author: JUSTICE UNDERWOOD JUSTICE SIMON,

text:
    (No. 56137.
    JACK T. KNUEPFER, County Board Chairman, Plaintiff, v. BRUCE R. FAWELL, Judge, Defendant.

      Opinion filed January 24, 1983.

      J. Michael Fitzsimmons, State’s Attorney (George J. Sotos, John A. Davidovich, Roy F. Lawrence, Barbara A. Preiner, and Keith Letsche, Assistant State’s Attorneys, of counsel), for plaintiff.
    Edward J. Walsh, Jr., of Huck & Walsh, Chartered, of Wheaton, and Stephen J. Culliton, of Civinelli, Bakalis and Culliton, of Bloomingdale, for defendant.

      Botti, Marinaccio, Wilkinson, and Maksym, Ltd., of Oak Brook (Aldo E. Botti and Walter P. Maksym, Jr., of counsel), for amicus curiae Urban Counties Council of Illinois.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

This case involves the question as to the circumstances in which the judicial branch of government may properly order production of facilities for its use when the legislative or executive agency primarily responsible for doing so has failed to act. We granted Jack T. Knuepfer, chairman of the Du Page County Board, leave to file this original action seeking a writ of mandamus or a supervisory order directing vacation of an administrative order entered by defendant, Chief Judge Bruce R. Fa-well of the 18th judicial circuit. That order, entered on January 29, 1982, commanded the Du Page County Board to evict a private business tenant operating a cafeteria in the county administration building and to remodel the resulting space into five courtrooms. The county board was additionally required to make available certain other rooms to accommodate staff personnel. Plaintiffs emergency motion to stay defendant's administrative order was allowed, and the Urban Counties Council of Illinois was granted leave to file a brief as amicus curiae.

Because of the extraordinary nature of this action, the importance of the underlying issue, and its potential impact upon the delicate relationships between the several departments of local government, this court took the unusual step of authorizing pretrial conferences by its resident member with the parties to this cause in a manner similar to that provided for the appellate court by our Rule 310 (87 Ill. 2d R. 310.) The failure to reach agreement after numerous conferences necessitates our resolving the issue.

This regrettable dispute followed approximately two years of combined legislative and judicial efforts at the local level to formulate a suitable plan to meet the increasing judicial need for space in Du Page County. That county, which constitutes the entire 18th judicial circuit, is one in which there has been rapid population growth in recent years resulting in a substantial increase in the number of judges. The existing judicial facilities are primarily located in the old courthouse and courthouse annex, with two additional courtrooms located in the north wing of the newer county administration building, known as Du Page Center. The record indicates that in September 1979 defendant contacted the Judiciary and Law Enforcement Committee, the Finance Committee, and the Building and Grounds Committee of the Du Page County Board. He informed them that an anticipated addition of three or four judges in 1981 would result in a need for additional court facilities and requested an appropriation of funds for that purpose.

In November 1979 the Judiciary and Law Enforcement Committee formed the User’s Committee for Space Planning, which explored both short-term and long-term plans for expanding the judicial facilities before presenting a proposal to the Judicial and Law Enforcement Committee on May 19, 1980. During this period, representatives of the court reminded county board members that additional judgeships were planned for the early part of 1981. The User’s Committee suggested that a third floor be constructed above the cafeteria in the north wing of Du Page Center to house new courtrooms and chambers. This addition would have provided the court with 8,100 square feet of additional space. The proposal and budgetary considerations were examined by various county board committees and judicial representatives until a final construction plan was adopted on April 22, 1981. The State’s Attorney’s office was then authorized to negotiate and finalize the necessary contracts.

The anticipated four additional judges joined the court in June 1981. When the construction contracts were still unexecuted at the end of September 1981 defendant notified the Building Administration Committee chairman that the judiciary would intervene if additional facilities were not provided by March 1, 1982. At the end of October 1981 the court was informed that the planned addition would have to be postponed and possibly cancelled due to a recently discovered structural problem in the north wing. The Building Committee then met four times in November 1981 to discuss alternate proposals to expand the judicial facilities. Because the construction plans were suitable for use in remodeling the cafeteria or the space underneath it occupied by the local election commission, the Building Administration Committee decided in December 1981 to terminate the lease held by the Du Page County board of election commissioners. The election commission was given until the end of April to vacate the premises in order to minimize any disruption of the March 1982 primary elections.

On January 4, 1982, defendant conducted an administrative hearing in order to determine the needs of the judiciary and what action should be taken to meet those needs. Testimony was heard from the court administrator, three circuit court judges, a legal assistant, and the executive director of the election commission. Although members of the county board were present and invited to testify, they declined to do so. The executive director testified that the election commission’s lease had been terminated and that relocation to other space within Du Page Center would not provide the commission with sufficient space.

Testimony heard from the other witnesses indicated that the existing judicial facilities were inadequate in that the lack of space impaired the court’s ability to function in a dignified and efficient manner, particularly after the additional judges joined the court the preceding June. The four new judges were able to use vacationing judges’ chambers and courtrooms during the summer of 1981. When all of the judges returned, however, the new judges were forced to search for unused courtrooms before convening each of their sessions because only 24 courtrooms were available for the 28 judges assigned to hear cases. Proceedings initiated in one courtroom frequently had to be finished in another courtroom, and this constant shuffling of courtrooms created confusion to the extent that parties and witnesses often failed to appear because they were waiting in a different courtroom. Moreover, cases assigned to these judges were frequently delayed. One of the judges attempted to hold proceedings in his chamber, but discarded the practice when it became obvious that the cramped quarters increased the animosity between the parties and impaired the court’s ability to function with decorum. Another new judge was not even assigned chambers.

Following the administrative hearing, defendant entered an order commanding the county board to supply the court with a plan providing a minimum of 8,100 square feet of additional space; the deadline for submitting the plan was January 15, 1982. The order also required the plan to be capable of completion on or before March 1, 1982. Defendant stated in his order that he would seize 8,100 square feet in Du Page Center if the county board failed to comply. The county board held its own hearing on January 14, 1982, and on January 15, 1982, defendant and plaintiff apparently reached a tentative agreement on a plan to provide the court with temporary additional facilities until the election commission’s space could be remodeled. The record does not indicate why this agreement collapsed, but on January 29, 1982, defendant entered his administrative order commanding the county board to surrender the cafeteria at Du Page Center by February 2, 1982. The county board subsequently rescinded its termination of the election commission’s lease.

Defendant initially urges this court to find that plaintiff lacks standing because the county board had not passed a resolution authorizing plaintiff to act upon its behalf when he instituted this action. It is unnecessary to decide whether plaintiff had contemporaneous authority in the absence of a prior resolution because the county board subsequently adopted a resolution expressly providing retroactive authority, and ratifying and confirming plaintiff’s actions. Plaintiff’s action had obviously been undertaken on behalf of the county board, and it is well established that an informed ratification is equivalent to an original authorization. (Vetesnik v. Magull (1932), 347 Ill. 611, 617; Neenan v. Industrial Com. (1928), 329 Ill. 48, 56-57. See also Bragg v. Fessenden (1850), 11 Ill. 544.) Furthermore, while this court continues to regard mandamus as an extraordinary remedy, we may consider a petition for the writ when it presents, as is true here, an issue which is both novel and of crucial importance to the administration of justice; in such cases, all of the normal requirements for mandamus need not be present initially. See, e.g., People ex rel. Bier v. Scholz (1979), 77 Ill. 2d 12, 16; People ex rel. Carey v. Covelli (1976), 61 Ill. 2d 394, 400-01; People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 192.

The crucial issue before us, however, is found in plaintiff’s argument, joined by amicus, that defendant’s order exceeded the scope of his authority. Contending that the judiciary’s inherent power is applicable only to regulate facilities already existing, respondent’s order is characterized as an impermissible intrusion into the legislative domain. That argument is bottomed upon the separation-of-powers provisions incorporated in article II, section 1, of our 1970 constitution:

“The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.”

The import of this language is the same as that of its predecessors in our earlier constitutions (City of Waukegan v. Pollution Control Board (1974), 57 Ill. 2d 170, 173) and is “that the whole power of two or more of these departments shall not be lodged in the same hands, whether of one or many.” (Field v. People ex rel. McClernand (1839), 3 Ill. (2 Scam.) 79, 84, quoted approvingly in City of Waukegan v. Pollution Control Board (1974), 57 Ill. 2d 170, 174.) The separation-of-powers doctrine was not designed, however, to achieve a complete divorce between the three departments (City of Waukegan v. Pollution Control Board (1974), 57 Ill. 2d 170, 174; People v. Reiner (1955), 6 Ill. 2d 337, 342.) It is abundantly clear from our opinion in City of Waukegan that there exists no constitutional prohibition forbidding every exercise of functions by one branch of government which conventionally are exercised by another. We there held, in accord with what we considered the modem trend, that administrative agencies could impose discretionary civil penalties such as the monetary fines there imposed by the agency.

More to the point in the case before us is our discussion in People ex rel. Bier v. Scholz (1979), 77 Ill. 2d 12. We there issued a writ of mandamus directing that an administrative order of the respondent chief judge be vacated. That order had fixed probation officer salaries at levels above those approved by the county board, in which respondent agreed the legislature had vested the salary-setting authority. While we held the administrative order improper, we reached that conclusion only because the salaries as set by the board did not appear to be unreasonable (77 Ill. 2d 12, 18), and our discussion of the issue leaves no basis to doubt the inherent power of the courts to protect themselves and require production of the facilities, personnel and resources reasonably necessary “to enable them to perform their judicial functions with efficiency, independence and dignity.” (77 Ill. 2d 12, 19); see also People ex rel. Illinois State Bar Association v. Peoples Stock Yards State Bank (1931), 344 Ill. 462, 470. Accord, State ex rel. Lorig v. Board of Commissioners (1977), 52 Ohio St. 2d 70, 369 N.E.2d 1046; Zylstra v. Piva (1975), 85 Wash. 2d 743, 539 P.2d 823; O’Coin’s, Inc. v. Treasurer of County of Worcester (1972), 362 Mass. 507, 287 N.E.2d 608; Judges for Third Judicial Circuit v. County of Wayne (1971), 386 Mich. 1, 190 N.W.2d 228; Commonwealth ex rel. Carroll v. Tate (1971), 442 Pa. 45, 274 A.2d 193, cert. denied (1971), 402 U.S. 974, 29 L. Ed. 2d 128, 91 S. Ct. 1665. See also Woods v. State (1954), 233 Ind. 320, 324-25 n.3, 119 N.E.2d 558, 561 n.3, disapproved on other grounds in Ketcham v. State (1959), 240 Ind. 107, 162 N.E.2d 247; Annot., 59 A.L.R.3d 569 (1974).

We noted in People ex rel. Bier v. Scholz (1979), 77 Ill. 2d 12, 19, and emphasize here that the public interest requires that the three branches in our system of government work cooperatively and in harmony. Consistent with this principle we reemphasize the necessity to exercise sparingly the inherent powers of the judiciary, and that deference should normally be accorded the governmental branch having initial responsibility. Under our statute the responsibility to provide judicial facilities rests on the county board. Section 26 of “An Act to revise the law in relation to counties” (Ill. Rev. Stat. 1979, ch. 34, par. 432) provides:

“It shall be the duty of the county board of each county:
First — To erect or otherwise provide when necessary, and the finances of the county will justify it, and keep in repair, a suitable courthouse ***.
Sixth — To provide proper rooms and offices, and for the repair thereof, for the accommodation of the circuit court of the county and for the clerks of such court, and to provide suitable furnishings for such rooms and offices ***. The court rooms and furnishings thereof shall meet with reasonable minimum standards prescribed by the Supreme Court of Illinois. Such standards shall be substantially the same as those generally accepted in court rooms as to general furnishings, arrangement of bench, tables and chairs, cleanliness, convenience to litigants, decorations, lighting and other such matters relating to the physical appearance of the court room.”

The statute establishes a mandatory duty (People ex rel. Director of Finance v. YWCA (1981), 86 Ill. 2d 219, 237; see also People ex rel. Goodman v. Wabash R.R. Co. (1946), 395 Ill. 520; County of Mercer v. Wolff (1908), 237 Ill. 74), and it is clear that the duty is as yet unperformed.

Plaintiff contends, however, that the administrative hearing conducted by defendant was unfair because defendant was an interested party. We are urged to disapprove this procedure. Both the Illinois Constitution and our own Rule 21 charge the chief judge of each judicial circuit with the responsibility of administering the circuit courts, subject to our supervisory power. (Ill. Const. 1970, art. VI, sec. 7(c); 73 Ill. 2d R. 21.) A competent chief judge will normally be the most knowledgeable person in his circuit regarding the needs and problems of the judiciary and the progress being made in resolving them. He is, in our judgment, particularly well qualified to evaluate the evidence presented in an administrative hearing held to determine whether judicial action to secure court facilities is warranted. To hold, as plaintiff urges, that his knowledge of this administrative subject matter disqualifies the chief judge from conducting the hearing is not, we believe, required in these circumstances. In order to ensure the availability of meaningful review, however, it is essential that any such administrative orders be entered only after a hearing of which adequate notice is given and at which all interested parties are afforded an opportunity to present their views. We note parenthetically that our rules committee currently has under consideration the preparation of a rule establishing the procedure for such hearings and their review.

Although it is apparent from what we have said that defendant, as chief judge of the circuit, possessed the inherent power to enter, in appropriate circumstances, the order which he did, such power is to be exercised sparingly, as we earlier noted, and only in exigent circumstances. We are troubled here by the absence from this record of any explanation of the reasons for the collapse of the tentative agreement reached by defendant and the board a few days prior to the entry of defendant’s order. Too, we recognize the serious difficulties inherent in the board’s duty to provide adequate facilities from limited resources, and the record reflects that the county board was addressing both temporary and long-term proposals to meet the need for additional facilities. Also, only 2½ months elapsed between the time that the board was forced to postpone its finalized construction plans and defendant’s entry of the order.

While the obvious lack of essential courtrooms and the problems resulting therefrom demand action, a proper regard for and deference to the prerogatives of the legislative and executive branches requires that judicial action be limited to exigent situations where the unwillingness of those branches to furnish essential facilities or personnel has been clearly established. For the reasons above outlined we were not entirely certain that there was no reasonable possibility of board action, and this opinion, which had been prepared, stayed the effect of defendant’s order for an additional period of time. The desirability of extending the stay has since been reinforced by information furnished us indicating the board, on January 11, 1983, adopted a resolution for the creation of five temporary courtrooms and authorizing implementation of the resolution.

In these circumstances we have determined to retain jurisdiction of this cause and continue in effect our order staying the effect of defendant’s January 29, 1982, order for a further period of 120 days. If the board within that period secures defendant’s approval of the plan and proceeds with its implementation, the writ of mandamus will issue. Otherwise, defendant’s order, with any modifications further hearings establish as needed, shall become effective.

Writ provisionally denied.

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

JUSTICE SIMON,

dissenting:

While this court’s original decision to allow Mr. Knuepfer to file this unusual action was understandable at the time, I feel compelled to point out that the parties reached an agreement in this case a few months thereafter. The agreement provided for the 18th judicial circuit to receive substantially all of the additional court space it needed in the Du Page Center. This agreement was reached a few days before this court filed the opinion in this case, and we knew of the settlement before the filing date. I feel we should not have been so eager to issue and publish this opinion when nothing remained in controversy and in the face of the initial reluctance to decide the case which my colleagues themselves so clearly express (96 Ill. 2d at 287).

This case had its genesis in the rapid population growth of Du Page County, a situation of concern to the county’s legislative and executive institutions as well as to its judiciary. While nothing in the record indicates that the space needs of the Du Page county board were expanding as rapidly in 1982 as those of the circuit court, it is fair to assume that in many cases the expansion of a county’s court system will be accompanied by a corresponding increase in the personnel or facilities which the county board will require; I am unwilling to exalt the former’s needs over the latter’s as unilaterally as the majority has done here. In this case the board made several offers of space which the circuit court rejected, apparently because of the time it would have required to reinforce the masonry of the part of the building in which the space was located. The majority makes no finding of bad faith on the part of the board, however, but merely finds that no court space was provided.

I feel that we as judges must be aware that the public purse is not bottomless and that needs of many agencies of government must be accommodated out of that purse. I believe that an administrative order compelling a county board to provide court space should be allowed to stand only when the circumstances of the particular case clearly and strongly warrant it and only if the board is financially able to comply with the order while performing its other fundamental obligations. To suggest that circuit courts have a general inherent power to issue and enforce such orders, whether justified by considerations of judicial efficiency, decorum or any other goal, is in my judgment to come dangerously close to sanctioning an imperial judiciary, a judiciary that is oblivious to the needs of other public agencies and the fiscal realities that are the everyday concern of those agencies, and particularly those such as county boards which are charged with the responsibility of appropriating and expending public funds.

Good government requires accommodation between its branches. A circuit court is not an independent fiefdom but is a part of government, like the county board. Its particular function is to administer justice to the many people who require the assistance of the courts, a function which is performed best if parties are encouraged to resolve as many controversies as possible outside of court. I question whether the instant litigation, initiated by the circuit court itself against a co-equal branch of government, does not undermine this function by the example it presents, and whether it will not thereby continue to impede the functioning of government even after it is concluded. The majority opinion, far from resolving this problem, fosters its recurrence by acknowledging the authority of the judicial branch to provide by court order for full performance in cases such as this. This may encourage circuit courts to be adamant in presenting demands to county boards instead of attempting to compromise their needs and settle for the best accommodation possible under mutually agreeable terms. This is all the more regrettable because we did not have to issue an opinion in this case at all; we had the option of simply declaring the case moot (Madison Park Bank v. Zagel (1982), 91 Ill. 2d 231, 235-36; In re Marriage of Wright (1982), 89 Ill. 2d 498, 500) and trusting, as we should, that similar disagreements in the future will also be settled short of formal court proceedings.


source: Caselaw Access Project

author: JUSTICE CLARK JUSTICE MORAN,

license: Public Domain

text:
    (No. 55501.
    (No. 55599.
    JOHN KASKE, et al., Appellants, v. THE CITY OF ROCKFORD et al., Appellees.—ROBERT COLLURA, Appellant, v. THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF ITASCA, Appellee.

      Opinion filed January 24, 1983.

    Rehearing denied April 8, 1983.

      North, Ohlson, Boyd, Condon & Ellsworth, of Rockford (Scott M. Boyd, of counsel), for appellants John Kaske and Paul A. Triolo.
    Charles E. Box and Kathleen Elliott, Corporation Counsel, of Rockford (Joseph C. Haughey, Fred E. Inbau, John Henry Wigmore, James P. Manak, and Charles F. Marino, of Chicago, James A. Murphy, of Peoria, and Wayne W. Schmidt, of South San Francisco, California), for appellee City of Rockford.
    James A. Murphy, of Peoria, and James P. Manak and William E. Hornsby, Jr., of Chicago, for amicus curiae Illinois Association of Chiefs of Police.
    Stanley H. Jakala, of Berwyn, for amicus curiae Fraternal Order of Police, State of Illinois.
    Richard F. McPartlin, of Chicago, for amicus curiae Illinois Police Association.
    Heckenkamp and Simhauser, P.C., of Springfield (I. J. Feuer and Mark Rabin, of counsel), for amicus curiae Policemen’s Benevolent and Protective Association.
    Rock, Fusco, Reynolds & Heneghan, of Chicago (Philip J. Rock and William Paul Jones, of counsel), for appellant Robert Collura.
    Thomas F. McGuire, of Long Grove, for appellee Village of Itasca.
    James A. Murphy, of Peoria, and James P. Manak and William E. Hornsby, Jr., of Chicago, for amicus curiae Illinois Association of Chiefs of Police.
    Stanley H. Jakala, of Berwyn, for amicus curiae Faternal Order of Police, State of Illinois.
    Richard F. McPartlin, of Chicago, for amicus curiae Illinois Police Association.
    Heckenkamp and Simhauser, P.C., of Springfield (I. J. Feuer and Mark Rabin, of counsel), for amicus curiae Polieemen’s Benevolent and Protective Association.
   JUSTICE CLARK

delivered the opinion of the court:

This case is a consolidation of two different appeals concerning the giving of polygraph examinations to public law-enforcement officials and the admissibility of the polygraph results in administrative disciplinary proceedings. In cause No. 55501, the plaintiffs, Rockford police officers John Kaske and Paul A. Triolo, brought suit against the city of Rockford and its police chief seeking to prohibit the defendants from compelling the plaintiffs to undergo polygraph examinations. In cause No. 55599, the plaintiff, Itasca police officer Robert Collura, is challenging a decision of the Itasca board of fire and police commissioners ordering his discharge following a hearing in which the results of a polygraph examination were admitted into evidence. We discuss the latter case first.

Collura v. Board of Fire and Police Commissioners of the Village of Itasca.

On January 26, 1980, the chief of police of the village of Itasca, Stanley J. Rosol, filed charges before the Itasca board of fire and police commissioners against Itasca police officer Robert Collura. It was alleged that Officer Collura had on December 27, 1979, while on duty, made improper physical contact with Alicia Martinez. Officer Collura was also charged with making an untruthful report about what happened between him and Alicia Martinez. Alicia Martinez had made a statement to the chief of police that Officer Collura had sexually touched her while she was being detained on December 27 at the scene of a reported burglary.

Prior to the filing of charges by the chief of police, the plaintiff had been ordered to submit to a polygraph examination or face disciplinary action. Plaintiff appeared for the polygraph examination on January 8, 1980, and asserts that the polygraph examiner prejudged the plaintiff’s veracity before the test was administered. The plaintiff also testified that the examiner was abusive and argumentative, which caused the plaintiff to become angry and hostile.

At the hearing before the Itasca board of fire and police commissioners the polygraph examiner was called as an expert witness and the results of the polygraph examination were admitted into evidence. The polygraph examiner testified that the plaintiff lied in answering questions concerning his alleged improper contact with Alicia Martinez. The operator indicated that he had four years of experience conducting examinations, and denied that he had prejudged Collura or had acted in a hostile or argumentative way toward the plaintiff. Counsel for the plaintiff attacked the competency of the examiner and objected to the admissibility of the examiner’s testimony and the results of the polygraph test.

The board found Collura guilty of the charges and determined that his conduct warranted a discharge. Officer Collura filed for administrative review of the board’s order pursuant to the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.). The circuit court of DuPage County affirmed the decision of the board of fire and police commissioners, and the appellate court, under Supreme Court Rule 23 (73 Ill. 2d R. 23), found no error in the admission of polygraph results which were founded upon the testimony of a properly qualified and certified examiner. 97 Ill. App. 3d 1199.

Kaske v. City of Rockford

On February 2, 1981, the plaintiffs filed a complaint for declaratory judgment with the circuit court of Winnebago County, asking that the defendants, the city of Rockford and Delbert Peterson, the chief of police of the Rockford police department, be restrained and enjoined from ordering the plaintiffs to undergo polygraph examinations. A temporary restraining order was granted and then extended on four occasions by the agreement of the parties. The plaintiffs also filed a motion for a preliminary injunction on February 3, 1981. The defendants filed a motion to dismiss which the circuit court granted with leave to amend.

An amended complaint was filed with the court on March 13, 1981, and an amendment to that complaint was allowed to be filed on March 20, 1981. The defendants filed a motion to dismiss on March 30, 1981.

On April 16, 1981, the circuit court entered an order dismissing the amended complaint, finding that it was insufficient to state a cause of action for declaratory judgment. The court denied the motion for a preliminary injunction, dissolved the temporary restraining order, and granted the plaintiffs’ leave to file a further amended complaint if “they chose to do so.” The plaintiffs elected to stand on their amended complaint and filed their notice of appeal the same day.

On August 12, 1981, the appellate court, in a Rule 23 order (73 Ill. 2d R. 23), affirmed the trial court’s denial of the preliminary injunction and dismissed the appeal. (98 Ill. App. 3d 1203.) We granted plaintiffs leave to appeal (73 Ill. 2d R. 315).

Plaintiffs Kaske and Triolo are close personal friends. In December of 1980 plaintiff Triolo brought an action for dissolution of marriage. When his wife was informed, she told Triolo that she would “take his job.” Shortly thereafter, plaintiff Triolo’s wife contacted supervisory officers of the Rockford police department and arranged a meeting with the plaintiffs’ immediate supervisory lieutenants. At the meeting Mrs. Triolo made oral statements that the plaintiffs had smoked marijuana on different social occasions. A week later Mrs. Triolo contacted one of the lieutenants with whom she had met and recanted her previous allegations, indicating that what she had said was not true.

The chief of police ordered both plaintiffs to submit written reports concerning the allegations. The plaintiffs did submit reports in which each denied the use of any drugs.

The plaintiffs were then ordered to undergo polygraph examinations. They were informed that any information obtained as a result of the examinations might be used against either or both of the plaintiffs (in bringing charges) before the board of fire and police commissioners of Rockford. The plaintiffs were told by the chief of police that their refusal to obey the order would subject them to charges before the board of fire and police commissioners of Rockford.

Prior to the order of the chief of police that plaintiffs prepare reports concerning the allegations of drug use, Officer Kaske had submitted a letter of resignation to the police department and soon thereafter asked the chief of police to accept a withdrawal of the resignation. Kaske was informed that he had to appear before the board of fire and police commissioners of the city of Rockford to request withdrawal of his resignation. At the January 6, 1981, meeting of the board, the chief of police informed the board that Kaske was under investigation for alleged drug use. The board allowed Kaske to withdraw his letter of resignation.

The defendants suggest that because Officers Kaske and Triolo did not exhaust administrative review procedures that this court should not review the case since the plaintiffs fail to state a cause of action for declaratory judgment. While our judiciary does not function as an original forum for immediate review of the propriety of all of a chiefs orders to his subordinates in that department, the exhaustion of the administrative review process is not the exclusive remedy in the instant case. (See also People ex rel. Fahner v. American Telephone & Telegraph Co. (1981), 86 Ill. 2d 479, 485.) A declaratory judgment is not barred because other relief can be obtained. It is rather an optional, alternative remedy. Kupsik v. City of Chicago (1962), 25 Ill. 2d 595, 598.

The appellate court in Buege v. Lee (1978), 56 Ill. App. 3d 793, correctly recognized that a plaintiff is not required to “provoke a disciplinary proceeding against himself so as to provide a forum to challenge the chiefs order. It is central to the purpose of the declaratory judgment procedure that it allow ‘the court to take hold of a controversy one step sooner than normally — that is, after the dispute has arisen, but before steps are taken which give rise to claims for damages or other relief. The parties to the dispute can then learn the consequences of their action before acting.’ (Ill. Ann. Stat., ch. 110, par. 57.1, Historical and Practice Notes, at 132 (Smith-Hurd (1968).)” 56 Ill. App. 3d 793, 798.

Section 57.1 of our Civil Practice Act permits declaratory judgments to be rendered in instances when an “actual controversy” exists. (Ill. Rev. Stat. 1979, ch. 110, par. 57.1.) An actual controversy means that the case presents “ ‘a concrete dispute admitting of an immediate and definitive determination of the parties’ rights, the resolution of which will aid in the determination of the controversy or some part thereof. [Citations.]’” Miller v. County of Lake (1980), 79 Ill. 2d 481, 487, quoting Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371, 375; accord Howlett v. Scott (1977), 69 Ill. 2d 135, 141-42.

The requirement of an “actual controversy” was intended to distinguish justiciable issues from hypothetical disputes. (A. S. & W. Club v. Drobnick (1962), 26 Ill. 2d 521, 524.) We find that the dispute between the plaintiffs and the chief of police over submitting to the examination and the consequences of taking it or those resulting from a refusal to take the test establish an actual controversy here.

We next address the issue of whether the results of the polygraph examination are admissible at an administrative hearing before the board of fire and police commissioners.

Decisions of our appellate court have been divided on the admission of polygraph evidence. In Washington v. Civil Service Com. (1981), 98 Ill. App. 3d 49, the appellate court concluded that the results are admissible at an administrative hearing provided that the examiners are present, their qualifications are established, and they are subject to cross-examination.

The court in Washington relied upon decisions in Chambliss v. Board of Fire & Police Commissioners (1974), 20 Ill. App. 3d 24, 31-32, and Coursey v. Board of Fire & Police Commissioners (1967), 90 Ill. App. 2d 31, appeal denied (1968), 38 Ill. 2d 627, for the proposition that because an unhindered inquiry into subordinates’ actions is absolutely necessary where a police chief is attempting to run an effective department, the results of a polygraph test that an officer is compelled to undergo are admissible at an administrative hearing where the board of fire and police commissioners is investigating the conduct of the police officer.

The reasoning of the appellate court in Washington incorporated the rationale of Chambliss and Coursey that the police chief should not be deprived of a useful investigative tool where the examination is administered and the results interpreted by a qualified examiner. The findings of the appellate court in McGowen v. City of Bloomington (1981), 99 Ill. App. 3d 986, and Sommer v. Goetze (1981), 102 Ill. App. 3d 117, contradict the holding in Washington.

In McGowen the court found that the admission of polygraph results materially affected the decision of the board of fire and police commissioners, recognizing that “the polygraph has attained a stature and an acceptance in the public mind far in advance of that achieved in the world of jurisprudence,” and that it remains “incompetent evidence.” (99 Ill. App. 3d 986, 990, 991, citing People v. Monigan (1979), 72 Ill. App. 3d 87.) The court concluded that the admission of such evidence amounted to error as an abrogation of a fundamental rule of evidence. 99 Ill. App. 3d 986, 991.

In Sommer v. Goetze (1981), 102 Ill. App. 3d 117, the appellate court determined that the sheriffs merit commission of Tazewell County erred in admitting polygraph results as substantive evidence against a deputy sheriff where the potential jeopardy was the loss of employment.

We now find that in view of our holdings in People v. Baynes (1981), 88 Ill. 2d 225, and People v. Szabo (1983), 94 Ill. 2d 327, 362-63, that the results of a polygraph examination are not admissible before the board of fire and police commissioners. It is unnecessary to reiterate the exhaustive review of polygraph evidence we undertook in People v. Baynes. It is enough to say that in holding that admission of stipulated-to polygraph evidence at a criminal trial constituted error, we recognized that the process of accurately recording the instrument’s results and then correctly interpreting those results “has not reached a level of sophistication that makes it generally more probative than prejudicial.” (People v. Baynes (1981), 88 Ill. 2d 225, 239.) We found in Baynes that the stipulation of the parties did not make evidence otherwise considered not reliable enough admissible because it was agreed to. 88 Ill. 2d 225, 240.

In People v. Szabo this court held that the trial court acted properly in excluding the results of polygraph examinations at a death sentencing hearing, where the rules governing the admission of evidence are not applicable (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(e)). In Szabo we again pointed to the doubts about the polygraph’s reliability and the risk that a jury would find results of the examination to be conclusive.

We agree with the words of the appellate court in Sommer v. Goetze (1981), 102 Ill. App. 3d 117, 121, that while the rules of evidence are not as rigidly applied at an administrative hearing, such a relaxation of rules “cannot abrogate the right to a just, fair and impartial hearing.” Without the benefit of this court’s opinion in Baynes the appellate court in Sommer correctly saw that if a petty criminal “whose potential jeopardy does not exceed a few hundred dollars” cannot have polygraph results admitted at his trial, then evidence admitted against a deputy sheriff facing a “loss of merit employment” should be no less reliable. 102 Ill. App. 3d 117, 121.

Our opinion in Baynes highlighting the inherent deficiencies of the polygraph examination supports our holding today that the results of the examination are not admissible at an administrative hearing before the board of fire and police commissioners.

The plaintiffs face the potential of the loss of their livelihood. There is a real danger that the board of fire and police commissioners will find the results of the polygraph examination completely determinative of guilt or innocence. We feel that the Sommer case articulates the correct rule that polygraph evidence is not reliable enough to be used as substantive evidence in an administrative proceeding before the board. The findings before a board of fire and police commissioners must be based upon facts proved by competent evidence. Fantozzi v. Board of Fire & Police Commissioners (1962), 35 Ill. App. 2d 248, 257, aff'd (1963), 27 Ill. 2d 357.

Admission of polygraph evidence at a hearing before the board of fire and police commissioners would also compromise our role in undertaking any review of an agency’s decision under the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.), in those cases where polygraph evidence had been considered in the board’s decision-making process.

We next address whether the refusal of a police officer to take a polygraph examination can be grounds for disciplinary action against the officer. Our appellate court on four different occasions has held that refusal was cause for disciplinary action. Myers v. Cook County Police & Corrections Merit Board (1978), 67 Ill. App. 3d 223; Piotrowski v. State Police Merit Board (1980), 85 Ill. App. 3d 369; Williams v. Police Board (1972), 8 Ill. App. 3d 345; Coursey v. Board of Fire & Police Commissioners (1967), 90 Ill. App. 2d 31.

We are mindful of the need for public employers to maintain personal integrity in the eyes of those they serve; we also understand that a police chief has to have the authority to require officers to answer questions specifically related to the performance of the officer’s official duties in cooperation with the investigation into an officer’s official conduct. And while we recognize that a polygraph examination is an instrument of some investigatory utility and value, we nevertheless conclude in view of our disposition as to the inadmissibility of polygraph results at the officer’s administrative hearing that a municipal police officer can refuse to submit to a polygraph examination and such a refusal cannot be used as the basis for filing of charges seeking disciplinary action against the officer. .

We do not lightly rule that an internal order of a municipal police department is improper. We are not attempting in finding in favor of the plaintiffs to, as the appellate court, in Coursey v. Board of Fire & Police Commissioners (1967), 90 Ill. App. 2d 31, 43, described it, “vitiate the systematic authority and discipline upon which proper enforcement of the law is dependent.” (90 Ill. App. 2d 31, 43.) It would be inconsistent for us to find that the polygraph results are not admissible in front of the board of fire and police commissioners because the examination is not reliable enough, and then hold an officer’s refusal to submit to such a test could be grounds for a disciplinary action being brought by the police chief.

In DeVito v. Civil Service Com. (1961), 404 Pa. 354; 172 A.2d 161, the Supreme Court of Pennsylvania held that refusal of Philadelphia police officers to take the polygraph examination did not establish “just cause” to warrant the officers’ dismissal. The court took cognizance of the questionable accuracy of the test, recognized that the examination was not judicially acceptable in Pennsylvania, and found that the willingness or the unwillingness of an officer to submit to the test is inadmissible before the Civil Service Commission (404 Pa. 354, 360, 172 A.2d 161, 164.) See also Burrough of Elmwood Park v. Fallon (1974), 128 N.J. Super. 51, 319 A.2d 72, where the court said that a police officer is entitled to refuse to take a polygraph examination and that refusal cannot be used against him as a basis for a disciplinary action. 128 N.J. Super. 51, 57, 319 A.2d 72, 76.

In conclusion we hold that the chief of police of the Rockford police department cannot compel Officers Kaske and Triolo to submit to polygraph examinations. We find that the officers’ refusal cannot be used as a basis for disciplinary charges to be brought against them. The judgment of the appellate court affirming the dismissal by the circuit court of Winnebago County is reversed, as is the judgment of the circuit court.

We also hold that the decision to discharge Officer Robert Collura by the board of fire and police commissioners of the village of Itasca cannot stand. The appellate court’s order affirming the circuit court’s order affirming the decision of the Board is reversed, as is the judgment of the circuit court. We remand Officer Collura’s cause to the board of fire and police commissioners of the village of Itasca for a new hearing, in which any results of the police officer’s polygraph examination, any opinions offered by the polygraph examiner, or any references to the polygraph examination are inadmissible as evidence.

55501 — Judgments reversed.

55599 — Judgments reversed; cause remanded, with directions.

JUSTICE MORAN,

concurring in part and dissenting in part:

I disagree with that portion of the majority opinion which holds that police officers cannot be compelled to submit to a polygraph examination. The majority reasons that “[i]t would be inconsistent for us to find that the polygraph results are not admissible in front of the board of fire and police commissioners *** and then hold an officer’s refusal to submit to such a test could be grounds for a disciplinary action.” (96 Ill. 2d at 310-11.) For a number of reasons I consider unfounded the concern over this supposed inconsistency.

Polygraph evidence is disallowed during an administrative hearing or court proceeding because the reliability of the examination results has not been sufficiently established. Consequently, it would be improper to subject an individual to the substantial risk that the fact finder would consider this evidence conclusive on the issue of his or her guilt or innocence. (People v. Baynes (1981), 88 Ill. 2d 225.) However, there is a distinction between the use of polygraph examinations as evidence upon which the outcome of a proceeding may depend and their use as an investigatory tool. “Such tests are recognized as having some value in investigation, even though they are not yet sufficiently reliable to be admitted in evidence.” McCain v. Sheridan (1958), 160 Cal. App. 2d 174, 177, 324 P.2d 923, 926; see, e.g., Seattle Police Officers’ Guild v. City of Seattle (1972), 80 Wash. 2d 307, 494 P.2d 485 (en banc).

As an investigatory tool, police chiefs utilize polygraph examinations to narrow the focus of inquiry and, frequently, to exonerate the accused officer. The majority’s decision will serve only to impede and lengthen these investigations while at the same time allowing individuals to perform their duties in the face of other officers’ and the public’s distrust. No one can possibly benefit when the public loses respect for those individuals sworn to uphold the law. Further, both criminal suspects and complainants are frequently requested to take polygraph tests as an aid in investigations. It is incongruous that officers may refuse to submit to the very examinations which they expect other citizens to undergo.

It also seems to me that today’s opinion disregards the fact that police officers are not simply ordinary citizens. Rather, they are members of a “paramilitary [institution] in which systematic authority and discipline are required to ensure orderly and effective law enforcement.” (E.g., Piotrowski v. State Police Merit Board (1980), 85 Ill. App. 3d 369, 376; cf. Gardner v. Broderick (1968), 392 U.S. 273, 20 L. Ed. 2d 1082, 88 S. Ct. 1913 (police officers, as trustees of the public interest, can be dismissed for failing to answer questions relating to official duties) (dicta).) I consider it anomalous that, although officers have a sworn duty to cooperate in the investigation of crime, they now have the unfettered right to obstruct those investigations.

The majority relies upon two decisions for the proposition that police officers may not be required to submit to a polygraph examination. (Burrough of Elmwood Park v. Fallon (1974), 128 N.J. Super. 51, 319 A.2d 72; Stape v. Civil Service Com. (1961), 404 Pa. 354, 172 A.2d 161.) Of these, Stape was essentially “overruled” by subsequent legislation. (See 18 Pa. Cons. Stat. Ann. sec. 7321 (Purdon 1973) (law enforcement agencies are exempted from the statutory ban on the administration of polygraph examinations).) On the other hand, numerous cases have recognized a police chief’s inherent authority to compel submission to polygraph tests in an effort to maintain an efficient and honest police force. (E.g., Seattle Police Officers’ Guild v. City of Seattle (1972), 80 Wash. 2d 307, 494 P.2d 485 (en banc); Sorbello v. City of Maplewood (Mo. App. 1980), 610 S.W.2d 375; Eshelman v. Blubaum (1977), 114 Ariz. 376, 560 P.2d 1283; Roux v. New Orleans Police Department (La. App. 1969), 223 So. 2d 905, cert. denied (1970), 397 U.S. 1008, 25 L. Ed. 2d 421, 90 S. Ct. 1236; McCain v. Sheridan (1958), 160 Cal. App. 2d 174, 324 P.2d 923.) Our appellate court has also held that officers may be disciplined for failure to submit to the examination. Piotrowski v. State Police Merit Board (1980), 85 Ill. App. 3d 369; Myers v. Cook County Police & Corrections Merit Board (1978), 67 Ill. App. 3d 223; Buege v. Lee (1978), 56 Ill. App. 3d 793; Williams v. Police Board (1972), 8 Ill. App. 3d 345; Coursey v. Board of Fire & Police Commissioners (1967), 90 Ill. App. 2d 31.

For the reasons stated herein, I believe the aforementioned cases represent the better view, and would accordingly affirm the judgment of the appellate court in cause No. 55501. However, I do concur with the majority in cause No. 55599.

JUSTICE UNDERWOOD joins in this partial concurrence and partial dissent.


author: JUSTICE SIMON

text:
    (No. 55603.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ALAN EARL HALL, Appellee.

      Opinion filed December 17, 1982.

    Modified January 27, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield, and Daniel D. Doyle, State’s Attorney, of Rockford (Michael B. Weinstein and Thomas E. Holum, Assistant Attorneys General, of Chicago, and Martin N. Ashley and Raymond F. Buckley, Jr., of the State’s Attorney’s Appellate Service Commission, of Mt. Vernon, of counsel), for the People.
    Marvin J. Leavitt, David M. Schneider, and David H. Robertson, Jr., of Leavitt & Schneider, of Chicago, for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

This is an appeal from a decision of the appellate court reversing the armed-violence conviction of defendant, Alan Earl Hall, in the circuit court of Winnebago County.

Defendant was arrested by undercover agents of the Department of Law Enforcement when he attempted to sell them cannabis at his home. He was subsequently charged in a three-count information, only the first two counts of which are relevant to this decision. They charged:

“Count I
That on the 24th day of March, 1978 in the County of Winnebago ***, Alan Earl Hall committed the offense of Violation of the Cannabis Control Act, in that he knowingly and unlawfully possessed, with intent to deliver, a substance containing more than 500 grams of cannabis, in violation of paragraph 705(e), Chapter 56V2, Illinois Revised Statutes.
Count II
That on the 24th day of March, 1978, in the County of Winnebago ***, Alan Earl Hall committed the offense of Armed Violence, in that he, while armed with a dangerous weapon, to-wit: a certain revolver, committed a felony defined by Illinois law, in that he violated Chapter 56V2, Section 705(e) of the Illinois Cannabis Control Act, in violation of Paragraph 33A — 2, Chapter 38, Illinois Revised Statutes.”

The evidence adduced at trial was that two agents of the Department of Law Enforcement had set up a meeting at defendant’s house, where they were to buy cannabis from defendant. Agent John Hindes testified that he and defendant entered the house and defendant placed a garbage bag containing marijuana on the kitchen counter. Hindes then left the house, ostensibly to get the money from his car to pay for the marijuana, and returned with his partner, Agent Charles Bradley. This much was not disputed.

What happened next was the subject of conflicting testimony. Hindes asserted that he displayed his badge at this point and announced that defendant was under arrest. Defendant then reached into his coat pocket. Bradley shouted to Hindes, “He’s got a gun,” and Hindes grabbed it and refused to let go. Hindes stated that he then put his own gun back in his pocket, picked defendant up, set him down in the kitchen sink, and wrestled defendant’s gun from his hands. The defendant’s version of the arrest was that his gun was in a cupboard in the kitchen at the time, rather than in a holster underneath his coat as Hindes had testified, and that he never drew it or threatened either officer with it. Rather, both agents drew their guns and Hindes thrust his in defendant’s stomach. He grabbed at Hindes’ gun instinctively, whereupon Hindes showed his badge for the first time, announced the arrest, turned defendant around and made him let go of the gun. Hindes then went through defendant’s pockets and asked him if he kept a gun in the house; defendant told him that it was in the cupboard, and Hindes took it.

The jury returned a verdict of conviction for possession of cannabis with intent to deliver and armed violence, and acquitted the defendant of assault, which was charged in count III of the information. Defendant filed a motion in arrest of judgment, asserting that the armed-violence conviction should be set aside because count II of the information failed to set forth the necessary elements of the predicate felony. The motion was denied. The appellate court, in reversing, held that the failure to state the elements of the underlying felony impermissibly deprived defendant of notice as to what the State would allege he was doing while armed with a gun. (People v. Hall (1981), 99 Ill. App. 3d 196.) We allowed the State’s petition for leave to appeal.

Armed violence may be charged “when, while armed with a dangerous weapon, [defendant] commits any felony defined by Illinois Law.” (Ill. Rev. Stat. 1979, ch. 38, par. 33A—2.) The predicate felony alleged in count II of the information is violation of section 5(e) of the Cannabis Control Act. That section (Ill. Rev. Stat. 1977, ch. 56½, par. 705(e)) can be violated by any of four acts. The statute makes it “unlawful for any person knowingly to manufacture, deliver, or possess with intent to deliver, or manufacture, cannabis.” The problem in this case arises from the omission in count II of any allegation stating which of the four acts, set forth in section 705 of the Cannabis Control Act the defendant was committing while armed with a revolver. Defendant therefore contends the information did not give him adequate notice of the specific crime with which he was charged.

The State responds that count I of the information charges the defendant with possession of cannabis with intent to deliver: it therefore urges that the information should be read as a whole and that the charge contained in count I cures any ambiguity in count II. We agree with the State’s argument under the facts of this case.

Constitutional provisions (U.S. Const., amend. VI; Ill. Const. 1970, art. I, sec. 8) and statutes of this State (Ill. Rev. Stat. 1977, ch. 38, par. 111—3) require that an information set forth the nature and elements of the offense charged and that it be sufficiently specific in so doing as to apprise the defendant with reasonable certainty of the offense with which he is charged, so that he will be able to prepare a defense and plead any acquittal or conviction which results as a bar to future prosecutions. (People v. Heard (1970), 47 Ill. 2d 501; People v. Shelton (1969), 42 Ill. 2d 490; People v. Ross (1968), 41 Ill. 2d 445, cert. denied (1969), 395 U.S. 920, 23 L. Ed. 2d 237, 89 S. Ct. 1771.) This requirement applies to the predicate felony in a count charging armed violence just as it does to a count charging the underlying felony alone. (People v. Miles (1981), 96 Ill. App. 3d 721; People v. Van Winkle (1980), 86 Ill. App. 3d 289.) The rule protects the defendant against being forced to speculate as to the nature or elements of the underlying offense, thus spreading his resources thin, attempting to rebut all of the possibilities, while the prosecutor merely focuses on the most promising alternative and builds his case around that.

However, elements missing from one count of a multiple-count indictment or information may be supplied by another count. In People v. Stanley (1972), 4 Ill. App. 3d 23, 24, a count charging only that defendant “while armed with a [knife] engaged in the commission of the offense of armed violence” was held sufficiently specific to charge the offense where two previous counts set forth the nature and elements of the predicate offense of batteiy and named the victim. (See also People v. Lombardi (1973), 13 Ill. App. 3d 754; People v. Radford (1967), 87 Ill. App. 2d 308; People v. Kamsler (1966), 67 Ill. App. 2d 33.) In fact, some cases have suggested that where an indictment contains more than one count and at least one count is clear as to the transaction involved, a presumption arises that the unclear counts relate to the same transaction unless the contrary appears from the indictment. People v. Borrelli (1946), 392 Ill. 481, 489 (counts unclear as to the identity of the intended victims of a conspiracy); People v. Lombardi (1973), 13 Ill. App. 3d 754, 759-60 (same).

While armed violence can be charged without also charging defendant with the predicate offense, as the appellate court observed (see, e.g., People v. Vriner (1978), 74 Ill. 2d 329; People v. Lee (1977), 46 Ill. App. 3d 343), cases such as Lombardi and Stanley do not permit the voiding of armed-violence counts in multiple-count informations merely because the prosecutor may base the armed-violence charge on a felony other than those charged elsewhere in the information. We believe, that when one count of a multiple-count indictment states the purported predicate offense for another count with specificity, the latter count should not be held void unless the information itself or the prosecutor indicates affirmatively that some other offense is the predicate or there remains a realistic possibility of prejudicial uncertainty as to the predicate offense in light of facts agreed upon or placed in dispute.

In this case the predicate offense, violation of the Cannabis Control Act, can consist of delivery, possession with intent to deliver (the charge made specifically in count I), manufacture, or possession with intent to manufacture. No facts were ever brought forth to support a charge of manufacture or possession with intent to manufacture; in fact, the theory adopted by both parties was that Hindes asked defendant to sell him marijuana several times and was turned down each time because defendant did not have any marijuana and did not know where to get any. It was only when a friend gave defendant some marijuana that a deal was made, and the defendant was willing to sell all of his marijuana to Hindes in order to raise enough money to pay his creditors. The State and defendant both assumed these facts, as the testimony of their witnesses and the closing arguments of counsel make clear. Any charge of manufacture or possession of cannabis with intent to manufacture would have failed for lack of any evidence. There was no foundation whatever for either charge, and hence no reason to disturb the presumption that the transaction alleged in count II was the same as that in count I. See People v. McDavid (1971), 3 Ill. App. 3d 169.

Any ambiguity there could be in count II on the basis of the facts agreed on or disputed could only be as to whether the predicate offense was “delivery” or “possession with intent to deliver.” Although these are separate crimes (People v. Lewis (1979), 75 Ill. App. 3d 1009), they are not mutually exclusive crimes: where the former occurs the latter generally must also occur, and where both occur sequentially, as here, “delivery” is an instantaneous act which terminates the deliverer’s “possession.” Since it is all but inconceivable that a defendant who is armed while delivering cannabis would not be so armed the second before delivery while he was still a “possessor,” a defense aimed at showing that defendant was not armed while possessing with intent to deliver would, if successful, also acquit him of being armed at delivery: a second defense aimed at showing that he was not armed at delivery would add nothing the defendant would not already have established. Inasmuch as neither the information nor the prosecutor indicated in any affirmative way that delivery was the predicate felony of armed violence and inasmuch as a defense based on assuming the charge spelled out in count I to be the predicate felony could not possibly have compromised defendant’s chances, the ambiguity in the information was inherently not prejudicial and should not have been grounds for reversal in the appellate court. Cf. People v. Kamsler (1966), 67 Ill. App. 2d 33, 41 (no prejudice possible where none of the alternative grounds for prosecution was substantially different from the others).

Prosecutors, of course, should be encouraged to draft indictments and informations which are as specific as possible and leave nothing to the defendant’s imagination. This opinion should not be read as condoning omissions in counts of an information or indictment in this or other cases. However, a multiple-count information where one count sets forth clearly the nature and elements of an offense mentioned in general terms in a later count will ordinarily support the presumption that the deed described in the former count was what was referred to in.the latter; this presumption may be overcome if the offense charged in the latter count can be committed in different ways and the defendant would be unable to defend against any of the conceivable unmentioned alternatives were he to assume that the alternative mentioned in the former count was the one meant in the latter. The focus remains on defendant’s ability to prepare an effective defense that, if successful, would bar further prosecutions for the same offense. Thus in People v. Lutz (1978), 73 Ill. 2d 204, two counts charging aggravated battery were held fatally defective where the offense could be committed in two alternative ways and a defense aimed at disproving either one would not disprove the other. (See also People v. Heard (1970), 47 Ill. 2d 501 (disparate and alternative ways of committing the offense of gambling, with no prior count specifying any one way).) In People v. Miles (1981), 96 Ill. App. 3d 721, on which the appellate court relied, defendant was charged with murder, armed violence based on murder, and armed violence based on manslaughter and was convicted of manslaughter and armed violence based on manslaughter. The appellate court found the information fatally deficient as to armed violence based on manslaughter because the precise mitigating factor was not mentioned in the armed-violence count or any other count and a defense against armed violence based on either alternative (killing while under the influence of passion or killing while under the mistaken belief that use of deadly force was justified) might not have sufficed against armed violence based on the other alternative. (See also People v. Alejos (1982), 104 Ill. App. 3d 414 (same, relying on Miles); People v. Easter (1981), 102 Ill. App. 3d 974 (same).) In Miles, however, none of the alternatives were set forth specifically in a preceding count so as to give notice to defendant that any one of them would be prosecuted. “Reading the indictment as a whole” would have disclosed nothing to defendant, as it did in this case. We do not see why defendant in the instant case should have assumed the predicate offense of armed violence to have been anything other than possession with intent to deliver, the charge set forth in the preceding count, or how presuming it to be possession with intent to deliver could have prejudiced him.

Because of the manner in which we are disposing of the case, it is unnecessary to consider whether the literal requirement of section 111—3 of the Code of Criminal Procedure of 1963 (“[a] charge shall [set forth] the nature and elements of the offense charged” (Ill. Rev. Stat. 1977, ch. 38, par. 111—3)) or a lesser “actual prejudice” standard should apply in assessing this challenge to the sufficiency of an information, raised for the first time by a motion in arrest of judgment. (See People v. Lutz (1978), 73 Ill. 2d 204; People v. Pujoue (1975), 61 Ill. 2d 335.) The idea that a multiple-count information should be read as a whole is equally relevant whether the focus of inquiry is actual prejudice to the defendant or potential for prejudice.

The judgment of the appellate court is reversed, the cause is remanded to that court for consideration of the other issues originally raised by the defendant in the appellate court but not decided by that court.

Reversed and remanded, with directions.

JUSTICE MORAN,

dissenting:

The majority concludes the count charging armed violence properly states an offense. I disagree.

Section 111—3 of the Code of Criminal Procedure of 1963 requires that the charging instrument set forth “the nature and elements of the offense charged.” (Ill. Rev. Stat. 1977, ch. 38, par. 111—3(3). See People v. Lutz (1978), 73 Ill. 2d 204.) Moreover, “an indictment or information must charge all the elements of the offense.” (People v. Sowrd (1938), 370 Ill. 140, 143.) As the majority notes, this applies equally to the elements of the predicate felony in a count charging armed violence. 96 Ill. 2d at 320.

The predicate felony in the instant case, section 5 of the Cannabis Control Act (Act) (Ill. Rev. Stat. 1977, ch. 56½, par. 705), prohibits knowingly manufacturing, delivering, or possessing with intent to deliver or manufacture cannabis. To be a valid charge, the armed-violence count alleged here (count II) must specify which of these four alternative acts the defendant is accused of committing. (See People v. Heard (1970), 47 Ill. 2d 501, 504-05; People v. Miles (1981), 96 Ill. App. 3d 721.) However, count II merely recites essentially that defendant, while armed, violated section 5(e) of the Act.

To cure the defect in count II, the majority suggests that the information should be read as a whole. Count I charges defendant with possession of cannabis with intent to deliver. The majority then states: “elements missing from one count of a multiple-count indictment or information may be supplied by another count.” (96 Ill. 2d at 320.) Based on this premise, it reasons the defendant should have presumed the People intended the element alleged in count I to apply as the element of the predicate felony violation alleged in the armed-violence count. I consider the majority’s premise unsound.

“Each count in an indictment is regarded as if it was a separate indictment.” (Dunn v. United States (1932), 284 U.S. 390, 393, 76 L. Ed. 356, 358-59, 52 S. Ct. 189, 190. See Selvester v. United States (1898), 170 U.S. 262, 42 L. Ed. 1029, 18 S. Ct. 580.) Moreover, “[e]ach count must stand on its own, and cannot depend for its validity on the allegations of any other count not specifically incorporated.” (United States v. Fulcher (D.C. Cir. 1980), 626 F.2d 985, 988. See United States v. Winter (1st Cir. 1981), 663 F.2d 1120, 1138; United States v. Huff (5th Cir. 1975), 512 F.2d 66; People v. Berndt (1968), 101 Ill. App. 2d 29. See also People v. Nelson (1948), 399 Ill. 132. Accord People v. Moore (Colo. 1980), 615 P.2d 726.) Furthermore, what was said in Moore is applicable here:

“The People argue that, if any defect is present in count two of the information, the defect is cured when counts one and two are read together. This argument is unsound. It has long been the general rule that each count of an information must be judged independently. See 41 Am. Jur., Informations and Indictments, sec. 221 (1968). Absent a clear and specific incorporation by reference, each count of an information ‘to be valid must be independent of the others, and in itself charge the defendant with a distinct and different offense.’ ” 615 P.2d 726, 729.

While elements from one count may be incorporated into another count by reference, later counts cannot absorb the elements of prior counts by osmosis. (United States v. Fulcher (D.C. Cir. 1980), 626 F.2d 985, 988.) The armed-violence count in the instant case failed to set forth or incorporate by reference the nature and elements of the underlying felony. For this reason, it is void. I would affirm the judgment of the appellate court.


author: JUSTICE GOLDENHERSH

text:
    (No. 56760.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. BRUCE BOURKE, Appellant.

      Opinion filed May 27, 1983.

      Randy E. Blue, Deputy Defender, and Daniel M. Kirwan, Assistant Defender, of the Office of the State Appellate Defender, of Mt. Vernon, for appellant.
    Tyrone C. Fahner and Neil F. Hartigan, Attorneys General, of Springfield (Michael B. Weinstein, Ellen M. Flaum and Maureen Cain, Assistant Attorneys General, of Chicago, of counsel), for the People.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

In three separate informations filed in the circuit court of Montgomery County, defendant, Bruce Bourke, was charged with two counts of burglary (Ill. Rev. Stat. 1979, ch. 38, par. 19—1) and one count of deceptive practices (Ill. Rev. Stat. 1979, ch. 38, par. 17—1). The burglary counts involved two separate entries on different dates, and the deceptive-practices count involved the issuance of three worthless checks. He pleaded guilty to all three charges and was sentenced to one year probation. Defendant’s probation was subsequently revoked, and he was sentenced to four years’ imprisonment on each burglary conviction and two years’ imprisonment on the deceptive-practices conviction, the sentences to be served concurrently. In a Rule 23 order (87 Ill. 2d R. 23) the appellate court affirmed (105 Ill. App. 3d 1211), and we allowed defendant’s petition for leave to appeal (87 Ill. 2d R. 315).

The People filed a petition for revocation of probation alleging that defendant had violated the terms of his probation by committing two acts of deceptive practices. Approximately 60 days later the People filed a second petition for revocation, alleging that defendant had wilfully failed to make payments of court costs and fines in accordance with the provisions of the probation order. Shortly thereafter the People filed an additional petition for revocation alleging that defendant had violated the provisions of his bail bond posted in the pending deceptive-practices charges, and that he had failed to report to his probation officer for a period of five months.

At the revocation hearing the State called several witnesses who testified concerning the violations of the terms of probation alleged in the People’s petitions. Montgomery County Sheriff Claude Carlock testified concerning acts of misconduct by defendant while he was confined in the county jail. Defendant’s mother testified that defendant’s father was disabled and that defendant was needed at home to perform various chores for which the family could not afford to pay. Sandy Hayes testified that she was the mother of defendant’s child and that defendant and she were planning to be married. Ms. Hayes testified that she needed defendant’s help in raising the child and that she felt defendant was willing to support her and the baby. On cross-examination it was revealed that Ms. Hayes was 15 years old and was presently in the eighth grade. Ms. Hayes stated that she had received no financial support from defendant.

In closing argument, the assistant State’s Attorney argued that the two separate incidents of deceptive practices and the violation of the provisions of his bail bond together with the failure to report to the probation officer and the failure to pay the fines as required by the probation order amounted to a “flagrant violation of the terms of probation.” She argued that it would deprecate the seriousness of the offenses if defendant were to be placed on probation and argued that defendant should receive five years on each burglary charge and three years on the deceptive-practices charges without credit for the time served on probation. Finally, she argued that defendant was not “worthy of being placed on probation again” because there had been no showing that he had been promised any employment, that he had any chance of paying the fines imposed on him, or that he had contributed to the support of his child and Ms. Hayes. Defendant’s counsel stressed in closing argument that defendant’s actions had not threatened serious injury to anyone and that defendant’s family had attempted to compensate the victims. Defense counsel also argued that placing defendant in prison would entail excessive hardship to his dependents. Defense counsel stressed that “there are not a lot of cases where so many family members are willing to come in in support of the defendant.” In rebuttal, the assistant State’s Attorney argued that although there was no physical harm in this case, the victims lost several hundred dollars due to the burglaries and “bad checks.” She also argued that defendant’s conduct while incarcerated in the county jail and his repeated offenses while on probation indicated that his rehabilitation was unlikely and noted that since defendant must have been aware of his girlfriend’s pregnancy at the time he committed the violations of his probation, he had not behaved as a responsible future father should have behaved.

The court, after noting that it considered the testimony presented at the hearing, the presentence report, the arguments of counsel, the statement made by the defendant, and the factors in mitigation and aggravation as presented by counsel in closing argument, stated:

“The Court would only comment in passing on those as far as factors in aggravation I would find that the defendant did receive compensation for committing the offenses that are involved here. He has a history of prior delinquency and criminal activity. The sentence to be imposed by the Court today is necessary to deter others from committing the same crime in violation of probation. As far as factors in mitigation I don’t find that the defendant’s actions contemplated any serious physical harm to anyone or that he contemplated that they would. I find that there is the factor two dependents who have to rely on Mr. Bourke should he be released and readmitted to probation. I don’t find any grounds to excuse his actions in this regard or that his conduct was induced or facilitated by anyone other than himself.
It is the Court’s opinion that to readmit Mr. Bourke to probation in this matter would deprecate the seriousness of these offenses, would in effect place little or no meaning on the probation terms that were previously entered against the defendant in these three cases.”

On appeal, the defendant contended, inter alia, that contrary to this court’s holding in People v. Conover (1981), 84 Ill. 2d 400, the circuit court improperly relied upon the aggravating factor that defendant had been compensated for his crime because he had received the proceeds from his burglaries and deceptive practices. The appellate majority held that since the court stated that it noted the factor “in passing,” it gave no weight to the factor in imposing sentence, and, alternatively, held that if the circuit court did improperly consider the issue of compensation, in light of the number of felonies on which sentence was imposed and defendant’s conduct while on probation, the error was harmless. The dissenting justice found this court’s decision in People v. Conover indistinguishable from this case.

Defendant argues that the appellate court erred in holding that the circuit court gave no weight to the improper factor but only mentioned it “in passing.” Defendant argues that since the circuit court also commented “in passing” on the two other statutory aggravating factors upon which it relied, the most logical inference to be drawn from the court’s statement is that it gave equal weight to each of the three aggravating factors noted.

The People respond that defendant’s assertion amounts to a request that this court adopt a “per se rule requiring remandment of any case in which the trial court notes that it is relying on an improper factor.” The People argue that this is an incorrect interpretation of Conover, and that Conover held only that where it is impossible to determine how much weight the circuit court placed on an improperly considered aggravating factor, the case must be remanded for resentencing. The People argue that it is clear that the circuit court placed no weight whatsoever on the factor that defendant was “compensated” for his crime and thus resentencing is not required in this case.

It is clear from the decisions of this court and the appellate court that reliance on an improper factor in aggravation does not always necessitate remandment for resentencing. Where the reviewing court is unable to determine the weight given to an improperly considered factor, the cause must be remanded for resentencing. (People v. Conover (1981), 84 Ill. 2d 400, 405; People v. Gardner (1982), 105 Ill. App. 3d 103, 118; People v. Teague (1981), 101 Ill. App. 3d 993, 996; People v. Hart (1981), 101 Ill. App. 3d 343, 344; People v. Allen (1981), 97 Ill. App. 3d 38, 40.) However, where it can be determined from the record that the weight placed on the improperly considered aggravating factor was so insignificant that it did not lead to a greater sentence, remandment is not required. People v. Reid (1983), 94 Ill. 2d 88, 91; People v. DeSimone (1982), 108 Ill. App. 3d 1015, 1019; People v. Carmack (1982), 103 Ill. App. 3d 1027, 1037-38; People v. Hicks (1981), 101 Ill. App. 3d 238, 244; People v. Devine (1981), 98 Ill. App. 3d 914, 926-27; People v. Fowler (1981), 98 Ill. App. 3d 202, 206-07.

The sentence in this case was imposed prior to our decision in Conover, and the circuit court could not, of course, have looked to Conover for guidance. Since Conover, however, there would appear to be little reason for this problem to arise again.

We agree with the appellate majority that this case is distinguishable from Conover. In Conover, defendant Con-over was sentenced to six years for burglary, a sentence which was one year under the maximum. The sentencing court cited Conover’s prior record, the need for deterrence, and the defendant’s receipt of compensation in the form of the burglary’s proceeds as aggravating factors. Defendant Jones, whose appeal was consolidated with Conover’s, received a five-year prison sentence for theft, the maximum sentence permissible for that crime. In Jones’ case the sentencing court considered the defendant’s prior record, his violation of his position of public trust, the need for deterrence, and the defendant’s receipt of compensation from his theft. (84 Ill. 2d 400, 402.) This court remanded the causes for resentencing because it could not determine how much weight had been accorded the improper aggravating factor. (84 Ill. 2d 400, 405.) Here, the record adequately demonstrates that the weight placed on the improperly considered aggravating factor was so insignificant that it did not result in a greater sentence. While it is true, as defendant notes, that the circuit court did note all three aggravating factors considered “in passing,” the circuit court explained that to readmit defendant to probation “would in effect place little or no meaning on the probation terms that were previously entered against the defendant in these three cases.” The assistant State’s Attorney did not mention the improperly considered aggravating factor in her closing arguments, but rather stressed defendant’s “flagrant violation of the terms of probation,” the same factor that the circuit court emphasized. Defendant not only continued to commit crimes while on probation, but violated several other conditions of his probation. Furthermore, defendant’s sentences were substantially below the maximum sentences permissible for burglary and deceptive practices. Unlike Conover, we are able to determine here that the length of defendant’s sentence was not increased based on the circuit court’s statement that defendant had received compensation for committing these offenses.

Accordingly, the judgment of the appellate court is affirmed.

Judgment affirmed.


text:
    (No. 56830.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. BRUCE GREENE, Appellee.

      Opinion filed May 27, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield (Michael B. Weinstein, Assistant Attorney General, of Chicago, of counsel), for the People.
    Fearer & Nye, of Oregon (Stephen C. Pemberton, of counsel), for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

This appeal requires us to decide whether section 24—1(a)(7) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 24—1(a)(7)) dealing with unlawful use of weapons is constitutional. The circuit court of Ogle County held it was not, and the State has appealed that decision directly to this court under our Rule 302(a) (87 Ill. 2d R. 302(a)).

The circuit court held as it did because of the disparity in punishment for violations of the provision involved in this appeal compared with section 24—1(a)(3) (Ill. Rev. Stat. 1979, ch. 38, par. 24—1(a)(3)). It concluded that both of these sections prohibited similar conduct, but a violation of section 24—1(a)(3) is only a misdemeanor while a violation of section 24—1(a)(7) is a felony (Ill. Rev. Stat. 1979, ch. 38, par. 24—1(b)). Both provisions use the word “bomb,” and that is the basis for the defendant’s argument that both relate to the same offense. In addition, the defendant, Bruce Greene, argues that section 24—1(a)(7) is unconstitutionally vague. The statutes in question read:

“(a) A person commits the offense of unlawful use of weapons when he knowingly:
(3) Carries on or about his person or in any vehicle, a tear gas gun projector or bomb or any object containing noxious liquid gas or substance; or
(7) Sells, manufactures, purchases, possesses or carries any *** bomb, bomb-shell, grenade, bottle or other container containing an explosive substance of over one-quarter ounce for like purposes, such as, but not limited to, black powder bombs and Molotov cocktails or artillery projectiles; ***.”

In making a search of the defendant’s house after receiving consent to do so, the police found what they believed to be a homemade bomb — a tin can, approximately four inches in height, labeled “danger, hand grenade.” The top was covered with wax and had a looped wire attached. The police defused the device and found inside the can thousands of small BBs, four metal cartridges to which were attached four fuses twisted together to make one fuse at the end, and a quantity of black power. The defendant was then charged by information with unlawful use of weapons in knowingly possessing “a bomb which contained an explosive substance of over one quarter ounce” in violation of section 24-1(a)(7). The defendant moved to dismiss the information, alleging the unconstitutionality of that statute.

We first consider whether there is any difference between section 24—1(a)(3) and section 24—1(a)(7) which justifies harsher punishment for violation of the latter than the former without running afoul of the due process requirements announced in People v. Wagner (1982), 89 Ill. 2d 308, and in People v. Bradley (1980), 79 Ill. 2d 410. The word “bomb” is used in both sections and the defendant urges us to apply the maxim of statutory construction that a word used in different sections of the same legislative act is presumed to have the same meaning throughout the act. We reject that argument because the wording of the two sections indicates that the legislative intent was to distinguish between bombs containing explosives and those containing merely noxious liquids or tear gas.

Section 24—1(a)(3) refers to devices, including bombs, which contain “noxious liquid gas,” commonly known as tear gas. The lack of punctuation between the words “projector” and “or bomb” in the phrase “tear gas gun projector or bomb” indicates that the legislature was referring to two devices each containing tear gas, one a “tear gas gun projector” and the second a “tear gas *** bomb.” The added reference to objects “containing noxious liquid gas” strengthens our conclusion that this section is limited to devices or objects containing tear gas or other noxious substances.

Section 24—1(a)(7) contrasts with the previous section in that it clearly refers to explosive devices. It prohibits, among other things, the possession of a “bomb.” Where a word used in a statute is not defined by statute, it should be given its ordinary meaning unless to do so would defeat a clearly expressed legislative intent. (People v. Fink (1982), 91 Ill. 2d 237, 240; People v. Schwartz (1976), 64 Ill. 2d 275, 280.) Webster’s Third New International Dictionary 249 (1971) defines “bomb” as “a projectile or other device carrying an explosive charge fused to detonate under certain conditions.” Moreover, the reference in section 24—1(a)(7) to “explosive substance” indicates that it was the intent of the legislature in adopting this particular section to cover devices such as bombs, bombshells, grenades or bottles containing explosive substances. Finally, the examples of “black powder bombs,” Molotov cocktails, and artillery projectiles used in the statute by way of illustration are added indications that the devices intended to be prohibited by this provision of the statute are those containing explosive material which will scatter particles or fire when detonated.

We conclude, therefore, that the statute in question does not provide different penalties for the same offense, and that there is sufficient difference between the devices outlawed in the two sections used by the defendant for comparison to justify differences in penalties without violating due process rights. It is reasonable for the legislature to provide a harsher penalty for possession of explosive bombs than for possessing or transporting tear gas bombs because of the greater capacity for injury and destruction an explosive device has as compared with a tear gas device which is merely foul smelling or irritating.

Although section 24—1(a)(7) is perhaps not a model of clarity, we conclude it is sufficiently specific to save it from being unconstitutionally vague. Statutes enjoy a strong presumption of constitutionality. To hold a statute unconstitutionally vague, its terms must be so ill defined that their meaning will be determined “by the opinions and whims of the trier of fact rather than any objective criteria.” (People v. LaPointe (1982), 88 Ill. 2d 482, 499.) The words “containing an explosive substance” serve notice that the type of bomb referred to is an explosive device containing an explosive substance. The words “such as, but not limited to, black powder bombs and Molotov cocktails or artillery projectiles” are, as pointed out above, additional guidance to the kind of explosive device prohibited — one primarily designed to cause unlawful destruction or injury when detonated. We believe the statute is sufficiently definite to give adequate notice as to what action or conduct is proscribed and what kind of device is prohibited. It gives sufficient direction to the trial judge who will be required to apply it in this case, and establishes minimal guidelines for the law enforcement authorities. Kolender v. Lawson (1983), 461 U.S. _, 75 L. Ed. 2d 903, 103 S. Ct. 1855.

There may be borderline cases in which uncertainty will exist as to whether a particular device is covered by the statute. However, these possibilities do not affect the constitutionality of the statute with respect to activity about which there is no uncertainty. (United States v. Wurzbach (1930), 280 U.S. 396, 399, 74 L. Ed. 508, 510, 50 S. Ct. 167, 169; People v. Witzkowski (1972), 53 Ill. 2d 216, 219; People v. Vandiver (1971), 51 Ill. 2d 525, 530.) A person charged with conduct clearly prohibited by a statute has no standing to challenge the statute on the ground of vagueness. (Parker v. Levy (1974), 417 U.S. 733, 41 L. Ed. 2d 439, 94 S. Ct. 2547.) In this case the defendant was charged with knowingly possessing a bomb containing an explosive substance of more than one-quarter ounce. The device in question was labeled “caution, hand grenade” and was clearly a homemade bomb capable of setting off a destructive explosion. Defendant, under these circumstances, had sufficient notice that his possession of the apparatus was included in the section 24—1(a)(7) prohibition against bombs containing an explosive substance.

The statute is not unconstitutional as applied to the conduct with which defendant is charged in this case; accordingly the judgment of the circuit court holding section 24—1(a)(7) unconstitutional is reversed and the cause is remanded for further proceedings.

Reversed and remanded.