’s dissent that it is not reasonable to assume that a person selling large dosages of valium should be subjected to a less severe sentence than a person giving away a No-doz pill representing it to be an amphetamine. It is not logical to believe that the legislature intended to punish one who delivers a noncontrolled substance more severely than one who delivers a controlled substance.

Section 404 is not reasonably designed to remedy the evil which the legislature determined to be a greater threat to the public. As such, section 404 violates the due process clause of the Illinois Constitution (Ill. Const. 1970, art. I, sec. 2).

The defendant’s conviction under section 404 cannot stand. The judgments of the appellate and circuit courts are reversed.

Judgments reversed.

CHIEF JUSTICE RYAN,

dissenting:

I do not find our opinion in People v. Bradley (1980), 79 Ill. 2d 410, controlling or even applicable. I must therefore dissent.

The rationale of the holding in Bradley was that the delivery of a controlled substance is a more serious offense than the mere possession of a controlled substance. Therefore, this court reasoned that the imposition of a more severe penalty for possession than for delivery violates the due process clause of the Illinois Constitution. In Bradley we concluded that delivery was a more serious offense than possession from the legislative intent expressed in section 100 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1977, ch. 56½, par. 1100). We stated:

“Clearly, the legislature intended that those who traffic in and deliver drugs should be subject to more severe sentences than those who merely possess them.” People v. Bradley (1980), 79 Ill. 2d 410, 418.

The fact that the legislature expressly acknowledged the functional and consequential differences between the various types of controlled substances and provided for correspondingly different degrees of control over each of the various types (Ill. Rev. Stat. 1977, ch. 56½, par. 1100(4)), as noted in the majority opinion, is not relevant to the facts of this case. In making the classification questioned in this case, the legislature was dealing with an entirely different problem from that addressed in Bradley and alluded to in the section of the statute cited above. Nowhere in the statute can one find an expression of legislative intent that a person who delivers a substance represented to be a controlled substance has not committed a more serious offense or should not be punished more severely than one who possesses or delivers a controlled substance.

In providing penalties for a controlled substance the legislature, in keeping with its expressed intent, has distinguished between possession and delivery, between different classes, and between different amounts of each class. However, in providing a penalty for the delivery of a substance represented to be a controlled substance, no such distinctions are made. The penalty is the same whether the substance is represented to be one listed in schedule I, II, III, IV, or V. Also, the penalty is the same whatever the amount delivered. The legislature was addressing a different problem when it made it unlawful to deliver a substance represented to be a controlled substance.

It makes an appealing argument to say, as the majority opinion does, that the defendant here was subject to a greater penalty for the delivery of .4 grams of a “harmless brown powder” than a person would be who actually delivered any amount of a schedule IV or V controlled substance. However, we do not know the magnitude of the problem or the evils associated with the delivery of a substance represented to be a controlled substance. In the space of one set of briefs filed in this case we cannot hope to be adequately informed as to the nature of the problems the legislature was seeking to resolve. The legislature has the means of informing itself, and it has seen fit to make this classification, which I am unwilling to arbitrarily say was not rational. We must presume the classification to be valid. We just are not in a position to say whether the evil sought to be remedied by section 404 of the Illinois Controlled Substances Act is not as great a threat to the public as is the delivery of certain controlled substances. Contrary to the assumption in the majority opinion, the legislature has not determined that the delivery of controlled substances is a greater threat to the public than is the delivery of a substance represented to be a controlled substance.

A problem closely related to the delivery of a substance represented to be a controlled substance — and, in fact, a part of that problem — is the manufacture and distribution of “look-alike” drugs. These are not controlled substances but are legal over-the-counter drugs. However, they are similar in size, shape and color, and have markings similar to controlled prescription substances. These look-alike drugs are often purchased legally in large quantities and then sold illegally represented to be controlled substances. At the present time our General Assembly is considering several bills dealing with look-alike drugs. These bills provide penalties for their distribution. After the legislature conducts these extensive hearings and determines that the problem is so severe that it warrants a penalty more severe than that provided for the possession or delivery of certain controlled substances, will this court on the basis of the majority holding in this case hold the act unconstitutional because we may think the possession or delivery of a controlled substance is the more serious offense? The problems involved in the sale of look-alike drugs are discussed in an article by Julie A. Dutton, a research associate with the Illinois Legislative Counsel Science Unit. Dutton, Look-alike Drugs: Regulation Dilemma, 8 Ill. Issues 35 (1982).

The problems involved with look-alike drugs, as well as those involved in the delivery of substances represented to be controlled substances, are different from those which confront the legislature in classifying controlled substances and providing penalties for their possession and delivery. The majority of this court in this case, by holding that section 404 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56½, par. 1404) is unconstitutional, has substituted its opinion for that of the legislature. This court, and not the legislature, has determined that the delivery of a substance represented to be a controlled substance is not as great a threat to the public as is the delivery of a controlled substance.

UNDERWOOD and GOLDENHERSH, JJ., join in this dissent.

JUSTICE UNDERWOOD,

also dissenting:

This court held in People v. Bradley (1980), 79 Ill. 2d 410, that possession of a schedule IV controlled substance could not constitutionally be punished more severely than delivery of that substance. That holding was predicated on the General Assembly’s express recognition that delivery posed the greater threat to society. There is, as Justice Ryan points out, no such legislative declaration here, and I accordingly join in his dissent.

There are, however, additional reasons for my disagreement. The majority characterizes Bradley as “applicable, persuasive and controlling” (89 Ill. 2d at 312), a statement which it seems to me represents a fundamental misconception of the holding in that case. Bradley, in my judgment, actually requires a result here the opposite of that reached by the majority.

In my opinion the majority also errs in holding defendant has standing to raise the due process issue as it relates to the delivery of materials misrepresented to be schedule IV or V substances. Neither Bradley, People v. McCabe (1971), 49 Ill. 2d 338, nor the appellate court cases cited by the majority support that conclusion.

Under section 401(b) of the Illinois Controlled Substances Act delivery of .4 grams of heroin, a schedule I controlled substance, is a Class 2 felony subject to 3 to 7 years’ imprisonment and a fine up to $25,000. (Ill. Rev. Stat. 1977, ch. 56½, par. 1401(b); Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—1(a)(5).) Under section 404, delivery of any substance represented to be any controlled substance is a less serious Glass 3 felony subject to 2 to 5 years’ imprisonment and a fine up to $15,000. (Ill. Rev. Stat. 1977, ch. 56½, par. 1404; Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—1(a)(6).) Delivery of schedule IV and V controlled substances are classified as still less serious offenses with lesser penalties. (Ill. Rev. Stat. 1977, ch. 56½, pars. 1401(e), (f); Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—1(a)(7).) Defendant here was charged under section 404 with delivery of .4 grams of a substance misrepresented as heroin, a Class 3 felony. Had the substance been heroin, the offense would have been the more serious Class 2 felony for which the prescribed punishment is more severe. In these circumstances Bradley expressly holds no due process violation occurs. The reasoning in Bradley is apparent from the following language:

“Clearly, the legislature intended that those who traffic in and deliver drugs should be subject to more severe sentences than those who merely possess them. Because section 402(b) prescribes a greater sentence for possession of a schedule IV substance than section 401(e) sets forth for delivery of the same substance, section 402(b) is in contravention of the express intent of the legislature. Inasmuch as section 402(b), as it is applied to charges of possession of schedule IV substances, is not reasonably designed to remedy the evil which the legislature determined to be a greater threat to the public, it is violative of the due process clause of the Illinois Constitution and is, therefore, invalid. ***
Our conclusions with respect to schedule IV controlled substances do not apply to schedule II and III substances, contrary to the claim of defendants Novak and Olsen. The penalties for delivery of schedule II and III controlled substances are either greater than or equal to the penalty imposed for possession of those substances. (Ill. Rev. Stat. 1977, ch. 56½, pars. 1401(b), (c), (d), 1402(b).) Consequently, these provisions are not contrary to the purposes of section 100 of the Act (Ill. Rev. Stat. 1977, ch. 56½, par. 1100) and do not offend due process. See Gaffney v. State (Tex. Crim. App. 1978), 575 S.W.2d 537, 541.
Defendants Novak and Olsen also assert that the trial court properly dismissed the possession charges against them because section 402(b) is invalid in its entirety and not solely in its application to schedule IV controlled substances. The test to determine severability is ‘whether the valid and invalid provisions of the Act are “so mutually ‘connected with and dependent on each other, as conditions, considerations or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect the legislature would not pass the residue independently ***’”’ (Fiorito v. Jones (1968), 39 Ill. 2d 531, 540, quoting Winter v. Barrett (1933), 352 Ill. 441, 475.) Within the Act, the legislature divided controlled substances into distinct categories (schedules) and, in imposing penalties, dealt with each separately. This manifests the legislature’s intent that each schedule be mutually exclusive of the other. Consequently, a finding that section 402(b) is invalid as applied to schedule IV substances does not disturb the effectiveness of that provision as it relates to all other schedules.” (Emphasis added.) People v. Bradley (1980), 79 Ill. 2d 410, 418-19.

The majority evades the result Bradley demands here by allowing this defendant to assert a due process argument available, in my opinion, only to one who has been charged with delivery of a substance represented to be a schedule IV or V substance. If the charges here included misrepresented schedule IV substances as was the case in Bradley, that decision might well be controlling. But defendant is charged only with delivery of the substance represented to be heroin, and Bradley, I believe, requires affirmance of the conviction.

In fact, as earlier indicated, the majority need not have ever reached the constitutional issue, for this defendant has no standing to assert the constitutional argument of one who has delivered a substance represented to be a schedule IV or V substance, for he is not charged with that offense. The majority opinion, in holding that he has standing, relies solely upon People v. Mayberry (1976), 63 Ill. 2d 1, and, in my opinion, incorrectly applies its rule. The relevant passage in Mayberry says:

“A party does not have standing to challenge the constitutional validity of a statutory provision if he is not directly affected by it unless the unconstitutional feature is so pervasive as to render the entire act invalid. [Citation.] A party who attacks a statute as unconstitutional must bring himself within the class aggrieved by the alleged unconstitutionality. (People v. Bombacino, 51 Ill. 2d 17, cert. denied, 409 U.S. 912, 34 L. Ed. 2d 173, 93 S. Ct. 230.)” (63 Ill. 2d 1, 6.)

This defendant is not “directly affected” by the statute in the traditional sense in which that phrase was used in Bradley and People v. Bombacino (1972), 51 Ill. 2d 17. Due process is not offended by applying this statute to this defendant, as Bradley clearly states (79 Ill. 2d 410, 419), for the heroin he represented he was selling would have been a schedule I substance. Only the due process rights of those delivering substances represented to be schedule IV or V substances are violated by this statute, and defendant is not one of them. Bradley plainly indicates that the defect is not “so pervasive as to render the entire act invalid,” and we are not compelled, as my colleagues seem to believe, to invalidate the statute.

In Bombacino this court held that the defendant did not have standing to assert the alleged unconstitutionality of section 2—7(3) of the Juvenile Court Act (Ill. Rev. Stat. 1967, ch. 37, par. 702—7(3)) on the grounds that it gave appellate powers to the chief judge of the circuit court, since he was not transferred to the criminal division under that statute. Citing City of Chicago v. Lawrence (1969), 42 Ill. 2d 461, appeal dismissed and cert. denied (1969), 396 U.S. 39, 24 L. Ed. 2d 208, 90 S. Ct. 263, the court said: “One who would attack a statute as unconstitutional must bring himself within the class as to whom the law is unconstitutional.” (51 Ill. 2d 17, 20.) In City of Chicago the court held that since the evidence plainly indicated deliberate conduct, the defendants did not have standing to raise the due process argument that the ordinance lacked a requirement that the offense was committed “knowingly.” (42 Ill. 2d 461, 464; cf. United States v. Salvucci (1980), 448 U.S. 83, 65 L. Ed. 2d 619, 100 S. Ct. 2547; Rawlings v. Kentucky (1980), 448 U.S. 98, 65 L. Ed. 2d 633, 100 S. Ct. 2556 (no automatic standing to contest validity of search because of possessory interest in items seized).)

I would affirm the judgment.

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