text:
    (No. 57146.
    MICHAEL COX, Appellant, v. THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF DANVILLE et al., Appellees.

      Opinion filed June 9, 1983.

      Thomas J. Fahey, of Manion, Janov, Edgar, Devens & Fahey, Ltd., of Danville, for appellant.
    Hardin W. Hawes and Randall P. Ray, of Sebat, Swanson, Banks, Lessen & Garman, of Danville, for appellees.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Michael Cox, filed an action under the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.) to review the decision of defendant, the board of fire and police commissioners of the city of Danville, discharging him from his employment as a police officer. The circuit court of Vermilion County, upon allowance of defendant’s motion, dismissed the action on the ground that it was not timely commenced. The appellate court affirmed the order (107 Ill. App. 3d 704), and we granted plaintiff’s petition for leave to appeal (87 Ill. 2d R. 315).

It is alleged in the complaint that the chief of police of Danville had filed a complaint seeking plaintiff’s discharge; that following a hearing before the defendant board plaintiff was found not guilty of the charges made; that on administrative review the decision was reversed and the cause remanded with instructions. Upon remand, defendant entered an order discharging plaintiff. On May 13, 1981, copies of the order were placed into the United States mail with proper postage attached, and properly addressed to plaintiff and his attorney. They received the documents on May 15, 1981. On June 17, 1981, at about 9:30 a.m., plaintiff’s attorney presented to the office of the clerk of the circuit court of Vermilion County a complaint for administrative review together with unsigned summonses directed to each of the proper parties defendant to the administrative review action and affidavits concerning their addresses. On June 18, 1981, the clerk signed and sent the summonses by mail to the defendants.

Defendants moved to dismiss on the ground that under section 4 of the Administrative Review Act the action was not timely filed. Section 4 (Ill. Rev. Stat. 1979, ch. 110, par. 267, now Ill. Rev. Stat. 1981, ch. 110, par. 3—103), in pertinent part provided:

“Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby.”

The circuit court found that plaintiff had filed the action within the 35-day period fixed by the statute, but because the summonses were not issued until the 36th day, the motion to dismiss was allowed.

The appellate court affirmed, holding that although the complaint was timely filed, failure to issue the summonses until the following day rendered the commencement of the action untimely. The court stated that had the clerk’s personnel been advised of the exigencies of the circumstances and failed to issue the summonses immediately “a strong case would be made for disregarding the requirement that summons issue.” 107 HI. App. 3d 704, 709.

The parties are in agreement that, in computing the 35-day period provided in section 4, the first day is excluded and the last day included. (Ill. Rev. Stat. 1979, ch. 1, par. 1012.) Thus, June 17, 1981, was the 35th day after the mailing of the copy of defendant’s decision.

Plaintiff argues that we must first decide whether the 35-day period commenced with the date of mailing of the notice of decision or whether the act of mailing served merely to create a rebuttable presumption that the notice of decision was received. Section 4 provided:

“The method of service of the decision shall be as provided in the Act governing the procedure before the administrative agency, but if no method is provided, a decision shall be deemed to have been served either when personally delivered or when deposited in the United States mail, in a sealed envelope or package, with postage prepaid,' addressed to the party affected thereby at his last known residence or place of business.” (Ill. Rev. Stat. 1979, ch. 110, par. 267.)

Citing Pearce Hospital Foundation v. Illinois Public Aid Com. (1958), 15 Ill. 2d 301, and Varnes v. Lentz (1975), 30 Ill. App. 3d 806, plaintiff argues that there is authority for the proposition that the time commenced to run from receipt of the notice. We do not agree. The issue presented in Pearce Hospital and Varnes was whether the order of the agency was an administrative decision from which an appeal could be taken and did not present the question whether the statutory period commenced to run from the date of mailing or the date of receipt.

The statutory provision is clear and unequivocal. Since the statute which governed the proceeding before the defendant board (Ill. Rev. Stat. 1979, ch. 24, par. 10—2.1—17) provides no method of service, the decision was served when deposited in the United States mail.

Plaintiff contends that having performed all the acts required under the statute he should not be denied his day in court because of the failure of the clerk’s office to issue the summonses on the day they were delivered. He points out that he exercised no control over the operation of the clerk’s office. He contends further that the Administrative Review Act should be liberally construed in order to avoid dismissal and permit him the opportunity for review of the administrative order. Defendants argue that the statute must be strictly construed, and alternatively that minimally plaintiff was under the duty to advise the clerk of the exigencies of the circumstances and the need for immediate issuance of the summonses.

An established rule of statutory construction in this jurisdiction is that courts will “liberally construe a right to appeal so as to permit a case to be considered on its merits.” (Glasco Electric Co. v. Department of Revenue (1981), 86 Ill. 2d 346, 351-52.) City National Bank & Trust Co. v. Illinois Property Tax Appeal Board (1982), 108 Ill. App. 3d 979, involved an issue similar to that presented here. The plaintiff did not prepare a summons but was told by the deputy circuit clerk that she would do so. The deputy clerk was advised by the plaintiff’s attorney that the complaint was being filed on the last day and that summons must be issued on that date. He was told that it would be issued effective that date but due to “an inadvertent clerical error” of the circuit clerk’s office, the summons bore a date three days later. The circuit court dismissed the action. The appellate court reversed, holding that the issuance of summons within the 35-day period was intended to be mandatory and not jurisdictional, and that “the purpose of the limitation period was to hasten the procedure in these cases.” We agree.

Here the plaintiff acted with diligence in presenting to the clerk summonses which required only signatures and seals prior to service. We need not engage in conjecture concerning the holding which might result under the countless factual situations which could be hypothesized with respect to delay in the issuance of summons following timely filing of a complaint for administrative review. On this record we hold that the action was timely commenced. The judgments of the appellate and circuit courts are reversed, and the cause is remanded to the circuit court of Vermilion County with directions to consider the administrative review on its merits.

Judgments reversed; cause remanded, with directions.


source: Caselaw Access Project

author: JUSTICE UNDERWOOD CHIEF JUSTICE RYAN,

license: Public Domain

text:
    (No. 57374.

      In re IRWIN MARTIN BERKLEY, Petitioner.

      Opinion filed June 9, 1983.

      Jerome Larkin, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    Albert E. Jenner, Jr., Carol R. Thigpen, and Thomas E. Lindley, of Jenner & Block, of Chicago, for petitioner.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

The petitioner, Irwin Martin Berkley, was disbarred on consent (73 Ill. 2d R. 762) on September 26, 1973, shortly after his conviction in the Federal court of suborning perjury and his plea of guilty to charges of mail fraud and conspiracy to commit mail fraud. He filed a petition for reinstatement on September 22, 1980, pursuant to our Rule 767 (73 Ill. 2d R. 767). Following an evidentiary hearing, the Hearing Board of the Attorney Registration and Disciplinary Commission recommended that the petition be denied “on the sole ground that there has been no attempt at restitution.” Petitioner subsequently made separate contributions of $5,000 each to the client reimbursement funds of the Illinois State Bar Association and the Chicago Bar Association in lieu of direct restitution, and the Review Board of the Commission thereafter recommended that petitioner be reinstated. The Administrator has filed exceptions to the Review Board’s report and recommendation.

Petitioner was admitted to the bar of Illinois in 1960. In 1961, after practicing law for a short period with two different law firms, he and two of his former classmates formed a law partnership in Chicago which was dissolved in 1965. Although continuing to share office space with his former partners, petitioner became a sole practitioner focusing almost exclusively upon personal injury work. In 1972, he was indicted for suborning perjury, mail fraud, and conspiracy to commit mail fraud in connection with his personal injury practice. Following a jury trial, petitioner was found guilty of suborning the perjury of three police officers who were to testify before the grand jury. He subsequently pleaded guilty to one count of mail fraud and one count of conspiracy in exchange for the government’s agreement to dismiss the 10 remaining counts of mail fraud. He was sentenced to two concurrent four-year terms of imprisonment and fined $20,000. Petitioner’s testimony in the disciplinary hearing established that during the 1967-71 period he “bought” cases from police officers and others, used inflated medical bills supplied by dishonest doctors to defraud insurance companies, and paid kickbacks to insurance adjusters. The chaser fees and kickbacks were sometimes absorbed by the clients.

Following petitioner’s conviction and prior to his imprisonment he negotiated a sale of his law practice for the sum of $600,000, later reduced to $500,000, payable in installments over a period of several years.

While petitioner was incarcerated in the Federal correctional system, he became an acting rabbi, conducting religious services as well as group Bible discussions. In addition, he became a lecturer for the prison’s “Positive Mental Attitude” program, a wee-president of the Jaycees and chairman of its Toys for Tots program; he also worked with other inmates to develop their reading skills and served as a dental assistant. He was released after serving 19 months.

Since his release from prison, petitioner has been a quite successful real estate developer and investor, and the record indicates that he is highly regarded by the business and banking community with which he frequently deals. He also resumed his participation in many of the charitable, religious and civic activities with which he had been associated prior to his convictions and became active in several other service and religious organizations. Among these, petitioner is an active worker in the Safer Foundation, participating in vocational and rehabilitation programs for former inmates as well as serving as a member of the planning and development committee. He is a member of the board of directors of the B’nai Jacob Synagogue, an active member of the Variety Club and the Covenant Club, acting as chairman of the former’s Theater Collection Drive for La Rabida Children’s Hospital, and serving on various committees of the Covenant Club. He has sponsored and acted as moderator for a series of cultural programs and seminars for the Northside Synagogues (a consortium of synagogues), and contributed a compendium of religious books to the library of the Loop Synagogue. He has made numerous financial and other contributions to the Abe Saperstein Foundation and to the Arie Crown Hebrew Day School, where he is also a board member. In addition, he has participated in a number of fund-raising activities and has worked for and contributed to the Weitzmann Institute in Israel and the Spertus College of Judaica. Financial contributions to various colleges and synagogues in memory of his mother have been made by him, including establishing a scholarship fund at Beth Israel Congregation.

In addition to his own testimony, eight witnesses testified before the hearing panel on petitioner’s behalf, including a rabbi, an associate judge of the circuit court of Cook County, the chancellor of Spertus College, a current business associate of petitioner’s, three attorneys, and a bank vice-president. The testimony of these witnesses need not be detailed here. It is sufficient to note that the witnesses believed that petitioner is a generous and compassionate person, remorseful about his past misconduct, completely rehabilitated, and that he conducts himself with the utmost honesty and integrity. They testified that, if readmitted to practice, his professional conduct would, in their opinion, evince the same qualities as his personal conduct now does.

The hearing panel, although characterizing petitioner’s prior practice as a “dirty racket,” found that he recognized the nature and seriousness of his misconduct, that his evidence of rehabilitation and good character was convincing, and that his current knowledge of the law was adequate. Apart from the failure to make restitution, the panel members considered his conduct since his disbarment to have been above reproach and that, except for the “blind spot” which he appeared to have regarding restitution, petitioner had been candid and forthright in presenting evidence. The panel did not find persuasive petitioner’s explanation that he could not make restitution because his files were no longer available and that, in any event, even if he could reconstruct those files it would be impossible to determine the amount owing to former clients or insurance companies given the nature of his fraudulent scheme and the fact that he did not consistently adhere to it.

Petitioner urges us to adopt the Review Board’s report and recommendation that his $10,000 contribution to the bar associations’ client funds is sufficient restitution in view of his inability to determine which clients to reimburse, and further asks that we consider his generous post-prison charitable efforts and contributions. The Administrator suggests that petitioner’s failure to attempt restitution evidences a continuing character defect and that the $10,000 contribution is minuscule in comparison to the actual amount of petitioner’s “ill-gotten” gain as well as the amount of money petitioner received as a result of the sale of his law practice. Thus, the Administrator concludes that petitioner has failed to demonstrate by clear and convincing evidence that he has been rehabilitated or is a sufficiently changed person to warrant reinstatement.

It is, of course, petitioner’s burden to prove by clear and convincing evidence that he should be reinstated to practice law. (In re Silvern (1982), 92 Ill. 2d 188, 193; In re Kuta (1981), 86 Ill. 2d 154.) Our Rule 767 sets forth the following guidelines:

“The panel shall consider the following factors, and such other factors as the panel deems appropriate, in determining the petitioner’s rehabilitation, present good character and current knowledge of the law:
(a) the nature of the misconduct for which the petitioner was disciplined;
(b) the maturity and experience of the petitioner at the time discipline was imposed;
(c) whether the petitioner recognizes the nature and seriousness of the misconduct;
(d) when applicable, whether petitioner has made restitution;
(e) the petitioner’s conduct since discipline was imposed; and
(f) the petitioner’s candor and forthrightness in presenting evidence in support of the petition.” (73 Ill. 2d R. 767.)

The seriousness of a petitioner’s past misconduct is unquestionably an important consideration (see In re Mandell (1982), 89 Ill. 2d 14, 20; In re Groshong (1980), 83 Ill. 2d 27; In re Cohen (1981), 83 Ill. 2d 521) which cannot be minimized by subsequent exemplary conduct. The seriousness of petitioner’s misconduct can hardly be overstated. In fact the hearing panel characterized it as “so bad that it could scarcely be worse.” Nevertheless, the purpose of our disciplinary sanctions is not solely to punish, but to safeguard the public, maintain the integrity of the profession, and protect the administration of justice from reproach (In re Zahn (1980), 82 Ill. 2d 489, 493; In re Andros (1976), 64 Ill. 2d 419, 423), and we have similar objectives in considering a petition for reinstatement (In re Kuta (1981), 86 Ill. 2d 154, 156-57). The focus in the previous cases has uniformly been on whether the petitioner has proved that he is rehabilitated and again fit to practice law. Rehabilitation has been defined as “a matter of one’s ‘return’ to a beneficial, constructive and trustworthy role.” (In re Wigoda (1979), 77 Ill. 2d 154, 159.) Given the nature of the evidence which petitioners usually present and the difficulty of accurately assessing the subjective qualities so important in a reinstatement case, this court has ordinarily given considerable weight to those findings of the hearing panel which represent an evaluation of the witnesses’ credibility and the petitioner’s candor, forthrightness and sincerity. E.g., In re Wigoda (1979), 77 Ill. 2d 154, 158-59; In re Coken (1981), 83 Ill. 2d 521, 525.

It is apparent from petitioner’s evidence, judged to be credible and convincing by the hearing and review boards, that he is now acutely aware of the importance of professional honesty and integrity, and that he is quite unlikely to again engage in any misconduct. Those actions have had a profound and traumatic effect on all aspects of his life, and his testimony as well as that of others demonstrates that he does indeed recognize the serious nature of those transgressions and deeply regrets the dishonor and disgrace he has brought upon his family, his profession and himself. Although petitioner and his wife were divorced in 1978, the record indicates that they are on amicable terms and that petitioner remains dedicated to his three children, the oldest of whom is currently a law student. While petitioner has not practiced law in any respect since his disbarment, he was, at the time of the hearing and for the purpose of updating his legal knowledge, a subscriber to and reader of the Supreme Court Reporter, the Chicago Daily Law Bulletin, and Hlinois Institute of Continuing Legal Education and Practicing Law Institute publications. In addition, he has attended several seminars and has collected a library of tapes dealing with such subjects as real estate, tax and corporate law, and has read and is familiar with the Code of Professional Responsibility adopted by this court subsequent to his disbarment. If readmitted, he indicates he has no intention of returning .to personal injury work, is not motivated by potential financial gain, and would devote a substantial amount of his time to pro bono activities. Apart from the restitution question, in view of petitioner’s essentially undisputed evidence showing his repentance and rehabilitation and the respect and trust he has gained from the business and banking community since his release from prison, and considering his extensive involvement in good works during the nearly 10 years of disbarment, we agree with the review and hearing boards that petitioner has met his burden of proving rehabilitation.

We are troubled, however, by the Administrator’s argument that the amount of restitution made subsequent to the Hearing Board’s recommendation is wholly inadequate. Although this court has stated that rehabilitation rather than restitution is the “controlling” consideration (In re Thomas (1979), 76 Ill. 2d 185), restitution is nonetheless an important factor as we recently emphasized in requiring a petitioner, as a condition of reinstatement, to contribute to the city the amount of a bribe he had retained (In re Kuta (1981), 86 Ill. 2d 154, 163). Our further consideration of the question as to when restitution should be required has caused us to conclude that restitution should be a condition of reinstatement except in those rare instances where repayment to the victims is conclusively established to be an impossibility. Then, but only then, should alternative methods such as that utilized here be considered. Petitioner’s own testimony establishes that during the four-year period 1967-71 he received annually gross fees amounting to between $400,000 and $500,000 of which 90% were personal injury fees and 10%-25% of those were the result of his fraudulent scheme. His inability to reconstruct the precise amounts due and the parties to whom they are due is the direct result of his own bookkeeping practices and failure to preserve his records. That fact, however, cannot totally eliminate the obligation, nor does the fact that some portion of the repayment might be due insurance companies, for failure to repay the companies simply increases premium costs to the policyholders. It is true that petitioner has been a generous contributor to many groups and organizations, and we do not adopt the Administrator’s apparent position that we should disregard those contributions because petitioner was involved in some of those activities prior to his convictions and disbarment. Indeed, we have given considerable weight to that evidence, particularly petitioner’s time commitments, in assessing his present good character. As the Hearing Board recognized, however, and petitioner implicitly acknowledges, those contributions were not made in lieu of direct restitution to clients who were admittedly defrauded, and we will not so regard them. There is here no showing, much less a conclusive one, of impossibility. Petitioner apparently permitted his files to be stored in a building which was subsequently demolished. There is nothing in this record to indicate he made any effort to preserve the names of the clients, individuals or companies from whom money was corruptly obtained or withheld. He has made no inquiry through the defrauded insurers as to the availability of their records. Nor has the possibility that the files of the United States Attorney and United States Postal Inspection Service might provide information been explored. Instead of first exhausting these and other possible means of identifying those to whom money was owed, petitioner made what were little more than token payments to the bar association client security funds, considering that the fraudulently obtained funds may have approximated $110,000 per year (.90 x $500,000 x .25).

We accordingly remand this petition to the Hearing Board with directions that petitioner be permitted an opportunity at such reasonable time as he may request, to produce proof of restitution or conclusive proof of its impossibility.

Cause remanded, with directions.

CHIEF JUSTICE RYAN,

dissenting:

The opinion of my colleagues has focused on only one issue and has neglected the other elements which our Rule 767 states should be considered when passing on a petition for reinstatement. I therefore dissent.

This opinion, as have most of the opinions of this court involving reinstatement, focuses almost exclusively on the rehabilitation of the attorney. I think that this court, as well as the Review Board and the hearing panels, places too much importance on rehabilitation and does not give sufficient consideration to the seriousness of the conduct of the attorney which was the basis for his disbarment. In my opinion, there are certain infractions that are so serious that the attorney committing them should never be readmitted to the practice of law.

The hearing panel characterized petitioner’s conduct as “so bad that it could scarcely be worse.” Our Rule 767 provides that the hearing panel, among other matters, shall consider “the nature of the misconduct for which the petitioner was disciplined.” (87 Ill. 2d R. 767.) If petitioner’s conduct was as bad as the hearing panel found it to be, it appears to me that not much attention has been given to the quoted requirement of Rule 767 by the hearing panel, the Review Board or this court in passing on the petition for reinstatement.

In this case, we have an attorney who, through his unethical conduct, was able to make large sums of money for several years. Furthermore, when he was caught and convicted, he sought and acquired further economic gain by selling his law practice for a half million dollars, which in itself is questionable conduct. I do not think that this court should write a script that tells the profession and the public that attorneys can engage in unethical conduct and make a substantial amount of money. Then when they are caught, all they have to do is to profess to change their ways and they will again be permitted to hold themselves out to the public as members of an honorable and trusted profession.

In almost every petition for reinstatement the scenario is the same. The hearing before the hearing panel consists of a parade of witnesses telling of the penitence and good works of the disbarred attorney which, it is urged, demonstrate that he is rehabilitated. I wonder if good works are actually evidence of rehabilitation or if too much emphasis is placed on such conduct. Some individuals are naturally aggressive and extroversive. It is a simple matter for them to rechannel the same attributes that got them into trouble and thus compile an impressive record of public good. Others are less aggressive and less outgoing and do not accomplish as much good for the public. However, in terms of true rehabilitation, those of the latter group may have more completely changed their ways than those of the former.

Regardless of the degree of rehabilitation, I do not think that an attorney should be able to prosper financially at the expense of the legal profession and, when he can profit no further, proclaim that he has changed his ways and be readmitted to the profession he so degraded by his prior conduct.

JUSTICE MORAN joins in this dissent.


author: JUSTICE SIMON

text:
    (No. 57333.
    THE CITY OF PEORIA, Appellant, v. THE ILLINOIS COMMERCE COMMISSION, Appellee.

      Opinion filed June 9, 1983.

      David L. Thomas and James A. Murphy, of Peoria, for appellant.
    Tyrone C. Fahner and Neil F. Hartigan, Attorneys General, of Springfield (Hercules F. Bolos, Special Assistant Attorney General, and E. King Poor, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

Plaintiff, the city of Peoria, sought to appeal to the circuit court of Peoria County from an adverse ruling of the Illinois Commerce Commission. It mailed its notice of appeal to the Commission on the 30th day after the order was served on the city, and the Commission received the notice three days later. On the 34th day following the Commission’s order the city filed a copy of the notice of appeal and proof of service with the clerk of the Peoria County circuit court.

The Commission moved to dismiss the appeal, asserting that the city failed to either serve the notice of appeal on the Commission or file a copy with the court clerk within the time required by section 68 of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. 1112/3, par. 72), which establishes the procedure for challenging orders of the Commission, and therefore, the Commission contends, the circuit court lacked jurisdiction. The circuit court of Peoria County allowed the motion to dismiss, and the appellate court, with one judge dissenting, affirmed the dismissal (108 Ill. App. 3d 540).

Two questions are presented: First, must the notice of appeal reach the Commission on or prior to the 30th day after the service of the order appealed from so that notice mailed on or before the 30th day which reaches the Commission after the 30th day is untimely? The Commission answers yes; the city argues no. Second, in the event the notice of appeal is served on the Commission on the 26th day or later, does the party appealing have five additional days in which to file a copy of the notice of appeal with the court clerk or must this filing be accomplished not later than the 30th day after the service of the Commission’s order on the party seeking to appeal? The Commission says the filing with the circuit court clerk as well as the service on the Commission must be accomplished by the 30th day; the city contends it has five days after service on the Commission to file a copy of the notice served on the Commission. In addition to the appellate court opinion in this case, the appellate court has considered the first question in Department of Conservation v. Baltimore & Ohio R.R. Co. (1982), 103 Ill. App. 3d 417, and the second question in Hoffman v. Illinois Commerce Com. (1978), 62 Ill. App. 3d 85. We believe the city’s position is the correct one on both questions, and consequently the circuit court should have proceeded to consider the city’s objections to the Commission’s ruling.

DID MAILING THE NOTICE OF APPEAL CONSTITUTE SERVICE ON THE COMMISSION?

The Commission’s Rule IX(d), which was adopted pursuant to authority conferred on the Commission by section 8 of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. 1112/3, par. 8), provides:

“Service shall be made by delivering in person or by depositing in the United States mail, properly addressed with postage prepaid, one copy to each party entitled thereto.”

The city was entitled to rely upon the Commission’s own rule in effecting service by mail, and the Commission was bound by its rule. Under that rule service was complete when the notice of appeal was deposited in the United States mail on the 30th day, “properly addressed with postage prepaid,” even though the Commission did not actually receive the notice until some days later.

The Commission argues that, notwithstanding its own rule, mailing of a notice of appeal to the Commission does not constitute service because the question of notice relates to the jurisdiction of the court to hear the case. Section 68 does not state that receipt of the notice of appeal by the Commission within 30 days is a jurisdictional requirement. The observation of the appellate court in Illinois Telephone Association v. Illinois Commerce Com. (1978), 57 Ill. App. 3d 968, 971, is an appropriate and succinct answer to the Commission’s argument:

“We see no reason why any step in the perfection of an appeal from an order or decision, rule or determination, by the Commission should have to be pursued with more exactitude than an appeal from an order of the circuit court. The appeal is initiated by the timely filing of the notice of appeal. We find no logical or statutory reason why any other step should be determined to be jurisdictional.”

In any event, no provision of either section 68 of the Public Utilities Act or the Commission’s Rule IX(d) indicates that different conditions apply to service of the notice document. Rule IX(d) does not require that a notice of appeal or any other document must be received by the Commission before the service is complete; nor does section 68 provide anything to the contrary.

Another rule of the Commission (Rule XXVI) provides that its rules shall not be construed to abrogate or limit any rights or privileges granted by the laws of this State. One such privilege is contained in section 1.25 of “An Act to revise the law in relation to the construction of the statutes” (Ill. Rev. Stat. 1981, ch. 1, par. 1026), which provides:

“Unless An Act otherwise specifically provides, any writing of any kind or description required or authorized to be filed with, and any payment of any kind or description required or authorized to be paid to, the State or any political subdivision thereof, by the laws of this State:
(1) if transmitted through the United States mail, shall be deemed filed with or received by the State or political subdivision on the date shown by the post office cancellation mark stamped upon the envelope or other wrapper containing it.”

Neither the Public Utilities Act nor the Commission’s rules provide anything to the contrary. We note, in this regard, that the holding of Summers v. Illinois Commerce Com. (1978), 58 Ill. App. 3d 933, a case cited by the Commission, was that the 30-day period for appeals begins on the day of mailing of notice of the Commission’s decision rather than on the day such notice is received. It would be anomalous to hold that the 30-day limitation for filing an appeal cannot be successfully complied with in similar fashion.

Finally, the unfairness and impracticality of the Commission’s position have a significant bearing on the resolution of this issue. A party or counsel located in Chicago or Springfield would be able conveniently to deliver their notices to the Commission on the 30th day, thus having the advantage of the full 30-day period to prepare their notices. On the other hand, with the uncertainty of the delivery of the United States mails, a party, or its counsel located, for example, in Golconda, Illinois, would either have to deposit his notice in the mail several days prior to the 30th day to be sure that it reached the Commission by the 30th day or send a courier to Springfield or Chicago to file it on the 30th day. Choice of the former manner of service deprives such a party of the full 30 days to prepare his notice. The latter course puts a party to expense and inconvenience that there is no reason to impose upon it. We do not believe it was the intention of the legislature to place a party in Golconda in such a disadvantageous position as compared with parties in Chicago and Springfield.

Our conclusion is that the mailing of the notice of appeal was timely and constituted proper service.

DOES SECTION 68 REQUIRE FILING OF A COPY OF THE NOTICE OF APPEAL WITH THE CIRCUIT COURT CLERK NOT LATER THAN THE 30TH DAY?

We view the statutory plan provided by section 68 as follows: The notice of appeal is to be served on the Commission within 30 days, as we have decided took place here. Following that, both the Commission and the objecting party have five days in which to file the documents required of them with the clerk of the circuit court to which the appeal is being taken. The party taking the appeal is required to file a copy of the notice served on the Commission together with proof of service, while the Commission must file a certified copy of the order appealed from. We do not perceive any advantage to the circuit court, the Commission or the party taking the appeal in requiring that both the service of the notice on the Commission and the filing of a copy of the notice and proof of service with the clerk of the court take place within a maximum of 30 days, as the Commission argues section 68 requires. Part of the process of the appeal is the filing by the Commission of a certified copy of its order. When the notice is served on the Commission, it then has five days to file a certified copy of its order, and this is the case regardless of the day the service on the Commission takes place.

Thus, if, for example, the notice of appeal is served on the 15th day, the party serving the notice and the Commission both have five days thereafter to accomplish their filings with the circuit court clerk, and the filings will arrive at the clerk’s office within a few days of each other. In fact, the Commission argues in its brief that “the five day period is established to ensure that the certified Commission order and the notice of appeal arrive at the circuit court at approximately the same time,” so as to minimize confusion and enable the court to establish files expeditiously.

This result is achieved when the statute is construed to give both the party taking the appeal and the Commission five days after the service of the notice to do what is required of them. It is not achieved when, as in this case, timely notice of appeal is served on the Commission on the 30th day, and the city must then file a copy of the notice with the court on the same day, while the Commission has five additional days to file a copy of its order, the procedure the Commission urges section 68 mandates.

Section 68 clearly states in the seventh sentence that “[t]he party serving such notice of appeal shall, within 5 days after the service of such notice upon the Commission, file a copy of said notice *** with the clerk of said court to which such appeal is taken ***.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 1112/3, par. 72.) We see no reason to revise the statute by shortening or eliminating completely the five-day period provided by the legislature depending on which day during the statutorily created 30-day period for filing the notice of appeal the notice is actually served on the Commission. (See Cox v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 399.) We hold that the city of Peoria has complied fully with the requirements of section 68. We therefore reverse the judgments of the appellate and circuit courts and remand this cause to the circuit court for further proceedings.

Reversed and remanded.


author: JUSTICE WARD

text:
    (No. 55674.

      In re GEORGE LOUIS HESSBERGER, Petitioner.

      Opinion filed June 9, 1983.

      William M. Doty, Jr., of Chicago, for appellant.
    Charles S. Morgan, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
   JUSTICE WARD

delivered the opinion of the court:

George Louis Hessberger, who was admitted to the bar of Illinois in 1972, has applied for restoration to active status under provisions of our Rule 759 (87 Ill. 2d R. 759). This court, on March 20, 1975, ordered the petitioner transferred to an inactive status pursuant to Rule 757 (58 Ill. 2d R. 757). That rule provides that an attorney will be transferred to inactive status until the further order of court if, because of a mental condition, he has been judicially declared to be a person under legal disability or in need of mental treatment or has been involuntarily committed to a hospital on such grounds.

The record shows that in June 1974 the petitioner killed his wife and that on January 30, 1975, he was found not guilty of murder by reason of insanity in the circuit court of Cook County. On the same day he was ordered hospitalized and was placed in the custody of the Department of Mental Health.

On April 18, 1975, Hessberger was released from in-patient custody. On June 9, 1975, he petitioned this court under Rule 759 for restoration to active status and submitted an affidavit of Dr. Jan Fawcett, which stated that Hessberger was under his care and that his mental disorder was under control. He was able, in Dr. Fawcett’s judgment, to resume the active practice of law. On June 23, 1975, the Administrator of the Attorney Registration and Disciplinary Commission filed objections and moved to dismiss the petition. On June 30, 1975, this court denied the petition for restoration, but on September 26, 1975, on Hessberger’s motion, the court vacated the order of June 30 and referred the petition to the Commission under Rule 759.

On November 14, 1975, the parties stipulated that Hessberger would be examined by a physician selected by the Illinois Medical Society. The physician selected was Ronald Shlensky, a specialist in neurology and psychiatry. On March 10, 1976, Dr. Shlensky reported that he had examined the attorney and that he had been given various psychological examinations. Dr. Shlensky stated that he did not observe any manifestations of active mental illness or anything which would interfere with Hessberger’s practice of law. Dr. Fawcett also submitted an affidavit stating that the mental disorder was being adequately controlled and would not interfere with the ability to participate in the active practice of law with the attorney’s former degree of skill. In May 1976, a hearing panel of the Attorney Registration and Disciplinary Commission recommended his conditional reinstatement to active status. The Review Board of the Commission in August of 1976 remanded the matter to have the hearing panel consider whether Hessberger’s disability was likely to recur, and, further, what would be required to insure a nonrecurrence. No action was taken upon the remand until October 1979, when a second hearing was held.

Three witnesses testified at the second hearing. Hessberger was the first witness, and he acknowledged that on June 24, 1974, he had killed his wife, Marie Hessberger. He stated that the Illinois Department of Mental Health had remanded him to the custody of his treating physician, Dr. Fawcett. He testified that for the last year and a half he had been employed as a manager of a Salvation Army retail store. The second witness was Dr. Fawcett, Hessberger’s treating psychiatrist, who is chairman of the Department of Psychiatry at Rush Presbyterian-St. Luke’s Center and a professor of psychiatry at Rush Medical College. Fawcett’s opinion that Hessberger was able to return to practice was, in part, based on his demonstrated ability to hold a job and the strong support he was receiving from his new wife, who was aware of his history.

Petitioner had been examined by two other psychiatrists: Dr. Shlensky, as stated, and Dr. Kiran Frey. The parties stipulated that Dr. Shlensky was in California and was not available to testify. His report is part of the record. Although the Administrator of the Commission chose not to ask Dr. Frey to be a witness, she was called to testify by the Hearing Board. Her opinion was that Hessberger was able to resume the practice of law.

On February 29, 1980, Hessberger’s conditional reinstatement was again recommended by the hearing panel. The Review Board, in June 1981, agreed in essence with the panel and recommended that the attorney be reinstated upon the condition that he follow a program of supervision to be recommended by the Administrator of the Commission and approved by this court. Three members of the Board, however, recommended that the petitioner not be restored to active status. Two of these filed a minority report and recommendation that the attorney be permitted to be employed, without reinstatement, by a law firm as a paralegal. The two dissenters specified that the firm must have the facilities for managing and supervising the petitioner’s work. Under the minority report, the decision on the question of restoration to active status would be deferred pending completion of a trial period of employment as a paralegal.

The hearing panel in its report of February 29, 1980, stated that a control program should be devised to attempt to insure that the attorney will take his medication on a regular basis and that unless such a program could be devised the panel could not recommend that he be reinstated. The panel suggested that the program provide a control by an outside third person to insure that the attorney would take his medication on a regular basis. The program should include a daily visit to the third person, who would assure the administration of the medication.

Some of the members of the Review Board would reinstate the attorney, subject to the filing of monthly reports from Dr. Fawcett or another similarly qualified specialist, stating that the attorney was examined no less frequently than monthly, that the examination showed that medication is being taken regularly, and that there was no display of emotional imbalance or psychotic tendencies. If the physician’s report would indicate that he has not been following his medication schedule, has suffered a relapse, has not subjected himself for examination, or that a report has not been submitted within 10 days after requested by the Administrator, the reinstatement would be deemed revoked upon the filing of a petition with the court. These members of the Review Board would have the order remain in effect for five years, and then the petitioner’s reinstatement would become unconditional.

Other members of the Review Board voting for conditional reinstatement suggest a general recommendation, leaving the details of the supervision to the Administrator. They would recommend reinstatement conditioned upon the attorney’s continuing with appropriate medical treatment under the Administrator’s supervision. Reinstatement would become effective upon this court’s approval of the supervisory program decided upon and would continue as long as he follows the program or is able to show by clear and convincing evidence that the program is no longer necessary.

The petitioner has been diagnosed as manic-depressive of the circular type. Since he killed his wife he has been under the psychiatric care of Dr. Fawcett. He is required to take lithium and moban daily. The petitioner has not always faithfully taken his medication. Twice in 1977 he failed to do so and as a consequence became manic and hospitalization was required. He says that he is now acutely aware of the consequences of failing to adhere to his medication schedule and that there will be no further lapses on his part. He has remarried, and he notes that this has given added stability to his life.

Dr. Fawcett’s testimony was that Hessberger’s condition would permit the practice of law. Dr. Fawcett stated that if he follows his medication schedule the likelihood of his again becoming manic is slight. The physician said there is no permanent cure for the lawyer’s condition and that he is in need of continuing treatment. He testified that if Hessberger failed to take his medication he would be more likely to suffer a recurrence of the manic-depressive condition, which could carry with it the danger of homicidal or suicidal conduct. Dr. Kiran Frey testified that the likelihood of a recurrence of his manic-depressive moods is unlikely, provided that the petitioner continues on the medication program. Dr. Frey testified that there can be no guarantee that the condition will not recur and that if the petitioner fails to take his medication, the chances of manic depression and of violent conduct will be higher.

The petitioner has had a number of employments with moderate responsibilities since his transfer to inactive status. His condition has apparently required him to quit at least two of these positions.

This court allowed the Administrator’s motion for leave to file exceptions to the report and recommendation of the Review Board. In the brief filed by the Administrator, he asks that the petition for reinstatement be denied.

Citing In re Bourgeois (1962), 25 Ill. 2d 47, the Administrator contends that an attorney who, at a time when he is mentally disturbed, is guilty of conduct which brings the bar into disrepute has the burden of proving that he has been rehabilitated, that his mental disorder has been cured and is not likely to recur, and that he is fit to practice law. The petitioner here, the Administrator says, has not overcome the mental disorder. It is not a curable disorder and is one requiring continuing medication. There is no assurance he will not again fail to take his medication faithfully, and if he does not, his conduct could be homicidal or suicidal.

Hessberger contends that the standard for reinstatement is not that the attorney is no longer in need of treatment but rather that he has regained mental competence and, in particular, competence to practice law. The expert medical testimony presented was to the effect that he was competent to practice law and that this competence is not adversely affected by the necessity of his taking medication on a continuing basis. The petitioner cites Hyland v. State Bar (1963), 59 Cal. 2d 765, 382 P.2d 369, 31 Cal. Rptr. 329, where, Hessberger says, the focus was properly on the question of mental competence and not on the question of a cure that will be permanent. In Hyland the court said that an attorney who, because of mental incompetency, has been placed in an inactive status should be reinstated as an active member of the bar upon the determination that his mental competence has been restored.

The petitioner says that in In re Bourgeois (1962), 25 Ill. 2d 47, the court in essence imposed the burden upon an attorney who was placed on an inactive status to show that the mental disorder has been overcome and is not likely to recur and, second, that the attorney is a fit person to practice law. The petitioner says that the evidence he presented satisfied this burden of proof. He says that the hearing panel and Review Board of the Commission are the bodies that this court has designated to consider evidence. Hearing panels of the Commission, he notes, have recommended that he be reinstated on condition and that the Review Board has filed a report and recommendation that the petitioner be restored to active status on the condition that he follow a program of supervision to be recommended by the Administrator and approved by this court. Hessberger says that the findings are not contrary to the manifest weight of the evidence.

The medical witnesses who examined the attorney were unanimously of the opinion that he is mentally capable of resuming the practice of law. This question is, in important part, a question within a discipline other than ours, and the uncontradicted testimony on the question of well-qualified witnesses in the field of psychiatry must be given great respect. The attorneys serving on hearing panels and on the Review Board have accepted the medical testimony as credible. The attorneys who have heard the testimony of the petitioner and observed him have concluded, with reservations, that he should be permitted to resume practice. The medical witnesses, the hearing panel and the Review Board state emphatically, and certainly reasonably, that action must be taken to insure that the petitioner will follow his schedule for medication.

Though we cannot at this time allow the petition for restoration to active status, the petition should not be denied. Convincing evidence was presented that if the medication schedule is faithfully adhered to, the condition from which the petitioner suffers should remain under control and relapse would be unlikely. Too, it is not inappropriate to observe that the petitioner, if he were on active status as an attorney, would not appear to present any greater physical danger to the public or to himself than the petitioner would as an attorney on inactive status. We consider, though, that a program should be established to attempt to insure that there will be no recurrence of mental disorder.

Accordingly, we direct that the Administrator communicate with Dr. Jan Fawcett with a view to their preparing a program which will reasonably insure that the petitioner will follow his medication schedule. It should include periodic medical examinations, at reasonably frequent intervals, to insure that the petitioner has not suffered any recurrence of mental disorder or developed any new condition which would disable him from the active practice of law. The program should provide for periodic medical reports to be submitted to the Administrator. Should Dr. Fawcett be unable to participate in preparing or in carrying out such program, a psychiatrist of his designation shall serve in his stead. The program, when drafted, shall be submitted by the Administrator to the court for approval.

The petitioner has not engaged in practice for over eight years and because of this and other considerations his restoration to active status at this time would not be proper. It is appropriate under the circumstances that the petitioner serve in the capacity of a paralegal, as the minority report of the Review Board proposed, for a period of not less than one year to restore his professional skills and to be exposed again to the peculiar stresses of the practice of law. The law office in which petitioner would be employed should be an office of a size and character that would permit the attainment of these objectives, and shall be one approved for this purpose by the Administrator. An attorney in the employing office under whose supervision the petitioner would work shall, periodically, but not more often than every three months, provide the Administrator with a report in writing on the quality of the petitioner’s work as a paralegal. The report shall include the attorney’s general appraisal of the petitioner’s fitness to resume the practice of law. The responsibilities assigned the petitioner shall be those appropriate for a paralegal.

Any occurrence or development of significance involving petitioner which, in the judgment of the Administrator, requires reporting shall be brought to the attention of the court. The Administrator, on the first anniversary of the petitioner’s service as a paralegal, shall make an appropriate report to the court describing the petitioner’s performance of duty and any other information relevant to the question of his being restored to the active practice of law.

The petition for restoration to active practice under the provisions of Rule 759 is at this time continued for disposition.

Cause continued.


author: CHIEF JUSTICE RYAN

text:
    (No. 56373.

      In re MARRIAGE OF GERALDINE OLSON, Appellee, and KENNETH OLSON, Appellant.

      Opinion filed June 9, 1983.

      Epton, Mullin, Segal & Druth, Ltd., of .Chicago (Ronald S. Ladden, Mary E Stafford, and Joel B. Bernbaum, of counsel), for appellant.
    Maureen Flaherty, of Lehrer & Flaherty, of Wheaton, for appellee.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

This case concerns the disposition of property and the custody of a minor child in connection with a dissolution of marriage. The parties, Geraldine Olson and Kenneth Olson, were married on July 14, 1970. Geraldine Olson petitioned for dissolution of the marriage on January 17, 1979. The marriage was dissolved by a judgment entered in the circuit court of Du Page County on April 1, 1980. The court entered a supplemental judgment on February 4, 1981, which, among other dispositions, assigned the marital residence to the petitioner, Geraldine Olson, as her nonmarital property, awarded her custody of the minor child, Kristin, and allowed her to remove the minor child from the jurisdiction. Respondent, Kenneth Olson, appealed from this supplemental judgment and a related temporary restraining order which required the wife to escrow only $10,000 of the funds received from the sale of the marital residence. The appellate court affirmed the judgment of the trial court by a Rule 23 order (73 Ill. 2d R. 23). (102 Ill. App. 3d 1202.) We granted Kenneth Olson’s petition for leave to appeal.

One issue in this appeal involves the classification and disposition of the marital residence, 537 Park Row, Glen Ellyn, Illinois, and the proceeds from its sale. The parties resided at this address throughout their marriage.

In 1967 Geraldine purchased the home for $39,000. She bought it before her marriage to Kenneth, and contributed $3,000 to $4,000 from the sale of her former residence to the down payment. Her parents, Donald and Edith Zugenbuehler, contributed $12,000. She and her parents also obtained a $24,000 mortgage to finance the balance. The property was placed in a land trust. Geraldine had a one-third interest in the trust while her parents had a two-thirds interest.

Once the parties married, Kenneth lived in the house with his wife, her two sons from a former marriage, and a daughter, Kristin, from their marriage. While they were married, the couple extensively remodeled and decorated their home. Kenneth, who operated a construction company, did a substantial amount of this work. His subcontractors also donated their time to performing remodeling services. Geraldine’s sons also contributed their labor.

During the marriage, Geraldine owned and operated an antique business. She also received social security, Veterans’ Administration death benefits, Maywood fire department annuity benefits, and child-support payments. She paid for part of the remodeling work with a death benefit of $10,000 which she received when her first husband died. She established a segregated account with her own funds to pay for this work. Her husband did not financially contribute to it.

Geraldine contributed $302 per month to pay the house mortgage. During the early years of the marriage, Kenneth deposited his paycheck into a joint checking account from which family expenses, including mortgage payments, were paid. After the couple established separate checking accounts, however, he paid his wife approximately $300 to $375 per week from his salary for family living expenses, which he said included the mortgage payments.

To finance Kenneth’s participation in a joint venture involving his construction company, the couple used the home as collateral for a $23,000 loan. The bank released the collateral after Kenneth repaid the loan.

In 1978 the couple also used the home as collateral for a $50,000 loan which was used to finance the purchase of two lots on which Old Colonial Homes, a company which the couple owned, planned to build a single-family home. The bank made the $50,000 check jointly payable. It is undisputed, however, that Kenneth received the entire $50,000. He endorsed the check with his signature, and a significant percentage of the money was disbursed to Olson Construction Company, which he solely owned.

In January 1979, Geraldine asked her husband to renegotiate the note, reduce the $50,000 balance, or repay the principal sum. She also told him that the bank intended to foreclose the mortgage on the 537 Park Row property, which would deprive her children of their family home. Kenneth said, however, he would not help his wife to prevent foreclosure. He left the marital home about January 15, 1979. As noted above, Geraldine filed a petition for dissolution of the marriage on January 17, 1979. On July 6, 1979, she filed a petition in the dissolution proceeding asking the court to order Kenneth to make the past-due payments on the loan on the property in question. On September 11, 1979, Kenneth, in turn, filed a petition alleging that the home was marital property and that Geraldine had sold it and prayed that she be enjoined from transferring the proceeds of the sale. On September 13, 1979, the court ordered that $10,000 of the proceeds of the sale of the 537 Park Row property be escrowed, subject to further order of the court. It appears that the $10,000 was never placed in escrow. The petition filed by Kenneth on September 11, 1979, and the order entered September 13, 1979, both recite that the home had been sold. However, a memorandum filed by Geraldine’s attorney prior to the entry of the final supplemental decree on February 4, 1981, recites that the home was sold October 2, 1979. In any event, it was sold well before the entry of the judgment of dissolution on April 1,1980.

Since the bank would not allow Geraldine to reexecute the note, it was necessary to sell the home to avoid the costs of foreclosure. The selling price was $114,000. From these proceeds the first mortgage of $34,145.80 was paid to the bank, leaving a balance of $79,854.20. From this the balance due on the $50,000 note, which had been used to finance Kenneth’s participation in a construction project, was paid. After this payment, $33,110.37 remained. The bank also deducted interest due on Geraldine’s and her mother’s notes, and the remaining balance of $31,861.40 was applied to her mother’s, Mrs. Zugenbuehler’s, note. Mr. Zugenbuehler had died. It appears that the two-thirds interest in the land trust owned by him and his wife was held in joint tenancy and that, following his death, Mrs. Zugenbuehler had a two-thirds beneficial interest in the land trust. Thus, all of the proceeds of the sale of the 537 Park Row property had been disposed of immediately after its sale. At the time of the entry of the judgment of dissolution Geraldine had no title or interest in the property located at 537 Park Row or in the proceeds from the sale of that property. We will discuss later the effect of these facts upon the question of whether the marital home at 537 Park Row was marital property. We will first address the arguments of the parties on that question and the trial court’s treatment of it.

Section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 503) directs the court to divide into marital and nonmarital portions the couple’s property and to assign each spouse his or her non-marital share. Any property purchased after the marriage but prior to the dissolution is presumptively marital property. Sections 503(aX5) and (6) of the Act (Ill. Rev. Stat. 1979, ch. 40, pars. 503(a)(5), (6)) provide that nonmarital property includes property which a spouse acquires before the marriage and any increase in value of such property. In this case, Geraldine purchased the Park Row residence in 1967, which was several years before she married. Since this property falls within the statutory exception, it must be classified as nonmarital.

Kenneth argues, however, that his contribution to the improvement of the house and the payments on the mortgage from marital funds during the marriage transmuted the Park Row residence to marital property. In support of this theory, he relies on three cases, In re Marriage of Rogers (1981), 85 Ill. 2d 217; In re Marriage of Smith (1981), 86 Ill. 2d 518; In re Marriage of Lee (1981), 87 Ill. 2d 64.

These cases, in essence, hold that nonmarital property may be presumptively transmuted to marital property. In Rogers we held that the placing of title to nonmarital property in joint tenancy with the spouse raised a presumption that a gift was made to the marital estate and the property thus became marital property. (In re Marriage of Rogers (1981), 85 Ill. 2d 217, 223.) In Smith we held that contributions from marital property to pay for improvements for nonmarital property likewise raised a rebuttable presumption that the property was transmuted to marital property. (In re Marriage of Smith (1981), 86 Ill. 2d 518, 531-33.) Similarly, in Lee we held that substantial improvements to a nonmarital property house, paid for with marital property, created a rebuttable presumption of transmutation. In re Marriage of Lee (1981), 87 Ill. 2d 64, 67.

The appellate court in our case found that Kenneth had produced no evidence that the work which he performed on the Park Row property was more than is normally required in a marriage relationship or that the work he performed increased the value of the house. The appellate court also found that Kenneth produced no evidence of the value of the family expenses which he allegedly paid and that there was no evidence that the mortgage on the home had been reduced during the marriage. Based on these findings, the appellate court considered that there had not been a transmutation of the 537 Park Row property.

The principle of transmutation is based on the presumption that the owner of the nonmarital property intended to make a gift of the property to the marital estate. (See M. Kalcheim, Intention Controls: The Theory Of Transmutation — The Effect Of Placing Property Which Was Initially Non-Marital Into Joint Tenancy; The Theory Of Commingling — The Effect Of Intermingling Marital And Non-Marital Funds, 68 Ill. B.J. 320 (1980).) In Smith we stated:

“Just as the affirmative act of transferring title will support a presumption of gift, so, too, will the affirmative act of augmenting nonmarital property by commingling it with marital property.” In re Marriage of Smith (1981), 86 Ill. 2d 518, 532.

Every act of commingling or every use of marital funds for the maintenance of nonmarital property, however, should not work a transmutation. Such a strict reading of our holding in Smith would practically render the concept of nonmarital property illusory. The commingling of marital and nonmarital assets, and the contribution of marital assets to nonmarital properly must be sufficiently significant to raise a presumption of a gift of the property to the marital estate. Thus, the making of or paying for repairs and maintenance on the house that do not materially add to its value or payments that do not reduce the indebtedness of the mortgage should not raise the presumption of transmutation. (See J. Feldman & T. Maher, Classification Of Property Upon Dissolution Of Marriage: Suggestions For Maintaining Our “Dual System” In The Aftermath Of Smith, 71 Ill. B.J. 100 (1982).) This reasoning seems to be the basis of the appellate court’s ruling. Kenneth simply had not made adequate proof of a significant contribution.

We need not decide whether Kenneth proves sufficient contributions to raise the presumption of transmutation because we find that even if such a presumption were raised, Geraldine successfully rebutted any presumption that a gift of the house to the marital estate was intended.

As stated earlier, title to the Park Row house was held by a bank as trustee of a land trust. The beneficial interest was owned one-third by Geraldine and two-thirds by her mother and father, who was deceased at the time of the hearing. Geraldine testified that at the time one of the loans for her husband’s business was negotiated, he had the bank prepare papers placing the beneficial interest in the Park Row house in her name and his name as joint tenants. When she saw the papers at the bank and asked what they were, the bank employee stated, “Mr. Olson authorized this.” She responded, “Absolutely not. My parents own that house. This is not to be done.” She testified that she then went home and told her husband, “Don’t you ever try that again. This is my parents’ home.” Geraldine’s refusal to place the house in joint tenancy with her husband, her insistence that the house belonged to her parents, and the continuation of the title to her beneficial interest in her name completely rebuts any presumption that she intended to make a gift of the house or her interest in it to the marital estate.

We noted earlier that at the time the judgment of dissolution was entered, April 1, 1980, the Park Eow house had been sold and all of the proceeds of the sale had been used to pay outstanding obligations. Neither party has addressed this situation in their briefs or during oral arguments.

In Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 573, this court said:

“The Act does not purport to affect property interests during the marriage. The term ‘marital property’ is a nomenclature devised to realize an equitable distribution of property upon termination of the marriage. Operation of the term ‘marital property’ under the Act is not triggered until the time of dissolution. Section 503(b) does not prevent married persons from owning property separately during the marriage and disposing of it in any fashion that the property-owning spouse may choose.” (Emphasis added.)

Under Kujawinski it is only the property owned at the time of the judgment of dissolution that the court may classify as marital property. Property owned separately by the spouse before that time may be disposed of as he chooses.

Public Act 82—668 (1981 Ill. Laws 3505) amended section 503 by adding a new section 503(c) and renumbering former section 503(c). Section 503(c), as amended by Public Act 82—668, provided:

“Each spouse has a species of common ownership in the marital property which vests at the time dissolution proceedings are commenced and continues only during the pendency of the action. ***” (Ill. Rev. Stat. 1981, ch. 40, par. 503(c).)

The effective date of this amendment was January 1, 1982. There was a subsequent amendment to this section by Public Act 82—715 (1981 Ill. Laws 3813), effective July 1, 1982, which does not contain this provision. However, this section was further amended by Public Act 82—783 (1982 Revisory Act), which does include this provision (Ill. Rev. Stat., 1982 Supp., ch. 40, par. 503). We need not here decide the effect of these acts. The petition for dissolution of marriage was filed by Geraldine on January 18, 1979, and the judgment of this dissolution was entered on April 1, 1980, both dates being well before the effective dates of these acts. Therefore, the holding of Kujawinski controls this case and the operation of the term “marital property” was not triggered until the judgment of dissolution was entered in this case on April 1, 1980. Before that date, Geraldine had sold the Park Row home, all of the proceeds of the sale had been disbursed, and there was no properly-derived from the Park Row house to which the nomenclature “marital property” could be applied.

On the custody question, each side leveled charges of immorality at the other. Each charged the other with financial irresponsibility and instability. Each produced expert witnesses who testified as to the weakness of the character of the other party

As to the charges of immorality, assuming the charges Kenneth made against his wife were true, her conduct was no worse than the immoral conduct proved against Kenneth. Furthermore, Geraldine has since testified she was about to remarry and establish a home in Massachusetts where she and her new husband would live with the two sons of her former marriage and with Kristin. We see nothing in the charges of immorality that would cause the court to prefer Kenneth over Geraldine as the custodial parent. We likewise see no reason to prefer Kenneth over Geraldine because of alleged financial obligations. Although it is alleged that there are outstanding judgments and obligations against Geraldine and her new husband, there was similar evidence concerning Kenneth.

Each expert witness attempted to depict the psychological climate surrounding the one for whom the testimony was given as favoring awarding custody to that party. However, the testimony of each expert, when read in its entirety, does not disqualify the other party or depict him or her as one unfit to have the custody of the child.

Section 602 of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 602) mandates that the court shall determine custody in accordance with the best interests of the child. This section lists six relevant factors which the court should consider. Of significance among these six factors in this case are: the wishes of the child as to his custodian, the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interests, and the child’s adjustment to his home, school and community. All of the evidence was to the effect that Kristin preferred to live with her mother. Her mother testified that she was going to be married and live in Massachusetts. Geraldine was not going to be employed, and her two sons by her former marriage, with whom Kristin had been raised when Geraldine was married to Kenneth, would also live in the new home with her. There was also testimony by Geraldine about the community in which they would live in Massachusetts, the schools, and Kristin’s reaction to them.

In contrast to this stable environment offered by Geraldine, the evidence showed that Kenneth was, at the time of the hearing, employed in Kentucky five days a week. He stated that this job would last several more months; that he maintained a home in Du Page County, IIlinois, where he planned to make a home for Kristin, and that he would hire a housekeeper to care for Kristin while he worked.

The trial court, after considering all of the relevant factors, awarded custody of Kristin to her mother. The record reveals that this determination was not against the manifest weight of the evidence. We will, therefore, not reverse the trial court’s determination. We think it is time Kristin is given the opportunity to establish a stable family relationship. She was a little more than seven years old when the petition to dissolve the marriage was filed on January 17, 1979. It was not until February 4, 1981, more than two years later, that the custody order was entered. Many wounds were undoubtedly inflicted upon her by this bitter litigation during that period. Since the custody order, now more than two years ago, there is every indication that she has been living with her mother, her mother’s new husband, and her two brothers, with whom she had lived before. Hopefully, the wounds have had an opportunity to heal. We are not disposed to subject her to a further trauma.

The judgment of the appellate court is therefore affirmed.

Judgment affirmed.


author: JUSTICE CLARK JUSTICE GOLDENHERSH,

text:
    (No. 56383.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. CARL HOLDER, Appellee.

      Opinion filed June 9, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield, and Daniel D. Doyle, State’s Attorney, of Rockford (Michael B. Weinstein and Marcia L. Friedl, Assistant Attorneys General, of Chicago, and Phyllis J. Perko and Cynthia N. Schneider, of the State’s Attorneys Appellate Service Commission, of Elgin, of counsel), for the People.
    Sherman Carmell, of Carmell, Charone & Widmer, Ltd., of Chicago, for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

The defendant, Carl Holder, was convicted of intimidation under section 12—6 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12—6) at a jury trial in the circuit court of Winnebago County and sentenced to 18 months’ probation and fined $1,000. The defendant appealed. The appellate court reversed the defendant’s conviction in declaring section 12—6(a)(3) of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 12—6(a)(3)) to be unconstitutionally overbroad. (103 Ill. App. 3d 353.) On May 28, 1982, this court granted the State’s petition for leave to appeal from that judgment.

The circumstances of this case involve a labor dispute which arose during June and July of 1979 at the Rockford Redi-Mix Company, Inc., a Rockford corporation engaged in the business of delivering liquified cement by truck to local construction and commercial sites. Duane Countryman was the president of the company and his son Curtis L. Countryman was the general manager.

In June of 1979, several of the truck drivers employed by the Rockford Redi-Mix Company contacted the defendant, Carl Holder, who had worked for nine years as a business representative for Teamsters Local 325, to investigate the possibility of joining the union. The employees were dissatisfied with their wages and their working conditions.

The defendant advised the employees that there were two procedures available to them in seeking union recognition. Under the “long route,” the drivers could petition the National Labor Relations Board for a representation election, a process which could take three or more months. Pursuant to the “short route,” the drivers could sign cards authorizing the union to act as their collective-bargaining representative, whereupon the defendant could demand recognition from the company. The drivers chose the “short route” at a meeting on July 24, 1979, and signed authorization cards.

The defendant suggested that the drivers accompany him in presenting the authorization cards and contract to the company, but the drivers asked that the defendant go alone. The employees agreed at the meeting on the 24th that the following morning they would leave the employer’s plant as scheduled and proceed to Genoa Road on the way to the Kirkland job site in De Kalb County. It was agreed that the employees would wait on Genoa Road while the defendant would enter the company’s office and demand that the company recognize the union and sign the union’s standard ready-mix contract. Holder would tell the employer that if the demands were not met the employees would strike. The employees hoped that Holder’s unannounced appearance and threat of a strike with the trucks full of cement and scheduled for a pour at the Kirkland job site would be added leverage to have the employer recognize the union and sign the standard contract.

On July 25 at about 7:45 a.m., after the employees had left the plant, Holder and Russ Olson, the union’s secretary-treasurer, entered the employer’s office and found Curtis Countryman alone. According to Countryman, Holder said that he was from the Teamsters Union Local 325, that he represented the majority of the employees, that they had signed authorization cards, that the trucks had just left and were sitting down the road, and “that the drums aren’t turning until I [Countryman] signed the contract.” The defendant denied referring to the trucks or drums.

The defendant then laid a contract on Countryman’s desk. Countryman said that he would have to read the contract. He thumbed through the pages and asked a question about article I of the contract. Countryman looked at the contract again and then indicated that he could not sign it. Holder testified that he then said, “Okay, sir, you’ve got a strike on your hands.”

Thereafter the defendant returned to the drivers and informed them that the contract would not be accepted. They proceeded to the Kirkland job site and advised the company office of their arrival by radio, but received no response. According to the drivers, the concrete in the drums had been agitating until this time; they stated that they then shut down the trucks, left the keys in the ignitions, and drove to the union office with the defendant and Olson.

Jim Prunty, an associate of Duane Countryman, testified that he arrived at the job site and found the cement hardened in the trucks’ drums. Defense witnesses testified that the cement would not have hardened in that time and that Prunty could not have felt the hardened cement in the drum of one truck as Prunly had described. Witnesses for the defense testified that there simply was not enough time between the point at which the drums stopped turning and the point at which Mr. Prunty said that he felt the cement hardened for that cement to harden. Curtis Countryman stated that it was necessary to replace one of the drums and to jackhammer the others to remove the hardened cement.

Holder and the employees were charged in an amended seven-count information with the felonies of conspiracy, intimidation and criminal damage to property. The jury acquitted the drivers and convicted Holder on count II, intimidation, from which this appeal arose.

The defendant asserts that section 12 — 6(aX3) of the Criminal Code of 1961 is overbroad and in conflict with the first amendment. Generally, a person to whom a statute may constitutionally be applied will not be permitted to challenge the statute on the ground that it could in another context be applied unconstitutionally to another party. (United States v. Raines (1960), 362 U.S. 17, 4 L. Ed. 2d 524, 80 S. Ct. 519.) However, the traditional rule of standing is not applicable when a party is asserting his first amendment rights. The validity of an overly broad statute may be contested “with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.” Dombrowski v. Pfister (1965), 380 U.S. 479, 486,14 L. Ed. 2d 22, 28, 85 S. Ct. 1116, 1121.

The defendant claims that section 12—6(a)(3) of the Code can be applied unconstitutionally in other contexts to other people that are legitimately exercising their first amendment rights. Holder can attack subsection (aX3) on the grounds that it is overbroad under the first amendment without showing that his conduct is protected. (Talsky v. Department of Registration & Education (1977) 68 Ill. 2d 579, 590; Gooding v. Wilson (1972), 405 U.S. 518, 521-22, 31 L. Ed. 2d 408, 413-14, 92 S. Ct. 1103, 1105-06.) An exception is culled out from the general rule of standing in first amendment cases since application of that rule would “itself have an inhibitory effect on freedom of speech.” (United States v. Raines (1960), 362 U.S. 17, 22, 4 L. Ed. 2d 524, 530, 80 S. Ct. 519, 523.) The rationale is to see that permissible speech is not inhibited. Talsky v. Department of Registration & Education (1977), 68 Ill. 2d 579, 590.

The defendant complains that section 12—6(a)(3) of the Code is overbroad because it makes it a criminal violation to engage in uninhibited discussion and effectively prohibits speech that is clearly protected by the first amendment.

Section 12—6(a)(3) of the Criminal Code of 1961, under which the defendant was convicted, provides:

“A person commits intimidation when, with intent to cause another to perform or to omit the performance of any act, he communicates to another a threat to perform without lawful authority any of the following acts:
(3) Commit any criminal offense; ***.” Ill. Rev. Stat. 1979, ch. 38, par. 12—(a)(3).

In Broadrick v. Oklahoma (1973), 413 U.S. 601, 37 L. Ed. 2d 830, 93 S. Ct. 2908, the Supreme Court addressed an overbreadth attack on an Oklahoma statute that barred political activities by State employees. Oklahoma State employees were charged by the Oklahoma State Personnel Board with engaging in partisan political activities that included the solicitation of money for their superior. The court found that the overbreadth must be “substantial” before a statute regulating conduct will be invalidated on its face. In Broadrick the court recognized that the State, in attempting to maintain control over “harmful, constitutionally unprotected conduct,” may, in wording a statute too broadly, “deter protected speech to some unknown extent” (413 U.S. 601, 615, 37 L. Ed. 2d 830, 842, 93 S. Ct. 2908, 2917) but concluded that “there comes a point where that effect *** cannot *** justify invalidating a statute on its face ***. To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” 413 U.S. 601, 615, 37 L. Ed. 2d 830, 842, 93 S. Ct. 2908, 2917-18.

In finding section 12—6(a)(3) to be overbroad on its face the appellate court buttressed its decision with a 1968 opinion of the Federal District Court for the Northern District of Illinois that examined an overbreadth attack on section 12—6(a)(3) in Landry v. Daley (N.D. Ill. 1968), 280 F. Supp. 938, rev’d on other grounds sub. nom. Boyle v. Landry (1971), 401 U.S. 77, 27 L. Ed. 2d 696, 91 S. Ct. 758. The Landry case involved a class action complaint that alleged that the officers of the city of Chicago or the officers of Cook County purposefully entered into a plan amongst themselves and other unknown persons to deprive the plaintiffs of constitutional rights as well as rights secured by the laws of the United States. The plaintiffs attacked section 12—6 of the Criminal Code of 1961 (Ill. Rev. Stat. 1967, ch. 38, par. 12—6), contending that it had a chilling effect on their exercise of first amendment rights, although none of the plaintiffs had at the time of the suit faced prosecution under the statute. The court in Landry said:

“Sub-paragraph (a)(3) prohibits threats to ‘commit any criminal offense.’ The qualifying phrase, ‘without lawful authority,’ is redundant as applied to this sub-paragraph, since a criminal offense, by definition cannot be committed with lawful authority. The word ‘offense’ is defined in the Illinois Criminal Code as meaning ‘a violation of any penal statute of this State.’ [See Ill. Rev. Stat. 1967, ch. 38, par. 2—12.] Consequently, the sub-paragraph makes criminal threats to violate any Illinois statute imposing a penalty. The addition of the adjective ‘criminal’ does not narrow the meaning of this provision.
The provision is not vague. It is however, overbroad since it prohibits threats of insubstantial evil. The commission of criminal offenses against persons or property is a substantial evil, and the state may legitimately proscribe the making of threats to commit such offenses. The commission of offenses against public order only, however, is not such a substantial evil that the state may prohibit the threat of it. Sub-paragraph (a)(3) proscribes threats to violate any penal statute. It therefore makes criminal threats such as the following: (1) threats by dis-sentient [sic] groups to engage in disorderly conduct [see Ill. Rev. Stat. 1967, ch. 38, par. 26—1] threats by residents of a high-crime neighborhood to carry concealed weapons for their own protection [see Ill. Rev. Stat. 1967, ch. 38, par. 24—1(a)(4)] and threats by mothers to block a dangerous state highway to demonstrate the need for increased safety measures. [See Ill. Rev. Stat. 1957, ch. 951/2, par. 197.] Indeed, the phrase ‘commit any criminal offense’ is so broad as to include threats to commit misdemeanors punishable by fine only. These evils are not so substantial that the state’s interest in prohibiting the threat of them outweighs the public interest in giving legitimate political discussion a wide berth.
Since the language of sub-paragraph (a)(3) is an over-broad restriction on freedom of speech, it is invalid. Obviously, however, if the threat is carried out, the persons who violate the criminal law by their acts are subject to punishment. Therefore, we hold only that making it an offense to threaten to commit any crime, no matter how minor or insubstantial, is an unwarranted limitation.” Landry v. Daley (N.D. Ill. 1968), 280 F. Supp. 938, 964 rev’d on other grounds sub nom. Boyle v. Landry (1971), 401 U.S. 77, 27 L. Ed. 2d 696, 91 S. Ct. 758.

However, the court’s decision preceded Broadrick, where the Supreme Court held that the overbreadth of a statute must be real and substantial.

We believe the recent Supreme Court pronouncement in New York v. Ferber (1982), 458 U.S. 747, 73 L. Ed. 2d 1113, 102 S. Ct. 3348, supports upholding the statute at hand in an overbreadth attack. In Ferber the Supreme Court applied the substantial-overbreadth doctrine beyond conduct. The court indicated that the analysis employed was appropriate in a case that concerned itself with a serious national problem of “the exploitive use of children in the production of pornography.” (458 U.S. 747, 749, 73 L. Ed. 2d 1113, 1117, 102 S. Ct. 3348, 3350.) In discussing whether the statute was overbroad because it would forbid the production and distribution of materials that fall within the orbit of the first amendment, the Supreme Court said that Broadrick “intimated [that] the requirement of substantial overbreadth extended ‘at the very least’ to cases involving conduct plus speech.” The court then found “that the rationale of Broadrick is sound and should be applied in the present context involving the harmful employment, of children to make sexually explicit materials for distribution.”

The court then went on to the substantial-overbreadth test.

“Applying these principles, we hold that section 263.15 is not substantially overbroad. We consider this the paradigmatic case of a state statute whose legitimate reach dwarfs its arguably impermissible applications. New York, as we have held, may constitutionally prohibit dissemination of material specified in section 263.15. While the reach of the statute is directed at the hard core of child pornography, the Court of Appeals was understandably concerned that some protected expression, ranging from medical textbooks to pictorials in the National Geographic would fall prey to the statute. How often, if ever, it may be necessary to employ children to engage in conduct clearly within the reach of the section 263.15 in order to produce educational, medical or artistic works cannot be known with certainty. Yet we seriously doubt, and it has not been suggested, that these arguably impermissible applications of the statute amount to more than a tiny fraction of the materials within the statute’s reach. Nor will we assume that the New York courts will widen the possibly invalid reach of the statute by giving an expansive construction to the proscription on ‘lewd exhibition^] of the genitals.’ Under these circumstances, section 263.15 is ‘not substantially overbroad and . . . whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.’ Broadrick v. Oklahoma [(1973), 413 U.S. 601, 615-16, 37 L. Ed. 2d 830, 842, 93 S. Ct. 2908, 2918.]” New York v. Ferber (1982), 458 U.S. 747, 773-74, 73 L. Ed. 2d 1113, 1133, 102 S. Ct. 3348, 3363.

While it is true that under section 12 — 6(aX3) one could be prosecuted for threatening to picket in front of a city hall without a permit (Ill. Rev. Stat. 1979, ch. 38, par. 85—3), or threatening to distribute literature that is deemed “offensive” within the right-of-way limits of a State toll highway (Ill. Rev. Stat. 1979, ch. 121, par. 314a471/2), we find that any such conceivable impermissible applications are dwarfed by the statute’s legitimate reach in prohibiting threatened criminal activity.

The Broadrick court said that a statute would be declared to be overbroad on its face “only when the flaw is a substantial concern in the context of the statute as a whole.” Broadrick v. Oklahoma (1973), 413 U.S. 601, 616 n.14, 37 L. Ed. 2d 830, 842 n.14, 93 S. Ct. 2908, 2918 n.14.

We feel that the flaw in section 12—6(a)(3) is not a “substantial concern” when viewed in the context of the legitimate sweep of an intimidation statute.

We therefore reverse the holding of the appellate court that section 12—6(a)(3) is overbroad on its face and therefore invalid.

Because the appellate court, in view of its holding, did not consider the other arguments raised by the parties, we now remand to the appellate court for a consideration of those issues. We further direct the appellate court to make a preliminary finding as to any labor law preemption question under the National Labor Relations Act (29 U.S.C. sec. 157) that may arise in prosecuting this defendant under section 12—6(a)(3) of the Illinois intimidation statute.

Reversed and remanded, with directions.

JUSTICE GOLDENHERSH,

dissenting:

I dissent and would affirm the decision of the appellate court. I do not quarrel with the majority’s analysis of the holding in Broadrick v. Oklahoma (1973), 413 U.S. 601, 37 L. Ed. 2d 830, 93 S. Ct. 2908, and Landry v. Daley (N.D. Ill. 1968), 280 F. Supp. 938, but I am of the opinion that the rules were incorrectly applied to the facts in this case. Section 12—6(a)(3) of the Criminal Code of 1961 provides in pertinent part:

“A person commits intimidation when, with intent to cause another to perform or to omit the performance of any act, he communicates to another a threat to perform without lawful authority any of the following acts:
3. Commit any criminal offense; ***.” (Ill. Rev. Stat. 1979, ch. 38, par. 12—6(a)(3).)

The offense of intimidation consists of speech, the communication of a threat. It involves only speech because the conduct purportedly threatened, “any criminal offense,” must of necessity be proscribed under another section of the Code.

In contrast, the statute upheld in Broadrick clearly involved action. It is clear that the limitation of overbreadth scrutiny applied in Broadrick is applicable only when conduct, and not merely speech, is involved. Thus, in Broadrick the Supreme Court upheld the validity of an Oklahoma statute involving restrictions on political campaign activity and in New York v. Ferber (1982), 458 U.S. 747, 73 L. Ed. 2d 1113, 102 S. Ct. 3348, held valid a New York statute prohibiting the knowing promotion of a sexual performance by a child under the age of 16 by distributing material which depicted the performance.

Section 12—6(a)(3) strikes at the heart of the political process by silencing those who in the furtherance of their political goals may advocate use of unlawful means. As pointed out by the appellate court, the statute here involved makes it “an offense to threaten to commit any crime, no matter how minor or insubstantial.” (103 Ill. App. 3d 353, 357.) As the majority points out, it prohibits people from threatening to picket in front of a city hall without a permit (Ill. Rev. Stat. 1979, ch. 38, par. 85—3) and from threatening to distribute literature that is deemed “offensive” within the right-of-way limits of a State toll highway (Ill. Rev. Stat. 1979, ch. 121, par. 314a471/2). The statute would also prohibit people from threatening to commit misdemeanors and other “evils [which] are not so substantial that the state’s interest in prohibiting the threat of them outweighs the public interest in giving legitimate political discussion a wide berth.” Landry v. Daley (N.D. Ill. 1968), 280 F. Supp. 938, 964, rev’d on other grounds sub. nom. Boyle v. Landry (1971), 401 U.S. 77, 27 L. Ed. 2d 696, 91 S. Ct. 758.

The Supreme Court has long recognized that a fair and robust debate on issues of public importance can be guaranteed only if those who merely advocate criminal acts receive some protection against recrimination by the sovereign. The State may punish a citizen for advocating criminal acts only “where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio (1969), 395 U.S. 444, 447, 23 L. Ed. 2d 430, 434, 89 S. Ct. 1827, 1829.

Section 12—6(a)(3) is overbroad because it makes unlawful significant speech which is protected under the first amendment. The statute prohibits a threat of criminal action even though the threatened criminal act is neither imminent nor substantial. Moreover, the statute prohibits the threat even though there is no substantial likelihood that the criminal act will ever occur. In many situations the threatened criminal activity will not be imminent, substantial, and likely. As a result the statute, if continued to be regarded as valid, will silence much speech which is protected by the first amendment, for “persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression.” (Gooding v. Wilson (1972), 405 U.S. 518, 521, 31 L. Ed. 2d 408, 413, 92 S. Ct. 1103, 1105.) For this reason I would affirm the judgment of the appellate court, and declare the statute void under the overbreadth doctrine.

JUSTICE SIMON joins in this dissent.