author: JUSTICE RYAN JUSTICE WARD, JUSTICE SIMON,

text:
      (No. 54098.

      In re G. B., a Minor, Appellee (The People of the State of Illinois, Appellant).

      Opinion filed December 18, 1981.

      WARD and SIMON, JJ., dissenting.

      Tyrone C. Fahner, Attorney General, of Springfield, and Thomas J. Difanis, State’s Attorney, of Urbana (Herbert Lee Caplan, Melbourne A. Noel, Jr., Jack Donatelli and Thomas C. Crooks, Assistant Attorneys General, of Chicago, and Robert J. Biderm an, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Daniel D. Yuhas, Deputy Defender, and Charles M. Schiedel, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellee.
   JUSTICE RYAN

delivered the opinion of the court:

This case arose out of proceedings against G.B., a minor, upon a petition for an order to show cause why he should not be held in contempt of court for failure to obey an order to attend school. On December 1, 1978, a petition was filed pursuant to the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 701—1 et seq.) alleging that G.B. was an habitually truant minor otherwise in need of supervision and that it would be in the best interest of the minor and the public that he be adjudged a ward of the court. On February 7, 1979, G.B. admitted the allegations of the petition and agreed to a continuance under supervision conditioned upon an order that he attend school. The minor did not attend school as directed and was found in contempt of court. As a consequence of that finding of contempt, G.B. was placed on “probation” for one year beginning on May 31, 1979. He was ordered to serve 19 days at the Champaign County Youth Detention Center and pay court costs of $114.10, and was again ordered to attend school. No appeal was taken from that order. The period of detention was served; however, no payment of the amount assessed as costs was made.

On October 3, 1979, a second contempt petition was filed, alleging the continued truancy of the minor and seeking a second order to show cause why G.B. should not once again be held in contempt. On December 12,1979, the minor stipulated to the allegations of this second petition and was again held to be in contempt of court. A petition to vacate the stipulation was dismissed, and on January 21, 1980, the court again placed the minor on probation for a period of one year, ordered that he be held at the detention center for 60 days, and again ordered G.B. to pay court costs of $114.10. The trial court allowed the minor to post bond pending appeal of this second adjudication of contempt.

The appellate court held that the contempt finding was for criminal contempt and that while a court possesses inherent power to enforce its orders through contempt proceedings, which may include imposing a sentence of probation, the focus of criminal contempt is punishment, not rehabilitation. Consequently, the appellate court held that the trial court abused its discretion in placing the minor on probation in this case. Further, the appellate court held that only those costs attributable to the contempt proceedings could properly be assessed against the minor. The order placing G.B. on probation was reversed and the cause remanded for further proceedings, including a determination of costs properly chargeable to the minor. (88 Ill. App. 3d 64, 69.) We granted the State’s petition for leave to appeal (73 Ill. 2d R. 315).

The minor argues in this appeal that since he was alleged to be a minor otherwise in need of supervision under the Act (Ill. Rev. Stat. 1977, ch. 37, par. 702—3) and, consequently, not subject to a dispositional order of probation (see Ill. Rev. Stat. 1977, ch. 37, par. 705—2(1)(b)), the court lacked the authority to accomplish indirectly, by way of contempt, that which it could not do directly under the Act.

We are not persuaded by this argument. G.B. was not placed on probation pursuant to a dispositional order under section 5—2(1)(b) (Ill. Rev. Stat. 1977, ch. 37, par. 705—2(1)(b)). On February 7, 1979, the cause came on for hearing on the petition filed December 1, 1978, which alleged that G.B. was a minor otherwise in need of supervision. Pursuant to section 4—7 (Ill. Rev. Stat. 1977, ch. 37, par. 704—7), the cause was continued by agreement upon the specific condition that he attend school. The contempt proceedings initiated March 5, 1979, were filed because of a violation of this interim order, the validity of which has not been challenged by the parties to this appeal. This, therefore, is not a case governed by the Juvenile Court Act. Rather, the propriety of placing this minor on probation depends upon the court’s power to impose punishment for contempt for the violation of its order.

Courts have the inherent power to enforce their orders by way of contempt. (People v. Javaras (1972), 51 Ill. 2d 296, 299; People v. Bloom (1966), 35 Ill. 2d 255, 258, rev'd on other grounds (1968), 391 U.S. 194, 20 L. Ed. 2d 522, 88 S. Ct. 1477; People v. Loughran (1954), 2 Ill. 2d 258, 262; People ex rel. Rusch v. Enger (1936), 364 Ill. 464, 466.) The power to punish for contempt does not depend on constitutional or legislative grant. Because the power to enforce court orders through contempt proceedings inheres in the judicial branch of the government, the legislature may not restrict its use. In re Baker (1978), 71 Ill. 2d 480, 484; People ex rel. Rusch v. White (1929), 334 Ill. 465.

Prior to January 1, 1974, a minor who violated an order of the court could be dealt with as a delinquent; however, after that date, a minor who violated a court order issued under the Juvenile Court Act could only be treated as a minor otherwise in need of supervision. (Ill. Rev. Stat. 1977, ch. 37, pars. 702—2(b), 702—3(d).) Prior to January 1, 1974, a minor who violated a lawful court order as a delinquent could be put on probation under section 5—2(1)(a) of the Act (Ill. Rev. Stat. 1973, ch. 37, par. 705—2(1)(a)). After January 1, 1974, a minor who violated a lawful order of the court as a minor otherwise in need of supervision could not be placed on probation under the Act, since probation, as such, is not one of the authorized dispositions for such minors under section 5—2(1)(b) of the Act (Ill. Rev. Stat. 1977, ch. 37, par. 705—2(1)(b)). In In re Baker this court held that the provisions of the Act did not deprive the court of its authority to enforce its orders by use of its contempt power. The court, in that case, discussed the amendments effective January 1, 1974, and stated:

“It is equally clear that the amendments did nothing to deprive the circuit courts of the use of their contempt powers to enforce supervision orders.” In re Baker (1978), 71 Ill. 2d 480, 484.

We also find In re Baker helpful in deciding whether a sentence of probation may be appropriately imposed as punishment upon one found to be in contempt of court for violation of a lawful order. In that case the court held the minor in contempt for violating the court’s order of supervision adjudging her a delinquent and placed her on probation. The minor contended that the same result — placing her on probation with the Department of Children and Family Services — could have been accomplished by proceeding under the Act instead of using the contempt power of the court. This court stated:

“Since the contempt power exists and there is a factual basis for that holding, the order cannot be said to be erroneous simply because an alternative route to the same objective was available. The trial court made a specific finding that the alternative remedy was without sufficient deterrent effect,’ and respondent has presented nothing which convinces us of any impropriety in that finding.” (In re Baker (1978), 71 Ill. 2d 480, 485.)

Thus, finding a minor in contempt and placing the minor on probation as punishment for contempt have been approved by this court as an alternate procedure to those provided for in the Act in dealing with minors who contumaciously violate lawful court orders. However, in In re Baker the trial court, because of the contempt finding, adjudicated the minor a delinquent. Following the amendment effective January 1, 1974, the definition of “delinquent,” as found in section 2—2 of the Act (Ill. Rev. Stat. 1977, ch. 37, par. 702—2), includes only those who violate statutory authority. Therefore, this court held that the trial court in In re Baker could not use a contempt finding for violating a court order as a basis of an adjudication of delinquency under the Act. This court, however, affirmed the trial court insofar as the contempt order and the order placing the minor on probation were concerned, but reversed the adjudication of delinquency. Thus, in In re Baker the use of the contempt power and the imposition of the sentence of probation were approved as an appropriate disposition of a minor who violated the orders of the court issued pursuant to the Juvenile Court Act.

The minor argues in this case that probation is not appropriate because the violation constituted criminal contempt, which, he contends, should provoke an order imposing punishment upon the contemnor. It is argued that the purpose of probation is rehabilitation and not punishment. Therefore the minor contends a sentence of probation should not be imposed for criminal contempt. We do not agree with this reasoning. Under the Unified Code of Corrections, probation is provided as an authorized sentence for a criminal offense. (Ill. Rev. Stat. 1979, ch. 38, pars. 1005—5—3, 1005—6—1.) We see no reason why it should not also be an authorized penalty imposed upon one found guilty of criminal contempt. Our constitution provides:

“All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” (Ill. Const. 1970, art. I, sec. 11.)

This constitutional direction is not limited to penalties for violations of criminal law, but applies to all penalties, which would include those imposed for criminal contempt. We do not agree that the only punishment authorized for criminal contempt is a fine or incarceration. Although probation may be intended as a reforming discipline and as a means of restoring offenders to society, affording them another opportunity through clemency (see 15 Ill. L. & Prac. Criminal Law §818 (1968)), it is, nonetheless, a form of punishment. Punishment is not necessarily imposed for retribution purposes only, but in itself may be rehabilitative in that its imposition will have a deterrent effect upon future misconduct of the recipient, thereby discouraging future violations of the law or orders of the court. Thus, it is appropriate to impose a sentence of probation upon one found guilty of criminal contempt, as well as upon one sentenced for a violation of the criminal code. If the court, the dignity of which has been offended through a violation of its orders, feels that a mild rehabilitative form of punishment available through a sentence of probation is appropriate, both to punish and to discourage the offender from offending the dignity of the court in the future, such a determination should not be reversed unless it constitutes an abuse of judicial discretion. This holding is in accord with the few decisions on the subject from other jurisdictions. See Evans v. Unruh (1961), 79 S.D. 53, 107 N.W.2d 917; Lathrop v. Lathrop (1959), 57 N.J. Super. 532, 155 A.2d 106.

The next question presented by the minor is whether the court, as punishment for contempt for the violation of the probation order, may impose incarceration when, under the Juvenile Court Act, the court is not authorized to incarcerate a minor for violating an order of the court (Ill. Rev. Stat. 1977, ch. 37, par. 705—2(1)(b)). The minor’s argument here does not appear consistent with his previous argument to the effect that probation is not an appropriate sentence for violation of a contempt order because, as the minor argued, probation is rehabilitative and not punitive, and a contempt should be punished by fine or incarceration. We hold that the court could impose incarceration for contempt in this case.

We find that the facts before us justify the imposition of a 60-day detention in the Champaign County Youth Detention Center. As a condition of the supervision order entered February 7, 1979, besides ordering the minor to attend school, the court also directed that the minor be taken on a tour of the Champaign County Youth Detention Center. The minor violated the terms of this supervision order by not attending school, and on May 31, 1979, the court entered its first contempt order and placed him on probation. As a condition of the probation sentence, the minor was directed to serve 19 days at the Champaign County Youth Detention Center. On October 31, 1979, another petition for a rule to show cause was filed alleging that the minor had failed to attend school since September 4, and that he had not reported to his probation officer since August 22, 1979, although he had been ordered to report weekly. It is obvious that the tour of the detention facilities, as required by the first order of the court, and the sentence of 19 days at those facilities, as required by the second order of the court, were not sufficiently impressive punishment to convince the minor that court orders must be obeyed. The record discloses the judge’s serious concern for the welfare of the minor. Before imposing the 60-day sentence, the judge had a lengthy discussion with the minor and indicated that despite the failure of the minor to cooperate and the lack of success in dealing with the minor on the previous occasions, the judge was not going to give up. Just as this court noted in In re Baker that the trial court apparently felt that the alternate remedy provided by the court was without sufficient deterrent effect (In re Baker (1978), 71 Ill. 2d 480, 485), it is also obvious that the court in this case was aware that its previous orders had not had the desired effect of convincing the minor that he must obey the lawful orders of the court. The trial court, therefore, in the exercise of its discretion, increased the severity of the penalty and ordered the 60-day detention.

In the exercise of the court’s inherent power to punish for contempt, it may provide such reasonable punishment as it determines is required. (People ex rel. Rusch v. Enger (1936), 364 Ill. 464, 466-67; 17 Am. Jur. 2d Contempt §105 (1964).) Under the facts which confronted the trial judge when the 60-day sentence to the detention facility was imposed as a condition of the sentence of probation, it cannot be said that such a sentence constituted an abuse of discretion.

The validity of the appellate court’s decision concerning costs has not been raised in this court. The appellate court judgment is affirmed in that respect. The judgment of the appellate court is reversed insofar as it reverses the probation order and the sentence of 60 days’ incarceration. The cause is remanded to the circuit court of Champaign County for further proceedings consistent with this opinion.

Affirmed in part and

reversed in part,

and remanded.

JUSTICE WARD,

dissenting:

I must dissent from what I consider to be a melancholy and inappropriate disposition of this case of a 16-year-old truant. I believe that the invoking of the contempt power frustrates the design of the legislature to provide specialized handling, through the Juvenile Court Act, of nondelinquent minors in need of supervision or care. The use of the power under the circumstances was an abuse of judicial discretion. The boy had already served 19 days at a detention center without visible benefit. The imposing of the more severe punishment of 60 days’ detention may, I fear, exacerbate his difficulties and be fully destructive of a desire to learn or a willingness to resign himself to school attendance.

The majority states that the trial court had a serious concern for the minor’s welfare and, before imposing the 60-day sentence, had a lengthy discussion with him. In it the court indicated that despite its earlier failure to correct his truancy, it was not going to give up. There is, however, no suggestion of any medical, psychological, or other testing of the boy in an attempt to ascertain what learning or other difficulties were present. There is no reference to any professional counseling, background investigation, or conferences by the court with school-attendance consultants for recommendations to determine and resolve the boy’s problems.

I am confident there were preferable alternatives to incarcerating this boy. If there were not, it would show a frightening poverty of society’s resources to deal with the question of truancy.

Society has a vital interest in the education of the young, and there is no doubt that habitual truancy is a vexing problem. I do not believe that action which abridges fundamental liberties more broadly than necessary should be approved. A valid governmental purpose should be served by use of the least restrictive viable means. Shelton v. Tucker (1960), 364 U.S. 479, 5 L. Ed. 2d 231, 81 S. Ct. 247. See also Chicago Board of Education v. Terrile (1977), 47 Ill. App. 3d 75.

The majority considers that the punishment is justified because of the offense to the dignity of the court. I consider that the dignity of the judicial process was not served by this exercise of the contempt power.

JUSTICE SIMON,

also dissenting:

Sentencing a 16-year-old boy to 60 days in a detention center for contempt of court because he refused to attend school is in my judgment a circumvention of the statutory policy of this State. I also believe it is harsh to the point of being an abuse of discretion and that confinement for that length of time in a detention center is likely to do the minor as well as society more harm than good. It is for these reasons that I dissent.

The Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, pars. 702—2, 702—3) provides for two distinct categories of errant youths: delinquent minors and minors otherwise in need of supervision. Delinquents are those who have violated some penal statute or ordinance, while those otherwise in need of supervision include incorrigibles, habitual truants and drug addicts. The latter category, with the possible exception of drug addicts, is thus made up of youths who would have committed no offense at all had they not been minors at the time.they committed the act for which they are being disciplined. Also included by statute, in the “otherwise in need of supervision” category, are minors who. have violated a court order entered under the Act. That provision, which became effective in 1974, was included to forestall the bootstrapping practice of transforming a minor otherwise in need of supervision into a delinquent minor through the use of the contempt power. This was accomplished by the court ordering the minor to attend school or stop his otherwise unacceptable behavior. Upon failure to comply with that directive, he was found in criminal contempt and adjudicated a delinquent minor on that basis, despite the fact that his underlying behavior was unchanged. The only difference was that the minor’s continued refusal placed him in the position of violating a court order rather than a State law, a difference that the legislature since 1974 has deemed insufficient to warrant a change in status from a minor otherwise in need of supervision to a delinquent minor.

The Act provides a different set of dispositional possibilities for each class of minors, and for that reason the distinction between them is significant. A minor otherwise in need of supervision may be committed to the Department of Child and Family Services for placement in a shelter home or foster family, placed with the Department of Mental Health and Developmental Disabilities for treatment, placed under court supervision and released to his parents, or emancipated; unlike a delinquent minor he may not be placed in a detention center.

In limiting the disposition that can be made of a minor otherwise in need of supervision, the legislature expressly determined that truants, even those who are ordered by the court to attend school, would not benefit from confinement, especially confinement with true juvenile delinquents. The legislature therefore wisely decided to stop short of placing such minors in detention centers. The need for punishment was not regarded as compelling enough to justify the risk of driving such youths further afield by confining them with delinquents who might be underage rapists, thieves and armed robbers.

This legislative mandate is largely in keeping with the Federal Juvenile Justice and Delinquency Prevention Act, section 223 (42 U.S.C. §5633(12) (1974)), as it existed until 1980, which provides funding to States for juvenile crime prevention. The funding is conditioned upon compliance with guidelines which included a prohibition against placing truants and incorrigibles in detention. Interestingly, if today’s decision had been filed a year ago, it might have placed this State’s funding in jeopardy. Amendments to the Federal Act in 1980 allowed the detention of juvenile contemnors. Apparently believing that the pre-1980 act prohibited the court from using its contempt power to jail truants, the amendment’s sponsor stated that his amendment was intended to restore the juvenile court’s legitimate power. (126 Cong. Rec. H10932 (1980) (remarks of Rep. Ashbrook).) But, the Illinois statute remains unaltered. It does not grant the juvenile court increased authority; on the contrary it continues to provide that minors in violation of a court order are not delinquents and are not to be treated as such.

The court today has circumvented this important State policy. Despite the clearest expression to the contrary from the legislature, the majority sanctions the detention of minors whose greatest offense against society is to refuse to go to school. Although this court clearly could not under the statute allow the State to file a delinquency petition based on G.B.’s violation of the court order, it nevertheless is allowing the offended juvenile court itself to apply its contempt sanctions. In substance, it is permitting the juvenile court to accomplish indirectly what it could not directly do, jail a truant as a juvenile delinquent. By this judicial sleight of hand, the majority has made a dead letter of the legislature’s declaration that minors who violate juvenile court orders are to be treated as minors otherwise in need of supervision. This result was clearly not intended by the legislature and should not be allowed by this court. Although the statute does not eliminate the use of a court’s contempt powers, it must be read to prohibit the use of that power to jail minors for conduct for which the legislature has said they should not be jailed. The policy advanced by the legislature is too basic a part of the Juvenile Court Act to allow its circumvention even in the interest of vindicating the court’s dignity and authority.'

Other courts have condemned similar efforts to circumvent legislative policy on juvenile treatment. In In re Ronald S. (1977), 69 Cal. App. 3d 866, 138 Cal. Rptr. 387, a California appellate court disapproved a juvenile court’s attempt to do “by indirection that which cannot be done directly.” (69 Cal. App. 3d 866, 874, 138 Cal. Rptr. 387, 392.) The juvenile court had elevated a runaway to delinquent status by allowing a petition for delinquency alleging as the cause criminal contempt of court, a statutory offense under the California Penal Code, despite an amendment by the California legislature deleting youths who had violated a court order from the definition of juvenile delinquent. This holding illustrates the proper treatment of attempts by trial courts to evade legitimate legislative policy, even though the bootstrapping technique used was not precisely identical to that used here. See In re Mary D. (1979), 95 Cal. App. 3d 34, 156 Cal. Rptr. 829; In re Bellanger (La. App. 1978), 357 So. 2d 634; In re M.S. (1977), 73 N.J. 238, 374 A.2d 445. See also State ex rel. L.E.A. v. Hammergren (Minn. 1980), 294 N.W.2d 705. But see R.M.P. v. Jones (Fla. App. 1980), 392 So. 2d 301 (the Florida statute classifies contemnors with delinquent minors).

The majority states that because the power to enforce court orders through contempt proceedings is inherent to judicial authority, the legislature may not limit its use. (See In re Baker (1978), 71 Ill. 2d 480, 484; People ex rel. Busch v. White (1929), 334 Ill. 465, 484.) This separation of powers argument is advanced to excuse the juvenile court’s contravention of legislative policy. It is, however, one thing to hold, as this court did in In re Baker, that the contempt power is not directly controlled by the Juvenile Court Act and quite another to permit its use as a tool to nullify the policies of that act. While In re Baker may allow a judge to go outside the list of dispositional alternatives permitted for minors otherwise in need of supervision when sentencing for contempt, it in no way allows him to sentence such a minor to jail. The elimination of detention for such minors is such an important feature of the statute that if it is not read to prohibit detention in such circumstances, the statute loses its power and effect. I find a lack of logical consistency between what this court did in In re Baker and what the majority approves in this case. In In re Baker, where this court’s opinion does not indicate the juvenile was sentenced to detention, the court said a finding of contempt cannot be used “as a basis for an adjudication of delinquency under the valid and unambiguous terms of the Juvenile Court Act.” (71 Ill. 2d 480, 485.) Yet, here the court says a finding of contempt can be used to justify 60 days of confinement in a detention facility, the type of disposition that is purposely reserved for delinquents. I view this as an unwarranted extension not only of what was decided but also what happened in In re Baker and a perversion, in the name of vindication of judicial authority, of the public policy adopted by the legislature.

Although it is perhaps true that the legislature may not invade a court’s ability to enforce its orders or to vindicate its authority over contemnors, this court has never held that the legislature has no authority to regulate a court’s use of its power by prohibiting particular sanctions. That is all the Act seeks to do; it provides a minor shall not be detained with delinquents merely for violating a court order when his underlying behavior is not egregious enough to qualify him as a delinquent. In Newton v. Locklin (1875), 77 Ill. 103, the court upheld a statute that set $5 as the punishment for contempt involving unruly behavior before a justice of the peace. The justice of the peace involved was held to have exceeded his powers by committing the plaintiff to prison instead. (See also State ex rel. Oregon State Bar v. Lenske (1965), 243 Ore. 477, 405 P.2d 510, cert, denied (1966), 384 U.S. 943, 16 L. Ed. 2d 541, 86 S. Ct. 1460.) The legislature here has not destroyed the juvenile court’s ability to enforce its orders. It has simply removed one possible punishment from the arsenal available to the court. This does not constitute a usurpation of power. Rather, it is a necessary part of the implementation of legitimate State juvenile policy.

Even if the court’s contempt power is wholly above the legislature’s ability to control, however, I do not understand why this court should allow a juvenile court to impose so harsh a sentence and to deliberately circumvent the legislature’s policy on juveniles. The contempt power is an extra-ordinary one that should be used sparingly and with the utmost sensitivity. (See Bloom v. Illinois (1968), 391 U.S. 194, 20 L. Ed. 2d 522, 88 S. Ct. 1477; Fox v. Fox (1978), 56 Ill. App. 3d 446; Board of Junior College District No. 508 v. Cook County College Teachers Union, Local 1600 (1970), 126 Ill. App. 2d 418, cert, denied (1971), 402 U.S. 998, 29 L. Ed. 2d 165, 91 S. Ct. 2168.) It is an abuse of discretion to use it deliberately to circumvent the policy behind statutory law, especially when alternatives are available. The trial judge did not have the benefit of any professional evaluation of G.B. except for a routine presentence report. It seems to me that in such a difficult case the trial judge would have sought additional assistance, including individualized psychological evaluation, before adopting such a drastic solution.

Beyond that, and wholly apart from the statute, I regard it as an abuse of discretion to imprison a minor for 60 days for playing hooky. While I sympathize with the juvenile court’s exasperation with this boy, this court should not tolerate the solution applied. I think this is especially the case here because the juvenile court judge had already sentenced G.B. to serve 19 days in the detention facility for contempt of court because of his truancy. Serving that sentence did not convince G.B. of the value of any further schooling, and there is nothing in this record which could lead one to believe that 60 additional days of detention would have a more persuasive influence on this minor. There are some things the law cannot realistically be relied upon to accomplish. Forcing a 16-year-old apparently incurable truant to attend school regularly and sit still long enough to learn something is one of them.


source: Caselaw Access Project

author: JUSTICE MORAN JUSTICE SIMON,

license: Public Domain

text:
    (No. 54471.
    JIMMY L. CREEK, Appellee, v. HAROLD R. CLARK, Judge, et al., Appellants.

      Opinion filed October 21, 1981.
    Rehearing denied November 25, 1981.

      SIMON, J., dissenting.
    Tyrone C. Fahner, Attorney General, of Springfield, and Donald Weber, State’s Attorney, of Edwardsville (Martin N. Ashley and Stephen E. Norris, of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.
    Donald E. Groshong and G. Edward Moorman, of Groshong & Moorman, Ltd., of East Alton, for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

The defendant, Jimmy L. Creek, was charged by indictment in the circuit court of Madison County with reckless homicide. He moved to dismiss the indictment, claiming that the dismissal of a prior information based on the same occurrence prevented the State from subsequent prosecution. After defendant’s motion was denied, he petitioned for a writ of habeas corpus alleging the same grounds as in the motion to dismiss. This motion was also denied. Defendant appealed the denial of the habeas corpus petition, and a majority of the appellate court reversed. (91 Ill. App. 3d 429.) The State appeals.

A full recitation of the procedural history of this case is necessary to an understanding of the issues. Defendant was initially charged by complaint with driving while under the influence of intoxicating liquor and improper lane usage resulting from a November 19,1978, traffic accident. These charges were dismissed on a motion by the State for the reason that the “possibility of felony charges is being investigated.” Defendant was thereafter charged by information with reckless homicide. He was released on bond pending trial.

On January 12, 1979, before the preliminary hearing was to commence, an assistant State’s Attorney orally moved to dismiss the information. In response, the trial court entered the following order:

“The above entitled cause having again come on for hearing pursuant to setting and notice for preliminary hearing, on motion of assistant state’s attorney Stephanie Robbins, the above entitled cause is hereby dismissed with prejudice.
Defendant’s bond ordered discharged according to law.
It is so ordered.”

The word “Approved” is written at the bottom corner of the order beneath which appear the signatures of the assistant State’s Attorney and defendant’s attorney. No transcript of these proceedings appears in the record on appeal.

On February 15, 1979, over 30 days after entry of the order, defendant was charged by indictment with reckless homicide based on the same incident; he was again released on bond. Subsequently, the State filed a complaint charging him with driving while under the influence of intoxicating liquor. His motion to dismiss the indictment, which was denied, was based on the premise that the former dismissal “with prejudice” acted to bar subsequent prosecution by reason of double jeopardy, collateral estoppel, res judicata and lack of jurisdiction. After a hearing was held, the trial court dismissed the petition, finding that (1) habeas corpus proceedings are not available to a defendant released on bail; (2) the respondent judges named in the writ did not have actual custody of defendant; and (3) defendant had not exhausted his legal remedies, in that he should have proceeded to trial on the pending charge and, if convicted, then should have appealed the issues raised in his motion to dismiss.

During the pendency of defendant’s appeal of the dismissal of his habeas corpus petition, defendant was found guilty of reckless homicide and driving while under the influence of intoxicating liquor. The record in the instant case was supplemented to show defendant’s convictions. Respondents then filed a motion to dismiss the appeal on the grounds that defendant’s conviction rendered moot his contention that he not be subjected to trial on the criminal charges. The record before us fails to reveal a notice of appeal from the criminal convictions. Relying on Supreme Court Rule 366(a)(5) (73 Ill. 2d R. 366(a)(5)) the appellate court “fashioned a remedy for defendant” by finding that “the trial court should have properly treated the petition [for a writ of habeas corpus] as a motion to dismiss the prosecution, vacated the conviction and discharged defendant.” (91 Ill. App. 3d 429, 433.) To support this conclusion the court found that “by use of the term ‘with prejudice’ the dismissal of the reckless homicide charges constituted a final adjudication and a bar to the subsequent prosecution by indictment.” (91 Ill. App. 3d 429, 435.) It then ruled that the dismissal “with prejudice” became final 30 days after its entry and rendered the trial court without jurisdiction to proceed with the subsequent prosecution.

We first address the question of whether the appellate court had jurisdiction to reverse the criminal convictions of defendant under Supreme Court Rule 366(a)(5). The State contends that the appellate court was without power to reverse defendant’s criminal convictions since notice of appeal had not been filed from those convictions.

We find untenable the position of the appellate court ruling that defendant’s petition for a writ of habeas corpus should have been treated as a motion to dismiss the prosecution. Defendant had already filed a motion to dismiss the indictment of February 15, which was denied, and, as earlier stated, the grounds raised in the petition for habeas corpus were identical. Therefore, we find that the trial court correctly treated the petition as it was presented — one for writ of habeas corpus.

Supreme Court Rule 366(a)(5) allows the appellate court to make any order that ought to have been given and to make any further orders that the case may require. The appellate court reasoned that it had the power under this rule to determine the legal effect of a dismissal “with prejudice.” However, the rule assumes that the court properly has jurisdiction over the case before it. Our rules also provide that the only jurisdictional requirement in the perfection of an appeal is the filing of a notice of appeal. (73 Ill. 2d R. 606.) This court has unequivocally stated that the filing of a notice of appeal is “essential to confer jurisdiction upon the reviewing court.” (People v. Stueve (1977), 66 Ill. 2d 174, 178.) There is, in this record, no notice of appeal filed by defendant from his conviction; therefore the appellate court lacked jurisdiction to determine the propriety of that conviction and to address the merits of any of defendant’s claims therein.

The State further contends that the trial court appropriately dismissed defendant’s petition for writ of habeas corpus in that he lacked standing to seek such relief while free on bail and that a dismissal, “with prejudice,” of criminal charges does not bar subsequent criminal prosecution by the State.

Section 1 of “An Act to revise the law in relation to habeas corpus” (Act) provides: Section 22 sets out the circumstances under which one may be discharged under the Act: “[i]f it appear that the prisoner is in custody by virtue of process from any court legally constituted.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 65, par. 22.) It is the position of the State that the defendant’s release on bail does not constitute being “in custody” or being “otherwise restrained of his liberty,” as those terms are used in the Act.

“That every person imprisoned or otherwise restrained of his liberty, except as herein otherwise provided, may apply for habeas corpus in the manner provided in this act, to obtain relief from such imprisonment or restraint, if it prove to be unlawful.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 65, par. 1.)

Defendant, on the other hand, argues that bail does constitute “custody” and being “otherwise restrained of his liberty.” Defendant cites as authority Hensley v. Municipal Court (1973), 411 U.S. 345, 36 L. Ed. 2d 294, 93 S. Ct. 1571, for the proposition that one free on bail is sufficiently in “custody” so as to seek habeas corpus relief. In Hensley, the defendant was convicted of a misdemeanor, sentenced to one year in jail and fined $625. He was unsuccessful in his appeal before the State appellate court as well as in his attempts to collaterally attack the conviction. At all times after his conviction, he was released on his own recognizance. He avoided imprisonment while pursuing his State court remedies by virtue of a stay ordered by the trial court. Such stay was extended apparently to allow defendant to file for Federal habeas corpus relief. The Federal district court denied defendant’s petition for habeas corpus relief, and the circuit court of appeals affirmed. The United States Supreme Court granted certiorari. The defendant remained at large throughout the proceedings in Federal court by virtue of the stay order.

The Supreme Court ruled that defendant was in custody for purposes of the Federal habeas corpus statute because:

“First, he is subject to restraints not shared by the public generally,’ [citation]: that is, the obligation to appear ‘at all times and places as ordered’ by ‘[a]ny court or magistrate of competent jurisdiction.’ 000
Second, petitioner remains at large only by the grace of a stay entered first by the state trial court and then extended by two Justices of this Court. 600 The need to keep the stay in force is itself an unusual and substantial impairment of his liberty.” Hensley v. Municipal Court (1973), 411 U.S. 345, 351-52, 36 L. Ed. 2d 294, 300, 93 S. Ct. 1571, 1575.

We find Hensley distinguishable in that the defendant, at the time the petition for writ of habeas corpus was brought, had already been sentenced and, but for the stay order, would have been in prison. In the present case, defendant had not yet been tried for or sentenced on the criminal charges brought against him. Furthermore, the concluding language of the court limits its holding to the facts in that case:

“[W]e emphasize that our decision does not open the doors of the district courts to the habeas corpus petitions of all persons released on bail or on their own recognizance.”Hensley v. Municipal Court (1973), 411 U.S. 345, 353, 36 L. Ed. 2d 294, 301, 93 S. Ct. 1571, 1575.

Although this court has not addressed the question of whether a defendant released on bail can avail himself of the relief found in the Act (Ill. Rev. Stat. 1979, ch. 65, par. 1 et seq.), the appellate court has defined the term “custody” in People ex rel. Petraborg v. Fields (1973), 14 Ill. App. 3d 1025:

“Because a petition for habeas corpus is literally a request for the production of the body, we believe the term ‘custody’ as used in the statute refers to physical control or possession and may not be considered as a concept which is susceptible to a constructive definition.” People ex rel. Petraborg v. Fields (1973), 14 Ill. App. 3d 1025, 1026. See People ex rel. Williams v. Morris (1976), 44 Ill. App. 3d 39, 41.

Defendant cites various Federal cases in support of his contention that a person on bail has standing to petition for a writ of habeas corpus. (Burris v. Ryan (7th Cir. 1968), 397 F.2d 553; United States ex rel. Russo v. Superior Court (3d Cir. 1973), 483 F.2d 7.) These cases, however, considered the question of the status of a defendant on bail in the context of the Federal habeas corpus statute (28 U.S.C. §§ 2241 through 2255 (1976)). As such, they are not controlling on the construction of the Illinois act. (People ex rel. Morrison v. Sielaff (1974), 58 Ill. 2d 91, 92.) Moreover, although several jurisdictions have found that an accused free on bail was entitled to have his habeas corpus petition considered in the same way as if he were held in physical custody, such is the minority rule. (See Annot., 77 A.L.R.2d 1307 (1961 & 1981 Supp.).) The majority rule is that actual or physical restraint of a defendant is necessary to allow him standing to petition for a writ of habeas corpus. The justification for the rule is that a person at large on bail already enjoys the liberty which is normally sought by the writ of habeas corpus. Moreover, it is futile to order a party — be it judge, jailer, sheriff or parole board — to produce the “body” of one not in his physical custody.

Consequently, we find that because the defendant was not “in custody” or “otherwise restrained of his liberty” as we interpret those phrases in the Act, the defendant lacked standing to petition for the writ. Therefore, the trial court appropriately dismissed defendant’s petition. Because of our holding on the first two issues presented by the State, we find it unnecessary to address the legal effect of the term “with prejudice” as used in an order of dismissal. Such issue would be more properly addressed in defendant’s appeal of his criminal convictions, if he should choose to pursue such.

The judgment of the appellate court is reversed, and the judgment of the circuit court is affirmed.

Appellate court reversed;

circuit court affirmed.

JUSTICE SIMON,

dissenting:

The course the majority follows in disposing of this appeal is hypertechnical. Avoiding decision on the merits of defendant’s argument that he has been subjected to double jeopardy advances neither justice nor the need for orderly procedures. I prefer the appellate court’s more practical approach. That court, although acknowledging that the path the defendant took to the reviewing court was misconceived, in the interest of justice and under the authority of Supreme Court Rule 366(a)(5) (73 Ill. 2d R. 366(a)(5)) fashioned a remedy by treating defendant’s habeas corpus petition as a motion to dismiss the prosecution equivalent to a plea in abatement and a plea in bar (Ill. Rev. Stat. 1979, ch. 38, pars. 3—4(a)(2), 114—1(a)(2)) and by regarding the petition as consolidated with the case in which the defendant was prosecuted and convicted.

The records of the circuit court of Madison County do not disclose any notice of appeal filed by the defendant from his criminal conviction. Thus the majority’s suggestion that resolution of the defendant’s contention should await appeal from his criminal conviction is unrealistic; it is now too late for him to prosecute such an appeal.

The explanation, no doubt, for defendant’s failure to file a notice of appeal is that he assumed his pending appeal from the circuit court’s denial of his habeas corpus application would provide a vehicle for deciding the significance of his dismissal “with prejudice” and a further appeal would be unnecessary. The majority now tells us that he was mistaken in that conclusion.

Thus, his next step, assuming he is not already exhausted by the barriers the law’s technicalities have placed in his path, is to file a post-conviction petition alleging his attorney improperly overlooked filing a notice of appeal from his conviction, thereby depriving him of effective assistance of counsel. Then he would be back in the circuit court and perhaps he would find it necessary to appeal again to the appellate court and even this court. Although I appreciate that ordinarily courts should not anticipate events that might happen in the future, a post-conviction proceeding appears to be such a likely prospect here that I think we should conserve judicial time by addressing, as the appellate court did, the merits of defendant’s double jeopardy contention. To do so under the circumstances of this case would not undermine the requirement that a party must file a notice of appeal within the time prescribed by the rules after a criminal conviction. The problem in this case is that defendant’s notice of appeal was filed before his conviction, but he was tried and convicted while his appeal was pending.

Because the court prefers to delay its consideration of the substantive aspects of this case and in view of the possibility that this case may again reach this court, I feel I should refrain from expressing my views at this time on the double jeopardy question. I respectfully dissent however from the manner in which the court is disposing of this appeal; to raise the procedural barrier in this case is to complicate the litigation instead of to dispense justice.


text:
    (No. 54274.
    THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, Appellant, v. CHICAGO TEACHERS UNION, LOCAL 1, et al., Appellees.

      Opinion filed December 18, 1981.

      SIMON, J., dissenting.

      Michael J. Murray, of Chicago (Richard E. Girard, Patricia J. Whitten, and John L. Wren, of counsel), for appellant.
    Lawrence A. Poltrock, of Chicago (Wayne B. Giampietro and Gregory N. Freerksen, of Dejong, Poltrock & Giampietro, of Chicago, for appellees.
   JUSTICE MORAN

delivered the opinion of the court:

The circuit court of Cook County entered a declaratory judgment holding that the board of education of the city of Chicago (Board) had breached its collective bargaining agreement with the Chicago Teachers Union (Union) by closing schools on June 16, 1977, one day before the date provided by the official school calendar. In addition to an accounting, the court ordered the Board to pay employees covered by the agreement for the day on which schools were closed. The appellate court affirmed. 89 Ill. App. 3d 861.

There is but one question to be resolved: Are the employees covered under the collective bargaining agreement entitled to one day’s salary?

On October 13, 1976, the Board and the Union entered into a collective bargaining agreement for the school year of September 1, 1976, to August 31, 1977. Provisions were made for annual salaries for teachers and career service employees. On February 23, 1977, the Board adopted a recommendation, for the purpose of reducing the deficit in the Board’s budget, that allowed the general superintendent of schools to lay off employees for three days during June 1977. In a press release dated March 24, 1977, the superintendent announced that the “Chicago Public Schools will close one day early in June rather than the three days originally contemplated.” As stated above, the schools were then closed one day early, on June 16, 1977. The union sought arbitration, alleging that the one-day layoff violated its collective bargaining agreement with the Board. The Board brought an action to enjoin arbitration. The Union counterclaimed to compel arbitration and, by amendment, claimed breach of contract and sought declaratory relief and an accounting requiring the Board to pay its employees the one day’s salary. The circuit court enjoined arbitration and entered the order described earlier.

As the appellate court noted, testimony before the trial court predominantly pertained to the financial condition of the Board and the circumstances surrounding the collective bargaining agreement. In short, the record reveals the Board had a budgeted deficit of funds for fiscal 1976-77 of approximately $115.3 million. This amount was comprised of a $63.3 million accumulated deficit plus a projected $52 million operating deficit. To permit the appearance of a balanced budget when appropriations for the total of the individual line items exceeded the anticipated revenue (see section 34—44 of the School Code (Code) (Ill. Rev. Stat. 1975, ch. 122, par. 34—44) requiring a balanced budget), the budgeted deficit was offset by two negative “pro-rata” line-item appropriations totaling $115.3 million. The pro-rata line item designations consisted of a negative $91.66 million appropriation, following a $506 million appropriation for teachers’ salaries, and a negative $23.64 million appropriation, following a $132 million appropriation for civil service salaries. The above salary appropriations as well as the negative pro-rata appropriations were applied to the Educational Fund, the primary fund to which salary costs were charged.

The 1977 annual financial report shows that at the conclusion of the 1976-77 fiscal year, the Educational Fund had an operating surplus of about $13.2 million, representing revenues in excess of expenditures for current operations. During that same period, the Board reduced its accumulated deficit by almost $17.2 million; The record also shows that, out of $19.1 million the Board expected to receive from State aid and taxes, only $1.4 million was realized. The February 23,1977, recommendation adopted by the Board providing for a three-day layoff at the end of the school term was one of the measures designed to compensate for the discrepancy. This recommendation was the second phase of a plan adopted by the Board directed at eliminating the accumulated deficit, but the first time a recommendation for an early school closing was adopted. The annual financial statement showed that at the close of the fiscal year the Educational Fund had a total deficit of approximately $70.6 million. The record reveals it would cost the Board about $2.8 million to pay the teachers one day’s salary.

The essential portions of the contract as it concerns this review are:

“ARTICLE 36-SALARIES
36 — 1. The annual salaries of all teachers and the prorated monthly segments thereof are set forth in the teacher salary schedules attached hereto as Appendix A. Such schedules and all other provisions governing compensation and remuneration contained in Appendix A are hereby made a part of this Agreement.
36 — 2. The annual salaries of all career service employees in the bargaining unit and the prorated monthly segments thereof are set forth in the career service salary schedules hereto attached in Appendix A. Such schedules and all other provisions governing compensation and remuneration contained in Appendix A are hereby made a part of this Agreement.”

Appendix A specifically incorporated salary schedules into the contract. Schedule 1A provided for the “[b]asic schedule of school month salaries and annual salaries based upon a 6-hour day during regular school term of 39 weeks for regularly appointed members of the teaching staff oe<\” (The annual salary included the payment of 10 days of vacation so that it was based upon 41 weeks of pay for 39 weeks of employment.) In addition, paragraph 44 — 31 of the agreement provided:

“The BOARD shall maintain a school calendar in which: Employees scheduled for 39 weeks shall receive their annual salary (including vacation pay) prorated over 41 weeks (39 school weeks and two weeks of vacation). aaa”

Finally, paragraph 36 — 3 of the agreement provided:

“In accordance with the provisions of the School Code of Illinois, salary schedules and compensatory and remuneration provisions in this Agreement shall be subject to the terms, provisions, and conditions of the appropriations therefore contained in the fiscal 1976-77 annual and supplemental school budgets.”

Section 3 of the Board’s budget provided:

“That the appropriations herein made for salaries and wages for officers and/or employees shall be regarded as maximum appropriations both as to the sum appropriated and the length of time for which the incumbent of each position is to be employed. No employee shall have the right to demand continuous employment and compensation by reason of the appropriation if it becomes necessary to lay him off on account of lack of work or lack of funds.”

The appellate court concluded that the collective bargaining agreement guaranteed teachers an annual salary for a 39-week school year, notwithstanding the limitation in the annual budget to which the agreement was subject whereby the Board reserved the right to lay off teachers because of lack of funds. Because the appellate court concluded the terms of the agreement were clear, it declined to consider uncontroverted evidence that the Union requested a clause in the contract or a written guarantee separate from the contract assuring a full 39-week year, both of which were refused. (After a third Union request for a written guarantee, the Board made the following statement, prepared by thé superintendent, to the Union negotiating team: “Our top priorities are to maintain a full qualitative school year and to provide stability for a half-million school children, their parents, our staff members, and the citizens of the City of Chicago.” The collective bargaining agreement was then executed by the parties.)

The appellate court further concluded that even if the contract did not unequivocally obligate the Board to pay annual salaries and if the agreement were subject to the introductory language of the budget, the contractual condition of “lack of funds” was not met in light of the current operating surplus of $13.2 million dollars and a layoff, therefore, was unnecessary. The appellate court also found that the Board did not improperly delegate its discretionary power to fix salaries of teachers and adopt a budget; rather, in its view, the Board exercised its discretion when it entered into the agreement. 89 Ill. App. 3d 861, 870.

On appeal, the Board presents two principal arguments. First, it argues that the one-day layoff of Board employees for economic reasons did not constitute a breach of the collective bargaining agreement. Second, the Board argues that it has discretionary power to impose a layoff for economic reasons which it exercised reasonably and which cannot be restricted by contract. The Union argues that the one-day layoff breached the agreement which provided for a guaranteed annual salary, that the contractual condition of “lack of funds” contained in section 3 of the budget was not met because the salaries originally appropriated in the budget more than covered the annual salaries of the bargaining unit members, and that the collective bargaining agreement constituted an exercise of discretion, rather than a delegation of the Board’s power to fix teachers’ annual salaries.

Because of the result reached, we need consider only whether the Board has the discretionary power to impose a layoff for economic reasons that could not be restricted by the collective bargaining agreement in this case. In Illinois Education Association v. Board of Education (1975), 62 Ill. 2d 127, and in Board of Trustees v. Cook County College Teachers Union, Local 1600 (1976), 62 Ill. 2d 470, the union and board entered into a collective bargaining agreement whereby the discharge, demotion, or other involuntary change in the employment status of any teacher had to be preceded by an evaluation of the teacher’s classroom performance. The board, without complying with the evaluative procedure clearly outlined in the agreement, terminated the teacher’s services. In those cases, the School Code imposed upon the board the duty to appoint teachers (Ill. Rev. Stat. 1973, ch. 122, par. 10—20.7) and empowered it to terminate the employment of teachers by dismissal or the nonrenewal of probationary teacher’s contracts (Ill. Rev. Stat. 1973, ch. 122, pars. 10—22.4, 24—11 through 24—15). In both cases, this court held these powers to be discretionary and nondelegable, and that a termination in compliance with the statute was valid even though the board failed to comply with the evaluation provisions of the collective bargaining agreement. Board of Trustees v. Cook County College Teachers Union, Local 1600 (1976), 62 Ill. 2d 470, 476; Illinois Education Association v. Board of Education (1975), 62 Ill. 2d 127, 130-31.

The above two cases do not, as the appellate court suggests, hinge on the fact that a third party, such as an arbitrator, was the object of the delegation of the board’s discretionary power. In Board of Trustees v. Cook County College Teachers Union, no mention is made of an arbitrator. In Illinois Education Association v. Board of Education, this court reversed the trial court’s decision in part, notwithstanding the lower court’s holding that the arbitrator could not grant employment contracts as a remedy. This court reversed because the trial court held that an arbitrator could require a reevaluation in accordance with the terms of the collective bargaining agreement. (62 Ill. 2d 470, 476.) The emphasis of this court’s opinion was not on a third party (the arbitrator) being the object of the delegation of the board’s power to renew a teaching contract, but on the impropriety of subordinating the board’s power to the terms of a collective bargaining agreement.

In neither of the above cases did this court construe the board’s agreeing to a provision allowing for classroom evaluation before a teacher could be terminated as an exercise of its discretionary power to hire, teachers and to terminate their employment. Rather, the court concluded the contract provision had no effect on the discretionary powers granted to the board by the School Code. See Lindblad v. Board of Education (1906), 221 Ill. 261, 271; Weary v. Board of Education (1977), 46 Ill. App. 3d 182, 184-86; Board of Education v. Bockford Education Association (1972), 3 Ill. App. 3d 1090, 1093; Elder v. Board of Education (1965), 60 Ill. App. 2d 56, 68. As this court stated in Illinois Education Association v. Board of Education:

“Strict construction requires us to hold that neither the powers conferred nor the rights granted by section 24—11 were restricted or expanded by the provisions of paragraph M of Appendix XXX to the collective bargaining agreement.” 62 Ill. 2d 127, 130-31.

In our judgment, the holdings in Board of Trustees v. Cook County College Teachers Union and Illinois Education Association v. Board of Education control this case. Here, section 10—19 of the Code grants school boards discretionary power to “specify a closing date earlier than that set on the annual calendar when the schools of the district have provided the minimum number of computable days under this Section [176 days of actual pupil attendance].” (Ill. Rev. Stat. 1975, ch. 122, par. 10—19.) Section 34—16 empowers the Board to prescribe the duties, compensation and terms of office of its employees. Section 34—18 provides:

“The board shall exercise general supervision and management of the public education and the public school system of the city, and shall have power:
1. To make suitable provision for the establishment and maintenance throughout the year or for such'portion thereof as it may direct, not less than 9 months, of schools of all grades and kinds 000;
O O O
8. Subject to the limitations in this Article, to employ teachers and other educational employees and fix their compensation.” (Ill. Rev. Stat. 1975, ch. 122, par. 34—18.)

Section 34—18 also provides:

“The specifications of the powers herein granted are not to be construed as exclusive, but the board shall also exercise all other powers that may be requisite or proper for the maintenance and the development of a public school system, not inconsistent with the provisions of this Code which apply to all school districts.” Ill. Rev. Stat. 1977, ch. 122, par. 34—18.

Just as the board had discretionary power, derived from the Code, to terminate employees in Illinois Education Association v. Board of Education and Board of Trustees v. Cook County College Teachers Union, the Code empowers the Board to control budgetary considerations (see Bond v. Board of Education (1980), 81 Ill. 2d 242, 248), as well as specifically empowering it to set a closing date earlier than that set on the annual calendar, so long as the minimum number of days has been met. Like the powers granted by the Code in the above two cases, the Board’s powers here are discretionary unto itself and may not be delegated. See Lindblad v. Board of Education (1906), 221 Ill. 261, 271; Weary v. Board of Education (1977), 46 Ill. App. 3d 182, 184-86.

The Board’s action in closing schools one day early was in compliance with its power granted by the Code. The Board met the minimum time requirements for keeping schools open as established by sections 10—19 and 34—18(1). Further, in light of a huge accumulated deficit and a reduction in anticipated revenue from both State aid and local property taxes (reductions which were not contemplated at the time the collective bargaining agreement was executed), closing schools one day early pursuant to its statutory authority, on a day when students were scheduled for only two hours, was not arbitrary, discriminatory or unreasonable. See Bagley v. Board of Education (1981), 84 Ill. 2d 474, 479, citing Richards v. Board of Education (1960), 21 Ill. 2d 104, 109; Bond v. Board of Education (1980), 81 Ill. 2d 242, 246.

In this case, any terms relating to the length of the school term in the collective bargaining agreement were subject to the Board’s statutory power to close the schools early. Inasmuch as closing the Chicago public schools one day early was effected in compliance with provisions of the Code, that action was a lawful exercise of the Board’s discretionary power.

We note parenthetically that the Board’s action in closing the schools was taken as a last resort in an effort to reduce the accumulated deficit. The Board instituted many other cost-saving measures before the school closing. This fact, combined with the explicit requirements of section 10—19 of the Code that the Board maintain a minimum term of 176 days of actual pupil attendance, and of section 34—18 that a school term in the Chicago public schools must be not less than nine months’ duration, militates “against the appellate court’s concern about allowing the Board an unlimited opportunity to lay off teachers at any time because of its accumulated deficit.

We also note that, contrary to the finding of the appellate court, we find no clear intention on the part of the Board to guarantee a 39-week school year. The collective bargaining agreement was subject to section 3 of the budget, which gave the Board the right to lay off employees “on account of lack of work or lack of funds.” Moreover, section 10—19 of the Code, which is incorporated into the contract (see Teschner v. Chicago Title & Trust Co. (1974), 59 Ill. 2d 452, 458), enables the Board to specify an early closing. Further, the Board twice turned down requests by the Union to guarantee a 39-week school year. Thus, the collective bargaining agreement does not evince an intention on the part of the Board to exercise its discretion by agreeing to limit its statutory power to close the schools early.

Finally, after the Board filed its reply brief in this case, the Union filed a motion to strike the same. That motion, which was taken with the case, raises two essential points. First, the Union contends that it was a misrepresentation for the Board to assert that it, rather than the superintendent by virtue of his March 24, 1977, press release, closed the schools early. We find no merit to this contention. His action was taken pursuant to the Board’s adoption of a recommendation specifically allowing him to lay off employees for three days during June 1977 for the purpose of reducing the deficit in the Board’s budget. This was not a delegation by the Board of its power. Contrary to the Union’s assertion, the Board, in its February 23, 1977, resolution, did take action to modify the annual calendar. Further, the reduction of the layoff from three days to one day was to the benefit of the employees covered in the collective bargaining agreement.

The Union also asserts that the Board, in contravention of Illinois Supreme Court Rule 341 (81 Ill. 2d R. 341), raised new issues for the first time in its reply brief. However, those issues were not considered in our determination of this case. Consequently, we deny the Union’s motion to strike the Board’s reply brief.

For the above-stated reasons, the trial court erred by ordering the Board to pay teacher’s salaries for June 17, 1977. Accordingly, the judgments of the appellate and circuit courts are reversed.

Judgments reversed.

JUSTICE SIMON,

I would affirm on the ground that the terms of the collective bargaining agreement are unambiguous as to the obligations of the school board: The contract was for an annual salary rather than a daily wage, so that the annual amount was due even if the Board did not use all the teaching services it was entitled to; and the Board has not overcome the Union’s showing that there was no “lack of funds” such as would defeat the Board’s promise to pay full wages. The majority opinion, rather than attempting to deal with the agreement on its own terms, elevates the Board’s statutory “discretion” in managing its affairs to such an exalted status as to render the Board virtually incapable of entering into binding contracts. Such a broad view of discretion is not supported by the statutes involved in this case, and it has ominous implications not only for the Board’s future ability to manage its affairs, particularly with respect to securing credit, but for the law of contracts generally.

The appellate court’s opinion exhaustively demonstrates that the Board was contractually required to pay its teachers their full annual salaries, based on the regular 39-week year. (89 Ill. App. 3d 861.) The matter should end there.

As I understand the majority opinion, the problem is that the Board’s discretion to lay people off is something that cannot be restricted by a collective bargaining agreement, regardless of what contract law might otherwise say about the validity of the agreement and regardless of the terms of the agreement. The unbridled discretion the Board claims to have does not come from the agreement itself, for the agreement conditions the right to lay off on lack of work or lack of funds and thus requires at least some inquiry into whether either of these conditions is met. Rather, if from anywhere, it must arise from section 34—18 of the School Code, which provides that “[t]he specifications of the powers herein granted are not to be construed as exclusive, but the board shall also exercise all other powers that may be requisite or proper for the maintenance and the development of a public school system, not inconsistent with the provisions of this Code which apply to all school districts” (Ill. Rev. Stat. 1975, ch. 122, par. 34—18) and from section 10—19 of the Code, which gives the Board discretion to “specify a closing date earlier than that set on thé annual calendar” when the schools have been open for the statutory minimum number of days (Ill. Rev. Stat. 1975, ch. 122, par. 10—19). Unbridled discretion in the Board results, according to the majority, even though neither section of the School Code says anything about collective bargaining agreements, or rights the Board may retain in derogation of its contracts, or anything about salaries.

I find nothing in either of these statutory sections which gives the Board the power to cut salaries at will in derogation of contracts or restricts the Board’s ability to enter into bargaining agreements with employees, collective or otherwise, so long as the terms of the agreements do not exceed budgetary appropriations. In fact, the words “all **** powers that may be requisite or proper for the maintenance and the development of a public school system” would appear, if anything, to be a statutory license to the Board to exercise its discretion by contracting with employee unions, if it decides such contracts will improve morale and employer-employee relations and promote effective management and operation of the school system.

Collective bargaining has come to be a standard procedure in dealings between public bodies and their employees, and the legislature no doubt had this in mind as one of the necessary courses to be made available to the Board. The Board had the statutory “discretion” to enter into the collective bargaining agreement being challenged here. To say that this “discretion” allows the Board to do what it pleases in the name of good management, in disregard of its contract, is like saying that “freedom of contract” allows a person to do whatever he wants even after he has contracted with another. What happens in fact is that the discretion and the freedom to contract become subject to the provisions of the contract, and this applies to bargains entered into by public bodies as well as private parties. See Arlington Heights national Bank v. Village of Arlington Heights (1965), 33 Ill. 2d 557.

The majority opinion strongly relies on Illinois Education Association v. Board of Education (1975), 62 Ill. 2d 127, and on Board of Trustees v. Cook County College Teachers Union (1976), 62 Ill. 2d 470, which was decided on the basis of Illinois Education Association, for the proposition that the school board cannot contract away its discretion to close schools early or fix salaries. Those cases, however, do not involve the power to close schools or fix salaries; they deal instead with the power to refuse to rehire or promote nontenured teachers from year to year.

The basis of the Illinois Education Association decision (and, indirectly, of Board of Trustees, which followed Illinois Education Association) was that the discharge of a teacher, unlike the decision to close schools early due to lack of funds, is the subject of a comprehensive statutory system. The legislature has decreed the status various teachers have, their rights, and what procedures are to be followed in discharging them. The legislature has covered the subject in depth as a matter of policy. The Board must be able to eliminate inferior teachers if it is to maintain the quality of the schools, and the necessary decisions about individual teachers can hardly be made in advance. The legislature has struck an elaborate balance between that need and the opposing interest in job security. The Board is not permitted to contract away its essential powers and adopt a system in conflict with the one created by statute. The Board does not have authority to refrain from exercising its own discretion in discharging employees when occasion arises; it has a statutory duty to exercise that discretion to discharge, which it cannot abandon.

Obviously, however, the Board has authority to enter into some enforceable contracts. It must be able to order supplies on credit. Could the Board repudiate its contracts with suppliers on the ground that it does not need the supplies once it closes school early? Even the Board does not claim that it could have kept the schools open, accepted the teachers’ services the last day, and then simply not paid for them. The majority is saying, in effect, that the Board may contract only to pay for teaching services by the day, not by the year. The statute does not say that, and maintenance and development of the school system do not require it.

In Board of Trustees v. Cook County College Teachers Union (1976), 62 Ill. 2d 470, 480-82, the court upheld a contractual provision requiring the board of trustees to offer any available summer work to its qualified teachers in strict rotation. Teachers who had been passed over in the rotation were held entitled to full pay for the jobs they should have been offered, even though they had not done the work. The court remarked that the board of trustees retained the power to decide what summer programs to offer and who was qualified to teach them, and the board of trustees did not argue that the complaining teachers were not qualified. Decisions about the details of which of several qualified teachers were to do the work and get paid did not have to be committed to the inalienable discretion of the Board in order to maintain the schools properly; those decisions, this court held, could be controlled by contract and left to an arbitrator.

I believe the present case is more like the summer work rotation controversy than like the discharge controversy. Salaries are routinely contracted for, even by school boards. The Board does not have to, and is not authorized by statute to, change its mind at any moment about how much it will pay its teachers. Indeed, the point of the annual budgeting process mandated by law is that the Board’s appropriations are not supposed to change from day to day, with the Board considering everything anew at each meeting; the Board is supposed to anticipate and stabilize its obligations at the beginning of the year. The Board has no duty to exercise continuing discretion to juggle salaries as the year progresses, and the contract it signed was not an illegal attempt to abandon any such duty. By signing a contract, the Board was not giving away future discretion; it was simply exercising its present discretion to set salaries. The Board had discretion to engage teachers and pay salaries by the year. That discretion could be exercised by contract. Having fixed annual salaries by contract, the Board has exercised its discretion as fully as is required by law, and it must abide by its decision. Compelling the Board to honor its promises does not deprive it of its lawful discretion. See Arlington Heights National Bank v. Village of Arlington Heights (1965), 33 Ill. 2d 557.

The Board is, of course, entitled to close schools early, to save whatever expenses it is obligated to pay only on a daily basis. But it cannot thereby repudiate obligations that are not determined by the length of the school year. If the Board contracts to pay a fixed annual salary, rather than a per diem wage, it has to pay the annual salary, school or no school, especially when, as here, the main reason for closing the schools was to avoid paying the salaries.

The Board seems to argue, and the majority opinion does not dispute, that there is some public policy which should exonerate a public body from contractual obligations when honoring them would endanger its financial position. Unfortunately good public policy in such a situation is not so easy to discern. Allowing the Board to breach some of its obligations on account of financial need might well foster an attitude that, since it is a public body, it should be able to repudiate its obligations towards other creditors when need arises. Such an attitude will result only in greater financial difficulty over time as creditors become wary of the school board and require better terms to compensate for the risk of extending credit under those circumstances.

The danger is especially great because there was no intrinsic link between the teachers’ salaries and the Board’s financial difficulties. The circuit court found that the fund out of which teachers’ salaries were paid had an operating surplus. The appellate court determined that so long as that account had funds, the Board could not justify its action on the basis of lack of funds, a conclusion I believe was sound. The Board’s troubles consisted of staggering deficits in other accounts hung over from previous years. Any other breach of contract would have been an equally plausible way of saving money. In addition, significant labor problems may arise from the majority’s holding, even if it is limited to its facts. Teachers would become less willing to bargain with a body whose promises are not binding, and even when they do bargain, what prevents them from engaging in wildcat strikes of their own on the theory that, if the Board can renounce its agreements, so can the teachers?

The legislature’s version of public policy is that the Board is not allowed to make contracts unless it has already appropriated the necessary money in its budget. Any contract in violation of this provision is void. (Ill. Rev. Stat. 1975, ch. 122, par. 34—49.) The legislature requires that the budget be balanced. (Ill. Rev. Stat. 1975, ch. 122, par. 34—44.) In other words, the Board members are supposed to know where the money is coming from before they promise to pay it. The Board here did appropriate ample money for teachers’ salaries, and in my view, the contract is therefore valid and enforceable. The Board’s scheme of evading the balanced-budget requirement through unorthodox accounting procedures and then using the resulting insolvency as an excuse for escaping its obligations does not conform to the system the legislature has established for keeping the Board financially sound. This court should not sanction that scheme in the name of public policy.

Contract law was created to make legitimate expectations enforceable and thus encourage bargaining, which is the basis of our economic system. When a public agency is allowed to repudiate a contract, it loses some of the credibility it must have in order to continue its relationship with its employees. The ultimate loser is the public. Once the board of education signs an agreement and its obligations under the agreement come due, it is too late for it to raise “discretion” as an argument for nullifying the contract. In effect, the Board is now claiming the right to prefer some creditors over others, more or less as it pleases. I would not permit it.


author: JUSTICE UNDERWOOD

text:
    (No. 54430.
    THE PEOPLE ex rel. IDA BROWN, Appellee, v. RONALD BAKER, Appellant.

      Opinion filed December 18, 1981.

      Tim Eaton, of Decatur, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Myra Turner, Assistant Attorney General, of Chicago, of counsel), for the People.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

This is an action brought under the Paternity Act (Ill. Rev. Stat. 1977, ch. 40, par. 1351 et seq.) in which plaintiff, Ida Brown, charged the defendant, Ronald Baker, with fathering her daughter born out of wedlock on November 21, 1978. The defendant answered the complaint denying paternity, and a jury subsequently returned a verdict of not guilty. The trial court denied a post-trial motion for judgment non obstante veredicto, and the appellate court, in a Rule 23 order (73 Ill. 2d R. 23), finding that the Pedrick standard (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510) had been met, reversed and remanded with directions that the trial court enter judgment in favor of the plaintiff notwithstanding the verdict. (89 Ill. App. 3d 1207.) We allowed defendant’s petition for leave to appeal under Rule 315 (73 Ill. 2d R. 315).

There is no apparent conflict between the testimony of the parties regarding their sexual intimacy during the probable period of conception. Defendant was called as an adverse witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60). He testified that he first met plaintiff in high school but did not begin seeing her socially until 1977 or 1978. They dated for about three months and had intercourse frequently with neither party using any contraceptives. Usually he visited plaintiff at her apartment, although she also went to his apartment a few times. During the same period he was dating two other women, with one of whom he was intimate on a weekly basis. The last time plaintiff and he had intercourse was in March 1978, which was the same month that defendant’s fiance, whom he later married, returned from Holland. He first learned plaintiff was pregnant at the end of March 1978. On redirect examination by his own counsel, when asked whether plaintiff ever mentioned the name of David Dawson, defendant replied: “Yes, she mentioned his name as a personal friend. She said that he dated her sister several years ago and that is about it.”

Plaintiff testified that she began dating defendant in November 1977. They initially saw each other once or twice a week but spent the entire weekends together from January 1978 through March 1978. She last menstruated in February 1978, and after a full-term pregnancy her child was born in November. She testified that she was not dating anyone else, and that she did not have intercourse with anyone else. She indicáted that she knew David Dawson because her sister had dated him for about three years, but that she and Dawson were never intimate. Rather, they were like brother and sister. She cleaned his apartment in 1975 or 1976 and had been with him and others on social occasions in the past. Plaintiff also stated that before the baby was born defendant agreed to pay child support, and that after the baby’s birth defendant admitted that he was the father and on one occasion visited her and the baby. Defendant did not refute this testimony.

Three other witnesses testified on behalf of the plaintiff. They basically stated that they had seen plaintiff and defendant socially between November 1977 and March 1978. On cross-examination, two of the three witnesses indicated that they knew plaintiff and Dawson were friends.

The defendant called David Dawson as a witness. He testified that he had known plaintiff for about eight years, having met her through her sister, whom he used to date. He further stated that she was like a sister to him, and when asked whether he had intercourse with her, he replied that he did not.

In denying plaintiff’s motion for judgment n.o.v., the trial judge made the following statement:

“Personally I think if this had been a court trial that I heard on my own I would have found different from the jury, but I have trouble with what Mr. Eaton brought out about credibility of the witnesses. As I recall, David Dawson was the type [that] struck me he wouldn’t look anybody in the eye type and, of course,
Ida Brown was a little ‘flakey’ is a good word for her. That is the one stumbling block that I have is just what did the jury see in those witnesses. Maybe it wasn’t what they said but how they were saying it, I don’t know, and that is the real problem I have is the credibility of the witnesses which I think basically you can’t substitute your judgment for that of the jury on the question of credibility.”

While we agree that the credibility of witnesses and the weight to be accorded their testimony are typically jury considerations (Mizowek v. De Franco (1976), 64 Ill. 2d 303, 309-10; Finley v. New York Central R.R. Co. (1960), 19 Ill. 2d 428, 436; People ex rel. Gomez v. Wedech (1978), 58 Ill. App. 3d 518, 520), a jury cannot arbitrarily or capriciously reject the testimony of an unimpeached witness (Larson v. Glos (1908), 235 Ill. 584, 587; see also 81 Am. Jur. 2d Witnesses § 660, at 662-63 (1976)). Where the testimony of a witness is neither contradicted, either by positive testimony or by circumstances, nor inherently improbable, and the witness has not been impeached, that testimony cannot be disregarded even by a jury. Larson v. Glos (1908), 235 Ill. 584, 587; see also Urban v. Industrial Com. (1966), 34 Ill. 2d 159, 163; Dill v. Widman (1952), 413 Ill. 448, 454.

Notwithstanding the trial judge’s remarks regarding plaintiff’s “flakiness” and Dawson’s lack of eye contact, there is no evidence in this record that would justify a jury in discrediting plaintiff’s testimony that she did not have sexual relations with any other male during the critical period. If the trial judge intended his reference to plaintiff as “a little flakey” to indicate a slightly abnormal mental condition, we can say only that this record contains no indication thereof. Plaintiff’s testimony, so far as the record is concerned, was rational, reasonably consistent, and certain. She was positive in her denial of any intimacy with Dawson. Whatever prompted the judge’s comment apparently did not affect his acceptance of her testimony, for he believed his judgment would have differed from the jury’s. While demeanor is undoubtedly an important consideration, and a jury is ordinarily free to disbelieve the testimony of any particular witness, “it may not make an affirmative finding that the exact opposite of [a witness’] testimony is true if there is no evidence to support such a finding.” (30 Am. Jur. 2d Evidence § 1080, at 227 (1976).) Even when viewed in its aspect most favorable to the defendant, the evidence that the plaintiff was a good friend of Dawson’s and cleaned his apartment once or twice can hardly be characterized as proof of an intimate relationship. We do not doubt that a defendant in any paternity case could produce evidence that the plaintiff had the “opportunity” to engage in sexual relations with other men. But such evidence, standing alone, without some other evidentiary support for an inference that the opportunity was utilized, falls far short of proof of sexual relations with other men. See Kennedy v. Kennedy (1981), 93 Ill. App. 3d 88, 92 (“seeing” other men insufficient to prove sexual intimacy); People ex rel. Walsh v. Kilbride (1974), 16 Ill. App. 3d 820, 823 (“keeping company” somewhat short of intimate relations); cf. State ex rel. Stollberg v. Crittenden (1966), 29 Wis. 2d 413, 139 N.W.2d 94.

In view of the admittedly existing intimate relationship between plaintiff and defendant during the period of conception, the absence of any testimony from which the jury could reasonably infer that plaintiff had sexual relations with anyone other than defendant during the critical period, and the absence of any evidence that tended to cast doubt on plaintiff’s credibility, we conclude that the evidence overwhelmingly supported plaintiff’s allegation that defendant is the father of her child, and that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.

The judgment of the appellate court reversing and remanding to the circuit court of Macon County for the entry of a judgment n.o.v. in favor of the plaintiff is accordingly affirmed.

Judgment affirmed.