text:
    (No. 53236.
    VERNON E. WILLIAMS, Appellant, v. A. E. STALEY MANUFACTURING COMPANY, Appellee.

      Opinion filed January 20, 1981.

      SIMON, J., took no part.
    Hillary H. Hallett, of Alton (Sidney Z. Karasik, of Chicago, of counsel), for appellant.
    Vincent J. Hatch, of Donovan, Hatch & Constance, of Belleville, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

On October 31, 1977, plaintiff, Vernon Williams, filed his complaint in the circuit court of Madison County alleging he had suffered injuries while working for an insulation contractor at a plant owned by defendant, A. E. Staley Manufacturing Company. On December 7, defendant filed its interrogatories and a request to produce documents, asking that plaintiff respond within 28 days. On January 26, 1978, plaintiff filed an amended complaint, and defendant, on March 1, filed identical requests to produce and interrogatories, requesting that plaintiff respond within 30 days. On March 16, plaintiff filed his interrogatories and request that defendant produce certain documents. Plaintiff filed answers to defendant’s interrogatories in April, but produced none of the requested material. On August 31, the defendant filed a motion to dismiss the complaint for failure to produce the requested documents. Notice of the filing of this motion was mailed to plaintiff on August 30, according to the proof of service accompanying the motion, but no hearing date or time was specified therein. It is represented to be the practice in Madison County for the clerk to send to all counsel notice of the dates upon which identified motions will be heard. No such notice appears in this record. On September 12 the circuit court allowed the motion and directed that the clerk send to all counsel copies of the dismissal order. The clerk indicated in a minute note that this was done, although plaintiff maintains he did not receive one. On November 27 the plaintiff filed his “Compliance,” submitting certain documents in response to the request to produce made nearly a year earlier. Three days later plaintiff filed a “Motion to Reinstate” the complaint, alleging the failure to supply the documents had been inadvertent and that they had been in the office of counsel for plaintiff on the day the dismissal order was entered. Defendant filed objections thereto, but both counsel and the court treated the motion as a petition filed pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72) despite the fact the motion did not refer to section 72 and was neither verified nor supported by affidavit. When the circuit court, after a December 27 hearing, granted the motion, defendant appealed, citing Rule 304(b)(3), which deals with a “judgment or order granting or denying any of the relief prayed in a petition under section 72 of the Civil Practice Act” (58 Ill. 2d R. 304(b)(3)). The appellate court reversed (80 Ill. App. 3d 981), and we granted leave to appeal.

We observe at the outset that these appeals, involving a not insignificant waste of time, effort and money, are the direct result of a failure on the part of both parties to comply with the rules of this court. Plaintiff was dilatory in supplying the requested documents, and the defendant ignored the requirements of our Rule 201(k) (58 Ill. 2d R. 201(k)), as did plaintiff in a later motion to strike defendant’s answer because defendant had allegedly failed to produce requested material. Our Rule 201 (k) states:

“(k) Reasonable Attempt to Resolve Differences Required. Every motion with respect to discovery shall incorporate a statement that after personal consultation and reasonable attempts to resolve differences the parties have been unable to reach an accord. The court may order that reasonable costs, including attorneys’ fees, be assessed against a party or his attorney who unreasonably fails to facilitate discovery under this provision.” (58 Ill. 2d R. 201(k).)

The committee comments to this rule state of paragraph (k):

“Patterned after the practice in the United States District Courts for the Eastern and Northern Districts of Illinois, it is designed to curtail undue delay in the administration of justice and to discourage motions of a routine nature.” (58 Ill. 2d R. 201(k), Committee Comments.)

The present Rule 12(d) of the Rules of the United States District Court for the Northern District of Illinois provides:

“(d) To curtail undue delay in the administration of justice, this Court shall hereinafter refuse to hear any and all motions for discovery and production of documents under Rules 27 through 37 of the Federal Rules of Civil Procedure, unless moving counsel shall first advise the court in writing that after personal consultation and sincere attempts to resolve differences they are unable to reach an accord. This statement shall recite, in addition, the date, time, and place of such conference, and the names of all parties participating therein.”

Similar, but somewhat more detailed rules have been adopted as Rule 11 of the Central District of Illinois and Rule 14 of the Southern District.

The United States District Court for the Northern District of Illinois, after which our rule was patterned, has made it clear that it will not tolerate submission of discovery disputes in the absence of compliance with its Rule 12(d). In considering a plaintiff’s motion to strike defendant’s objections to interrogatories and to compel answers, the court refused to allow expenses to either party. The court made it clear that it was making an exception in even considering the merits of the motion (which requested much less drastic relief than the motion to dismiss involved in the present case), stating:

“Finally, the Court notes that the respective parties have indicated no attempt to resolve their differences with regard to these interrogatories by a conference required by Rule 12(d) of the local rules. Although the Court will this time make a determination on an unbriefed motion unsupported by the required conference, it is expected that in the future the parties will reconcile their discovery problems to the best of their ability prior to bringing a matter before the Court.” Goodman v. International Business Machines Corp. (N.D. Ill. 1973), 59 F.R.D. 278, 279-80.

Our rule is less specific, but to the same effect. Our discovery rules, like the Federal discovery rules (see Oppenheimer Fund, Inc. v. Sanders (1978), 437 U.S. 340, 356-57, 57 L. Ed. 2d 253, 268, 98 S. Ct. 2380, 2392; United States v. American Telephone & Telegraph Co. (D.D.C. 1979), 83 F.R.D. 323, 327), contemplate that discovery will generally proceed without judicial intervention and that the great majority of discovery questions will be resolved by counsel themselves. This intention is apparent from Rule 201(k)’s requirement that every discovery motion contain a statement that the parties have conferred and, after reasonable efforts to do so, have been unable to resolve their differences, and that belief is also evidenced by the fact that the direct supervision of discovery by the court under certain circumstances which is provided for in Rule 201(c)(2) was considered “unusual enough to call for special mention in the rule.” (58 Ill. 2d R. 201(c)(2), Committee Comments.) To paraphrase what this court said in Monier v. Chamberlain (1966), 35 Ill. 2d 351, 357:

“[T] he increasing complexity and volume of present-day litigation involves frequent recourse to discovery procedures, [and seeking judicial intervention in discovery before consultation between counsel and good faith efforts to resolve differences] would serve only to inhibit pretrial settlements, increase the burden of already crowded court calendars, and thwart the efficient and expeditious administration of justice.”

Judge Irving R. Kaufman of the Second Circuit Court of Appeals, in speaking of discovery in the Federal courts, noted that “[t]he whole discovery procedure contemplates an absence of judicial intervention in the run-of-the-mill discovery attempt.” (Kaufman, Judicial Control Over Discovery, 28 F.R.D. 111, 116 (1962).) He also indicated that one of the primary factors in the proper functioning of a system of discovery is “the control exercised by the attorneys themselves, animated by a spirit of cooperation, a fear of reprisal, an appreciation of the judicial sanctions available if recalcitrance persists and, above all, by their knowledge that they are officers of the court ***.” (Emphasis added.) 28 F.R.D. 111, 116.

This court, through its decisions and rules, has long been urging counsel to “adopt a spirit of co-operation with regard to *** discovery” and “encouraging the bench and bar to wisely use the tools of discovery to illuminate the actual issues in the case rather than to harass and obstruct the opposing litigant.” (People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 197, 193.) The court also did so in promulgating Rule 201(k), which is designed to implement “present-day concepts of discovery ***, looking to the ultimate ascertainment of the truth and in many instances the realization of just settlements without the necessity of protracted litigation” (Monier v. Chamberlain (1966), 35 Ill. 2d 351, 359). When an attorney attempts to use discovery rules and sanctions as weapons in a war of inconvenience, instead of the truth-seeking purposes for which they were designed, he does a disservice not only to the court and his colleagues at the bar, but also to his client, since his pettifogging makes more difficult a realistic review of the merits of the client’s claim or defense.

There have been suggestions that motions which request drastic relief are “non-routine” motions and thus not within the purview of Rule 201 (k). To the contrary, we believe that the more drastic the relief requested, the more necessary compliance with Rule 201 (k). In the case of a motion to dismiss, compliance with Rule 201(k) is particularly important, as this case demonstrates. In view of the fact that plaintiff had answered the interrogatories, and the subsequent representations by counsel as to the availability of the documents, it seems quite likely that a conference between counsel would have resulted in their production.

It was stated by counsel on oral argument that contacting opposing counsel by means of telephone or otherwise had proved difficult. Telephone calls were not returned, letters were unanswered, and, as a consequence, some attorneys had developed the practice of filing motions as a means of gaining counsel’s attention and obtaining discovery. We do not know whether counsel’s comments on oral argument accurately reflect the views of any substantial number of attorneys, but the practice described ought not to be tolerated by trial courts.

We emphasize that Rule 201 (k) is not precatory. In promulgating it this court realized that one is not always able to contact opposing counsel, or that, when contacted, some lawyers are uncooperative. That fact, however, does not justify dispensing with a good-faith effort to contact counsel and resolve differences. In proper circumstances Rule 201 (k) might be satisfied by a showing of active, but unsuccessful, efforts to contact, and proof of telephone calls unretumed or letters unanswered might, in some instances, suffice. There is, however, nothing of that type in this case.

Discovery is not a tactical game, and Rule 219(c) (73 Ill. 2d R. 219(c)) provides remedies against unreasonable opponents. Discovery is intended as, and should be, a cooperative undertaking by counsel and the parties, conducted largely without court intervention, for the purpose of ascertaining the merits of the case and thus promoting either a fair settlement or a fair trial. For those who use it to impede and harass, this court’s admonition in Buehler v. Whalen (1977), 70 Ill. 2d 51, 67, is appropriate: “Discovery for all parties will not be effective unless trial courts do not countenance violations, and unhesitatingly impose sanctions proportionate to the circumstances.”

Nowhere on the face of the motion in this case is there a statement complying with Rule 201(k), or any indication that consultations similar to those required took place or were attempted. Rather, there is in this record only a four-month silence followed by unilateral filing of a motion to dismiss. In the absence of compliance with Rule 201 (k) the trial court should have simply dismissed the motion. Since the complaint was erroneously dismissed, its subsequent reinstatement was proper.

Accordingly the judgment of the appellate court is reversed, and the judgment of the circuit court of Madison County is affirmed.

Appellate court reversed; circuit court affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE CLARK

license: Public Domain

text:
    (No. 53274.
    THE PEOPLE ex rel. THE COUNTY OF ST. CLAIR et al., Appellant, v. THE CITY OF BELLEVILLE, Appellee.

      Opinion filed February 3, 1981.

      GOLDENHERSH, C.J., and SIMON, J., took no part.
   MR. JUSTICE CLARK

delivered the opinion of the court:

This is a quo warranto action brought by the People, upon the relation of the County of St. Clair, a township, a road district, and two fire-protection districts, to determine the validity of four annexation ordinances adopted by the city council of the defendant, the city of Belle-ville. After a bench trial, the circuit court of St. Clair county held the ordinances were valid. The appellate court affirmed (81 Ill. App. 3d 379), and we granted leave to appeal. 73 Ill. 2d R. 315.

A complete statement of facts appears in the appellate court opinion. (81 Ill. App. 3d 379.) A brief summary will suffice here.

A petition for annexation of territory was filed with the city clerk on September 16, 1976, by the Illinois Central Gulf Railroad Company. The next day a copy of a proposed annexation agreement between the city and the Catholic Diocese, owner of a 90-acre parcel, was filed. Members of the Schaumleffel family filed a second petition on September 20, 1976. A petition for annexation of the diocese property was filed on September 30, 1976.

The four ordinances were adopted by the city council on October 7, 1976, and approved by the mayor the next day. The first ordinance, No. 3390, purported to annex the Illinois Central Railroad right-of-way which adjoins the south border of the city of Belleville for 1,350 feet, according to the plaintiff, and 1,158 feet according to the defendant. The annexed portion of the right-of-way which projects beyond the city’s border continues in a northwesterly direction for roughly 1,800 feet beyond the southwesterly border of the city, but still parallel to that border, until it reaches South 74th Street, a north-south street.

The second ordinance, No. 3391, was designed to annex a small piece of property referred to as the Schaumleffel property. This property lies between the railroad right-of-way and Illinois State Route 13. It is 25 feet wide and extends from a line parallel to the west boundary of the city limits but 100 feet south of the limits, nearly to South 74th Street. The third ordinance, No. 3392, adopted the annexation agreement between the city and the Catholic Diocese of Belleville, as owner of three tracts totaling 90 acres. It is the annexation of this property which was the subject of the fourth ordinance, No. 3393. The following map, though not drawn to scale, is instructive:

With the annexation of the Schaumleffel property, the portion of Highway 13 adjacent to it was annexed by operation of law. Ill. Rev. Stat. 1975, ch. 24, par. 7 — 1—1.

At trial, two expert witnesses testified. Richard E. Weinel, a registered land surveyor and engineer, testified that in his opinion the city’s map of the annexed territory is inaccurate in several places. The city’s witness, John Thompson, also a registered engineer and surveyor, agreed that there are errors in the map, but he stated that he was not hired to survey the property, only to draw a map from existing legal descriptions.

The People contend that the annexation ordinances are invalid because: notice was not given to two fire-protection-district trustees; the city’s map is inaccurate; the territory annexed is not contiguous to the city of Belleville; and the territories were not contiguous at the time the petitions for annexation were filed with the city clerk.

We agree with the People that the notice given was insufficient. Section 7 — 1—1 of the Illinois Municipal Code provides in part:

“Any territory which is not within the corporate limits of any municipality but which is contiguous to a municipality, may be annexed thereto as provided in this Article.
When any land proposed to be annexed is part of any Fire Protection District or of any Public Library District, and the annexing municipality provides fire protection or a public library, as the case may be, the Trustees of each District shall be notified in writing by certified or registered mail or by personal service, before any court hearing or other action is taken for annexation. Such notice shall be served 10 days in advance. An affidavit that service of notice has been had as provided by this Section must be filed with the clerk of the court in which such annexation proceedings are pending or will be instituted or, when no court proceedings are involved, with the recorder of deeds for the county where such land is situated. No annexation of such land is effective as to territory within any Fire Protection District or Public Library District unless service is had and the affidavit filed as provided in this section.” Ill. Rev. Stat. 1975, ch. 24, par. 7 — 1—1.

In this case, the record is unclear, but it appears that the city clerk attempted to serve notices to the three trustees of both the Signal Hill Fire Protection District and the Villa Hills Fire Protection District, which served the areas sought to be annexed. One trustee of each district, however, had been replaced. The notices were delivered to the former trustees, rather than the two new trustees. The trial and appellate courts decided that the notice which was given was valid nonetheless since two of the three trustees of each district were properly served, thereby protecting the interest of the districts. We disagree.

It is true, as the appellate court pointed out, that the failure to serve notice upon two trustees appears to have been inadvertent, and was a “formal defect,” but the statute does not make an exception for such a failure. The fact remains that two of the six trustees who were entitled to notice did not receive any. The intent of the statute is that all trustees be notified in writing so that they might express objections or otherwise represent the interest of the district. Were we to excuse this requirement in this case, a situation would be created where, in the future, a trustee whose disapproval of an annexation petition was known could be silenced simply by serving the other trustees, but not him. (See In re Annexation to Village of Green Oaks (1978), 58 Ill. App. 3d 842, 845.) Service upon a majority of trustees is not the same as service upon “the Trustees” (Ill. Rev. Stat. 1975, ch. 24, par. 7 — 1—1). Thus, the mandatory statutory requirement was not met.

Secondly, the notices which the other trustees did receive stated merely that the city was about to annex certain described territory, “and that such annexation will take place not less than 10 days after the service of this notice upon you.” The statute provides that the trustees of each district shall be notified in writing “before any court hearing or other action is taken for annexation. Such notice shall be served 10 days in advance.” (Ill. Rev. Stat. 1975, ch. 24, par. 7 — 1—1.) The notice in this case did not inform the trustees of either a court hearing or of the actual fact that a city council meeting was to be held on October 7, 1976. Since the notice did not actually inform the trustees of some action which was to be taken, it was not meaningful notice and did not comply with the statute. Therefore, the annexation of land within the two fire-protection districts was not effective. See Ill. Rev. Stat. 1975, ch. 24, par. 7 — 1—1.

Additionally, both witnesses at trial testified that the map was inaccurate in several respects. Section 7 — 1—8 of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 7 — 1—8) requires that “[a] copy of the ordinance annexing the territory together with an accurate map of the annexed territory shall be recorded with the recorder of deeds and filed with the County Clerk within the county wherever the annexed territory is located.” In People ex rel. Village of Worth v. Ihde (1961), 23 Ill. 2d 63, 66, it was stated: “Descriptions of municipal boundaries [in incorporating petitions] are not construed with the same strictness as those contained in deeds and contracts [citation], and if the incorporating petition and accompanying map, when viewed together, fairly apprise the public of the property involved, the description will be considered proper. [Citation.] ” In this case, involving annexation petitions, the inaccuracies are serious enough so that the public and the affected property owners are not fairly apprised as to what territory is to be annexed.

The testimony and the exhibits produced at trial show that the map is inaccurate concerning the western border of Oak Manor subdivision. The actual border and the border shown in the city’s map are inconsistent in several places, so that the city’s map depicts the annexation of portions of the Oak Manor subdivision, whereas in other places portions of the Catholic Diocese property are shown as a part of the subdivision.

Also, the city’s map does not reflect a widening of Illinois State Route 13 which occurred. The map recites that the width of the route is 439.7 feet, when it is actually 470 feet.

Moreover, Weinel testified that although the city’s map states that it is drawn to a scale where one inch equals 200 feet, the map is not drawn to that scale.

Finally, Thompson, the city’s witness, testified that the disparity between the map’s depiction of the Oak Manor subdivision boundary line, on the one hand, and the legal description of the boundary contained in the diocese’s petition for annexation and ordinance No. 3393, on the other, creates an ambiguity. We conclude therefore that when the annexation petition and the city’s map are viewed together there are inaccuracies to the point where the public is not fairly apprised of the property which is involved.

We do not mean to imply by our conclusion that an annexation map must be perfectly accurate or that a city must order and pay for a new survey every time it wishes to annex new property. Our conclusion is simply that where, as here, updated, accurate descriptions are known, a city must, as nearly as possible, draw an accurate map so that confusion and uncertainty do not result from recorded maps, deeds, and ordinances which depict inconsistent boundary lines.

The People’s next contention is that three of the annexation ordinances are invalid because three portions of the territory sought to be annexed were not contiguous at the time the petitions were filed. The People argue that section 7 — 1—8 requires that territory be contiguous prior to or at the time the petitions are filed before a municipality may pass annexation ordinances. The city argues that while section 7 — 1—3 may require that the territory be contiguous when the petitions are filed, section 7 — 1—8, the section applicable herein, requires that the territory need not be contiguous until the ordinance is passed. The pertinent part of section 7 — 1—8 provides:

“Sec. 7 — 1—8. Any territory which is not within the corporate limits of any municipality but which is contiguous to a municipality and which territory has no electors residing therein, or any such territory with electors residing therein, may be annexed to the municipality in the following manner: a written petition signed by the owners of record of all land within such territory, and by at least 51% of the electors residing therein shall be filed with the municipal clerk.” (Ill. Rev. Stat. 1975, ch. 24, par. 7 — 1—8.)

Section 7 — 1—3 states:

“After the filing of the petition but not less than 5 days prior to the date fixed for the hearing, any interested person may file with the circuit clerk his objections (1) that the territory described in the petition or ordinance, as the case may be, is not contiguous to the annexing municipality ***.” (Ill. Rev. Stat. 1975, ch. 24, par. 7-1-3.)

We think it is clear from the express language of each section that property must be contiguous at the time the petition is filed. Section 7 — 1—8 states, using the present tense, that only property which is contiguous contemporaneous with the filing of the petition may be annexed.

We realize that this construction requires a municipality desirous of annexing several parcels, only one of which is contiguous to the municipality, to annex each parcel at separate times. In some situations this requirement may appear cumbersome. We can only conclude that the General Assembly has imposed this limitation to prevent a municipality from conducting a wholesale annexation of successive parcels of property where each parcel, other than the first, is not contiguous to, and is more remote from, the original corporate limits. Since this is peculiarly a legislative judgment, we will not interfere with it.

The purpose of the contiguity requirement is to permit the natural and gradual extension of municipal boundaries to areas which “adjoin one another in a reasonably substantial physical sense” (Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 352). In that way, the d eh very of services is more convenient for the city and more efficient for its citizens. Sewer lines, and fire, police and other services, as far as practicable, should not have to pass under or over lands not within municipal boundaries. (See Wild v. People ex rel. Stephens (1907), 227 Ill. 556, 560.) To permit the wholesale annexation of a number of parcels which stretch far beyond the original corporate limits would defeat the purpose of the requirement. Therefore, we conclude that section 7 — 1—8 (Ill. Rev. Stat. 1975, ch. 24, par. 7 — 1—8), the statute the city acted under in attempting to annex the territory involved herein, requires that the territory sought to be annexed must be contiguous at the time the petition for annexation is filed. (Contra, People ex rel. Cherry Valley Fire Protection District v. City of Rockford (1970), 120 Ill. App. 2d 275, 282.) Thus ordinances 3391 and 3393, attempting to annex the noncontiguous Schaumleffel property and the Catholic Diocese property were invalidly adopted. Ordinance No. 3392, which adopted the agreement between the city and the diocese, is not affected by this conclusion. Since that ordinance simply adopts the agreement between the city and the diocese, but does not purport to annex any property, we think its validity is not in serious question here. The remaining question is whether the territory included in ordinance No. 3390, which purported to annex the railroad right-of-way, is contiguous to the city. The people argue it is not because it entails the taking of a “strip” of land, a practice which has been repeatedly condemned by the courts of this State in condemnation and annexation proceedings and has never been permitted by the General Assembly. (See City of Mount Carmel v. Partee (1979), 74 Ill. 2d 371, 376-77 (condemnation proceeding); Spaulding School District No. 58 v. City of Waukegan (1960), 18 Ill. 2d 526, 529; People ex rel. Adamowski v. Village of Streamwood (1959), 15 Ill. 2d 595, 601; Village of Morgan Park v. City of Chicago (1912), 255 Ill. 190, 192-93; Wild v. People ex rel. Stephens (1907), 227 Ill. 556, 560-61.) Generally, as applied to streets or roadways which project beyond the limits of a municipality, “contiguous” has been interpreted as “adjacent to and parallel to the existing municipal limits and cannot, under any circumstances, permit a municipality by annexation ordinances to grab a whole maze of roadways, circumscribing and choking off unincorporated areas and causing them to be completely surrounded by a maze of roadways annexed to a municipality.” (People ex rel. Adamowski v. Village of Stream-wood (1959), 15 Ill. 2d 595, 601; 2 E. McQuillin, Municipal Corporations sec. 7.20, at 359 (3d ed. 1979).) Also, to be contiguous, the territory to be annexed must have a substantial common boundary with the annexing municipality. Spaulding School District No. 58 v. City of Waukegan (1960), 18 Ill. 2d 526, 529.

In the instant case, as the appellate court pointed out, the railroad right-of-way has a common boundary with the city for a distance of 1,158 feet, according to the city, and 1,350 feet according to the plaintiff. The right-of-way projects beyond the city’s limits for several hundred feet, making the entire length of the right-of-way 1,800 feet. The right-of-way is both adjacent to the city for a considerable, though disputed distance, and parallel to the city’s limits. We agree, therefore, with the appellate court that the railroad right-of-way, the subject of ordinance No. 3390, is contiguous to the city of Belleville. Since, however, we have held that the notice and accuracy requirements of sections 7 — 1—1 and 7 — 1—8 have not been met by the city, ordinance No. 3390, as adopted in October 1976, is invalid.

Accordingly, for the reasons stated, the judgments of the circuit and appellate courts are reversed insofar as they upheld the validity of ordinances 3390, 3391, and 3393. Since ordinance No. 3392 does not violate any statute, those portions of the circuit and appellate court judgments that upheld this ordinance are affirmed.

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

GOLDENHERSH, C.J., and SIMON, J., took no part in the consideration or decision of this case.


author: MR. JUSTICE RYAN

text:
    (No. 53493.
    HERMAN J. KIRKWOOD, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Security Roofing and Siding Co., Inc., Appellee).

      Opinion filed February 3, 1981.

      SIMON, J., took no part.
    Bennett, Willoughby & Latshaw, P.C., of Decatur (K. Michael Latshaw, of counsel), for appellant.
    Alfred R. Bonaldi, of Keefe & De Pauli, P.C., of East St. Louis, for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

The issue in this appeal is whether the Industrial Commission’s finding that the claimant was not an employee, but an independent contractor, when he was injured, was against the manifest weight of the evidence. The claimant, Herman J. Kirkwood, had been applying siding to a home pursuant to an agreement with Security Roofing and Siding Co., Inc. (Security). He was injured after falling from a scaffold. He filed an application for adjustment of claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.). The arbitrator and Industrial Commission denied compensation. The circuit court of Coles County confirmed the decision of the Industrial Commission. The claimant appeals directly to this court under our Rule 302(a) (73 Ill. 2d R. 302(a)). We hold that the decision of the Industrial Commission was not against the manifest weight of the evidence.

The claimant had been applying siding to homes since 1970. He had worked for Kool Vent Company for about a year when he and his brother formed Kirkwood Brothers Construction Company. They were in business under that name for approximately seven years. In October 1977, the company ceased doing business and claimant joined a partnership called Woolen Home Improvement, which also was engaged in applying siding. On August 1, 1978, the claimant withdrew as a member of that partnership. On that same date, the claimant, his son and two friends, Bob Green and Bob Craft, began to do the same work on projects supplied by Security. Project negotiations were discussed solely between Security and the customer. After negotiations were complete, Security would add that project to the work list posted at its office. The siding crews with which Security dealt could then pick a project from the list. The claimant, his son and his friends comprised one of these crews.

Job specifications and materials for projects on which the claimant’s crew worked were provided by Security. The crew did not pay for materials. The crew provided its own tools, equipment, trucks, and scaffolding. It likewise set its own hours and applied the siding without supervision. A representative of Security would, from time to time, visit the job site to be sure the work was satisfactory. The crew made no warranties to the customer beyond those made by Security.

The crew was paid on a piecework basis, that is, by the amount of material applied to a building, receiving a lump sum check at the end of each job. The checks were made out to either Kirkwood Home Improvements or Kirkwood Applicating. No taxes or social security were withheld by Security. Expenses were deducted by the claimant, who then divided the remainder among the crew members. Security’s checks to Kirkwood were paid from Security’s general account, not its payroll account.

On August 21, 1978, claimant was injured while working at a project site. The scaffolding which was owned and erected by the claimant collapsed, causing him to fall approximately 20 feet. After the claimant’s injury, the crew discontinued further work on the project. Security paid Kirkwood Applicating for work already done on the project and arranged to have another applicating service complete the job.

The arbitrator, in denying compensation, found that the claimant was operating as an independent contractor on August 21, 1978, and that the relationship of employee and employer did not exist between Kirkwood and Security on that date. The Industrial Commission affirmed, and the circuit court of Coles County confirmed the decision of the Commission. In appealing to this court, the claimant argues that he was an employee and not an independent contractor and that the Industrial Commission’s decision to the contrary is against the manifest weight of the evidence and must be reversed.

The claimant’s argument places great reliance upon similarities between this case and the cases of Mastercraft Co. v. Industrial Com. (1974), 58 Ill. 2d 155, and Kirkwood Brothers Construction v. Industrial Com. (1978), 72 Ill. 2d 454. In each of those cases the injured party was found to be an employee. Contending that the facts of Mastercraft and Kirkwood are identical to the case at bar, the claimant argues that the injured party here must also be considered an employee. While the facts of each case are quite similar to the case at bar, each is distinguishable.

The significant differences between those cases and the one we are now considering is that from the facts in each of those cases the Industrial Commission found the claimant to be an employee and not an independent contractor. In both cases this court acknowledged that if the undisputed facts permit inferences to be drawn either way, that is, that the claimant was an employee or that he was an independent contractor, then the Commission alone is empowered to draw that inference, which will not be set aside unless against the manifest weight of the evidence.

Admittedly, the facts in Mastercraft and Kirkwood are strikingly similar to those in our case, but they are not identical. In Mastercraft, for instance, the employer owned the scaffold, sawhorses and cutting boards. The employer’s foreman supervised and inspected the performance of the claimant’s work. Although the claimant in Mastercraft did work in a crew, each member of the crew was paid separately, except when the claimant would, from time to time, hire somebody to help him. Also, in Mastercraft, the claimant would on occasion collect from the homeowner and turn the money over to the employer.

In Kirkwood it appears that, for the job in question, the agreement was to pay the claimant and his coworker $2,450 upon completion of the job. Also, the salesman who sold the job had responsibilities beyond those of a salesman and functioned as an overseer of the job. When the owner requested a change in the plans that had been agreed on, the salesman came to the job site and discussed these changes with the owner, the claimant and his coworker.

In Greenberg v. Industrial Com. (1961), 23 Ill. 2d 106, 108, this court said: “The question of whether a person is an independent contractor or an employee is often a difficult one because elements pertaining to both relationships may be present.” In our case, as in Mastercraft and Kirkwood, elements of both an employee status and that of an independent contractor are present, and inferences can be drawn either way from the undisputed facts in all three cases. In Mastercraft and in Kirkwood we found the inferences drawn by the Industrial Commission not to be against the manifest weight of the evidence. In this case, although the Industrial Commission drew inferences contrary to those in Mastercraft and Kirkwood, we likewise find these inferences not to be contrary to the manifest weight of the evidence.

Determining whether one is an independent contractor or an employee is often a vexing problem. (O’Brien v. Industrial Com. (1971), 48 Ill. 2d 304, 307.) Since many jobs contain elements of each, there is no clear line of demarcation between the status of employee and independent contractor. (Bauer v. Industrial Com. (1972), 51 Ill. 2d 169; Henry v. Industrial Com. (1952), 412 Ill. 279; Immaculate Conception Church v. Industrial Com. (1947), 395 Ill. 615; Kehrer v. Industrial Com. (1937), 365 Ill. 378.) For this reason, when the facts of a particular case are susceptible to either interpretation, it is within the Industrial Commission’s province to draw inferences and evaluate the credibility of the witnesses in arriving at a decision. (C. Iber & Sons, Inc. v. Industrial Com. (1980), 81 Ill. 2d 130, 136; Eagle Sheet Metal Co. v. Industrial Com. (1980), 81 Ill. 2d 31; O’Dette v. Industrial Com. (1980), 79 Ill. 2d 249; Minnesota Mining & Manufacturing Co. v. Industrial Com. (1979), 78 Ill. 2d 182; Phelps v. Industrial Com. (1979), 77 Ill. 2d 72; Keystone Steel & Wire Co. v. Industrial Com. (1978), 73 Ill. 2d 290.) On review, that decision will only be reversed if it is against the manifest weight of the evidence. Gladstone v. Industrial Com. (1980), 79 Ill. 2d 236, 240; Scott v. Industrial Com. (1979), 76 Ill. 2d 183; Alexander v. Industrial Com. (1978), 72 Ill. 2d 444; Pantle v. Industrial Com. (1975), 61 Ill. 2d 365; Quick v. Industrial Com. (1972), 53 Ill. 2d 46; Williams v. Industrial Com. (1971), 49 Ill. 2d 317; Lawrence v. Industrial Com. (1945), 391 Ill. 80.

This court has considered various factors in resolving the question of whether a workman is an employee or an independent contractor; i. e., amount of supervision and control, the method of making payment, the right to discharge, the skills required, the source of materials and tools, and the work schedule. Most frequently emphasized is the right to control the workman and the details of his work. (See O’Brien v. Industrial Com. (1971), 48 Ill. 2d 304.) The pronouncements of this court in this area are necessarily binding on the Commission and are followed by it in making its determinations. The approach this court has followed could conceivably lead to inconsistent results in identical factual situations, as the claimant argues has happened in this case as compared to Mastercraft and Kirk-wood. Such results are irksome, particularly to Herman Kirkwood, the claimant in this case since in Kirkwood v. Industrial Com. he was found to be an employer, whereas in this case, under very similar arrangements, when he is the claimant, he is found to be an independent contractor.

Professor Larson suggests that the traditional elements considered by courts in determining whether a workman is an employee or an independent contractor were adopted from the common-law master-servant concept and are not particularly appropriate in determining whether a workman is an employee for purposes of workmen’s compensation acts. For instance, the degree of control that can be exercised over a workman and the performance of his work is a significant factor in determining whether the master is to be held liable vicariously for the acts of his servant. However, workmen’s compensation law is concerned not with injuries by the employee, but injuries to the employee, and the right to control his activities does not have the same significance as it has in determining whether the employer should be responsible for the acts of his servant. Professor Larson suggests that the right to control the workman should not be the most relevant factor in determining if a workman is an employee in a compensation case. More important to consider is the nature of the claimant’s work in relation to the regular business of the employer. (1C A. Larson, Workmen’s Compensation secs. 43.42, 43.50 (1980).) This approach can be best explained by quoting from Professor Larson’s treatise:

“The theory of compensation legislation is that the cost of all industrial accidents should be borne by the consumer as a part of the cost of the product. It follows that any worker whose services form a regular and continuing part of the cost of that product, and whose method of operation is not such an independent business that it forms in itself a separate route through which his own costs of industrial accident can be channelled, is within the presumptive area of intended protection.” 1C A. Larson, Workmen’s Compensation sec. 43.51, at 8 — 17 to 8 — 18 (1980).

In section 43.52, under the heading of “Relativity as essential part of test,” Professor Larson states:

“Note that the factor here stressed is in two parts: the nature of the claimant’s work, and its relation to the employer’s work. The nature of the claimant’s work, in the abstract, is seldom a safe guide in itself, and for this reason it is dangerous to rely on precedents classified solely by the character of the worker’s job — for example, to say that window-washers are usually held to be employees while lawyers are usually held to be independent contractors. If I, as a private householder, call upon a window-washing company and engage it to do what amounts to one day’s work on my house, I am probably not an employer. But an industrial plant which at regular intervals keeps this same company busy doing what otherwise would be done through its own employees could be held an employer. Similarly, when I seek the services of a lawyer, on the occasion of one of my rare encounters with the legal process, the lawyer is obviously not my employee. But the same lawyer, engaged continuously by a law firm or insurance company, can be an employee.
This test, then, which for brevity will be called the ‘relative nature of the work’ test, contains these ingredients: the character of the claimant’s work or business — how skilled it is, how much of a separate calling or enterprise it is, to what extent it may be expected to carry its own accident burden and so on — and its relation to the employer’s business, that is, how much it is a regular part of the employer’s regular work, whether it is continuous or intermittent, and whether the duration is sufficient to amount to the hiring of continuing services as distinguished from contracting for the completion of a particular job.” 1C A. Larson, Workmen’s Compensation sec. 43.52, at 8-19 to 8-20 (1980).

This court, while adhering to the belief that the right to control the details of a worker’s performance is the essential element in determining whether a worker is an employee has, nonetheless, on several occasions acknowledged the significance of the nature of the work performed in relation to the general business of the employer. See Henry v. Industrial Com. (1952), 412 Ill. 279, 283; Coontz v. Industrial Com. (1960), 19 Ill. 2d 574, 578; Alexander v. Industrial Com. (1978), 72 Ill. 2d 444, 450; Kirkwood Brothers Construction v. Industrial Com. (1978), 72 Ill. 2d 454, 460.

We believe that the approach suggested by Professor Larson would lead to more consistent and more logical results than emphasizing the common-law master-servant elements of tort liability. Indeed, the latter approach may well have led to a contrary conclusion in the case now before us. The tests presently applied in determining whether a worker is an employee or an independent contractor are the results of court pronouncements and could no doubt be abandoned by judicial decision. (See Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, 25, cert. denied (1960), 362 U.S. 968, 4 L. Ed. 2d 900, 80 S. Ct. 955.) The tests now applied are longstanding, business relationships have been structured in consideration of them, and insurance protection against compensation claims has been tailored with these tests in mind. It could be unnecessarily disruptive, and expose employers to. risks against which they have had no opportunity to insure, for this court to abruptly abandon its previous approach and follow the suggestions of Professor Larson. In any event, it would be inappropriate for this court in this case to abandon consideration of the elements heretofore deemed significant in favor of Professor Larson’s suggestions, since the suggestions were neither briefed nor argued.

For the reasons heretofore stated in this opinion, the judgment of the circuit court of Coles County is affirmed.

Judgment affirmed.

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


text:
    (No. 53139.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. WILLIAM SEYMOUR, Appellee.

      Opinion filed February 3, 1981.

      SIMON, J., took no part.

      Tyrone C. Fahner and William J. Scott, Attorneys General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald Mackay, Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Marcia B. Orr and Mary Ellen Dienes, Assistant State’s Attorneys, of Chicago, of counsel), for the People.
    Sam Adam, of Chicago, for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

The defendant, William Seymour, was found in possession of cocaine and charged with possession of a controlled substance. Prior to trial, the defendant filed a motion to suppress the cocaine, which he alleged was taken from him following a strip search. The Cook County circuit court allowed the motion and suppressed the evidence. The appellate court affirmed. (80 Ill. App. 3d 221.) We granted the State leave to appeal under our Rule 315. 73 Ill. 2d R. 315.

On July 27, 1977, at about 9 p.m., Sergeant Neilson and Officer Cronin were patroling the vicinity of 450 North Clark Street in Chicago in a marked squad car. The defendant was observed leaning into the passenger side of a parked automobile. When the officers pulled their car up behind the parked vehicle, the defendant stood up and began to walk away from them. Neilson got out of the squad car, noticed that the parked car had keys in its ignition, and ordered the defendant to stop. Seymour’s shirt was hanging outside of his pants as the police approached him. When Sergeant Neilson asked Seymour for some identification, the defendant began to reach into his pants pocket. Before he could, Neilson patted him down. Neilson found a loaded .38-caliber revolver in Seymour’s waistband. The officers immediately placed Seymour under arrest and called for a vehicle to transport defendant to the 18th district police station. While waiting in Sergeant Neilson’s squad car, Seymour stated that the parked car was his and that he had a gun registration card for the revolver. Officer Cronin testified that, while waiting, Seymour also mentioned that he had been in the penitentiary before and had a narcotics case pending, and he couldn’t take the heat. He asked Sergeant Neils on to give him a break. Seymour later denied making such a comment. When a second squad car arrived at the scene to take Seymour to the station, he was again superficially searched. After arriving at the station, Seymour was again given a pat-down search.

Once at the police station, the defendant was fingerprinted. The fingerprint apparatus was located in the lockup area. After being fingerprinted, the defendant went to a sink in the lockup area to wash his hands. The two arresting officers did not accompany the defendant to the police station but arrived after he had been fingerprinted. Officer Cronin approached the defendant as he finished washing his hands and directed the defendant to remove his clothing. Officer Cronin testified that after the defendant removed his shoes the officer found a tinfoil packet in one of the shoes. The defendant testified that he was required to strip naked and the officer inspected him visually, after which the officer found the tinfoil packet in one of the defendant’s socks. The packet contained .22 grams of cocaine. The defendant was charged with possession of a controlled substance. Ill. Rev. Stat. 1977, ch. 5 6V2, par. 1402.

At the hearing on the motion to suppress, the court made a finding that the initial arrest on the street was valid. The defendant’s motion to suppress the gun, therefore, was denied. The court stated its belief that the police would then be allowed a reasonable length of time to detain the defendant so as to check his identity and prepare charges against him. However, the court found that, once at the police station, the defendant should have been advised that he was charged with a misdemeanor which was bailable. It should then have been determined whether the defendant could make bail and, if not, only then could he be incarcerated. The court held that, if a determination were made that the defendant could not post bail, he then could be searched before being placed in the lockup. Because the defendant was not notified that he was being charged with a bailable offense and of his right to post bail, and since he had enough money with him to post the preset bail, he should not have been placed in the lockup and, consequently, should not have been searched. The discovered cocaine was therefore suppressed, and the finding of probable cause was vacated.

The appellate court, in affirming the judgment of the circuit court, held that the police are required to advise all arrestees charged with a misdemeanor of their right to post bail immediately. The appellate court further held that, although the defendant could be detained a reasonable time for further investigation, he could not be placed in the police lockup and strip-searched during that time.

We will first address the question of whether it was necessary for the officers to inform the defendant of his right to post bail. The appellate court found such a requirement not as being constitutionally mandated, but as being required by that court’s construction of the provisions of our Rule 528(c) (73 Ill. 2d R. 528(c)), which presets the amount of bail for the class of misdemeanors that includes the offense involved in this case, and from the provisions of section 103 — 7 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 103 — 7), which requires that posters informing the defendant of certain rights be posted in certain conspicuous places. We need not discuss the cases from Michigan, Colorado and California relied on by the appellate court, because it is clear that our legislature, in enacting section 103 — 7 of the Code of Criminal Procedure of 1963, did not intend to require that a defendant be orally informed of his right to post bail. The committee comments to this section, as originally adopted in 1963, state:

“Defense representatives strongly urged a requirement in the Code that the arresting officer inform an arrestee of his rights. Others strongly opposed such a requirement. The Committee was not persuaded that the officer was the proper medium for conveying such information fully and understandably. This section was proposed as a compromise. It was accepted.” (Ill. Ann. Stat., ch. 38, par. 103 — 7, Committee Comments, at 84 (Smith-Hurd 1970).)

The General Assembly apparently felt that informing the accused of his rights through printed information contained on posters located as required by statute was adequate and more likely to accurately inform an accused. It should be noted that, in situations where the General Assembly intended that the defendant be personally informed of certain rights by specified individuals, it clearly stated so in the Code. (See Ill. Rev. Stat. 1979, ch. 38, par. 103 — 1(a) (shall inform the person arrested that a warrant has been issued for his arrest and the nature of the offense); Ill. Rev. Stat. 1979, ch. 38, par. 103 — 1(b) (after an arrest without a warrant — shall inform the person arrested of the nature of the offense upon which the arrest is based); Ill. Rev. Stat. 1979, ch. 38, par. 109 — 1(b)(1) (after arrest the judge shall inform the defendant of the charge against him); and Ill. Rev. Stat. 1979, ch. 38, par. 109 — 1(b)(2) (must advise the defendant of his right to counsel).) We conclude that the legislature did not intend to require that a defendant be orally advised by the police of his right to post bail.

It is also contended, and the trial court and the appellate court held, that since the defendant was lawfully arrested on an unlawful-use-of-weapons charge (Ill. Rev. Stat. 1977, ch. 38, par. 24 — 1(a)(10)), which is a Class A misdemeanor (Ill. Rev. Stat. 1977, ch. 38, par. 24 — 1(b)), and for which preset bail was fixed at $1,000 with the 10% deposit statute applicable (73 Ill. 2d R. 530), he should have been admitted to bail without having been placed in the lockup area of the police station. Noting that the defendant had over $300 in cash on him when arrested, the court found there was no question as to his ability to post the amount of preset bail. It is urged that, since the defendant had the right to and could post bail, the police had no right to detain him and no need or right to conduct a search. Since the search was unauthorized, it is argued, the seizure of the tinfoil packet containing the controlled substance was illegal and the evidence was properly suppressed.

Although the unlawful use of weapons is only a Class A misdemeanor for which preset bail is provided by our Rule 528(c), the offense becomes a Class 3 felony if committed within five years after the accused’s release from prison or within five years after conviction if no prison sentence was imposed for a prior felony conviction. (Ill. Rev. Stat. 1977, ch. 38, par. 24 — 1(b).) The officer stated that, following the arrest, the defendant asked for a break because he had a previous felony conviction. Acceptable police procedures would require that the officers ascertain whether or not that conviction was within the period of time that would make the weapons charge a Class 3 felony. In fact, because of the possibility that this arrest involved a felony and not just a misdemeanor, a further routine identification check would be in order, even in the absence of such a remark by the suspect. In making this determination, it was necessary that the defendant be fingerprinted and that the fingerprints be processed through identification procedures. It was testified that this would require two to three hours. The trial court, in passing on the motion to suppress, stated its disbelief that detention for this period of time would be necessary. However, there is no evidence in the record that indicates a lesser period of time was required for the proper identification. It must be assumed that it was therefore necessary that the defendant be detained for whatever time was required and that he could not be permitted to immediately post bail for a misdemeanor and be released.

Since the police were authorized to detain the defendant, the question then becomes what should be the nature of the detention, whether a search of the defendant was justified, and, if so, to what extent he could be searched. We will postpone for the present the question of defendant’s detention and consider the questions relating to search. The officers here effected a lawful arrest on the weapons charge and properly had the defendant transported to the police station. Section 108 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 108 — 1) provides that, when a lawful arrest is made by an officer, the officer may reasonably search the person arrested for the purpose of (a) protecting the officer from attack, (b) preventing the person from escaping, (c) discovering the fruits of the crime, or (d) discovering any instruments, articles or things that had been used in the commission of, or which may constitute evidence of, any offense. The right to search a person incident to a lawful arrest for these purposes does not, however, depend solely upon the provisions of our statute. Such a right has long been recognized both in England and in this country. (Weeks v. United States (1914), 232 U.S. 383, 392, 58 L. Ed. 652, 655, 34 S. Ct. 341, 342; United States v. Rabinowitz (1950), 339 U.S. 56, 60, 94 L. Ed. 653, 657, 70 S. Ct. 430, 432-33.) The fact that the search is conducted at the police station rather than at the place of arrest does not by itself render the search invalid. United States v. Edwards (1974), 415 U.S. 800, 803, 39 L. Ed. 2d 771, 775, 94 S. Ct. 1234, 1237; People v. Campbell (1977), 67 Ill. 2d 308, 319.

In United States v. Robinson (1973), 414 U.S. 218, 38 L. Ed. 2d 427, 94 S. Ct. 467, the court considered the historical development of the right to search without a warrant incident to a lawful arrest. The court held that, while the justification to search a person incident to a lawful custodial arrest is based on the need to disarm and discover evidence, it does not depend upon what a court may later decide was the probability in a particular situation that weapons or evidence would, in fact, be found on the suspect. The court stated:

“A custodial arrest of a suspect based on probable cause is a reasonable instrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. *** [I]n the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but it is also a ‘reasonable’ search under that Amendment. (Emphasis added.) (United States v. Robinson (1973), 414 U.S. 218, 235, 38 L. Ed. 2d 427, 440-41, 94 S. Ct. 467, 477.)

In United States v. Chadwick (1977), 433 U.S. 1, 53 L. Ed. 2d 538, 97 S. Ct. 2476, the court held that the search of a suspect’s person incident to a lawful arrest may be conducted without a warrant, whether or not there is probable cause to believe that the suspect may have a weapon or is about to destroy the evidence. The potential danger lurking in all custodial arrests makes such searches reasonable. In our case we must conclude that the officers, having effected a lawful arrest of the defendant, could conduct a search of his person while he was detained at the police station. The Supreme Court, since Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, has quite consistently stated the authority to search the person incident to arrest in terms which suggest that there is no limitation based on probable cause to believe that weapons or evidence of a crime will be found, and that the intensity of the search is not limited to the extent necessary to find items reasonably believed to be on the arrestee’s person. See 2 W. LaFave, Search and Seizure sec. 5.2, at 266 (1978).

The fourth amendment of the Federal Constitution and article I, secton 6, of the Illinois Constitution of 1970 prohibit unreasonable searches and seizures. There is no uniform rule for determining the reasonableness of a search. The determination of that question must depend upon the facts of a given case. (United States v. Rabinowitz (1950), 339 U.S. 56, 94 L. Ed. 653, 70 S. Ct. 430; People v. Palmer (1976), 62 Ill. 2d 261;People v. Watkins (1960), 19 Ill. 2d 11.) In Terry v. Ohio (1968), 392 U.S. 1, 18-19, 20 L. Ed. 2d 889, 903-04, 88 S. Ct. 1868, 1878, the court noted that a search which is reasonable in its inception may violate the fourth amendment by virtue of its intolerable intensity and scope. In Terry, the court also noted that although a search incident to an arrest is justified in part by the necessity to protect an officer from assault with a concealed weapon, it is also justified on other grounds and can therefore involve a relatively intensive exploration of a person. Although Terry indicated that the scope and intensity of the search must be justified by the circumstances which rendered its initiation permissible, the Supreme Court subsequently, in United States v. Robinson (1973), 414 U.S. 218, 38 L. Ed. 2d 427, 94 S. Ct. 467, and the companion case of Gustafson v. Florida (1973), 414 U.S. 260, 38 L. Ed. 2d 456, 94 S. Ct. 488, has not seen fit to so limit the authority to conduct a full search of the person incident to a lawful custodial arrest. In fact, the Robinson majority stated the “general authority” to search incident to a custodial arrest in absolute terms: “Once there is a custodial arrest a ‘full search of the person’ requires no ‘additional justification.’ [414 U.S. 218, 235, 38 L. Ed. 2d 427, 441, 94 S. Ct. 467, 477.] ” See 2 W. LaFave, Search and Seizure secs. 5.2(a), (b), at 262-70 (1978).

In People v. Hayes (1973), 55 Ill. 2d 78, the defendant was arrested for a firearms violation and was searched and a controlled substance was found on his person. This court held that the search was justified as incident to the arrest. In People v. Holloman (1970), 46 Ill. 2d 311, the defendant was arrested for not having a valid driver’s license, and a search incident to the arrest was conducted, during which an envelope was discovered attached to his back. The envelope contained a controlled substance. The search was held to be valid. Although neither of these cases involved a strip search, the facts in Hayes are similar to those in our case, and the arrest in Holloman was for a much less serious offense. In light of these cases, it cannot be argued that the police could not search the defendant’s person. The question then is whether the search, although reasonable in its inception, became an unreasonable search because of its intensity.

Defendant here emphasizes the degrading nature of a strip search and contends that such an invasion of his rights was not justified as incident to his arrest for what he terms a minor offense. Without a doubt, a strip search is a serious invasion of one’s rights, and because of the intensity, when made following an arrest for certain minor offenses, could be viewed as a fourth amendment violation. In this case we need not decide the nature or boundaries of this limitation or how to apply it. Various suggestions have been made. (See 2 W. LaFave, Search and Seizure sec. 5.2(g), at 288-90 (1978).) However, even in such cases, a reasonable belief that the person arrested has on his person a weapon or contraband may justify the intensive invasion of his privacy. In our case, however, we are dealing with a person who has been charged with a weapons offense. Although a misdemeanor, it is not a minor offense in the same sense that certain traffic offenses can be said to be minor offenses. It was sufficiently serious to require that the defendant be held at least until it could be determined whether he should be charged with a felony. Although cursory searches had failed to disclose any additional weapons during the search at the scene of the arrest, or subsequently at the station, it was not unreasonable, under the circumstances, to conduct a strip search at the police station.

As the dissenters in United States v. Robinson acknowledged:

“If the individual happens to have a weapon on his person, he will certainly have much more opportunity to use it against the officer in the in-custody situation. The prolonged proximity also makes it more likely that the individual will be able to extricate any small hidden weapon which might go undetected in a weapons frisk, such as a safety pin or razor blade. In addition, a suspect taken into custody may feel more threatened by the serious restraint on his liberty *** and may therefore be more likely to resort to force.” United States v. Robinson (1973), 414 U.S. 218, 254, 38 L. Ed. 2d 427, 451, 94 S. Ct. 467, 485 (Marshall, J., dissenting).

Officer Cronin testified that criminals usually conceal weapons or contraband where they are not easily detected. He personally has found guns, knives, items of contraband and other evidence during strip searches that ordinarily would not be found in a routine search. These items were found in undergarments, socks, and on the person, primarily concealed in the crotch area. It was not necessary that Officer Cronin have probable cause to believe that the suspect had concealed on his person weapons that might be used to effect his escape or to harm himself or others. The potential for danger inherent in the custodial arrest and the holding of the defendant in our case made the strip search reasonable. (See United States v. Chadwick (1977), 433 U.S. 1, 14-15, 53 L. Ed. 2d 538, 550, 97 S. Ct. 2476, 2485.) By approving a strip search incident to the custodial arrest of the defendant in this case we do not mean to adopt the broad language of United States v. Robinson and Gustafson v. Florida and do not permit the intensive intrusion of a strip search into one’s privacy in all custodial arrests. In fact we here acknowledge that a strip search may be entirely unreasonable and a violation of constitutional rights when conducted incident to custodial arrests in certain situations. We are here saying only that the arrest in this case was not one of those situations.

As noted earlier, it was necessary to hold the defendant for a period of time, possibly as long as two or three hours. If he had not been confined in the lockup, but had remained in the room where the traffic and disorderly conduct cases were being booked, and if he would have produced a weapon that had been well concealed, the police would have been subject to deserved criticism if someone would have been injured or if the defendant would have escaped. As noted, the dangers in the circumstances of a custodial arrest are sharply accentuated by the prolonged proximity of the accused to police personnel and others following the arrest. The crucial distinguishing feature of the custodial arrest is not the greater likelihood that a person taken into custody is armed, but rather the increased likelihood of danger to the officer and to others if in fact the person is armed. See United States v. Robinson (1973), 414 U.S. 218, 253, 38 L. Ed. 2d 427, 451, 94 S. Ct. 467, 485 (Marshall, J., dissenting); 2 W. LaFave, Search and Seizure sec. 5.2, at 278 (1978).

Since it was necessary to hold the defendant until it could be ascertained whether he should be charged with a felony or a misdemeanor, for safety and security reasons it was proper to hold him in the lockup. The officials in charge of the jail have a strong interest in preventing contraband drugs and especially weapons from entering the lockup. Although one confined to a jail does not lose his constitutional rights, they are, nonetheless, diminished by the needs of the institutional environment. See Bell v. Wolfish (1979), 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1816; United States v. Lilly (5th Cir. 1978), 576 F.2d 1240, 1244-46.

The trial court appears to have viewed this search only in relation to the incarceration of the defendant. That is, the court felt that the defendant could have been detained for the time necessary to check his past conviction record without placing him in the lockup area of the police station. Therefore, the court reasons, no search was justified. Although we have held that the defendant was properly detained, the right to search him did not depend solely upon whether or not he was detained in the lockup. The right to search the defendant also finds its justification as incident to his custodial arrest, which is distinct from the need to search one who is incarcerated in order to prevent weapons or contraband from entering the detention facility. There are, in fact, two justifications for the search of the defendant, who was under custodial arrest and was properly detained in the lockup: (1) a search incident to a custodial arrest and (2) a search prior to incarceration to safeguard the detention facility.

A strip search is no doubt a severe intrusion into one’s privacy. Some contend that such a search should be authorized only upon a showing of probable cause to believe that the suspect is concealing weapons or evidence which may be destroyed. (See Shuldiner, Visual Rape: A Look at the Dubious Legality of Strip Searches, 13 J. Mar. L. Rev. 273 (1980).) However, such searches have been approved as incident to an arrest without the showing of probable cause (see United States v. Klein (1st Cir. 1975), 522 F.2d 296) and as a search prior to incarceration. (See United States v. Tillery (E.D. Pa. 1971), 332 F. Supp. 217; 2 W. LaFave, Search and Seizure sec. 5.3, at 307 (1978).) In United States v. Klein the court held that a brief strip search of a defendant, conducted without abuse and in a professional manner, is not unconstitutional and stated that “the modesty of one lawfully arrested must give way to reasonable precautionary procedures designed to detect hidden evidence, drugs, or objects which might be used against others or to cause self-inflicted harm.” United States v. Klein (1st Cir. 1975), 522 F.2d 296, 300-01.

Subsequent to the trial court order suppressing the evidence in this case, the General Assembly amended section 103 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 103-1). That section now specifically deals with strip searches. By discussing the amendment we do not intend to construe it or to pass on its validity. The amendment specifically prohibits strip searches of a person arrested “for a traffic, regulatory or misdemeanor offense” unless there is reasonable belief that the individual is concealing a weapon or controlled substance. The amendment specifically excepts from this prohibition cases involving weapons or controlled substances. Thus, the search of the defendant in our case would have been authorized under amended section 103 — 1. We need not decide whether the class of offenses in which the legislature has prohibited strip searches are also offenses where such a search would violate fourth amendment rights. We simply note that where an arrest has been made on a weapons charge, a strip search is authorized by the amendment without the necessity of having a reasonable belief that the individual is concealing a weapon. Regardless of the constitutional dimensions of the right to conduct a strip search incident to a custodial arrest, which we have herein found it unnecessary to define, such searches conducted after September 21, 1979, the effective date of the amendment, will be governed by the limitations of section 103 — 1, unless, of course, a provision of that section is found to be violative of constitutional rights.

The trial court, in granting the motion to suppress, stated that, once the defendant was at the police station, he should have been informed that he was charged with a bailable offense and that the amount of the bail had been set by rule of court and inquiry should have been made of the defendant whether he could make bail before he was incarcerated. The court stated that he should have been incarcerated only if he could not make bail and he should have been subjected to further search only upon entering the lockup. We have dealt with these questions above. The court did not address the question of a search incident to a lawful arrest. Under the law as set forth herein, and the facts of this case, we conclude that the trial court erred in suppressing the evidence seized following the strip search of the defendant.

The order of the circuit court of Cook County suppressing the evidence is reversed, as is the judgment of the appellate court affirming the order of the circuit court.

Reversed.

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


author: MR. JUSTICE UNDERWOOD

text:
    (No. 53998.
    JOHNNY SCOTT et al., Appellees, v. THE DEPARTMENT OF COMMERCE AND COMMUNITY AFFAIRS et al., Appellants.

      Opinion filed February 3, 1981.

      SIMON, J., took no part.
    Tyrone C. Fahner and William J. Scott, Attorneys General, of Springfield (Jon E. Tweedt, Assistant Attorney General, of counsel), for the People.
    Roger L. Vetter, of Belleville, for appellee Johnny Scott.
    Edward Neville, of East St. Louis, for appellees William Stokes and Willie L. Dancy.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

On March 19, 1980, plaintiff J ohnny Scott, a commissioner of the East St. Louis Housing Authority, filed a petition seeking a temporary restraining order, a temporary injunction, a permanent injunction and declaratory relief to prevent the Department of Commerce and Community Affairs (Department) from conducting a hearing to remove plaintiff and three other commissioners from the Housing Authority pursuant to section 4 of the Housing Authorities Act (Ill. Rev. Stat. 1979, ch. 67½, par. 4). The other commissioners, William Stokes, Larona J. Morris and Willie L. Dancy, were allowed to intervene as plaintiffs. Following a March 24 hearing the circuit court of St. Clair County granted a preliminary injunction enjoining the Department from proceeding with the hearing on the ground that section 4 of the Housing Authorities Act was unconstitutional. The Department sought an interlocutory appeal to the appellate court, and, because the statute had been found unconstitutional, the appeal was transferred here pursuant to our Rule 302(a). 73 Ill. 2d R. 302(a).

The Housing Authorities Act (Ill. Rev. Stat. 1979, ch. 671/2, par. 1 et seq,) provides for the appointment of five commissioners, to staggered five-year terms, by the presiding officer of a city, village, incorporated town or county in which the particular authority is created. (One of the five commissioners had not been in office during the period here involved.) The commissioners, whose appointment must be approved by the Department, serve without compensation. Their removal is provided for in section 4 of the Act:

“Whenever it shall appear to the Department of Local Government Affairs that a commissioner is incompetent or guilty of neglect of duty or malfeasance, the Department of Local Government Affairs shall require such commissioner to appear before it to show cause why he should not be removed from office. At least fifteen days’ written notice of such a hearing shall be given to the commissioner whose conduct is in question and to all other members of the Authority. At the hearing the commissioner may be represented by counsel and may appear personally and present such pertinent evidence as he wishes or as the Department of Local Government Affairs may request.
If after a hearing the Department of Local Government Affairs determines that a commissioner has been incompetent or has been guilty of neglect of duty or malfeasance, it shall remove such commissioner from the Authority within seven days, and there shall thereupon be deemed to be a vacancy of such office.” (Ill. Rev. Stat. 1979, ch. 6 m, par. 4.)

(The Department of Local Government Affairs was abolished on October 1, 1979, and its duties transferred to the Department of Commerce and Community Affairs by Illinois Executive Order No. 3 (1979) preceding Ill. Rev. Stat. 1979, ch. 127, par. 1.)

The plaintiffs had been served on January 28, 1980, with a “Notice of Charges” and a “Notice of Removal Hearing,” apparently prompted by the report of a housing authority task force formed by the mayor of East St. Louis. The “Notice of Charges” was as follows:

“NOTICE OF CHARGES
In the Matter of:
The Commissioners of ) the East Saint Louis )
Housing Authority )
To: Johnny Scott;
William Stokes;
LaRona J. Morris, and;
Willie Levell.
You are hereby notified that pursuant to Section 4 of the Housing Authorities Act, Ill. Rev. Stat., 1979, Ch. 6714, Section 4, you are charged with incompetence, neglect of duty or malfeasance in the performance of your duties as a commissioner of the East Saint Louis Housing Authority. You are required to appear at the removal hearing scheduled on the 29th day of February, 1980 to show cause why you should not be removed as a commissioner for the following acts of incompetence, neglect of duty or malfeasance:
1. that at the end of fiscal year 1977 routine expenses of the Housing Authority exceeded the budget by $366,169.84 and homeownership expenses exceeded the budget by $53,639.80 in violation of Section 407, Article 14 of the terms and conditions in Part 2 of the Annual Contributions Contract;
2. that at the end of fiscal year 1978 routine expenses of the Housing Authority exceeded the budget by $352,320 and administrative expenses exceeded the budget by $130,129 in violation of Section 407, Article H of the terms and conditions in Part 2 of the Annual Contributions Contract;
3. that the Housing Authority’s personnel policy is outdated and does not reflect compatibility with ‘pertinent practices’ as required by the U.S. Department of Housing and Urban Development’s handbook HM7401.1, Chapter 5, Section 1;
4. that the Housing Authority’s personnel files contain no evidence that its administrative salaries are comparable to those of like positions in the local community;
5. that the Housing Authority’s travel allowances exceeded the amount specified in its travel policy;
6. that the Housing Authority’s Disposition policy is not being followed;
7. that the Housing Authority has not implemented a uniform schedule of charges to tenants for repair services other than normal wear and tear;
8. that the Housing Authority has an unreasonably high number of outstanding obligations in its accounts receivable;
9. that the Housing Authority did not adequately preserve the minutes of the Board of Commission meetings;
10. that the Housing Authority has allowed its maintenance program to decline to an unacceptable point;
11. that the Housing Authority has not followed the terms of the Memorandum of Accord effective 1971; and
12. that a contract for installing guttering was awarded by the Housing Authority to a firm whose bookkeeper is one of the Commissioners on the Housing Authority although there were lower bids made by other reputable firms, in violation of an Act to prevent Fraudulent and Corrupt Practices in the Making or Accepting of official appointments and contracts by public officers, Ill. Rev. Stat., 1979, Chapter 102, Section 3.”

The “Notice of Removal Hearing” specified the time and place of the hearing, informed the commissioners that the hearing would be conducted in accordance with section 10 of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1979, ch. 127, par. 1010), that they had the right to counsel and to present evidence and argument, and that a decision on their removal would be forthcoming within seven days by certified mail. Relevant provisions of that act include section 12 (Ill. Rev. Stat. 1979, ch. 127, par. 1012), providing for use of civil evidence rules, cross-examination and judicial notice, and section 13 (Ill. Rev. Stat. 1979, ch. 127, par. 1013), requiring that, when the decision maker has not heard the case or read the record, a proposal for decision must be served upon the parties and the party adversely affected afforded an opportunity to file a brief in opposition. Final orders must contain findings of fact supported by concise statements of the supporting facts and separately stated conclusions of law. Ex parte communications in contested cases are barred by section 15 (Ill. Rev. Stat. 1979, ch. 127, par. 1015).

On February 14, plaintiff Scott filed with the Department a “Request for Production of Documents,” a “Motion to Dismiss Charges” and a “Motion to Disqualify Hearing Officer.” These motions were denied by the assistant director of the Department in a February 19 ruling based in part upon his statements that the burden of proof under section 4 of the Housing Authorities Act is upon the commissioners to show cause why they should not be removed from office, and that neither the Housing Authorities Act nor the Illinois Administrative Procedure Act required discovery or production of the documents sought by the commissioners.

On the same date that the petition was filed, the St. Clair County circuit court issued a temporary restraining order precluding the Department from proceeding with the removal hearing. At the subsequent hearing on the issuance of an injunction the court found section 4 to be unconstitutional because it placed the burden of proof upon the plaintiffs, the standard for removal lacked definiteness, and the statute contained no provision for discovery.

We need not dwell at length upon the plaintiffs’ contention that the standard for removal of a commissioner who is found to be “incompetent or guilty of neglect of duty or malfeasance” is unconstitutionally vague. A statute is, of course, presumed to be valid, and the burden is on the party challenging it to establish its constitutional invalidity. (Polyvend, Inc. v. Puckorius (1979), 77 Ill. 2d 287, appeal dismissed (1980), 444 U.S. 1062, 62 L. Ed. 2d 744, 100 S. Ct. 1001.) We have just this term considered and upheld the validity of the standard “Improper, unprofessional or dishonorable conduct” as a basis for license revocation as against the contention that it was unconstitutionally vague and uncertain. (Chastek v. Anderson (1981), 83 Ill. 2d 502, 506, 509.) We there indicated that the due process clauses of the Illinois and Federal constitutions are not violated if the duty imposed by the statute is described in sufficiently definite terms to serve as a guide to those who must comply with it.

Earlier language by this court is also appropriate: “Due process does require that a person of ordinary intelligence be given a reasonable opportunity to know what is prohibited. [Citation.] A statute is not rendered unconstitutionally vague, however, merely because the imagination can conjure up hypothetical situations in which the meaning of some terms may be in question.” (Schiller Park Colonial Inn, Inc. v. Berz (1976), 63 Ill. 2d 499, 513.)

While the statute in question has not previously been the subject of appellate interpretation, an essentially identical standard in article V, section 10, of the 1970 Illinois Constitution provides:

“The Governor may remove for incompetence, neglect of duty, or malfeasance in office any officer who may be appointed by the Governor.”

In Lunding v. Walker (1976), 65 Ill. 2d 516, this court considered the extent of the removal authority conferred upon the Governor. While the members of the court were not in agreement on that issue, there was no suggestion by the parties or in the majority or dissenting opinions that the specified causes were impermissibly vague. (See also Adams v. Walker (7th Cir. 1974), 492 F.2d 1003.) We conclude that the specification in the Act of the causes for removal of the commissioners of a housing authority is not impermissibly vague and uncertain.

The question remains whether the hearing provided by section 4 comports with the requirements of due process. Plaintiffs urge that the charges against them are not sufficiently clear and specific to enable them to prepare a defense, that they are entitled to prehearing discovery, an impartial tribunal, and that the burden of proof is not, as they were advised by the Department, upon them to show cause why they should not be removed.

There is, of course, no doubt that “[a] dministrative as well as judicial proceedings are governed by the fundamental principles and requirements of due process of law. [Citations.] ” (Brown v. Air Pollution Control Board (1967), 37 Ill. 2d 450, 454.) Due process is, however, a flexible concept. “‘“[d]ue process,” unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.’ [Citation.] ‘[D] ue process is flexible and calls for such procedural protections as the particular situation demands.’ ” (Mathews v. Eldridge (1975), 424 U.S. 319, 334, 47 L. Ed. 2d 18, 33, 96 8. Ct. 893, 902.) This court, in considering the right of laid-off civil service employees to prelayoff hearings, has said:

“[T] he requirements of due process are necessarily proportional to the weight of that interest [continued employment] in balancing it against the countervailing interests of society in effective and efficient governmental operation.” (Powell v. Jones (1973), 56 Ill. 2d 70, 78.)

See also Board of Regents v. Roth (1972), 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (nontenured teacher at a State university did not have sufficient property or liberty interest in reemployment to require a hearing on the decision not to rehire him); Perry v. Sindermann (1972), 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (college teacher entitled to hearing if de facto tenure system created a property interest in continued employment, and nonrenewal in retaliation for exercise of constitutional right of free speech is impermissible); K. Davis, Administrative Law of the Seventies sec. 7.00 (1976).

We would not necessarily conclude that the nature of the offices which the commissioners hold is such as to entitle them, under the due process standards articulated in the cited cases, to the trial type hearing for which they contend. The commissioners draw no compensation and serve only as part-time officers of the housing authority. While appointed for fixed terms, they are removable pursuant to the statutory provisions. Because those provisions specifically afford plaintiffs a hearing, however, our concern is solely with its scope.

We believe the Department has misconceived the purpose and intent of the hearing provided by section 4 of the Housing Authorities Act and section 10 of the Illinois Administrative Procedure Act. As we understand the Department’s argument, it interprets the statutory provisions as requiring only that the Department inform the commissioners of the reasons why it proposes their removal; the commissioners are then entitled to a hearing at which they bear the burden of establishing the absence of cause for their removal. The Department, as we understand the contention, has no obligation to call witnesses or introduce proof beyond the statement of charges.

The Department’s concept seems to us to overlook relevant provisions of the Illinois Administrative Procedure Act which impose upon the Department a greater obligation. Section 12 of the Act deals with contested cases and specifically states that the rules of evidence in civil cases shall be followed and that “a party may conduct cross-examination required for a full and fair disclosure of the facts.” (Ill. Rev. Stat. 1979, ch. 127, par. 1012.) This is virtually identical to the provisions of the Model State Administrative Procedure Act from which our act was adapted. (Ill. Ann. Stat., ch. 127, par. 1001, at 308 (Smith-Hurd Supp. 1980).) Implicit in the provision for cross-examination is the requirement that there be witnesses and testimony presented by the agency, for otherwise the right of cross-examination is meaningless. Similarly, in our judgment, application of “the rules of evidence in civil cases” imposes upon the Department the obligation to establish, in the first instance, a prima facie case. “Although the statute does not specifically place any burden of proof on [the complainant], the courts have uniformly imposed on administrative agencies the customary common-law rule that the moving party has the burden of proof. (See cases cited at page 355, 1 Cooper State Administrative Law (1965), ***.)” International Minerals & Chemical Corp. v. New Mexico Public Service Com. (1970), 81 N.M. 280, 283, 466 P.2d 557, 560. See also Smith v. Department of Registration & Education (1952), 412 Ill. 332; Wonder Life Co. v. Liddy (Iowa 1973), 207 N.W.2d 27, 31; Gourley v. Board of Trustees (S.D. 1980), 289 N.W.2d 251, 253.

We note that plaintiffs concede that the charges, which they argue are insufficient to enable them to prepare a defense, need not be drafted with the same refinements and selectivity as pleadings in a court of record. We agree. (Talman v. Department of Registration & Education (1979), 78 Ill. App. 3d 450; Hall v. Lyons (1979), 71 Ill. App. 3d 1023.) The statement of charges was, in our judgment, sufficient to advise plaintiffs of the nature and substance of the complaints against them. If they felt additional details were necessary for their defense, a bill of particulars could have been sought.

Plaintiffs’ contention that their request to produce documents was wrongfully denied is unsupportable. Neither section 4 of the Housing Authorities Act nor the Illinois Administrative Procedure Act contains any reference to prehearing discovery. We have repeatedly held it is not constitutionally required, even in particular criminal proceedings (People v. DeWitt (1979), 78 Ill. 2d 82; People v. Schmidt (1974), 56 Ill. 2d 572). While Professor Davis advocates that courts might well hold that an agency must provide prehearing discovery even in the absence of statutory requirements (K. Davis, Administrative Law of the Seventies sec. 8.15 (1976)), we do not believe the nature of plaintiffs’ interest is such as to justify us in so holding here. Public interest in the efficient functioning of a State agency such as the Department and local housing authorities requires an effective and efficient-means of removing incompetent governing officers or those who betray their public trust. To delay removal proceedings by protracted discovery and hearing procedures could unreasonably impede the functions of State government. Consequently, other than the obligation to disclose exculpatory evidence in the Department’s possession (Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194), we believe plaintiffs’ request was properly denied in the circumstances of this case. We do not, of course, express any opinion regarding the scope of discovery which due process might require in a different environment.

Plaintiffs’ final argument is, in essence, that they are entitled to a hearing before an impartial tribunal, and that due process requirements preclude the Department from serving as both prosecutor and judge. We do not agree. It is universally held that a “ ‘fair trial in a fair tribunal is a basic requirement of due process.’ In re Murchison [(1955), 349 U.S. 133, 136, 99 L. Ed. 942, 946, 75 S. Ct. 623, 625.] This applies to administrative agencies which adjudicate as well as to courts. [Citation.] ” (Withrow v. Larkin (1975), 421 U.S. 35, 46, 43 L. Ed. 2d 712, 723, 95 S. Ct. 1456, 1464.) However, “[t]he case law, both federal and state, generally rejects the idea that the combination [of] judging [and] investigating functions is a denial of due process ***.” 2 K. Davis, Administrative Law Treatise sec. 13.02, 175 (1958), quoted in Withrow v. Larkin (1975), 421 U.S. 35, 52, 43 L. Ed. 2d 712, 726, 95 S. Ct. 1456, 1467.

Without a showing to the contrary, State administrators “are assumed to be men of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances.” (United States v. Morgan (1941), 313 U.S. 409, 421, 85 L. Ed. 1429, 1435, 61 S. Ct. 999, 1004; Withrow v. Larkin (1975), 421 U.S. 35, 55, 43 L. Ed. 2d 712, 728, 95 S. Ct. 1456, 1468.) The situation in this case is no different from that in the great majority of agency cases. The analysis of the Seventh Circuit Court of Appeals in Martin-Trigona v. Underwood (1975), 529 F.2d 33, 37, is apropos here:

“Further, as to appellant’s due process attack upon the dual function of the Character and Fitness Committee, although we recognize that conferring investigative and adjudicative powers on the same individuals may create the possibility of an unconstitutional risk of bias, we also recognize that one who asserts this contention necessarily carries or assumes a difficult burden of persuasion. Initially, he must overcome a presumption of honesty and integrity in those serving as adjudicators; and second, he ‘must convince that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented. ’ Withrow v. Larkin, 421 U.S. 35, 47, 95 S. Ct. 1456, 1464, 43 L. Ed. 2d 712 (1975). Similar claims to the one advanced by appellant in the instant case have been squarely rejected in prior decisions of the Supreme Court, Federal Trade Comm’n v. Cement Institute, 333 U.S. 683, 68 S. Ct. 793, 92 L. Ed. 1010 (1948); Labor Board v. Donnelly Co., 330 U.S. 219, 236-237, 67 S. Ct. 756, 91 L. Ed. 854 (1947); Richardson v. Perales, 402 U.S. 389, 410, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971), and we likewise, on the basis of Withrow, supra, reject appellant’s argument in the instant case, absent any showing in the record or by appellant himself that the dual role played by the committee herein was either tainted by dishonesty or contained an unacceptable risk of bias against the appellant.”

There is in the record before us no indication that the Department’s actions have been or will be predicated on other than objective findings. In the absence of such proof, plaintiffs’ contention cannot be sustained.

The judgment of the circuit court of St. Clair County is reversed and the cause remanded with directions to dismiss plaintiffs’ complaint.

Reversed and remanded, with directions.

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