author: JUSTICE CLARK JUSTICE GOLDENHERSH,

text:
    (Nos. 57562, 57600.
    ARCHER DANIELS MIDLAND COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Leah Reynolds, Appellee).

      Opinion filed December 16, 1983.

    Rehearing denied January 27, 1984.

    GOLDENHERSH, J., dissenting.

      Thomas D. Nyhan, Ellis A. Ballard, and James M. O’Brien, of Pope, Ballard, Shepard & Fowle, Ltd., of Chicago, for appellant.
    James C. Serkland, of Serkland & Muelhausen, of Chicago, for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

Claimant, Leah Reynolds, injured her back while at work on July 7, 1978. The claimant was employed by Archer Daniels Midland Company, the respondent in this cause. Both parties agree that the claimant suffered an accidental injury arising out of and in the course of her employment. The dispute arises regarding the extent of her injuries and the amount of compensation she is to receive.

Upon claimant’s application to the Industrial Commission, an arbitrator awarded claimant $3,491.84 in temporary total disability benefits under section 8(b) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(b)), $218.40 for necessary medical expenses under section 8(a) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(a)), and $11,804.80 in permanent partial disability benefits under section 8(d)(2) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(d)(2)). On review, in an order dated December 18, 1980, the Commission affirmed the arbitrator’s decision awarding $3,491.84 in temporary total disability, reduced the award for medical expenses to $91.52, awarded $252.80 for mileage expenses, and increased the section 8(d)(2) benefits from 85 to 100 weeks, from $11,804.80 to $13,880. The Commission found ‘that “as the result of said accidental injury the Petitioner sustained the partial disability of the Petitioner as a whole to the extent of 20% thereof, inclusive of the fracture of the spinous process of T-l, and is entitled to compensation therefor as provided in paragraph (d-2) of Section 8, of said Act, as amended.”

The respondent appealed the Commission’s decision to the circuit court of Macon County. On June 17, 1981, the circuit court reversed the Commission’s decision of December 18,1980, holding:

“(1) That under Section 8(d)(2) of the Workers’ Compensation Act of Illinois as a matter of law there must be evidence of permanent disability before the Industrial Commission of Illinois can enter an award under- that Section for partial disability of the whole person;
(2) That there is no evidence in the record that the petitioner sustained permanent disability of the whole person;
(3) That the decision of the Industrial Commission of Illinois that the petitioner sustained partial disability of the whole person to the extent of 20% thereof is contrary to the manifest weight of the evidence of record and is reversed;
(4) That the petitioner has sustained a fracture of the spinous process of her T-l vertebra and is entitled to those benefits under the Act relevant in the absence of any permanent disability of the whole person;
* * *
*** that this cause be and is hereby remanded to the Industrial Commission of Illinois for entry of a decision not inconsistent with this order.”

On remand, the Commission, on its own motion, commenced proceedings under section 19(c) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(c)), to obtain further medical evidence regarding claimant’s condition. Respondent thereafter filed for a writ of mandamus in the circuit court of Macon County requesting that the court direct the Industrial Commission to terminate its proceedings to obtain further medical evidence. The court, by means of a mandamus order, directed the Commission to terminate any and all proceedings for additional medical evidence and to decide the cause on the evidence of record. The circuit court ordered the Commission to issue a decision as directed in its order of June 17, 1981. The Commission terminated its section 19(c) proceeding as directed.

On May 24, 1982, the Commission issued a majority decision upon remand, finding:

“1. Pursuant to the order of the Circuit Court of Macon County, the Commission finds Petitioner failed to prove she sustained any permanent disability as a result of the accident of July 7,1978.
2. As a result of the accident of July 7, 1978 Petitioner sustained a fracture of the spinous process of T-l and is entitled to 60 weeks of compensation under section 8(d)(2).”

One of the commissioners dissented on the grounds that the award should only be for 30 weeks, since a fracture of the spinous process should be treated as equivalent to a fracture of a transverse process, which justifies a 30-week award under section 8(dX2).

The circuit court did not reinstate the awards of the compensation for temporary total disability, medical expenses, or travel expenses, but those awards are not disputed by either party. The respondent, the record indicates, has already paid those awards.

Both parties appealed the Commission’s decision of May 24, 1982, to the circuit court of Macon County. On November 15, 1982, the circuit court filed its second opinion in this cause, holding:

“THAT the May 24, 1982 Decision And Opinion On Remand of the Industrial Commission of Illinois (82 IIC 325) is not contrary to the manifest weight of the evidence of record in this matter.”

The circuit court, therefore, confirmed the Commission’s decision of May 24, 1982. Both parties have appealed to this court pursuant to our Rule 302(a)(2) (87 Ill. 2d R. 302(a)(2)). We have consolidated their appeals in this court.

There are three issues which the respondent raises in this appeal: (1) whether section 8(dX2) of the Workers’ Compensation Act requires proof of permanent disability; (2) whether, if proof of permanent disability is required, the claimant proved that she suffered a permanent disability; and (3) if the claimant did prove she suffered a permanent injury, whether the 60 weeks’ compensation she was awarded in the last Commission decision was an appropriate award under section 8(dX2) for a fractured spinous process.

Regarding the first issue, respondent asserts that section 8(dX2) requires the injury to be serious and permanent, resulting in partial disability. Therefore, respondent argues that an award to the claimant of 60 weeks’ compensation under section 8(dX2) is erroneous since she failed to prove that a permanent disability resulted from the fracture. Claimant asserts that the language of the statute is clear and unambiguous and that it is intended to set a floor for the Industrial Commission’s awards with a 60-week statutory minimum for a fractured spinous process.

Section 8(dX2) provides in pertinent part:

“If, as a result of the accident, the employee sustains serious and permanent injuries not covered by paragraphs (c) and (e) of this Section, or having sustained injuries covered by the aforesaid paragraphs (c) and (e), he shall have sustained in addition thereto other injuries which injuries do not incapacitate him from pursuing the duties of his employment but which would disable him from pursuing other suitable occupations, or which have otherwise resulted in physical impairment; or if such injuries partially incapacitate him from pursuing the duties of his usual and customary line of employment but do not result in an impairment of earning capacity or having resulted in an impairment of earning capacity the employee elects to waive his right to recover under the foregoing subparagraph 1 of paragraph (d) of this Section, then in any of the foregoing event's, he shall receive in addition to compensation for temporary total disability under paragraph (b) of this Section, compensation at the rate provided in subparagraph 2 of paragraph (b) of this Section for that percentage of 500 weeks that the partial disability resulting from the injuries covered by this paragraph bears to total disability. If the employee shall have sustained a fracture of one or more vertebra or fracture of the skull, the amount .of compensation allowed under this Section shall be not less than 60 weeks for a fractured skull and 60 weeks for each fractured vertebra *** and for a fracture of each transverse process not less than 30 weeks.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 48, par. 138.8(d)(2).

In Alaniz v. Industrial Com. (1983), 95 Ill. 2d 263, 267, this court held that because the claimant’s injury had not resulted in “any permanent partial disability or impairment,” he was not entitled to benefits for injuries under section 8(d)(2). We believe it is clear that in order to be eligible for benefits trader section 8(d)(2), the injuries must be “serious and permanent” and result in permanent partial disability or impairment.

Because we have determined that a claimant must sustain injuries which are serious and permanent in order to obtain an award under section 8(dX2), we must address the second issue which was raised, and that is whether the claimant in this case proved that she suffered any serious and permanent injuries. It is clear from the Commission’s decision of May 24, 1982, that the petitioner failed to prove she sustained any permanent injuries. The decision reads:

“1. Pursuant to the order of the Circuit Court of Macon County, the Commission finds Petitioner failed to prove she sustained any permanent disability as a result of the accident of July 7, 1978.”

The circuit court confirmed that decision.

The claimant asserts that the Commission did find she had sustained permanent injuries in its first decision and that the circuit court should not have set that decision aside. In its review of the Commission’s first decision, the circuit court held that the Commission’s decision was against the manifest weight of the evidence because the claimant had not proved that she had sustained any permanent disability. We agree with the circuit court that the Commission’s first decision was against the manifest weight of the evidence for the same reasons we will discuss later in this opinion for holding that the second decision of the Commission, which was confirmed by the circuit court, that the petitioner had failed to prove that she sustained any permanent disability, was not against the manifest weight of the evidence. The same evidence was before the Commission and the circuit court at all times. The Commission reached opposite results based on that same evidence. We have determined that the Commission’s finding that the petitioner “failed to prove she sustained any permanent disability” is not against the manifest weight of the evidence. The May 24, 1982, decision of the Industrial Commission is the second decision which was before the circuit court for review and is now also before this court. In its May 24, 1982, decision the Commission found that the claimant had failed to prove that she sustained any permanent injuries. The circuit court confirmed that decision, holding that it was not contrary to the manifest weight of the evidence. We affirm the decision of the circuit court of Macon County on the issue of the lack of permanence of the claimant’s injury.

It is clear that the Commission could have reasonably inferred from the medical evidence that was presented in this case that the claimant had not sustained any serious and permanent injury. Dr. Kline, the surgeon who operated on the claimant, at no time stated that the claimant suffered any permanent disability or impairment as a result of her injury. Dr. Baird, who examined claimant at her own attorney’s request, opined:

“As far as I am concerned, except for the dimple over T1 this patient has recovered from her fracture and no permanent functional problems are anticipated. This type of fracture does not cause secondary osteoarthritis. The' dimple constitutes a minor permanent cosmetic blemish. I expect her acute cervical strain will take a year or two to slowly subside. There are no permanent consequences of acute cervical strain.”

Likewise, Dr. Hoffman never stated that the claimant had suffered a permanent injury. On August 28, 1979, he expressed the belief that the claimant “should anticipate a full recovery without any residuals.” He further stated:

“As indicated in the consultation notes by the attending physician in Champaign, she has regained a full range of motion in the cervical spine, and the only reason for doing the surgery evidently was some residual subjective symptoms of discomfort rather than any impairment of function. The measurable minor impairment in the range of motion of the cervical spine on July 5, 1979 should be temporary and should lead to full recovery of function, with the only residual that of the minor scar at the operative site.”

We conclude that insofar as the Commission concluded that the claimant had not suffered any permanent injury, its decision is not contrary to the manifest weight of the evidence. However, we cannot agree with the Commission that the claimant is entitled to compensation under section 8(dX2). To hold that compensation is proper under section 8(dX2) would be inconsistent with the Commission’s finding that the claimant had failed to prove that she had sustained a permanent injury. The decision of the Commission and the confirmance by the circuit court are internally inconsistent.

Since we have determined that the Commission could have reasonably inferred that the claimant had not suffered a permanent injury and that its decision in this regard is not contrary to the manifest weight of the evidence, it is unnecessary for us to address the third issue raised in this appeal, whether the 60-week award was proper for the fracture of a spinous process under section 8(dX2).

For the foregoing reasons, we affirm the decision of the circuit court confirming the decision of the Commission regarding the claimant’s failure to prove she sustained a permanent injury. We do, however, reverse the circuit court’s confirmance of the Commission’s decision insofar as it finds that claimant should receive any compensation under section 8(dX2). The finding of a lack of permanence is inconsistent with an award of compensation under section 8(dX2). The cause is remanded to the Industrial Commission for issuance of an award consistent with this opinion.

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

JUSTICE GOLDENHERSH,

dissenting:

I dissent. The majority misconstrues section 8(dX2) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(d)(2)) and requires proof of disability as the result of the fracture of the spinous process of the thoracic vertebra. The record shows that as the result of the injury it was necessary to excise the spinous process of petitioner’s T-l vertebra. The operation was performed through a three-inch incision over the lower cervical and upper thoracic spine, and the severed spinous process was identified and excised.

That this is a permanent injury can hardly be disputed since it is not suggested that the spinous process, once having been excised, is likely to grow back. That it is a serious injury is evidenced by the fact that the General Assembly provided a statutory minimum of 60 weeks of compensation for a fracture of any part of a vertebra other than a transverse process.

The clear language of the statute shows that for this type of fracture the award of compensation is not to be determined by the “percentage of 500 weeks that the partial disability resulting from the injuries covered by this paragraph bears to total disability” (Ill. Rev. Stat. 1979, ch. 48, par. 138(d)(2)).

The statute provides:

“If the employee shall have sustained a fracture of one or more vertebra or fracture of the skull, the amount of compensation allowed under this Section shall be not less than 60 weeks for a fractured skull and 60 weeks for each fractured vertebra ***.” (Ill. Rev. Stat. 1979, ch. 48, par. 138(d)(2).)

This provides for a minimum award without regard to disability and without regard to what proportion of total disability the claimant may have suffered.


source: Caselaw Access Project

author: JUSTICE CLARK

license: Public Domain

text:
    (No. 57908.
    JOHNSTOWNE CENTRE PARTNERSHIP, Appellee, v. GEORGE CHIN, JR., et al., Appellants.

      Opinion filed December 1, 1983.

      Rehearing denied January 27, 1984.

      Myer, Capel, Hirschfeld, Muney, Jahn & Aldeen, of Champaign, for appellants.
    Pelini, Crewell & Sheffler, of Champaign, for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

Plaintiff, Johnstowne Centre Partnership, developed a shopping center in Champaign and leased part of the complex to defendants, George Chin, Jr., and Eddie Moy Chin. The Chins had planned to operate a restaurant in the shopping center, but they repudiated their lease before taking possession of the premises. The partnership filed suit in the circuit court of Champaign County, and the trial court awarded damages for defendants’ breach of the rental agreement. The partnership sought additional damages on appeal, and the Chins filed a cross-appeal that maintained the partnership’s breach excused the Chins’ performance of the lease. The appellate court awarded the partnership additional damages and denied the Chins’ cross-appeal. (110 Ill. App. 3d 595.) We granted the defendants’ petition for leave to appeal (87 Ill. 2d R. 315(a)).

On February 25, 1976, the parties signed a 10-year lease beginning November 25, 1977, for a site in Johnstowne Centre, a new shopping complex near the University of Illinois campus. The Chins planned to operate a “pasta house” restaurant with a full menu, table service by waiters and waitresses, alcoholic beverages, and bar service. The Chins were concerned about possible competition, and the lease agreement contained a restrictive covenant which provides in pertinent part:

“Lessor agrees that it will not permit any other tenant within JOHNSTOWNE CENTRE to operate restaurant facilities, except that Lessor may rent for purposes of a coffee shop or other snack shop operation premises not to exceed 1,500 square feet of interior space, plus outside seating area immediately adjacent to such premises. Said coffee shop or snack shop will have a limited menu and will not sell complete meals. Lessor will not permit any other tenant of JOHNSTOWNE CENTRE to obtain a liquor license for consumption of beverages on the premises within JOHNSTOWNE CENTRE. Notwithstanding the foregoing, any tenant within JOHNSTOWNE CENTRE shall be permitted to sell, as incidental to its operation, ice cream, candy, soft drinks, milk, packaged liquors, cheeses, grocery items and “carry-out” snacks. This restriction also applies to the sixty-four feet of property immediately East of JOHNSTOWNE CEN-TRE.”

In March 1976, the partnership signed a lease with a tenant named Lox, Stock & Bagel for space in the Johnstowne Centre Mall. Lox, Stock & Bagel began operating in December 1977, serving a variety of sandwiches, soups, beverages, desserts and a salad bar. Bagels and rye bread were baked on the premises, and the food was served cafeteria style, with customers lining up, choosing what they wanted to eat, and paying a cashier at the end of the line.

The Chins formally repudiated their lease on June 10, 1977. The partnership obtained a substitute tenant, the Parthenon Restaurant. The Parthenon signed a 10-year lease beginning March 15, 1978, but vacated the premises pursuant to a written termination agreement on November 30, 1979. After an eight-month period of vacancy, the premises were rented to Giordano’s Restaurant. The lessees took possession of the premises on August 1,1980.

The partnership filed suit against the Chins on September 26, 1978, and the trial court awarded damages for the four months preceding the Parthenon’s lease but denied recovery for the eight-month gap between the two substitute tenants. The trial court’s award included rents, fees, and interest, and the Chins were credited with their down payment and deposit, with interest. The total award to the partnership totaled $16,252.07. The appellate court awarded additional damages for the eight-month gap between substitute tenants and refused to allow a setoff for the higher rent.paid by Giordano’s after Giordano’s took possession of the premises.

We turn now to the first issue raised on appeal, whether the alleged violation of the restrictive covenant excused the Chins’ performance under the lease. Resolution of this issue involves careful scrutiny of the terms of the restrictive covenant. A contract’s meaning must be determined from the words or language used, and a court cannot place a construction on the contract which is contrary to the plain and obvious meaning of the language. (Brown v. Miller (1977), 45 Ill. App. 3d 970, 972.) Extrinsic evidence may be introduced to explain the meaning of an ambiguous contract provision, but the provision is not rendered ambiguous simply because the parties do not agree on its meaning. White v. White (1978), 62 Ill. App. 3d 375, 378.

In the case at bar, the parties do not agree concerning the characterization of Lox, Stock & Bagel. The Chins argue that Lox, Stock & Bagel is a restaurant, and not a coffee or snack shop. The partnership argues that the terms of the restrictive covenant have not been violated, and that the Chins were not justified in repudiating their lease. Black’s Law Dictionary defines the term “restaurant”: “An establishment where refreshments or meals may be obtained by the public. [Citation.] It includes cafes, lunchrooms, dairy lunch rooms, cafeterias, tea rooms, waffle houses, fountain lunches, sandwich shops, and many others.” (Black’s Law Dictionary 1477 (rev. 4th ed. 1968).) The term “snack shop” is not defined by Black’s Law Dictionary, but Webster’s defines “snack bar” as “a public eating place where snacks are served, usu. at a counter.” (Webster’s Third New International Dictionary 2154 (1971).) A “coffee shop” is defined as “a small restaurant that is either independent or attached to a hotel and where light refreshments or regular meals are served.” Webster’s Third New International Dictionary 439 (1971).

The restrictive covenant in the Chins’ lease was intended to restrict competition and provide a favorable climate for the Chins’ restaurant to succeed. Such devices are commonly used in leases concerning property in shopping centers. (See Baum, Lessors’ Covenants Restricting Competition, 1965 U. Ill. L.F. 228; Note, Restrictive Covenants in Shopping Center Leases, 34 N.Y.U. L. Rev. 940 (1959).) In the case at bar, it appears the parties intended the Chins’ restaurant to be the only one operating within the confines of the shopping center. The limited exception to this covenant permitting a coffee shop or a snack shop has precipitated the semantic battle that brings the case before this court.

The trial court ruled on this issue, but the page that contains the trial judge’s precise language is missing from the record on appeal. However, both parties agree that the trial judge characterized Lox, Stock & Bagel as a “restaurant with a limited menu.” The trial judge held that the restrictive covenant had not been violated, and the appellate court affirmed the trial court on this point. 110 Ill. App. 3d 595, 601.

Restrictive covenants in leases are an intrinsic part of the contract between the lessor and the lessee, and the breach of a restrictive covenant can justify a lessee’s repudiation of the lease. In University Club v. Deakin (1914), 265 Ill. 257, this court held that a lessee who had bargained for the exclusive right to operate a jewelry and art shop in a downtown building could repudiate the lease if the lessor subsequently allowed a competitor to set up shop in the same building. The court held:

“Plaintiff in error contracted for the exclusive right to engage in this particular business in that building. *** It is idle to say that an action for damages for a breach of contract would afford him ample remedy. He contracted with defendant in error for the sole right to engage in this specialty in its building, and if defendant in error saw fit to ignore that provision of the contract and suffer a breach of the same, plaintiff in error had the right to terminate his lease, surrender possession of the premises and refuse to further perform on his part the provisions of the contract.” 265 Ill. 257, 262.

Having established that a breach of a restrictive covenant can justify a lessee’s repudiation of a lease, we must now review the facts in this case to determine if they warranted the repudiation by the Chins. Three witnesses testified on this issue at trial. John Kiser, part owner and operator of Lox, Stock & Bagel, testified that he considered the operation to be a restaurant. Harold Halpem, one of the partners in the Johnstowne Centre Partnership, testified that he had discussed the possibility of a second eating establishment with the Chins before the lease was signed. However, the record merely reveals that Halpem showed one of the Chins a photograph of an eating establishment called the “Nutcracker Sweet” as an example of what could be installed in the portion of the shopping center later occupied by Lox, Stock & Bagel. The partnership has not established that the Chins were apprised of the nature of their future neighbor, and the Chins did not alter the language of the restrictive covenant after this conversation. George Chin, Jr., testified that Halpem told him that the partnership planned to rent space to a snack shop that would serve yogurt, cookies and desserts, but not complete meals.

We must now determine if Lox, Stock & Bagel can be considered a snack shop or coffee shop that does not serve complete meals. The first part of the exception to the restrictive covenant is somewhat problematical. All restaurants have a menu that is limited to some degree. Even a restaurant that offers hundreds of dishes has a limited menu in the sense that there are thousands of dishes that are not offered. In applying the restrictive covenant to the facts before this court, the primary objective is to construe the contract as a whole to give effect to the intentions of the parties. (Martindell v. Lake Shore National Bank (1958), 15 Ill. 2d 272, 286.) Reading the two terms “limited menu” and “complete meals” together provides a standard that is easier to apply to the facts in this case. Lox, Stock & Bagel served hot and cold meat sandwiches, lox, soup, cheeses, a salad bar, various desserts, milk, coffee, tea, and soft drinks, as well as “homemade” bagels and rye bread. Sandwiches were prepared on the premises, and customers had the option of having them heated in a microwave oven as they waited. The service of these items is not incidental to the operation of the restaurant. Paragraph three of the menu states, “For dessert, we serve a garden fresh carrot-nut cake and we feature the richest, creamiest cheesecake this side of the Catskills. Not a poor Midwestern imitation but the ‘real thing’ from Brooklyn! It’s absolutely the best cheesecake you’ll find and the perfect ‘final touch’ to a great meal!” It is difficult to imagine why a restaurant that did not serve complete meals would make such a claim. The facts presented in this case clearly establish that Lox, Stock & Bagel was a restaurant serving complete meals, thus violating the restrictive covenant in the Chins’ lease.

The cases relied on by the partnership are clearly distinguishable. In Snyder’s Drug Stores, Inc. v. Sheehy Properties, Inc. (Minn. 1978), 266 N.W.2d 882, the court reasoned that the restrictive covenant had not been breached because the defendant’s business was not of the same type as the plaintiff’s. The restrictive covenant in Snyder’s contained vague language that did not specifically designate what types of businesses were prohibited. The covenant in the case at bar can be more clearly construed because of its specific language. Courts confronted with covenants similar to the Chins’ have generally enforced the provisions of the covenant. Webster v. Star Distributing Co. (1978), 248 Ga. 270, 244 S.E.2d 826; Wettstein v. Love (Tex. 1979), 583 S.W.2d 471.

Since this issue is dispositive, we need not reach the other issues raised on this appeal. We conclude that the ruling of the trial court was against the manifest weight of the evidence and that the violation of the restrictive covenant justified the repudiation of the lease by the Chins. We therefore reverse the holding of the circuit court and the appellate court and remand the case for computation of the amount of the damages due the Chins based on their cross-appeal for a refund of their deposit and architect’s fees.

Reversed and remanded, with directions.


author: JUSTICE WARD

text:
    (Nos. 57731, 57765 cons.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MATT MATHEY, Appellee. — THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. LINDA FEIGENHEIMER, Appellee.

      Opinion filed December 16, 1983.

    Rehearing denied January 27, 1984.

      Neil F. Hartigan, Attorney General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Michael B. Weinstein, Assistant Attorney General, and Michael E. Shabat, Lawrence R. Stasica, Mary Alice McKenzie, and Michele A. Grimaldi, Assistant State’s Attorneys, all of Chicago, of counsel), for the People.
    Marvin Bloom, of Chicago, for appellee Matt Mathey.
    Dennis M. Zitzer, of Barnett, Nagel & Zitzer, of Chicago, for appellee Linda Feigenheimer.
   JUSTICE WARD

delivered the opinion of the court:

In each of two criminal cases, the defendant was charged with possession of marijuana under a section of the Cannabis Control Act (the Act) (Ill. Rev. Stat. 1981, ch. 56½, pars. 704(d), 705(d)). In both cases, the same trial judge in the circuit court of Cook County held section 10 of the Act (Ill. Rev. Stat. 1981, ch. 56½, par. 710) to be unconstitutional.

On February 5, 1982, Matt Mathey, the defendant in cause No. 57731, landed at O’Hare International Airport in Chicago, after returning from Jamaica. Upon arriving, a search of his person was conducted by United States Customs officers. Several bags were found taped to the defendant’s body that contained a total of 306 grams of cannabis, i.e., marijuana. He was turned over to Chicago police officers who charged him with possession of cannabis with intent to deliver (Ill. Rev. Stat. 1981, ch. 56½, par. 705(d)). The quantity of marijuana prohibited under and described in this section is “30-500 grams.”

After a bench trial, the defendant was found guilty. The trial judge expressed dissatisfaction because, under section 10 (Ill. Rev. Stat. 1981, ch. 56½, par. 710) of the Act, he could not sentence the defendant to “first offender” probation. Under that section, upon successful completion of first-offender probation, the record of his case is stricken, and there is no public record of his conviction. A defendant who violates section 4(d) of the Act (possession of 30 to 500 grams) is not eligible under the Act for first-offender probation, though he may be granted probation on the customary terms under the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3(b)(1)). The defendant states that, on the other hand, a defendant found guilty of possessing 200 grams or less of amphetamines, barbiturates, or peyote qualifies for the first-offender probation under section 410 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1981, ch. 56½, par. 1410). He argues that the statute denying him first-offender probation is unconstitutional.

The trial court held that section 10 violated the assurances of due process and equal protection, and it sentenced Mathey to first-offender probation, despite the provisions of section 10.

An informant’s tip led police to believe that the defendant in cause No. 57765 was in possession of a large quantity of marijuana. Police under a search warrant searched and found 160 grams of marijuana in the apartment of Linda Fegenheimer and charged her also with possession of cannabis (Ill. Rev. Stat. 1981, ch. 56½, par. 704(d)). She filed a motion to dismiss on grounds that section 10 violated her rights to due process and equal protection. The same trial judge again declared section 10 to be unconstitutional. In this case, rather than imposing first-offender probation, the court dismissed the criminal information against Fegenheimer.

The defendants contend that section 10 denies equal protection of the law because it does not provide for first-offender probation while the Illinois Controlled Substances Act does when “similarly situated” substances are involved in the offense. A conviction for possession of up to 200 grams of barbiturates, amphetamines, or peyote constitutes a Class 4 felony, and a defendant is eligible for first-offender probation. (Ill. Rev. Stat. 1981, ch. 56½, pars. 1402(b), 1410.) But a defendant convicted of possession of 30 to 500 grams of marijuana, which also constitutes a Class 4 felony, is not eligible for first-offender probation. (Ill. Rev. Stat. 1981, ch. 56½, pars. 704(d), 710.) One convicted of possession of less than 30 grams of marijuana can be given first-offender probation. The defendants say that in People v. McCabe (1971), 49 Ill. 2d 338, this court found barbiturates and marijuana to be similarly situated. They contend marijuana possessors and barbiturate possessors cannot be differently treated.

In People v. Bradley (1980), 79 Ill. 2d 410, 416, this court articulated the equal protection analysis relevant to this case:

“The equal protection clause does not deny States the power to treat different classes of persons in different ways. (Eisenstadt v. Baird (1972), 405 U.S. 438, 446-47, 31 L. Ed. 2d 349, 358, 92 S. Ct. 1029, 1034-35; Skinner v. Oklahoma (1942), 316 U.S. 535, 540, 86 L. Ed. 1655, 1659, 62 S. Ct. 1110, 1113; Clark v. United States (N.D. Ill. 1978), 447 Supp. 172, 177.) Only ‘[w]hen the law lays an unequal hand on those who have committed intrinsically the same quality of offense and [penalizes] one and not the other’ does the equal protection clause come into play. (Skinner v. Oklahoma (1942), 316 U.S. 535, 541, 86 L. Ed. 1655, 1660, 62 S. Ct. 1110, 1113. See United States v. Antelope (1977), 430 U.S. 641, 649, 51 L. Ed. 2d 701, 709, 97 S. Ct. 1395, 1400; United States ex rel. Pedrosa v. Sielaf (N.D. Ill. 1977), 434 F. Supp. 493, 497; People v. McCabe (1971), 49 Ill. 2d 338, 341.) That clause requires equality between groups of persons ‘similarly situated’; it does not require equality or proportionality of penalties for dissimilar conduct. McGowan v. Maryland (1961), 366 U.S. 420, 427, 6 L. Ed. 2d 393, 400, 81 S. Ct. 1101, 1105-06; People v. Nicholson (1948), 401 Ill. 546, 553.”

In People v. McCabe (1971), 49 Ill. 2d 338, this court held that there was no rational basis for the naming of marijuana in the Uniform Narcotic Drug Act (Ill. Rev. Stat. 1969, ch. 38, par. 22 — 1 et seq.) (repealed) rather than placing it in the Drug Abuse Control Act (Ill. Rev. Stat. 1969, ch. 111½, par. 801 et seq.) (repealed). After examining the character, effects and consequences of abuse of the drugs found in each act, the court concluded that marijuana was “dissimilar from drugs under the Narcotic Drug Act,” and “more closely resemble[d] drugs placed in the Drug Abuse Control Act.” (People v. McCabe (1971), 49 Ill. 2d 338, 349.) The Narcotic Drug Act, which included heroin and cocaine, provided for a 10-year minimum sentence upon a first conviction for the sale of marijuana. The Drug Abuse Control Act, which named amphetamines, barbiturates and peyote, had a one-year maximum sentence upon a first conviction for a sale and did not bar the granting of probation. The court judged that the classification of marijuana was arbitrary and irrational, and “offend[ed] the equal-protection clause of the United States constitution and of our new constitution of Illinois ***.” (49 Ill. 2d 338, 350.) It was not rational to penalize the possession of marijuana as severely as the possession of narcotic drugs, because there were lesser penalties for the possession of substances that were closer in character to marijuana. Thus, the gross disparity in penalties between marijuana and the drugs within the Drug Abuse Control Act caused this court to find the sentencing scheme unconstitutional.

This court did not, however, in McCabe hold that barbiturates, amphetamines, or peyote were so similar to marijuana as to require identical criminal penalties under the equal protection clause. Specifically, the court stated:

“Marijuana, in terms of abuse characteristics, shares much more in common with the barbiturates, amphetamines and, particularly, the hallucinogens than it does with the ‘hard drugs’ classified in the Narcotic Drug Act. Marijuana does differ from the barbiturates and amphetamines in that it has no established medical use, but neither do LSD, peyote, or mescaline.” (49 Ill. 2d 338, 347.)

This court stated only that marijuana had “more in common” with barbiturates than with narcotics. McCabe does not mandate identical treatment for marijuana and any drug within the former Drug Abuse Control Act.

Eligibility for first-offender probation is, of course, desirable to a defendant. However, the equal protection clause does not mandate that possessors of marijuana be eligible for first-offender probation whenever possessors of barbiturates are so eligible. Marijuana and the drugs barbiturates, amphetamines and peyote are not “similarly situated.” By placing marijuana offenses in a separate statute, the legislature has identified marijuana as constituting a particular social concern. (The extraordinary legislative purpose statement regarding its harmful effects and widespread use is referred to later in this opinion.) It is not the wish and certainly beyond the power of a court to attempt to legislate identical treatment for marijuana offenses and offenses involving other drugs.

The defendants’ due process contention is that the Cannabis Control Act is not rationally related to the legislative intent and is therefore unconstitutional. The defendants maintain that, given a legislative intent to concentrate on large-scale commercial suppliers, the 30- to 500-gram category in section 4(d) does not differentiate between small- and large-scale possessions of marijuana, and punishes the small offenders excessively by denying eligibility for first-offender probation.

Where a “suspect class” or “fundamental right” is not present the legislature has broad discretion in prescribing criminal penalties for offenses. (People v. Bradley (1980), 79 Ill. 2d 410, 417; People v. Dixon (1948), 400 Ill. 449, 453.) This discretion is, of course, not unlimited. The legislature must satisfy the requirements of due process of law:

“ '*** [Tjhe standard of proper exercise of the police power is whether the statute is reasonably designed to remedy the evils which the legislature has determined to be a threat to the public health, safety and general welfare.’ ” (People v. Bradley (1980), 79 Ill. 2d 410, 417, quoting Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152, 159.)

Thus, the statute must be rationally related to its legislative purpose.

Our legislature established a regulatory system for marijuana through a separate act, the Cannabis Control Act. The Act begins with a legislative declaration of purpose and reads:

“The General Assembly recognizes that (1) the current state of scientific and medical knowledge concerning the effects of cannabis makes it necessary to acknowledge the physical, psychological and sociological damage which is incumbent upon its use; (2) the use of cannabis occupies the unusual position of being widely used and pervasive among the citizens of Illinois despite its harmful effects; and (3) previous legislation enacted to control or forbid the use of cannabis has often unnecessarily and unrealistically drawn a large segment of our population within the criminal justice system without succeeding in deterring the expansion of cannabis use. It is, therefore, the intent of the General Assembly, in the interest of the health and welfare of the citizens of Illinois, to establish a reasonable penalty system which is responsive to the current state of knowledge concerning cannabis and which directs the greatest efforts of law enforcement agencies toward the commercial traffickers and large-scale purveyors of cannabis. To this end, this Act provides wide latitude in the sentencing discretion of the courts and establishes penalties in a sharply rising progression based on the amount of substances containing cannabis involved in each case.” (Ill. Rev. Stat. 1981, ch. 56½, par. 701.)

Thus, the General Assembly gave melancholy recognition to the fact that previous legislation “unnecessarily and unrealistically” brought “a large segment of our population within the criminal justice system.” The statute’s emphasis is directed at “commercial traffickers and large-scale purveyors” of marijuana, and the Act’s intendment is “to establish a reasonable penalty system” and give “wide latitude” to the courts in sentencing.

It is against this background that the provision in question must be viewed. The Cannabis Control Act prescribes penalties, in a scale of ascending severity, for the possession of 0 to 2.5 grams of marijuana, 2.5 to 10 grams and 10 to 30 grams of marijuana. (Ill. Rev. Stat. 1981, ch. 56½, pars. 704(a), (b), (c).) Violations of these sections are misdemeanors. The statute’s next gradation in quantity is 30 to 500 grams, and a violation of this section is a Class 4 felony with a possible sentence of one to three years. (Ill. Rev. Stat. 1981, ch. 56½, par. 704(d).) At this gradation there is no provision for first-offender probation (Ill. Rev. Stat. 1981, ch. 56½, par. 710), although an offender is eligible for regular probation (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3(b)(l)).

The defendant says that the quantity range at the 30 to 500 gradation does not sufficiently differentiate between small- and large-scale possessions of marijuana. It is not, however, for this court to prescribe what the dividing lines should be in distinguishing offenses. That obviously is a legislative function. The judicial function is only to decide whether, as we have described, the enactment is irrational. Under the Act, the possession of small and graduated quantities of marijuana is classified as a misdemeanor. (Ill. Rev. Stat. 1981, ch. 56½, pars. 704(a), (b), (c).) This scheme furthers the legislative intent to establish a reasonable penalty system which focuses on commercial traffickers.

It was not irrational or contrary to the stated legislative purpose to designate 30 grams as the threshold quantity at which heavier penalties are imposed. Too, it was not irrational or contrary to the legislative purpose to provide that the violation of section 4(d) would constitute a felony without benefit of eligibility for first-offender probation.

The defendants ask this court, in effect, to reform the Cannabis Control Act. The judicial branch is not the forum for the reform of marijuana or other laws. Legislation is for the legislative branch. As one court under circumstances resembling those here aptly put it:

“Under our system of checks and balances, it is the court’s duty to examine legislation and to determine the legality or illegality of that legislation within the confines of the law. It is the responsibility of the court to construe and enforce the Constitution and laws of the land as they are and not to legislate social policy on the basis of *** personal inclination or other nonlegal considerations. Evans v. Abney, 396 U.S. 435, 447, 90 S. Ct. 622, 635, 24 L. Ed. 2d 634 (1970).” National Organization For the Reform of Marijuana Laws v. Bell (1980), 488 F. Supp. 123, 143.

For the reasons given, the judgments of the circuit court in cause No. 57731 and cause No. 57765 are reversed, and the causes are remanded for proceedings not inconsistent with the views expressed in this opinion.

Reversed and remanded.


author: CHIEF JUSTICE RYAN

text:
    (No. 58302.

      In re DONALD MARTIN WITTE, an Attorney, Respondent.

      Opinion filed December 1, 1983.

    Rehearing denied January 27, 1984.

      James J. Grogan, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    William J. Harte, Ltd., of Chicago (William J. Harte, of counsel), for respondent.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

The Administrator of the Attorney Registration and Disciplinary Commission initiated this reciprocal disciplinary action against respondent, Donald Martin Witte, following a Supreme Court of Missouri order that respondent be disbarred for what it referred to as commingling a client’s funds with his own. (See In re Witte (Mo. 1981), 615 S.W.2d 421, 428 (en banc).) The Bar Committee of St. Louis instituted the Missouri proceedings against respondent when it found probable cause to believe him guilty of professional misconduct. A special master was appointed to hear evidence and make findings of fact, conclusions of law, and recommendations. The master found respondent guilty of professional misconduct and recommended a public reprimand. The Supreme Court of Missouri, reviewing the case de novo, found respondent guilty of commingling and ordered him disbarred.

After the Supreme Court of Missouri denied his petition for rehearing, respondent appealed to the United States Supreme Court, but the appeal was dismissed for want of jurisdiction. The Supreme Court, however, considered the pleadings as a petition for a writ of certiorari and denied certiorari. (Witte v. Bar Committee (1981), 454 U.S. 1025, 70 L. Ed. 2d 469, 102 S. Ct. 559.) Respondent then petitioned the Supreme Court of Missouri to reconsider its order. The Missouri court denied this petition on February 16, 1982, “without prejudice to [respondent’s] filing for reinstatement on or after one year from date of this order.” (Mo. S. Ct. Order, Feb. 16, 1983, No. 61379.) At this point, respondent was ordered to surrender his Missouri license.

Upon learning of the Missouri disbarment, the Administrator petitioned this court pursuant to Rule 763 (87 Ill. 2d R. 763) for an order that respondent’s license to practice law in Illinois be suspended for the same period of time and upon the same conditions ordered by the Supreme Court of Missouri. At respondent’s request, the Administrator filed a motion with the Hearing Board to schedule a hearing on the matter. This court subsequently denied the Administrator’s petition for suspension and remanded the cause to the Hearing Board.

Concluding that respondent should be subject to the same discipline in Illinois as ordered by the Supreme Court of Missouri, the Hearing Board recommended in August 1982 that he be disbarred, but that he be allowed to petition for reinstatement under Rule 767 (87 Ill. 2d R. 767) on or after February 16, 1983. Respondent filed exceptions to the Hearing Board report.

The Review Board, after permitting briefs and oral argument, rejected disbarment as a proper sanction, but unanimously agreed that suspension is warranted. The Review Board members were unable to agree upon the length of the recommended suspension or the precise procedure that should be followed for reinstatement. The minority concluded, however, that respondent should not be required to petition for reinstatement under Rule 767. From these Review Board recommendations, respondent has filed exceptions.

Before proceeding to respondent’s contentions before this court, we note the most recent development regarding his license to practice law in Missouri. In February 1983 respondent became eligible to petition the Supreme Court of Missouri for reinstatement. He applied to the court for reinstatement, but in September 1983, the application was denied. Mo. S. Ct. Order, Sept. 20, 1983, No. 64834.

The issues that an attorney respondent may address before the Hearing Board in a reciprocal disciplinary action are defined by Rule 763 (87 Ill. 2d R. 763). In this case, respondent raised two of the five issues on which the rule allows him to be heard. The first is whether the procedure in Missouri was so lacking in notice and opportunity to be heard as to have deprived respondent of due process of law. The second issue is whether respondent’s conduct warrants substantially less discipline in Illinois than was imposed in Missouri. We will consider these questions after summarizing respondent’s conduct that precipitated the Missouri disciplinary proceedings as stated in In re Witte (Mo. 1981), 615 S.W.2d 421 (en banc).

Respondent was employed by Mrs. Doris Duckett to pursue two claims that arose when an accident involving a bus resulted in her husband’s death. Mrs. Duckett retained respondent on a contingent-fee basis to recover against the transportation authority for wrongful death and to recover $1,000 allegedly due from an insurer under a double-indemnity clause.

Respondent settled each case for $750 and deposited the proceeds into office or personal bank accounts that contained his own funds. He subsequently withdrew all funds in these accounts for his personal use. In addition, after deducting expenses, respondent reported these settlement funds as his own income for tax purposes. No settlement proceeds were delivered to Mrs. Duckett until another attorney contacted respondent in her behalf. Prompted by this inquiry, he paid the client a portion of the proceeds.

These facts were regarded as undisputed by the Supreme Court of Missouri and our Hearing Board. Based on the testimony describing this conduct, the Missouri court found that “[t]he commingling of the client’s funds is admitted.” (615 S.W.2d 421, 423.) The court found no mitigating circumstances that justified respondent’s conduct. After looking to prior Missouri commingling cases for an appropriate sanction, a majority of the Missouri court concluded that respondent should be disbarred.

In addition to the undisputed details of the basic transaction, the Supreme Court of Missouri considered evidence taken before the special master bearing on issues that might explain or justify respondent’s conduct. The foremost of these issues is whether the client agreed to either settlement.

Mrs. Duckett testified that she did not agree to settle either case and, further, that she did not see or sign settlement papers or drafts. Respondent, on the other hand, recalled that Mrs. Duckett knew of and agreed to both settlements. He stated that, to the best of his recollection, she had seen and signed all documents in a manner consistent with his office routine. With respect to the nondelivery of settlement proceeds, respondent testified that, in each case, Mrs. Duckett had requested that he retain the sums for her rather than pay them out immediately.

During hearings before the Missouri special master, respondent also discussed the extent to which he had commingled funds. In his view, he owed his client a net amount of only $118.60. He derived this figure by subtracting from the settlement proceeds his fees for the two settlements, the court costs, and fees for unrelated legal services that he claimed to have performed for Mrs. Duckett. Respondent stated that after the other attorney contacted him about Mrs. Duckett’s situation, he decided to waive the fees for the collateral legal services. Hence, his ultimate payment to her exceeded the $118.60 that he thought he actually owed. Although respondent frequently referred to his office records while testifying before the master, he did not produce time records or other documentation of the services he claimed to have rendered with respect to legal matters other than the two settlements.

The Supreme Court of Missouri also considered that Mrs. Duckett was a difficult client with whom to transact business. The special master found that “[s]he was unpredictable, uncooperative, [and] evasive.” (615 S.W.2d 421, 422.) The evidence showed that she experienced much emotional and physical stress during the time that she dealt with respondent.

The Supreme Court of Missouri did not find that any of these additional circumstances qualified as mitigating factors that would justify imposing a lesser sanction upon respondent. The court rejected the theory that the client’s physical or mental problems in any way excused respondent’s conduct: “For every degree that respondent by his testimony and evidence proved a less than normal mental and functional capacity on the part of his client, Doris Duckett, he raised by an equivalent degree the standard of conduct which this Court must require of him ***.” 615 S.W.2d 421, 422.

As noted earlier, respondent has raised two of the issues that Rule 763 (87 Ill. 2d R. 763) allows him to address in this reciprocal disciplinary action. His first contention is that the Missouri procedure deprived him of due process of law. With respect to this claim, respondent has not disputed our Hearing Board’s conclusions that, in Missouri, he was represented in all proceedings by able counsel; that he was allowed to and did testify himself; and that he availed himself of the opportunity to cross-examine witnesses. Instead, respondent’s argument centers on the Supreme Court of Missouri reviewing the case de novo, in which review the special master’s recommendation, public reprimand, was rejected in favor of a harsher sanction. Respondent complains that from a written record the court drew conclusions contrary to those of the master who had personally observed the witnesses. In respondent’s view, this procedure deprived him of the fair hearing that due process requires.

We find this argument to be without merit. Attorney discipline cases reach the Supreme Court of Missouri in the nature of an original proceeding. (See In re Gamblin (Mo. 1970), 458 S.W.2d 321, 322 (en banc).) Just as the hearing and review boards serve as agents for this court in the fact-finding process (In re Mitan (1979), 75 Ill. 2d 118, 123-24), the special master in Missouri makes findings and recommendations that the supreme court of that State regards as persuasive, but not binding. As the Missouri court explained in In re Connaghan (Mo. 1981), 613 S.W.2d 626, 628 (en banc), “the findings and conclusions of a special master are advisory for the court but in the final analysis it is our duty to determine the credibility of witnesses, to review the evidence, and to make our own determination of the facts. [Citations].” While the Supreme Court of Missouri has acknowledged the special master’s superior opportunity to judge the witnesses’ credibility (e.g., In re Gamblin (Mo. 1970), 458 S.W.2d 321, 323 (en banc)), it consistently has conducted a thorough review of each record before reaching its independent decision concerning appropriate discipline. Accordingly, that court on occasion has adopted all findings and conclusions of the master (In re Pine (Mo. 1979), 576 S.W.2d 538, 541 (en banc)), while in other cases it has drawn conclusions and imposed sanctions quite different from those the master advocated. In re Schiff (Mo. 1976), 542 S.W.2d 771, 775 (en banc) (imposing a lesser sanction than recommended); In re Wines (Mo. 1963), 370 S.W.2d 328, 336 (en banc) (imposing a harsher sanction than recommended).

We find that the Missouri court’s treatment of the master’s report did not violate respondent’s due process rights. Indeed, the Missouri fact-finding process in respondent’s case was not unlike the one that our Illinois disciplinary system provides. Respondent, at all times represented by counsel, was allowed to appear, testify and cross-examine witnesses before the master. He then availed himself of the established system of review. Thus afforded an adequate opportunity to be heard, respondent received the benefits that procedural due process requires.

Respondent next asserts that his conduct warrants substantially less discipline in this State than was imposed by the Supreme Court of Missouri. He maintains that, in view of sanctions imposed on Illinois attorneys for similar conduct, the maximum penalty in his case should be censure. In the alternative, he contends that, if suspended, his reinstatement should not be contingent on reinstatement in Missouri, nor should he be required to petition this court for reinstatement pursuant to Rule 767 (87 Ill. 2d R. 767).

Because of differences in the States’ disciplinary rules, exact reciprocal discipline cannot always be imposed in reciprocal proceedings. Our Rule 771 (87 Ill. 2d R. 771), which sets out the various sanctions that an Illinois attorney may receive, does not provide for the precise penalty imposed on respondent by the Missouri court. In this respect, the Administrator agrees that the Missouri order, disbarment with eligibility to petition for reinstatement after one year, is the equivalent of the sanction contained in Rule 771(c), “suspension for a specified period and until further order of court.” (87 Ill. 2d R. 771(c).) The Administrator therefore submits that respondent be suspended for one year and until this court grants his Rule 767 (87 Ill. 2d R. 767) petition for reinstatement.

Turning now to Rule 763 (87 Ill. 2d 763), which addresses reciprocal actions, we note that the rule does not require a reciprocal sanction to be equivalent to that imposed by a sister State. Instead, it states that an attorney who has been disciplined in another State “may be subjected to the same discipline in this State, to run concurrently with the discipline in the foreign State ***.” (87 Ill. 2d R. 763.) In accord with that language, we regard a sister State’s sanction as persuasive, but not binding, when we seek the appropriate penalty to impose in Illinois. (In re Kesler (1982), 89 Ill. 2d 151, 154.) As a result, the final responsibility for determining the proper discipline in reciprocal cases rests with this court (In re Neff (1980), 83 Ill. 2d 20, 25), just as it does in proceedings that originate in Illinois (In re Hopper (1981), 85 Ill. 2d 318, 323; In re Zahn (1980), 82 Ill. 2d 489, 494).

In this case, we do not consider a suspension to be an unduly harsh penalty for respondent’s conduct. We begin by observing that the findings in the Missouri proceedings are res judicata and, as such, are not in dispute at this time. (In re Kesler (1982), 89 Ill. 2d 151, 154; In re Neff (1980), 83 Ill. 2d 20, 25-26.) The Missouri court found that respondent deposited Mrs. Duckett’s funds into his own accounts, spent those funds, and reported them as his own for income tax purposes. These facts support a conclusion that respondent not only commingled his client’s funds, but also converted them, at least technically, for his own use.

With this in mind, it appears that a suspension is not disproportionate to sanctions imposed in prior Illinois cases. This court has sternly cautioned against commingling a client’s funds (e.g., In re Clayter (1980), 78 Ill. 2d 276, 278-79) and has recently suspended an attorney whose commingling led to a technical conversion. (In re Grant (1982), 89 Ill. 2d 247, 254-55 (two-year suspension).) Moreover, attorneys who outrightly converted their clients’ funds have received penalties ranging from suspension to disbarment. (E.g., In re Feldman (1982), 89 Ill. 2d 7, 13-14 (disbarment); In re Fumo (1961), 22 Ill. 2d 429, 431-32 (two-year suspension).) Given these precedents, along with the persuasive nature of the Missouri sanction, we reject respondent’s claim that his conduct warrants substantially less discipline in the nature of censure in this State.

We conclude that respondent should be suspended until reinstatement by the Supreme Court of Missouri. Once respondent has been reinstated in Missouri, however, he should not be required to suffer the delays associated with a petition for reinstatement pursuant to Rule 767 (87 Ill. 2d R. 767). Instead, he may be reinstated in Illinois upon filing with the clerk of this court a copy of the order reinstating him in Missouri.

However, respondent’s suspension here should not extend indefinitely. He has already been out of the practice of law for a substantial period of time. So that his penalty may not be disproportionate to that imposed by this court for similar conduct, we add the following provisions: In the event that the Supreme Court of Missouri has not reinstated him by February 16, 1984 (the anniversary of his last application for readmission in Missouri), respondent may petition for reinstatement pursuant to amended Rule 767 (94 Ill. 2d R. 767). Should respondent reacquire his Missouri license while the Rule 767 proceeding is pending, he may gain readmittance in Elinois by filing the Missouri order with the clerk of this court.

Respondent suspended.


author:
JUSTICE WARD
      JUSTICE SIMON,

text:
    (No. 57489.
    JAMES G. YORK et al., Appellants, v. JOHN C. STIEFEL, Appellee.

      Opinion filed December 16, 1983.

    Rehearing denied January 27, 1984.

      SIMON, J., concurring in part and dissenting in part.

      Richard D. Price, Jr. & Associates, Ltd., of Peoria (Richard D. Price, Jr., of counsel), for appellants.
    Heyl, Royster, Voelker & Allen, of Peoria (Lyle W. Allen and Gary D. Nelson, of counsel), for appellee.
   JUSTICE WARD

delivered the opinion of the court:

This appeal is from a judgment of the appellate court that reversed judgments of the circuit court of Peoria County in favor of the plaintiffs, James York, Janis M. York and Donna J. LaCroix, in a legal malpractice action they had brought against John C. Stiefel, an attorney. (109 Ill. App. 3d 342.) Donna LaCroix’ husband, Lawrence LaCroix, was also a plaintiff, but because the jury did not reach a verdict on his claim, the court declared a mistrial as to his action. The court later allowed his motion for a voluntary dismissal of his claim. We granted the plaintiffs’ petition for leave to appeal under Rule 315 (87 Ill. 2d R. 315).

The claim of legal malpractice was based upon advice the defendant gave to James York and Lawrence LaCroix on February 6, 1976. James York and Lawrence LaCroix were officers in a corporation operating an auto dealership in Peoria, which the defendant had formed for them. The advice complained of was that they personally guarantee, by executing second mortgages on their homes, a debt the corporation owed to a Peoria bank.

York and LaCroix first consulted the defendant relative to purchasing the dealership, which was for Porsche and Audi automobiles, in 1974. York had met the defendant two years earlier, when York was a salesman at a Porsche-Audi dealership in Winnetka. York suggested to LaCroix that the defendant serve as the attorney to organize their new business. Only York and LaCroix consulted the defendant in regard to the business. Janis York and Donna LaCroix, their wives, did not at any time confer professionally with the defendant.

The defendant suggested a subchapter S corporate arrangement and incorporated Countryside Porsche-Audi, Inc. (Countryside), with LaCroix as president, York as vice-president, and the defendant as assistant secretary and registered agent. Janis York and Donna LaCroix were not officers or employees of the corporation. To provide capital for the corporation, LaCroix and York each purchased 500 shares of Countryside’s stock at a dollar a share, and York’s father made a capital loan to the corporation of $50,000.

The Jefferson Bank in Peoria also made a capital loan of $75,000 to Countryside, which was guaranteed by the Small Business Administration. The SBA obtained the personal guarantees of all of the plaintiffs to reimburse the SBA for any payment the SBA might be required to make in the event Countryside defaulted on the loan.

The defendant did not participate in the negotiating of these loans, but he did participate in negotiating a “floor plan” agreement with the Jefferson Bank to provide inventory for Countryside. Under this agreement, entered into in 1974, Countryside would order automobiles and the bank would pay the manufacturer or distributor for the cars. The bank, in turn, took a security interest in each of the cars, and Countryside, for each car it sold, was obligated to remit to the bank the amount of the bank’s secured interest. The limit to which the bank would provide this financing was set at $275,000.

The defendant, though he assisted in the negotiations as to this loan, was not present when the final form of the agreement was signed, although there was testimony by LaCroix that he had read the final documents to the defendant on the telephone and obtained his approval before he and York signed them. LaCroix testified that he believed that he had also sent the defendant a copy of the documents. Unlike the case of the bank loan guaranteed by the SBA, the floor-plan loan was not personally guaranteed by the plaintiffs. The legal advice to personally assume this obligation formed the ground for the malpractice action.

In January 1976 the bank learned that Countryside was violating the floor-plan agreement by selling automobiles secured under the agreement and failing to remit to the bank the amount of its secured interest. There was testimony that this is commonly referred to as selling cars “out of trust.” (LaCroix and York did not deny that they were doing this, and said that the funds obtained from the sales were used to meet operating expenses of the business.) The bank froze the personal savings accounts of the plaintiffs, and a representative of the bank appeared at the dealership on Monday, February 6, 1976, and gave an ultimatum. The representative said that the bank intended to close the dealership at the end of the day unless it received personal assurances to secure the floor-plan loan and a debt created when the bank had allowed Countryside to overdraw on its corporate bank account. The personal assurances as security were second mortgages on the houses of the LaCroixs and the Yorks.

LaCroix phoned the defendant for advice, and that day drove to Chicago and conferred with him for about eight hours. The defendant conducted various telephone conferences with a bank officer and the bank attorney. He advised LaCroix in person, and York by telephone, to execute second mortgages and to release their personal savings accounts to the bank. He told LaCroix that a corporate bankruptcy would be useless. Following this advice, the Yorks and LaCroixs executed the second mortgages a few days later for a total of $54,500, which represented the amount that Countryside was “out of trust” and the amount the bank had allowed Countryside to overdraw on its corporate bank account.

York and LaCroix testified that in advising them to execute the second mortgages, the defendant told them that they had already personally guaranteed the floor-plan loan and, therefore, had nothing to lose in complying with the bank’s demand. When he gave this advice, the defendant did not have the floor-plan agreement before him, but according to LaCroix’ testimony, he told LaCroix that he recalled that it contained a personal guarantee. York and LaCroix testified that their decision to execute the second mortgages was based upon the defendant’s statement that they were already personally liable on the floor-plan loan. As stated above, the floor-plan agreement did not contain a personal guarantee by York and LaCroix.

The defendant testified that, when LaCroix consulted him on February 6, he searched his file for the floor-plan agreement but did not find it. He stated that the bank officer with whom he spoke (the defendant did not recall the officer’s name), told him twice that there was a personal guarantee on the floor-plan indebtedness. The defendant said too that Charles Young, the bank attorney, “corroborated” that there was this personal guarantee. Young also “corroborated,” the defendant testified, that the bank wished to have LaCroix and York prosecuted for violating section 9 — 306.01 of the Uniform Commercial Code (Ill. Rev. Stat. 1975, ch. 26, par. 9— 306.01), which makes it a felony for a debtor, who has a right of sale of collateral under a security agreement requiring him to account to the secured party for the proceeds of a sale, to “willfully and wrongfully” sell the collateral without paying the proceeds to the secured party.

The defendant testified that the bank, in return for the personal guarantees by York and LaCroix, gave Countryside 30 additional days to operate the business and in that time seek financing elsewhere or sell the assets of the corporation themselves in a nondistress situation. During that 30-day period, however, refinancing was not obtained. At the expiration of the period the bank closed down the business and, it appears, sold the assets.

Young, the bank’s attorney, testified that he did not recall telling the defendant that there was a personal guarantee in the floor-plan loan. He said he did not recall hearing any other bank officer stating that to the defendant. Too, he said that while the defendant and he discussed the possible applicability of the criminal statute we have referred to, he did not tell the defendant that the bank was going to ask for prosecution.

Young explained that the second mortgages were executed as security for a note the plaintiffs executed in the amount that Countryside was “out of trust” and overdrawn. In a “paper transfer,” the bank loaned the plaintiffs the mortgage money, then transferred it to the corporation, which enabled the corporation to “correct the *** default that existed at that time.” The note, executed by the plaintiffs, had not been satisfied in full at the time of trial, and the Yorks had sold their home, applying the proceeds to the debt.

The plaintiffs presented two attorneys as expert witnesses. One testified in response to a hypothetical question that in his opinion it was poor judgment to give legal advice without having consulted the actual documents relating to the personal guarantees. He stated, however, that he considered that a wish of the debtors to liquidate the business was a valid factor in recommending a given course of action.

The other attorney testified that in his opinion the defendant failed to act as a reasonably prudent attorney would in that he relied upon his memory of the floor-plan agreement or relied upon opposing counsel’s representations as to the existence of a personal guarantee in the agreement in giving advice to his clients. A reasonably prudent attorney, he said, even in the emergency circumstances, would have examined relevant documents before giving the advice.

An attorney, testifying for the defendant, disagreed with the other attorneys’ opinions. In his opinion the defendant had not acted negligently and, in fact, gave sound advice. It was not bad practice, in his opinion, for a lawyer to give specific advice regarding documents though he had not seen the documents for two years. He considered the attorney had exercised a reasonable degree of care.

As stated, the appellate court reversed the judgments entered on the verdicts for James York, Janis York and Donna LaCroix. The court considered that there was insufficient evidence to support a conclusion that the defendant had an attorney-client relationship with Janis York and Donna LaCroix. It judged, too, that the plaintiffs did not present sufficient evidence that the defendant’s conduct had proximately caused the plaintiffs’ damages.

The plaintiffs argue that the appellate court erred and also criticize the preparation and form of the appellate court opinion, saying that it borrowed extensively from the defendant’s brief.

The function of this court is to review the judgment appealed from and not pass on the form of the opinion involved. (Gould v. Gould (1951), 408 Ill. 526, 529; Merlo v. Public Service Co. (1942), 381 Ill. 300, 321; Stanton v, Chicago City Ry. Co. (1918), 283 Ill. 256, 259.) There is no evidence to support the contention that the appellate court did not consider the plaintiffs’ claims of error.

The judgments for Janis York and Donna LaCroix were properly reversed by the appellate court, but we judge that the court erred in reversing the judgment in favor of James York.

The plaintiffs’ action was brought on the ground of negligence, and in such actions it is necessary for the plaintiff to establish the existence of a duty of care on the part of the defendant to the plaintiff. (Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 18; Cunis v. Brennan (1974), 56 Ill. 2d 372, 374.) In a legal malpractice action, this may be done by showing that the plaintiff was a client of the defendant, or if not the defendant’s client, by showing that the primary purpose of the attorney-client relationship between the defendant and another party was to benefit the plaintiff. (Pelham v. Griesheimer (1982), 92 Ill. 2d 13.) There was no showing here of either of those requirements so far as the plaintiffs Donna LaCroix and Janis York were concerned.

It is clear that Donna LaCroix and Janis York were not clients of the defendant. At no time did they request or receive legal advice from the defendant upon the matters here. There was testimony that the defendant had on an earlier occasion represented the Yorks in the sale of a house and had at another time represented the LaCroixs in the sale of their home. Those matters were not related to the. business of Countryside. Nor v;os the primary purpose of the attorney-client relationship between Lawrence LaCroix and James York and the defendant to benefit the clients’ wives.

The plaintiffs do not assert that a duty of care to the wives could have arisen solely because of the marital relationship. They do, however, argue that the defendant was aware that the documents he was advising his clients to sign would be required to be signed by the clients’ wives as well. They stress also that the defendant negotiated a homestead exemption in the second mortgage, which exemption would be to the benefit of the wives as well as the clients. This does not alter our conclusion. The defendant’s advice was given only to James York and Lawrence LaCroix. At most, the clients’ wives could be considered only incidental beneficiaries, and incidental beneficiaries are not qualified to bring a malpractice action of this character. Pelham v. Griesheimer (1982), 92 Ill. 2d 13.

The appellate court erred in reversing the judgment for James York on the ground of insufficient evidence. There was expert testimony for York that it was a violation of the required standard of care for the defendant to give the advice concerned without consulting the floor-plan documents. The advice the defendant gave, and York’s decision to follow it, were both based upon the erroneous assumption that under the floor-plan agreement York had already assumed a personal liability. The damage to York that was alleged was this assumption of a corporate debt.

The verdict of the jury in favor of York should stand. Reversal of a jury verdict must be supported by evidence which, when viewed most favorably to the party prevailing in the trial court, nevertheless so overwhelmingly favors the appellant that no contrary verdict could stand. (Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill. 2d 481, 486.) The evidence here does not satisfy that standard.

For the reasons given, the portion of the judgment of the appellate court reversing the circuit court’s judgments for Janis York and Donna LaCroix is affirmed; the portion reversing the circuit court’s judgment for James York is reversed and the circuit court judgment for James York is affirmed.

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

JUSTICE SIMON,

concurring in part and dissenting in part:

I agree that the appellate court erred in reversing the judgment in favor of James York. However, I believe that the wives,.Janis York and Donna LaCroix, were also Mr. Stiefel’s clients. My view is that, when their husbands conferred with him on their own behalf, they were also seeking his advice as agents of their wives, and accordingly there was an attorney-client relationship between Mr. Stiefel and them as well as their husbands. I would therefore reverse the appellate court’s decision as to Mrs. LaCroix.

Where a husband and wife both suffer a single financial injury, they should not both recover for it. In the case of Mr. and Mrs. York, although the appellate court decision should be reversed as to her, the reversal should be with the caution that she and Mr. York should not enjoy a double recovery. However, since Mrs. LaCroix’ husband has gained no recovery, I see no reason why she should not have her day in court.

Whether this case is characterized in terms of tort or contract, the wives were clients in their own right, not incidental beneficiaries of the attorney-client relationship between Mr. Stiefel and their husbands. When Mr. Stiefel advised the husbands, he was simultaneously providing information to be passed along to the wives.

Any other position would be unrealistic on the facts of this case. Mr. Stiefel was dealing with a two-man enterprise, not with a large corporation in which the officers kept their personal and business affairs separate and retained different attorneys to attend to each. Mr. Stiefel had previously handled both business and personal matters for these families. He was the attorney when these husbands and wives purchased their homes. Since he was familiar with the form of ownership and with the mortgage encumbrances on these properties, it was not necessary for the wives to confer with him personally in order to explain the nature or extent of their interests. The fact that the wives did not confer with Mr. Stiefel personally is therefore not dispositive. Since no action was taken in Mr. Stiefel’s office which required the wives’ presence or their signatures at that time, it was reasonable for everyone involved to assume that the wives’ attendance was unnecessary. Even if the husbands did not specifically indicate that the wives would also consider Mr. Stiefel’s advice and act upon it, a reasonably prudent attorney should have been aware from his knowledge of the joint ownership, his previous dealings with these couples, and the nature of the marital relationship that this would be the case.

The test as to whether an attorney-client relationship is established should in my opinion be an objective one. If the facts reasonably indicate to the attorney that spouses of those who consult him will also receive his advice and rely on it, the presumption is that the spouses should be regarded as clients. It is not necessary for each spouse to come face to face with the attorney to establish the relationship. If the attorney under these circumstances does not wish to assume responsibility for the other spouse’s action in reliance on his advice, he must expressly disclaim any obligation to that spouse.

Pelham v. Griesheimer (1982), 92 Ill. 2d 13, does not apply here. In Pelham, we said, “[F]or a nonclient to succeed in a negligence action against an attorney, he must prove that the primary purpose and intent of the attorney-client relationship itself was to benefit or influence the third party.” (Emphasis added.) (92 Ill. 2d 13, 21.) Since these wives were clients, they should be able to maintain a malpractice action against their allegedly negligent attorney. The situation would be controlled by Pelham if, for example, Mr. Stiefel had advised the husbands to offer as security an insurance policy on which the wives were named as beneficiaries. That is not this case. These wives are not third parties to transactions involving their homes.


text:
    (No. 57721.
    RICHARD BEGG, Appellant, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF PARK RIDGE, et al., Appellees.

      Opinion filed January 20, 1984.

      Daniel P. Jakala and Stanley H. Jakala, of Berwyn, for appellant.
    Paul N. Keller, of Park Ridge, for appellees.
    Wayne W. Schmidt, of San Francisco, California, and James P. Manak, of Chicago, for amicus curiae Americans for Effective Law Enforcement, Inc.
    William C. Summers, of Gaithersburg, Maryland, for amicus curiae International Association of Chiefs of Police, Inc.
    James A. Murphy, of Peoria, for amicus curiae Illinois Association of Chiefs of Police, Inc.
    Gary M. Lightman and Anthony C. Busillo II, of Mancke, Lightman & Wagner, of Harrisburg, Pennsylvania, for amicus curiae Grand Lodge of the Fraternal Order of Police.
   JUSTICE CLARK

delivered the opinion of the court:

In this case the appellant, Richard R. Begg, a police officer with the city of Park Ridge, was suspended without pay for three days for allegedly failing to meet certain job performance requirements or standards relating to his traffic and nontraffic activities as a police officer. The city’s director of public safety ordered the suspension, and that order was affirmed by the Fire and Police Commission after an evidentiary hearing. The appellant then filed an administrative review action in the circuit court of Cook County. The circuit court reversed the commission because it found that appellant was suspended based on a traffic quota system which it held was against public policy. The appellate court, one justice specially concurring, reversed. (110 Ill. App. 3d 941.) The majority of the appellate court held that there was no evidence to suggest that the appellant was being asked to meet standards which were unreasonably high, nor was there any testimony that the appellant or other officers were to issue unjustified citations to meet the standards required of them. (110 Ill. App. 3d 941, 946.) The appellate court further held that the standards provided a means of evaluating officers in terms of minimal performance as well as identifying superior performance and that appellant had failed to demonstrate that even great reliance on such objective standards would be unreasonable. The court held: “Clearly plaintiff [appellant] has failed to meet his burden of establishing that the challenged regulations were arbitrary or unreasonable.” 110 Ill. App. 3d 941, 946.

One justice, in what is labeled a special concurrence, believed that “the case should be remanded to the circuit court for a determination of whether there [was a] sufficient basis for suspension of [appellant] without regard to [appellant’s] failure to satisfy the requirements of the traffic ticket quota system.” 110 Ill. App. 3d 941, 947 (Johnson, P.J., specially concurring).

The appellant filed a petition for leave to appeal in this court, and we granted his petition under our Rule 315 (87 Ill. 2d R. 315). We also granted leave to Americans for Effective Law Enforcement, Inc., the Illinois Association of Chiefs of Police, Inc., and the International Association of Chiefs of Police, Inc., to file a joint brief amicus curiae in support of the city of Park Ridge and to the Grand Lodge of the Fraternal Order of Police, who filed a brief amicus curiae on behalf of appellant.

At the evidentiary hearing before the Fire and Police Commission the following evidence was adduced: Captain John Baudek, commander of the field operations bureau of the city’s police department, issued an order on December 19, 1977, setting certain traffic enforcement standards for patrol officers. The order provided in pertinent part:

“In Park Ridge in 1976, there were over twenty-one hundred motor vehicle accidents and it appears that the number in 1977 will reach or exceed that number.
* * *
. . .a commitment to reducing motor vehicle accidents and the injuries, deaths, and sorrow that accompany them should be a major objective of both the department’s administration and officers.
* * *
I believe that the standard detailed below is reasonable considering the numerous other tasks that a patrol officer in Park Ridge must perform. The standard gives both the patrol officer and his supervisors one quantifiable reference point for performance and productivity. It should be pointed out that the standard given is below the standard presently performed by many officers.
While a deviation below the standard does not automatically mean the officer is below an acceptable level of performance, I would expect his supervisor to be able to explain such a deviation if the officer is given an acceptable rating in that area of performance on his evaluation. The standard for traffic enforcement will be as follows:
With the number of miles that a patrol officer drives during a watch and the high volume of traffic in the Park Ridge area, I believe that it is reasonable for an officer to observe one traffic violation during a watch. Keeping in mind the midnight watch and other consideration[s], a patrol officer will be expected to issue .80 “X” citations per day of patrol over a standard three-month watch cycle.”

Baudek testified at the evidentiary hearing before the Fire and Police Commission. He stated that his purpose in issuing the above order was to decrease the number of traffic accidents in Park Ridge. He testified that, since he had issued the order, the number of accidents in Park Ridge had not decreased. But he also stated that the traffic count had increased, a fact which might account for the rise in the number of accidents. The standard was also used as a quantifiable and measurable basis upon which to evaluate the police department’s officers. Baudek testified that it provided a measurable standard on which to judge an officer’s performance rather than depending solely on a subjective personal opinion of a supervisor.

Baudek explained that an officer was evaluated in three ways. The traffic activities that were discussed in the order were one way, nontraffic activities were the second way, and the subjective evaluation by an officer’s watch commander was the third way. In the nontraffic activities category, Baudek testified, an officer was expected to perform such tasks as checking doors of the homes of vacationing residents and schools. Even though there was no set standard for nontraffic activities, supervisors were given averages for each department and watch and were expected to use that average as a basis for comparison. Baudek testified that the traffic and nontraffic activities of a police officer were only a small part of the officer’s overall evaluation. An officer’s watch commander was responsible for completing his or her evaluation form.

Lieutenant George Teune, the appellant’s watch commander, was responsible for evaluating the appellant. At the hearing, Teune testified that the evaluation forms included the two objective performance statistics for traffic and nontraffic activities in addition to other areas of evaluation, such as the officer’s amount of initiative, promptness, and the amount of sick time he used. Teune testified that the nontraffic and traffic categories, objective categories, represented 40% to 50% of the overall evaluation of the officer. Teune, contrary to what Captain Baudek had testified, stated that, since the standard (which he believed amounted to a quota system) was instituted, the number of accidents in Park Ridge had decreased. He also testified that the standards established a norm from which an officer’s superior performance could be judged.

On April 24, 1980, by order, the appellant was warned his performance as a police officer had fallen below an acceptable level. The appellant’s sick time record was described as “if not the poorest on the department, very close to that level,” His productivity levels were considered to be “in fact the lowest of any officer on the department by almost any standard used.” Appellant’s traffic index score was listed at .40 for 1979, and for the first quarter of 1980 it was .15, the lowest in the department and well below the departmental average of .829. In nontraffic activities, the appellant’s nontraffic index score was listed at .76 for 1979, and .99 for the first quarter of 1980. The departmental averages for that same period were 1.75 and 1.50 respectively. Appellant was told that he had specific objectives to meet for the second quarter of 1980 or he would be subject to discipline. He was to improve his traffic and nontraffic index scores, reduce his use of sick time (barring any serious illness), refrain from doing anything which would cause disciplinary action to be taken against him, and submit to a physical examination to be performed by a departmental physician. Appellant did fulfill the last three of these objectives. However, the evidence clearly established that he failed to meet the traffic and nontraffic standards which were set for the second quarter of 1980. A letter of reprimand was consequently issued and the appellant was suspended for three days without pay.

Appellant testified during the hearing to the following facts and opinions. He had been on the Park Ridge police force for 18 years. The index standards, in his opinion, constituted a quota system. He believed that 90% of an officer’s evaluation was based on the traffic and nontraffic index standards. He did not believe that the indices were a true reflection of an officer’s performance because they did not reflect certain activities an officer performed. Appellant gave the example of a situation where an officer would refer young drivers to their parents rather than give them a ticket if it was a first offense.

In April of 1980, appellant only issued one ticket in 21 days because he believed that the other infractions he had seen were not “of a hazardous nature that would require a ticket.” A rolling stop with no traffic present was an example of this type of infraction. In May, the appellant’s traffic index was 1.80. Appellant testified that, during that month, he had made a special effort to improve his score.

Appellant stated that in the area of nontraffic activities, checking homes was the highest volume activity. Although he could not name the officers who did it, appellant stated that some officers marked down the time, date, location and condition of homes before they even checked them.

Several officers testified at the hearing expressing their belief that the index standards were in fact quotas and that their evaluations consisted mainly of their scores regarding the index standards. These officers also testified to seeing other officers fill out the forms for recording house checks before they actually went out on patrol. None of the officers could testify that these homes were not subsequently checked.

As we mentioned previously, the Fire and Police Commission, based on the above evidence, found that, since appellant had failed to meet the required traffic and nontraffic indices and had not presented any mitigating circumstances which would excuse his unacceptable performance, his suspension for three days without pay was proper. The circuit court of Cook County reversed the commission’s decision based solely on the fact that it found the traffic index standard to be a traffic quota system which it held was against public policy. The appellate court reversed the decision of the circuit court because it held that appellant had failed to sustain his burden of proof to establish that the traffic index standard was arbitrary or unreasonable.

Appellant does not challenge the right of the city of Park Ridge to enforce its traffic laws. However, he does argue that by requiring police officers to meet certain standards of enforcement, the city is violating public policy and issuing an unreasonable, arbitrary and capricious rule. In Midwest Petroleum Marketers Association v. City of Chicago (1980), 82 Ill. App. 3d 494, the court held:

“To constitute a legitimate exercise of the police power, municipal legislation must bear a reasonable relationship to the public interest intended to be protected, and the means adopted must be a reasonable method of accomplishing the desired objective.” (82 Ill. App. 3d 494, 500.)

It also held that, “[ojnce the legislative body determines that a problem exists and acts to protect and promote the general welfare of its citizens, the legislation is presumed to be a valid exercise of the city’s police power.” 82 Ill. App. 3d 494, 500, citing Union Cemetery Association v. Cooper (1953), 414 Ill. 23.

Administrative regulations, for purposes of determining their validity, are presumed to be valid. (Du-Mont Ventilating Co. v. Department of Revenue (1978), 73 Ill. 2d 243.) An administrative regulation will not be set aside unless it has been clearly arbitrary, unreasonable or capricious (Illinois Coal Operators Association v. Pollution Control Board (1974), 59 Ill. 2d 305, 310), and the person questioning the validity of the administrative regulation bears the burden of establishing its invalidity (Illinois State Chamber of Commerce v. Pollution Control Board (1977), 49 Ill. App. 3d 954, 960).

In the instant case, as was stated in Captain Baudek’s order, the city of Park Ridge was faced with an increasing number of motor vehicle accidents. In response to this situation, it issued an order which was meant to reduce motor vehicle accidents, injuries and deaths, by requiring police officers to perform at a certain level in their traffic enforcement activities. This regulation is presumed to be valid and we will not set it aside unless it is shown to be arbitrary, unreasonable or capricious. The appellant has the burden of establishing the regulation’s invalidity, since he is the one who is challenging its validity.

Appellant did not present any evidence to demonstrate that the traffic index standard was unreasonable. Neither the appellant nor any other officer testified that he was forced to issue more tickets than were justified in order to meet the traffic-index standard. None of them testified that the .80 standard was an unreasonable or arbitrary standard.

During oral argument before this court, the appellant argued that the means (the traffic index) that the city instituted to achieve the ends (less accidents) were not only against public policy, but were also unsuccessful. However, as the appellate court noted, there was no conclusive evidence presented to show that the traffic-index standard had not reduced the number of accidents. Captain Baudek did testify that the number of accidents had increased but so, too, had the traffic count. Lieutenant Teune testified that since the index was instituted there had been a reduction in the number of accidents. This testimony is inconclusive in establishing the effectiveness of the regulation.

In its amicus curiae brief, filed on behalf of the city, Americans for Effective Law Enforcement, Inc., asserted that standards such as the one set in the instant case not only serve to reduce traffic accidents, but also provide a necessary means by which a police department can maintain structure and control over its police officers. It asserted that administrative rulemaking is necessary to assure uniformity in the enforcement of laws in addition to fulfilling the department’s need for accountability over its officers.

Appellant contends that the traffic-index standard plays too big a role in the overall evaluation of an officer. Captain Baudek and Lieutenant Teune both testified that the traffic and nontraffic indices were less than 50% of an officer’s overall evaluation. The two objective categories were used to make the evaluation less arbitrary. An officer was no longer evaluated solely on the basis of a watch commander’s personal opinion. The appellant failed to show that reliance upon these standards in evaluating officers was unreasonable or arbitrary.

Any regulation can be abused by those persons responsible for its enforcement; however, that does not mean that the regulation itself is invalid or against public policy. As we stated earlier in this opinion, the appellant had the burden of establishing that the regulation was arbitrary and unreasonable. He failed to meet that burden.

Accordingly, we affirm the judgment of the appellate court, which reversed the judgment of the circuit court.

Judgment affirmed.