author: MR. JUSTICE WARD MR. CHIEF JUSTICE GOLDENHERSH,

text:
    (No. 53652.
    BEMIS COMPANY, INC., Appellee, v. THE INDUSTRIAL COMMISSION et al. (Danney F. Hougham, Appellant).

      Opinion filed June 26, 1981.

      F. Don Kelly, of Peoria, for appellant.
    Davis 8c Morgan, of Peoria (Joseph P. Gilfillan, of counsel), for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

Danney Hougham filed a claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.) for injuries to his left elbow after a fall while employed at Bemis Company, Inc., located in Peoria. After a hearing, an arbitrator awarded the claimant $208.53 per week for 6 1/7 weeks for temporary total incapacity and the same sum per week for 141 weeks for injuries arising out of and during the course of employment which the arbitrator found caused “permanent and complete loss of the use of the left arm to the extent of 60% thereof.” The Industrial Commission affirmed the award but the circuit court of Peoria County set aside the decision of the Commission, holding it was contrary to the manifest weight of the evidence. The claimant brought a direct appeal to this court under Rule 302(a)(2) (73 Ill. 2d R. 302(a)(2)).

At the time of his injury, the claimant had been employed at Bemis for six years. On May 23, 1978, he reported for work on a shift which began at 11 p.m., and assumed his duties as a machine tender. His job was to insure that the large paper producing machine, which he tended, operated properly.

The claimant testified that shortly after 5 a.m. he was called down to what is described as the “dry end” of the machine by another employee to examine some work orders. After doing this, and as he was returning to his former position, he claimed to have observed a “dirty” picture of himself posted high on the wall above a desk at the dry end of the paper machine. He said that he climbed on the desk to remove the picture but as he was stepping off the desk onto a stool, the stool gave way, causing him to fall. The claimant noticed swelling in the region of the left elbow and informed his foreman. In describing the incident the claimant made no reference to taking down a vulgar picture of himself but said only that he had fallen from a stool. The foreman directed the union steward to drive Hougham to Proctor Community Hospital in Peoria. There Dr. Rafoal Alameda, the claimant’s physician, found that he had suffered a comminuted fracture of the head of the left radius with impaction, as well as a fracture of the left ulna. Surgery removed the shattered bones of the radius, and the arm was placed in a cast for two weeks. Hougham remained in the hospital for three days.

During his stay at Proctor, the claimant testified that he received a phone call from Robert Madsen, the plant superintendent, who informed him, he said, that Madsen had witnesses who knew the real story as to how the claimant had injured his arm. When Madsen asked whether Hougham had actually fallen while placing a picture of another employee on the wall, the claimant testified that he denied the accusation.

Three days after he was discharged from the hospital, the claimant went to the respondent company to pick up his paycheck. He had a conversation with Madsen, who told him that he would be given a written reprimand for horseplay. Hougham again stated that he denied any involvement in the hanging of a sign or picture of another employee at the time he was injured. The reprimand was issued and placed in the claimant’s personnel file. He returned to Bemis on July 6, 1978, and is still employed as a machine tender.

There is no dispute here that the claimant sustained an injury during working hours. The only issue is whether the circuit court was correct in holding that the Commission’s finding that his injury arose out of and in the course of his employment was contrary to the manifest weight of the evidence. A finding of the Commission will not be disturbed unless it is contrary to the manifest weight of the evidence. Lambert v. Industrial Com. (1980), 79 Ill. 2d 243.

The respondent called a number of witnesses to testify as to the circumstances of Hougham’s fall. Fred Ford, the foreman on duty when the claimant fractured his elbow, testified that when he inquired of Hougham how he had injured his arm, the claimant stated that he had tripped over a chair and had fallen on his arm while trying to break his fall. Ford testified that he did not learn of anyone who had seen the claimant either hang a picture of another employee or fall.

Robert Madsen, the plant superintendent, testified that upon learning of the claimant’s injury he made several inquiries and became suspicious of the claimant’s version of his fall, particularly when he received from one of the plant foremen a picture of another employee that was seen hanging on the wall near where the claimant had fallen. Madsen next testified that he did not phone the claimant at the hospital but that, instead, the claimant had called him. He testified on cross-examination that he asked Hougham to tell the truth about the circumstances surrounding his injury. He gave the following testimony concerning Hougham’s response to his accusation that the claimant was engaged in horseplay when he broke his elbow:

“ [The claimant] kind of laughed, and then he said ‘Well, I will tell you one thing, I will never do it again. I have learned my lesson.’ I told him, I said, ‘Danney, now you know that you are going to have to get a write up for this. And I could be more severe on you but I figure you got pretty good punishment with what has happened to you.’ ”

At no time, stated Madsen, did the claimant protest or present another version of the incident. On direct examination, the claimant had stated that there were two pictures on the wall, one of him and another of John Brooks, a fellow employee, and that he removed only his own picture from the wall.

Madsen said that when he presented the claimant with the written reprimand, Hougham simply placed it in his pocket and walked away without commenting. On cross-examination, Madsen stated that he did not find an employee who had witnessed the accident.

Robert Garber, the union steward, who drove the claimant to the hospital, was the next witness called by the respondent. Garber stated that, shortly before the incident, the claimant showed him a picture of John Brooks upon which was written: “If we don’t get rid of this man, his breath is going to kill us all.” When the claimant presented the picture to him, he was laughing, Garber stated. The claimant then took back the picture and headed toward the dry end of the machine. Five minutes later, Garber testified, he was called by his foreman, Fred Ford, to drive Hougham to the hospital. Asked whether he and the claimant had ever discussed his injury, Garber said that the claimant, upon his return to work in July of 1978, stated that he was glad that he was not fired over the incident.

When the arbitrator’s award was on review before the Commission, the only new evidence presented was thé testimony of Steven Schindler, a fellow employee of the claimant. He worked the same shift and on the same machine as the claimant. On the day Hougham was injured, Schindler was working as a “backtender,” most of whose time is spent on the dry end of the machine. From this position, Schindler testified that he had a clear view of the desk and wall area where the claimant had suffered his injury. That was approximately 40 feet away from his position on the machine.

Shortly before the incident, Schindler testified that he walked from the dry end of the paper machine and from the desk area in order to use the washroom in the locker room. He stated that he did not notice any signs on the wall before he left for the washroom. Upon returning to the machine, he saw the claimant getting up from the floor and rubbing his elbow. He then observed a sign, with something about Brooks written on it, posted on the wall above the desk. On cross-examination, Schindler acknowledged that he had not looked at the area above the desk as he walked to the washroom.

From a review of the record, we conclude that the Commission’s decision was contrary to the manifest weight of the evidence. We are, of course, not unmindful that the Commission is to weigh the credibility of witnesses (Pazara v. Industrial Com. (1980), 81 Ill. 2d 76; Sahara Coal Co. v. Industrial Com. (1977), 66 Ill. 2d 353) and that it has the first responsibility to decide questions of fact, including questions of causation (Stewart-Warner, Datafax Corp. v. Industrial Com. (1979), 76 Ill. 2d 464; County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10).

It is, however, fundamental, too, that the burden of establishing the elements of a claim for compensation is upon the claimant. (Board of Education v. Industrial Com. (1981), 83 Ill. 2d 475; Caterpillar Tractor Co. v. Industrial Com. (1980), 83 Ill. 2d 213; Corn Products Refining Co. v. Industrial Com. (1955), 6 Ill. 2d 439.) The claimant must meet this burden by a “preponderance of credible evidence.” Board of Education v. Industrial Com. (1981), 83 Ill. 2d 475, 479.

A review of the evidence shows an uncorroborated contention by the claimant that he injured himself in a fall while taking down an offensive picture of himself which he said had been posted on a wall, presumably by another employee. The Commission, from its finding, must have deemed that if the claimant had been injured as he described, the injury would have been compensable under the Act. We need not, however, consider whether an injury under those circumstances would have been an injury arising out of and in the course of employment. The conclusion that the claimant was injured as he claimed, and, thus, the finding of the Commission, are contrary to the manifest weight of the evidence.

By the claimant’s own admission, he did not tell his foreman that he injured his elbow while removing a picture of himself fro'm a wall. He told the foreman only that he fell from a stool. The offensive picture of the claimant was never found; the only picture found was of the other employee, John Brooks. Though there is some dispute regarding what was said between the claimant and his superintendent at Proctor Hospital, Robert Madsen’s version that the claimant did not deny the accusation that he had been engaged in horseplay seems to be supported by the comment the claimant made to his union steward that he felt he was lucky that he had not been fired over the incident. Too, the steward’s testimony that the claimant showed him the picture of Brooks shortly before his fall that shortly thereafter was hanging on the wall near where the claimant fell was not denied. The medical reports in evidence stated that the claimant injured his elbow when he tripped or tried to get off a stool. There is no indication in them that he said he fell while trying to take down a picture. Then there is Steven Schindler’s significant testimony that he did not observe any picture on the wall before the claimant had fallen and injured himself. Returning from the washroom he saw the claimant getting up from the floor and noticed a picture or sign referring to Brooks posted on the wall above the desk. This picture had been in the claimant’s possession shortly before he was injured.

The finding of the Commission was contrary to the manifest weight of the evidence, and the circuit court correctly set it aside.

For the reasons given the judgment of the circuit court of Peoria County is affirmed.

Judgment affirmed.

MR. CHIEF JUSTICE GOLDENHERSH,

dissenting:

I dissent. I would reverse the judgment of the circuit court and reinstate the award.

I am unable to distinguish this case from Converters, Inc. v. Industrial Com. (1975), 61 Ill. 2d 218, 223, where the court said:

“The resolution of disputed questions of fact is primarily the function of the Industrial Commission. (Gubser v. Industrial Com., 42 Ill. 2d 559.) The Commission ‘must hear and judge the credibility of the various witnesses, sift the evidence, determine where the preponderance of the evidence lies, and then, upon such determination, render its decision.’ (B. F. Gump Co. v. Industrial Com., 411 Ill. 196, 198.) On review ‘the function of this court is limited to a determination of whether findings of the Industrial Commission are against the manifest weight of the evidence. [Citations.] Too, we hold that if the evidence is conflicting or of a nature which permits the reasonable drawing of differing inferences, we will not set aside the award solely because we might have made a finding on the evidence different from the one made by the Commission or because we might have drawn inferences other than the ones reasonably drawn by the Commission.’ Gubser v. Industrial Com., 42 Ill. 2d 559, 562.”

The majority makes much of the fact that there was testimony indicating that petitioner may have made out-of-court statements which conflicted with his testimony. Proof of inconsistent statements is not a sufficient basis for holding that the decision is contrary to the manifest weight of the evidence. As this court said in Guthrie v. Van Hyfte (1966), 36 Ill. 2d 252, 258, “The fact that a witness, be he a party or otherwise, has made out-of-court statements inconsistent with his sworn testimony does not per se destroy the probative value of his testimony, and it ordinarily remains for the trier of fact to determine where the truth lies. (58 Am. Jur., Witnesses, [sec.] 863; Chicago City Railway Co. v. Ryan, 225 Ill. 287, 289; Mathews v. Granger, 196 Ill. 164, 171.)”

The decision of the Industrial Commission on a disputed question of fact should not be set aside because the circuit court is of the opinion that a different conclusion is more reasonable. It should be set aside only when it is against the manifest weight of the evidence. In this case it is not, and I would reinstate the award.

MR. JUSTICE CLARK joins in this dissent.


source: Caselaw Access Project

author: MR. JUSTICE SIMON MR. JUSTICE CLARK,

license: Public Domain

text:
    (No. 53222.

      In re HANNIBAL ABDULLAH, Minor (The People of the State of Illinois, Appellant, v. Lonnie Abdullah, a/k/a Yumba Lasumba, Appellee).

      Opinion filed, June 26, 1981.

      Tyrone C. Fahner and William J. Scott, Attorneys General, of Springfield, and Thomas J. Difanis, State’s Attorney, of Urbana (Donald B. Mackay, Melbourne A. Noel, Jr., Thomas E. Holum, and Jack Donatelli, Assistant Attorneys General, of Chicago, and Gary J. Anderson and Robert Biderman, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Marcia Rotunda and Greaves, Lerner & Gadau, of Champaign, for appellee.
   MR. JUSTICE SIMON

delivered the opinion of the court:

The circuit court of Champaign County found the defendant to be an unfit father under the Adoption Act (Ill. Rev. Stat. 1977, ch. 40, par. 1501 et seq.). The finding was based on depravity. As a result, the defendant’s consent to the adoption of his son, Hannibal Abdullah, was not required. The Department of Children and Family Services was appointed guardian with authority to consent to adoption. The sole issue to be determined is whether the evidence supports the finding of parental unfitness by reason of depravity.

Defendant has been found guilty in a jury trial of murdering his ex-wife, Anna Abdullah, the mother of Hannibal. In order to prove in this proceeding that defendant was depraved and therefore unfit, the State introduced the testimony of an assistant State’s Attorney, one of the prosecutors at his murder trial. The witness identified defendant as the accused in the murder trial, stated what the jury verdict was, and said that the post-trial motion had been denied. He testified that the defendant had been sentenced to a prison term of 60 years, though the basis for the extended term was not explained. He also said Hannibal was 3 years old at the time of his mother’s death. The State offered no other evidence.

Defendant testified that his conviction was pending on appeal, that his only prior conviction had been in 1963 or 1964 for battery, and that he did not kill his ex-wife.

At the close of the testimony the State asked the court to take judicial notice of the court file and docket sheet in the murder prosecution. The circuit court did so and, based upon the evidence presented, found that the State had proved defendant depraved and unfit.

A divided appellate court reversed. (80 Ill. App. 3d 1144.) The court’s opinion stated that while the factual evidence that formed the basis of the murder conviction might show depravity, the mere fact of conviction did not. Since only the mere fact of conviction was before the trial court, the finding of depravity could not stand. (80 Ill. App. 3d 1144, 1146.) A specially concurring opinion emphasized the need to flesh out the factual record in the case to clearly show depravity. The third judge argued that the sentence of 60 years could only be interpreted as an extended term under section 5 — 5—3.2 of the Unified Code of Corrections (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1005 — 5—3.2), and that this was sufficient to establish that the child’s mother had been killed by exceptionally brutal or heinous behavior indicating wanton cruelty. That judge suggested that the act of killing Anna Abdullah was inherently depraved and that the evidence before the court justified the judgment. 80 Ill. App. 3d 1144, 1148.

This court granted leave to appeal under Rule 315 (73 Ill. 2d R. 315). After oral argument and consideration, a decision was announced on December 1, 1980, with four justices holding that the State had failed to meet its burden of proof because the factual underpinnings for the extended term were not before the court. Because the best interests of the child were at stake, the majority remanded the cause to the circuit court for a new trial. The dissent, like the third judge in the appellate court, expressed the view that when the State brought forward the defendant’s extended prison term the burden shifted to the defendant. The dissent reasoned that the defendant had not satisfied this burden and that he was therefore shown to be unfit. But to delay the child’s placement until after the criminal appeal was resolved, the dissent suggested staying the mandate of this court.

On December 30, 1980, the appellate court affirmed the defendant’s conviction in the murder prosecution (People v. LaSumba (1980), 92 Ill. App. 3d 621), and defendant’s petition for leave to appeal his conviction to this court was denied on March 31, 1981.

We allowed the State’s petition for rehearing in this case, and additional argument was heard on March 11, 1981. We now reverse the decision of the appellate court and affirm the judgment of the circuit court that defendant is an unfit parent whose consent to adoption is not required.

Section 8 of the Adoption Act provides:

“ [C] onsents shall be required in all cases, unless the person whose consent would otherwise be required shall be found by the court to be an unfit person as defined in Section 1 of this Act ***.” (Ill. Rev. Stat. 1977, ch. 40, par. 1510.)

Section 1(D) of the Act states:

“ ‘Unfit person’ means any person whom the court shall find to be unfit to have a child sought to be adopted, the grounds of such unfitness being any one of the following:
(i) Depravity.” (Ill. Rev. Stat. 1977, ch. 40, par. 1501(D).)

The Adoption Act does not define “depravity,” but this court has held that depravity is “ ‘an inherent deficiency of moral sense and rectitude.’ ” (Stalder v. Stone (1952), 412 Ill. 488, 498; see Young v. Prather (1970), 120 Ill. App. 2d 395, 397.) In construing “depravity,” both the rights of the parent and the best interest of the child must be considered.

As background to this decision, unfitness under the Adoption Act should be contrasted with unfitness for purposes of child custody under the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 101 et seq.). There are differing consequences in each situation. Divorced spouses who lose custody of their children may still retain visitation rights and the legal status of parents. They retain rights to their child, subservient to the custodial spouse but greater than those of the rest of the world. Thus, for example, a parent whose living arrangements threaten the moral future of the children may lose custody, but still remain the children’s parent. (See, e.g., Jarrett v. Jarrett (1979), 78 Ill. 2d 337.) The parent may regain custody in the future if circumstances substantially change or if the custodial spouse dies. (See, e.g., Eaton v. Eaton (1977), 50 Ill. App. 3d 306.) But a parent who, because of a finding of depravity, is held unfit under the Adoption Act loses not only the custody of the child but also all residual parental rights. The child is given to new parents without the consent of the old. For all practical purposes, the natural parent becomes a nonperson to the child. The question here is how much evidence is enough to trigger this realignment of natural relationships.

Several decisions in the appellate court, none involving murder, have held that a single criminal conviction, without more, will not support a finding of unfitness based on depravity. (In re Sanders (1979), 77 Ill. App. 3d 78, 82; In re Adoption of Kleba (1976), 37 Ill. App. 3d 163, 166; Townsend v. Curtis (1973), 15 Ill. App. 3d 209, 212, cert. denied (1977), 431 U.S. 907, 52 L. Ed. 2d 391, 97 S. Ct. 1702.) The State conceded this point, but argues that here there was other evidence which, taken in conjunction with the evidence of murder, sufficiently proved depravity.

Three separate factors in the evidence showed defendant’s depravity. First, he was convicted of murder, the most serious criminal offense there is. New acts could be more inherently deficient in moral sense or rectitude than the intentional and unjustified killing of a fellow human being. Second, the murder victim was the mother of the child. Defendant thus deprived his son of his mother and further heightened the psychological scarring caused by a family already broken by divorce. Finally, the extended term of imprisonment imposed indicates that the murder was accompanied by exceptionally brutal and heinous behavior demonstrating wanton cruelty. (See Ill. Rev. Stat., 1978 Supp., ch. 38, pars. 1005 — 5—3.2(b)(2); 1005 — 8—2.) Taken together, these three factors establish that defendant suffered from an inherent deficiency of moral sense and rectitude. They show depravity.

Defendant argues that a more detailed factual basis was necessary to foreclose the possibility that there were circumstances surrounding the killing of Anna Abdullah that would indicate that defendant was not depraved. He argues that the best interest of the child in such cases forbids a per se rule of depravity and requires a case-by-case determination of all the facts that might be relevant to the parent’s unfitness. But it is not the State’s obligation to foreclose all possible explanations that would show the parent to be fit. The evidence presented by the State made out a prima facie case of depravity. The burden of going forward then shifted to the defendant to explain away the damning evidence of the conviction, the relationship of the victim to the child, and the sentence. If there were exonerating circumstances that would rebut the initial showing of depravity, defendant was free to present them; the burden of persuasion always remained on the State to prove unfitness. But no such circumstances were shown here. Based on all the evidence presented the State satisfied its burden.

It should be noted that the circuit court took judicial notice of the court file and docket sheet in the murder prosecution, and that the standard of proof in that proceeding was far greater than in this case. The transcript of the criminal trial provides the meat on the bare bones of the State’s evidence that the defendant demands. It is proper to take judicial notice of the record in the murder prosecution, for it falls “within the category of readily verifiable facts which are capable of ‘instant and unquestionable determination.’ (9 Wigmore, Evidence sec. 2571, at 548 (3d ed. 1940).)” (May Department Stores Co. v. Teamsters Union Local No. 743 (1976), 64 Ill. 2d 153, 159; see, e.g., Walsh v. Union Oil Co. (1972), 53 Ill. 2d 295, 300; Blyman v. Shelby Loan & Trust Co. (1943), 382 Ill. 415, 419-20.) The record of proceedings in the murder prosecution having now been presented to this court by the defendant in his petition for leave to appeal from the conviction, this court is free to consider the evidence in that case. Perusal of the record of proceedings in that case puts to rest any nagging doubts that the circuit court erred in finding defendant depraved. It convincingly demonstrates that defendant is an unfit person by reason of depravity.

The evidence in his criminal case shows that defendant and his victim, Anna Abdullah, were divorced in 1976 after a two-year marriage. Hannibal was their only child. After the divorce Hannibal stayed primarily with his mother, although he made several week-long visits to his father in St. Louis. During the summer of 1978, defendant spent several weeks with his ex-wife and son at her home in Champaign. He and the victim argued about the quality of care Hannibal had been receiving from his mother. Anna permitted the defendant to take Hannibal back to St. Louis with him the first week in August.

However, several days later Anna demanded her son’s return, threatening by phone that she would call the police if the boy was not returned in 24 hours. On August 28, defendant called his ex-wife to tell her that he would bring Hannibal to Champaign the next day. On the morning of August 29, Anna left her home saying that she was going to buy some food stamps and pick up Hannibal. The father and son traveled to Champaign by bus, arriving about noon. They were met by the mother and, after a light lunch, the three went to a motel which Anna had checked into that morning.

Defendant and Hannibal left Champaign about 3:30 p.m. and drove Anna’s car to St. Louis. Defendant dropped his son off with his wife, then returned to Champaign, stopping for gas along the way. The attendant at the service station where defendant stopped placed the time of his arrival at the station at about 9 p.m.; the station was about 100 miles from Champaign. When defendant arrived in Champaign he went to the motel room, then to the police station, parking his car on a side street. At about midnight he informed the officer at the desk that a woman’s body would be found in the motel room.

Anna Abdullah was found lying on the motel floor, stabbed many times in the side and back of her neck. A large kitchen knife lay next to her head. Blood was found on the wall, in the bathroom, in a sink in the room, and in a large pool at her head. The room light and the television were on; the victim’s purse was undisturbed. Change and cigarette butts were found in ashtrays in the room. No fingerprints of the defendant were found in the room, but blood was found on his pants. Both he and his ex-wife had the same blood type. He said that the stain on his pants was his own blood from a cut he had suffered on the bus ride to Champaign.

Defendant testified at trial that when they arrived at the motel that afternoon he and his ex-wife went into the motel room alone. Hannibal stayed in the car. Anna agreed that Hannibal could return to St. Louis with his father for a week. Defendant was supposed to appear in court with Anna in 3 days (although he had not brought a change of clothes with him to Champaign), so Anna agreed that her ex-husband could drive her car back to St. Louis with Hannibal. He was to return alone that evening. When defendant and Hannibal left, Anna was alone at the motel; defendant kept a key to the room. Defendant testified that when he returned that night he found Anna’s body, and that at first he went to inform Anna’s daughter but changed his mind on the way and went to the police station instead.

The defendant argues that his conviction for murder should not have been used before appeals in the case were decided. He urges that the murder conviction might have been reversed, thus totally impeaching the adoption proceeding. He points out that then, assuming no reconviction at a new trial, justice would require that he regain his son. The dangers of relying on a conviction that is not yet final can readily be seen. But the interests of finality and judicial economy require that at some point a line must be drawn, after which it is proper to use the conviction. In any event, defendant has exhausted all State appeals from his criminal conviction, and is unable to show that he was prejudiced when the court proceeded to trial in this matter before those appeals took place. Now that this court has denied leave to appeal, the likelihood that defendant’s conviction will yet be reversed is slight. The evidence used in this proceeding in the circuit court is therefore unimpeached, and the finding of defendant’s parental unfitness is unshaken.

Moreover, the paramount consideration in this case is what will happen to Hannibal. (Ill. Rev. Stat. 1977, ch. 40, par. 1525.) His best interests must be considered, and further delay in the disposition of this case is not in his best interest. Hannibal is already 6 years old. His future should be settled as quickly as possible.

The majority opinion announced by this court on initial consideration of this case conceded that the extended prison term would be an independent factor towards support of a finding of depravity if the factual basis for the sentence was before the trial court. It proposed a remand for the purpose of putting such evidence in the record. But the factual basis for the extended term is now before this court, as set out above. It would be a needless formality to remand the cause in its present posture, postponing the determination without altering the result. We are satisfied that the totality of the evidence to which we have referred shows the defendant to be unfit, and so reverse the appellate court and affirm the judgment of the circuit court. See Altevogt v. Brinkoetter (1981), 85 Ill. 2d 44.

Appellate court reversed; circuit court affirmed.

MR. JUSTICE CLARK,

specially concurring:

I concur in the judgment of the majority. This case stands for the proposition that a showing that a person has been convicted of the murder of his wife, the mother of his child, and sentenced to an extended term of 60 years in prison clearly and convincingly establishes depravity sufficient to dispense with the person’s consent to his child’s placement for adoption. In the first opinion issued by this court, the majority held that facts underlying the conviction were needed before depravity would be established. Mr. Justices Underwood and Ryan joined me in dissenting from that decision, and the court subsequently granted a rehearing to reconsider the decision. Upon further reflection we have decided that the underlying facts are not needed in a case of this sort before depravity is clearly and convincingly established.

Having said that, the question arises why the facts underlying the conviction are extensively recounted in the majority opinion. I think doing so defeats the intent of the rule laid down in this case and unduly confuses anyone seeking instruction from the opinion. We have announced the rule that depravity is sufficiently shown here by the murder conviction, the identity of the victim, and the extended sentence. No need is presented and no purpose is served by recounting the facts underlying the conviction.


author: MR. JUSTICE SIMON

text:
    (No. 53785.

      In re JAMES FRANCIS DRISCOLL, Attorney, Respondent.

      Opinion filed June 26, 1981.

      David M. Beckerman, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    Raymond P. Carroll, of Chicago, for respondent.
   MR. JUSTICE SIMON

delivered the opinion of the court:

Forging his co-counsel’s name, the respondent, James Driscoll, converted to his own use the proceeds of a settlement which, by court order, he was to deposit to the account of two children, his clients. After several months of repeated demands for the money, Driscoll’s wife, with his knowledge and consent, repaid the clients out of another client’s funds, which Driscoll had improperly deposited to his own account — thus accomplishing a second conversion. This money was repaid about a year later, after the client had filed charges with the Attorney Registration and Disciplinary Commission. These misdeeds were committed in late 1977.

Driscoll admitted the charges and cooperated fully with the disciplinary process. In mitigation, he offered evidence that at the time of his offenses he was an alcoholic. It appears, from the testimony of the respondent, his wife, and the doctor who headed the alcoholism-treatment program at Lutheran General Hospital, that respondent began drinking heavily in 1973, and his habit and condition worsened progressively until 1978. When the conversions occurred, the respondent had undergone a change in personality. His personal appearance disintegrated, his weight dropped, he ate little, and his nails were falling out; he could not remember where he had been or what he had done; he stayed out every night and had no family or social life; he did not return clients’ calls and took no new clients. Nothing mattered to him except a drink. He was, however, competent enough, at least at intervals, to earn some money from his legal practice; in particular, he handled adequately the cases that generated the money he converted.

In August 1978 respondent voluntarily entered Lutheran General Hospital for treatment. He spent three weeks being “detoxified” and getting psychiatric counseling, and was introduced to Alcoholics Anonymous, in which he remains active. He has now successfully abstained from alcohol for about 2Vá years and is “perfectly fit” medically. There is always a risk that an alcoholic may relapse into drink; but the risk decreases with time, and the odds are heavily in respondent’s favor.

The Hearing Board rejected the idea of alcoholism as a defense, and recommended that Driscoll be disbarred. The Review Board recommended that he be suspended for 30 months and thereafter until further order. A minority of the Review Board proposed suspension for one year, on condition that the respondent continue in an appropriate program of rehabilitation. Before the Review Board, the respondent accepted the idea of a one-year suspension; but in this court he argues that no suspension is necessary, and that the proper discipline would be simply a probation arrangement, during which he would be required to continue with his rehabilitation.

The legal profession and the courts have begun to acknowledge the problem presented by alcoholic, or, as they are sometimes referred to, “impaired,” attorneys. We must find ways to help them and induce them to rehabilitate themselves. That problem, however, is no longer presented in this case, because respondent has already largely rehabilitated himself. And because respondent, on his own initiative, has overcome his active alcoholism and restored himself to a stable, more or less normal, condition, there is no need to keep him from practicing law during a period of temporary disability due to alcoholism. If he were now unfit to practice law, he would presumably remain so indefinitely, and the proper response to protect the public from further injury would be to disbar him or suspend him until further order.

We are not convinced, however, that he is unfit.

His professional misconduct was so serious that if it accurately reflected his continuing character and proclivities, if his alcoholism were only the occasion of his dishonesty and not a strong contributing cause, we would not hesitate to disbar him. Attorneys have been disbarred for misconduct even during a time of insanity or alcoholism where the attorney’s behavior after his restoration to sanity confirmed that he was not an honest man (In re Patlak (1938), 368 Ill. 547), or where there was no detailed evidence to show the attorney’s drinking was crucial to his misconduct (In re Smith (1976), 63 Ill. 2d 250).

Here, however, the circumstances support a charitable interpretation. Respondent’s judgment and will were undermined by alcoholism; he cared only for drink, and neglected all other concerns, at great cost to himself. His self-destructive behavior was typical of alcoholism; it was not typical of respondent, who was sensible enough until he succumbed to drink, and who is sensible enough again now that he has recovered from his disability. When someone who has apparently led an otherwise blameless life is guilty of professional misconduct while crippled by a chemical addiction, we are willing to assume that the misconduct, like his other shortcomings, was dependent on his craving and will not be repeated once that craving is subdued.

The respondent is not now a thief and a menace to his clients; but he did commit two thefts, of the most aggravated sort. Betraying clients by converting their money is conduct not acceptable to the bar under any circumstances. We cannot assent to respondent’s suggestion that no punishment is appropriate.

Perhaps in rare cases alcoholism might so change the character of the misconduct or so distort the attorney’s state of mind as to provide a complete excuse. Usually, however, alcoholism is at most an extenuating circumstance, a mitigating fact, not an excuse. The attorney’s impaired judgment diminishes the responsibility he must bear, but does not eliminate it. Not all alcoholics appropriate the money of their clients; the slide from drink to dishonor may be smooth, but it is neither automatic nor uncontrollable. We can understand it; we cannot excuse it or overlook misconduct as serious as respondent’s. Alcoholics need not be treated just like other people; our duty to uphold the standards and reputation of the profession is not incompatible with sympathy and leniency for victims of alcoholism. But their tragedy cannot be used as a license to exploit clients by taking their money.

The respondent was impaired, but not paralyzed. He continued to function to some extent. He occasionally tried cases and negotiated settlements, including those he got into trouble over. At least at times, he must have been rational enough to appreciate his duty to his clients, and to be reminded that even if he did not care, others would. We cannot regard him as entirely an innocent victim of forces beyond his control. To some degree he was culpable. And perhaps there are many like him; misbehaving attorneys suffer from alcoholism or comparable difficulties remarkably often in our stressful profession. If suspending the respondent will keep any of them from dishonesty or reassure the public that even hard-drinking attorneys must play fair, respondent has no legitimate complaint.

While uniformity in attorney discipline is desirable, every case must be considered on its own merits. (In re Andros (1976), 64 Ill. 2d 419.) In this case, we are impressed by Driscoll’s sincere, strenuous, and, so far, successful effort to overcome his alcoholism. An exemplary life before and after the incident charged may properly be considered in mitigation. (In re Bourgeois (1962), 25 Ill. 2d 47, 52.) We also recognize that the financial hardship, social embarrassment, and perhaps despair that a long suspension would create would not be conducive to sobriety; respondent might actually be fitter after a short suspension than a long one.

Respondent is suspended for six months. In addition, as an experiment in dealing with impaired attorneys, we shall require that he continue, and report at such intervals as the Attorney Registration and Disciplinary Commission shall specify, and until further order, his personal program of rehabilitation, including active participation in Alcoholics Anonymous, the Lawyers’ Assistance Program established by the Chicago Bar Association and the Illinois State Bar Association, or some similar program acceptable to the Commission. The Commission may recommend to this court any further conditions it thinks desirable. In addition, the Commission may perhaps call upon other attorneys for help under Rule 755 (73 Ill. 2d R. 755). We, of course, reserve the right to take further action if respondent, either during the period of his suspension or thereafter, succumbs to alcohol or has other problems that reflect upon his fitness to serve clients. Similar approaches have been adopted in California (Tenner v. State Bar (1980), 28 Cal. 3d 202, 617 P.2d 486, 168 Cal. Rptr. 333), Minnesota (In re Johnson (Minn. 1980), 298 N.W.2d 462), Massachusetts (In re Flannery (Mass. Nov. 5, (1980), No. 80—20BD), South Dakota (In re Walker (S.D. 1977), 254 N.W.2d 452), and Oregon (In re Lewelling (1966), 244 Or. 282, 417 P.2d 1019). After further experience we may revise our rules, which do not now provide for probation or supervision of impaired attorneys. Meanwhile, this court has inherent authority to use such methods of discipline. See In re Walker (S.D. 1977), 254 N.W.2d 452.

We would like to see respondent restored to an active practice and a position of esteem in his profession. We must also protect the integrity and reputation of that profession, and protect the public. Pending further experience with alcoholic attorneys, we are trying our best to manage both.

Respondent suspended.


text:
    (No. 53921.

      In re FREDERICK CONGER HOPPER, Attorney, Respondent.

      Opinion filed June 26, 1981.

      Philip Schickedanz, of Springfield, for the Administrator of the Attorney Registration and Disciplinary Commission.
    Rocci L. Romano and James O. Beavers, of Hershey, Bliss, Beavers, Periard & Romano, of Taylorville, for respondent.
   MR. JUSTICE SIMON

delivered the opinion of the court:

Frederick Conger Hopper, a licensed attorney, did not file Illinois income tax returns for 1974 and 1975. In 1977 he paid the taxes due for those years, along with interest and penalties. On April 17, 1978, he pleaded guilty to wilful failure to file his 1974 and 1975 State income tax returns in violation of sections 502 and 1301 of the Illinois Income Tax Act (Ill. Rev. Stat. 1977, ch. 120, pars. 5-502, 13-1301), and was fined $1,000.

On August 30, 1978, the Administrator of the Attorney Registration and Disciplinary Commission filed a complaint reciting the conviction and charging Hopper with conduct tending to bring the profession into disrepute. Hopper’s answer admitted the conviction but argued that there were extenuating circumstances which explained, though did not justify, his failure to file returns. He denied intending to bring the profession into disrepute.

The following evidence was presented to a hearing panel convened to hear the charges against Hopper. He was licensed to practice in 1967. He took a position with a private firm for a year, then became an assistant State’s Attorney in Christian County. In 1969 he was made an assistant Attorney General with responsibilities for environmental-control litigation, and kept this job until 1976 when he ceased practicing. In 1977 he took up the study of anthropology. He presently owns and operates a bookstore and has no intention of resuming the practice of law.

A lifelong acquaintance of Hopper testified that the respondent was a good and competent lawyer who lacked business judgment and had always had some eccentricities. Hopper traced his problems back to his mother’s death in 1969. He testified that the loss left him depressed and he has carried the depression ever since. His marriage suffered; from 1972 to 1975 domestic problems troubled him deeply. He and his wife separated in 1975 and were divorced in May 1977. Hopper was then treated by a psychiatrist, who diagnosed his problem as a depressive neurosis triggered by his mother’s death and aggravated by his marital problems. The psychiatrist believed that Hopper’s failure to file State income tax returns was related to the psychiatric problems.

Hopper testified that he failed to file his returns because at the time he lacked sufficient information to complete them. He procrastinated by putting the problem “on the back burner,” intending to get around to filing but never doing so. The principal problem was the proper valuation date and amount in the computation of capital gains on stock Hopper owned in several concerns. This stock returned him a handsome sum, enough to make his total income for the years involved $100,000 to $200,000. He had received the stock as gifts before the Illinois income tax went into effect, and it had no basis under the Federal tax laws. There was a different treatment for State tax purposes, and the stock’s basis depended on the valuation date it was given. Hopper was aware that he could file for an extension of time in which to resolve the question and make his return, but he made no effort to do so.

The hearing panel found that the factual allegations of the Administrator’s complaint were true. It held that Hopper’s emotional depression was not a reasonable justification for failing to file the returns, and that his conduct tended to bring the legal profession into disrepute. It recommended that he be censured. The Review Board found that the pattern of failing to file State income tax returns reflected a pattern of conduct inconsistent with Hopper’s assertions in mitigation. In the interest of uniformity, it recommended that Hopper’s license be suspended for 1 year.

Initially we find that discipline is warranted in this case. There is no real dispute over what happened; respondent admits that he did not file State income tax returns in 1974 and 1975 and asks that the court show him mercy in picking the appropriate discipline. This court has held that failure to file income tax returns brings the legal profession into disrepute. (In re Andros (1976), 64 Ill. 2d 419, 424; In re O’Hallaren (1976), 64 Ill. 2d 426, 434; In re Washington (1975), 62 Ill. 2d 23; In re Lambert (1970), 47 Ill. 2d 223.) Although those cases involve Federal returns, it should make no difference when an attorney fails to file his State return, except where there is a reasonable explanation for why, after having filed the Federal return, the attorney did not also file his State return.

Turning to what discipline is warranted, the parties quarrel over the amount of deference, if any, to be given to the hearing panel and the Review Board. As we have said before, the hearing panel’s recommendation is advisory and not binding; yet, it is entitled to virtually the same weight as that of a trier of fact in a judicial proceeding. (In re Wigoda (1979), 77 Ill. 2d 154, 158.) Where the question is the credibility of witnesses, resolution of conflicting testimony, or other such fact-finding judgments, the hearing panel should be afforded a good deal of deference. There is great advantage, when finding facts, to hearing live witnesses instead of reading a cold record. Thus, the hearing panel’s finding is entitled to great weight when the panel is acting as a trier of fact. But when it comes to imposing discipline, the final responsibility rests with this court. (In re Wyatt (1972), 53 Ill. 2d 44, 45.) The recommendations of the hearing panel and Review Board will be considered only as recommendations, as suggestions. This court is not required to adopt them.

The wisdom of that rule is illustrated in this case. The hearing panel and the divided Review Board differed on what the appropriate sanction was. The conflict might have been due to the differing concerns of each body. The Hearing Board is broken into three-member panels to hear individual cases. Local concerns and standards may temper the panels’ judgments and recommendations. By contrast, there is but one Review Board, which sits as a whole for each case. It reviews the findings and disciplinary recommendations of hearing panels from across the entire State. It can readily be seen that uniformity of punishment must be one of its concerns. This court, in arriving at a disciplinary decision, must weigh the recommendations of the hearing panel and the Review Board with the institutional limitations of each body in mind. This court always reserves the right to administer such discipline as it sees fit. In re Fumo (1961), 22 Ill. 2d 429, 431.

The available sanctions include disbarment, suspension, and censure. “Where there is intentional fraud, disbarment is warranted. On the other hand, an attorney’s lack of care would justify imposition of a sanction less than disbarment. Such sanctions are censure and suspension. The length of the suspension would, of course, depend on the circumstances of the case.” (In re Saladino (1978), 71 Ill. 2d 263, 276.) Predictability and fairness require that there be a degree of consistency in the sanctions imposed for similar types of conduct (71 Ill. 2d 263, 275; accord In re Clayter (1980), 78 Ill. 2d 276, 283; In re Levin (1979), 77 Ill. 2d 205, 211), but each disciplinary case is unique, and all must be determined on a case-by-case basis.

Hopper does not presently intend to resume the practice of law. In oral argument he told this court that he filed his Federal income tax returns on time and paid the tax for the years involved. The taxes owing to the Internal Revenue Service on the Federal returns were substantially more than those due the State. His failure with respect to his State returns appears traceable both to his unwillingness to make the extra calculations the State return required to report his capital gains properly and to his neurosis. Otherwise, it would appear unlikely that, having paid the much higher Federal tax on the transaction, the respondent would seek to avoid paying the State tax. The deficiencies in respondent’s business judgment seem to have been caused by a serious psychiatric ailment for which he has received successful treatment. There was no intent to discredit his profession, and no individual clients were prejudiced by Hopper’s conduct. In light of the nature and background of Hopper’s conduct, this case merits the exercise of the court’s leniency. The appropriate sanction is therefore censure.

We reject the recommendation of the divided Review Board that the respondent be suspended not because it was wrong to seek uniformity and consistency, but because the particulars of this case make it unlike In re Andros (1976), 64 Ill. 2d 419, or In re O’Hallaren (1976), 64 Ill. 2d 426, upon which the Review Board relied. In Andros the attorney suffered marital problems and the loss of a parent, but failed to file his Federal return. While Andros’ problems caused him emotional strain, that cannot compare with the diagnosed psychiatric ailment with which Hopper was afflicted. In O ’Hallaren again there were marital problems resulting in failure to file a Federal return, but not the sickness which in effect paralyzed Hopper and prevented him from filing his State returns. We follow the caveat laid out in O’Hallaren: “Determination of the discipline to be imposed requires an independent evaluation of the circumstances in each case. Because those circumstances vary substantially, sanctions which are appropriate in one situation may be inappropriate in another even though the underlying offense is similar or even the same.” 64 Ill. 2d 426, 433.

Respondent censured.


author: MR. JUSTICE MORAN MR. JUSTICE SIMON, MR. JUSTICE UNDERWOOD,

text:
    (No. 53329.
    (No. 53344.
    (No. 53687.
    (No. 53716.

      In re T.E., a Minor, Appellant (The People of the State of Illinois, Appellee). — In re R.H., a Minor, Appellee (The People of the State of Illinois, Appellant). — In re B.W.S., a Minor, Appellee (The People of the State of Illinois, Appellant). — In re S.C.G., a Minor, Appellant (The People of the State of Illinois, Appellee).

      Opinion filed June 26, 1981.

      Daniel D. Yuhas, Deputy Defender, and Gary R. Peterson, Elizabeth E. Clarke, Marilyn J. Martin, and Michael Filipovic, Assistant Defenders, of the Office of the State Appellate Defender, of Springfield, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield, and Ronald C. Dozier, State’s Attorney, of Bloomington (Martin N. Ashley, of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.

      Tyrone C. Fahner and William J. Scott, Attorneys General, of Springfield, and Dennis P. Ryan and Fred Foreman, State’s Attorneys, of Waukegan (Phyllis J. Perko and Barbara A. Preiner, of the State’s Attorneys Appellate Service Commission, of Elgin, and Martin Ashley, of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.
    Daniel D. Yuhas, Deputy Defender, of the Office of the State Appellate Defender, of Springfield (Gary R. Peterson, Elizabeth E. Clarke, Marilyn J. Martin, and Michael Filipovic, Assistant Defenders, of counsel), for appellee.
    Tyrone C. Fahner and William J. Scott, Attorneys General, of Springfield, and Dennis P. Ryan and Fred Foreman, State’s Attorneys, of Waukegan (Phyllis J. Perko and Barbara A. Preiner, of the State’s Attorneys Appellate Service Commission, of Elgin, and Martin Ashley, of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.
    Daniel D. Yuhas, Deputy Defender, of the Office of the State Appellate Defender, of Springfield (Gary R. Peterson, Elizabeth E. Clarke, Marilyn J. Martin, and Michael Filipovic, Assistant Defenders, of counsel), for appellee.

      Robert Agostinelli, Deputy Defender, and Michael Filipovic, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, and Daniel D. Yuhas, Deputy Defender, and Gary R. Peterson, Elizabeth E. Clarke, and Marilyn J. Martin, Assistant Defenders, of the Office of the State Appellate Defender, of Springfield, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield, and L. Patrick Power, State’s Attorney, of Kankakee (Martin N. Ashley, of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.
   MR. JUSTICE MORAN

delivered the opinion of the court:

In each of the four cases consolidated on appeal, the respective minors were found to be delinquent, were adjudicated wards of the court, and were placed on an indefinite term of probation. Each minor’s probation was later revoked and a dispositional order entered. On appeal from an order revoking probation, the appellate court held in each case that the circuit court erred in placing the minor on probation without specifying a definite term. However, the respective districts of the appellate court differed as to the effect of the error on the subsequent revocation. In In re B.W.S. (1980), 84 Ill. App. 3d 1197 (order under Supreme Court Rule 23), and in In re R.H. (1980), 82 Ill. App. 3d 578, the Second District of the Appellate Court reversed each minor’s order granting probation, vacated the subsequent orders revoking proba-

tion, and remanded the causes for further proceedings. In In re T.E. (1980), 81 Ill. App. 3d 630, the Fourth District of the Appellate Court held that the initial order granting probation without a definite term was erroneous. However, it also ruled that “since the possible maximum term of 5 years had not elapsed at the time of its entry, the order was not void, but at most voidable and subject to clarification.” (81 Ill. App. 3d 630, 634.) The court, analogizing to In re Brown (1977), 48 Ill. App. 3d 171, ruled that the case should be reversed and the cause remanded to the juvenile court to permit that court to fix a definite term of probation and, after doing so, determine whether the act upon which the revocation was based fell within that definite term. The court stated:

“In the instant case it is our view that there was a sufficient evidentiary basis for an order of revocation, if in fact there existed at the time a valid order of probation. The latter will, of course, depend on what definite term of probation might be fixed by the trial court.” (81 Ill. App. 3d 630, 634.)

In In re S.C.G. (1980), 84 Ill. App. 3d 471, the Third District of the Appellate Court, following In re T.E., reversed and remanded the cause to the juvenile court with similar directions. We allowed petitions for leave to appeal in each of the four cases.

To be determined is the effect a dispositional order that places a minor on probation for an indefinite term has on subsequent proceedings.

In the case of T.E., cause No. 53329, a petition for adjudication of wardship was filed in the circuit court of McLean County alleging that T.E., then 13 years of age, had committed the offense of theft. On June 6, 1978, T.E. was found by the court to be a delinquent minor and was adjudged a ward of the court. At a dispositional hearing on October 30, 1978, T.E. was placed on probation for an indefinite term. A petition to revoke probation was filed on December 7, 1978, alleging that T.E. had committed the offense of theft. A hearing was held on January 18, 1979, wherein the trial court revoked T.E.’s probation. A dispositional hearing was held on March 21, 1979, and an order entered committing T.E. to the Department of Corrections, Juvenile Division.

In the case of R.H., cause No. 53344, the minor, R.H., 12 years of age, was made a ward of the circuit court of Lake County on March 13, 1974. Between April 9, 1974, and November 23, 1977, several petitions were filed alleging delinquency, and various orders were entered. On May 8, 1978, a further delinquency petition was filed alleging that R.H. committed the offenses of robbery, battery, and theft. At a hearing held on May 22, 1978, the trial court ordered that R.H. be placed on probation, but did not specify a definite term. On August 1, 1978, the State filed a petition alleging that R.H. had violated his probation when on July 21, 1978, he committed the offense of burglary. The court found that the State had proved the probation violation, and on September 15, 1978, entered a dispositional order committing R.H. to the Department of Corrections, Juvenile Division.

In the case of S.C.G., cause No. 53716, the State filed a petition in the circuit court of Kankakee County alleging that S.C.G., 13 years of age, was delinquent in that he committed burglary. A hearing was held on August 3, 1977, at which S.C.G. was found delinquent and was placed on probation. No termination date was specified. A petition to revoke probation was filed on April 10, 1978, but was later dismissed with the notation on the order “minor to remain on probation.” A second petition to revoke probation was filed on August 31, 1978, alleging that S.C.G. had committed retail theft. On September 15, 1978, the court found that the minor had violated his probation. On October 18, 1978, the court ordered S.C.G. committed to the Department of Corrections, Juvenile Division.

In the case of B.W.S., cause No. 53687, a delinquency petition was filed in the circuit court of Lake County alleging that B.W.S., 14 years of age, committed burglary and criminal damage to property. He was adjudicated delinquent and ordered placed on an indefinite term of probation on May 1, 1978. The order bore the notation “shall be reviewed on November 14, 1978.” A petition for hearing on violation of probation was filed July 21, 1978, alleging that B.W.S. committed criminal trespass to a motor vehicle. On August 1, 1978, the court found that B.W.S. had violated probation and ordered that he be continued on probation. Petitions alleging delinquency and violation of probation were filed on September 4, 1978, and September 7, 1978. At a hearing held on December 15, 1978, the court found that B.W.S. had committed attempted murder, armed violence, burglary, aggravated assault, and unlawful use of weapons. On December 27, 1978, a dispositional order was entered continuing B.W.S. on probation with a termination date of December 29, 1981.

During oral argument, counsel for the minors stated that the minors in cause Nos. 53329, 53344, and 53716 had each been released from custody by the Department of Corrections.

In In re Sneed (1978), 72 Ill. 2d 326, the court, in interpreting the Juvenile Court Act, held that a disposition of probation must be for a definite term. From this interpretation, we find, as did each of the divisions of the appellate court below, that the original order of probation for an indefinite term was erroneous.

The State argues that the failure of each minor to directly appeal the original order of indefinite probation renders the error waived. The minors argue that the error in the original probation order was not waived in that the order was void and hence open to attack at any time.

The general rule is that where no direct appeal was taken from the original order of probation and the time for appeal had expired, a court will be later precluded from collaterally reviewing the propriety of that initial order in an appeal from the revocation of that probation. (People v. Stueve (1977), 66 Ill. 2d 174, 178.) However, if an order is void, it may be attacked at any time. Chicago v. Fair Employment Practices Com. (1976), 65 Ill. 2d 108, 112.

The State argues that the orders of probation are not void in that the trial court had jurisdiction over both the parties and the subject matter and possessed the statutory authority to impose probation. While it is true that the trial court possessed the statutory authority to impose probation, such authority was limited to the fixing of a definite term.

The established rule is that where a court having jurisdiction over both the person and the offense imposes a sentence in excess of what the statute permits, the legal and authorized portion of the sentence is not void, but the excess portion of the sentence is void. (People ex rel. Barrett v. Sbarbaro (1944), 386 Ill. 581, 590-91; People v. Hamlett (1951), 408 Ill. 171, 178; People v. Williams (1977), 47 Ill. App. 3d 861, 865.) The State relies on People v. Holzapple (1956), 9 Ill. 2d 22, wherein the defendant was convicted of the offense of burglary and sentenced to a term of not less than one year nor more than life. The statute fixed the punishment for burglary at not less than one year nor more than 20 years. The court ruled:

“This was clearly erroneous and plaintiff in error is entitled to a proper judgment and sentence under the law in force and effect at the time of the commission of the offense. The sentence is not void but merely erroneous.” (Emphasis added.) (People v. Holzapple (1956), 9 Ill. 2d 22, 27.)

Based on this language, the State argues that in the case before us the order of indefinite probation was not void but merely erroneous and that consequently the minors are barred from collaterally attacking the underlying order of probation. We interpret the court’s statement in Holzapple to the effect that the “sentence is not void” as meaning that the judgment is not void in its entirety, but only the sentencing portion of the judgment to the extent of the excess over the statutory maximum. (See People ex rel. Miller v. Denemark (1933), 354 Ill. 34, 36.) Thus, in Holzapple, that portion of the judgment which included sentencing of the defendant to a term of one year to 20 was valid as within the statutory definition and was not affected by the additional void portion of the judgment, i. e., that portion sentencing the defendant in excess of the 20-year statutory maximum. See People v. Cleggett (1961), 22 Ill. 2d 471, 476-77, cert. denied (1962), 369 U.S. 840, 7 L. Ed. 2d 844, 82 S. Ct. 871; People v. Clark (1971), 48 Ill. 2d 554, 558.

In the case before us, the sentence of indefinite probation cannot be upheld as partially valid, as no specific term is involved. Contrary to the argument of the State, Holzapple is not analogous in the present case since no part of an indefinite term may be separated as a term lawfully imposed by statute. We are also not persuaded by the appellate court’s reasoning in In re T.E. that the probation order was not void “since the possible maximum term of 5 years had not elapsed at the time of its entry.” (81 Ill. App. 3d 630, 634.) This reasoning was specifically rejected by this court in Sneed. There, the State argued a disposition of probation automatically continues for five years or until the minor attains the age of 21. This court ruled:

“This language plainly contemplates that the minor be placed on probation for a definite period of time. It does not authorize or contemplate an indefinite or continuing probation for 5 years or until the minor attains the age of 21 years, whichever is less.” (In re Sneed (1978), 72 Ill. 2d 326, 334.)

Since the Juvenile Court Act, as interpreted by Sneed, mandates that an order of probation be for a definite term, the original probation orders here are void and are subject to collateral attack in a later appeal from the order of revocation.

Finding that the sentencing portions of the original orders of probation are invalid, the question is the remedy to be applied. In In re Sneed (1977), 48 Ill. App. 3d 364, the appellate court examined the propriety of a trial court’s extension of a minor’s probation absent a hearing and a finding of probation violation. The dispositional hearing was held on June 20, 1974, at which time the minor was placed on probation for six months. Before the end of that term, a petition was filed alleging that the minor had violated probation by committing assault. At a hearing held on November 26, 1974, the assault charge was dismissed. Nevertheless, the court extended the probationary period to January 16, 1975, on the recommendation of the probation officer. On January 16, 1975, the court again extended the probationary term to May 15, 1975. After a petition charging probation violation was filed on April 18, 1975, the minor’s probation was revoked at a hearing held on the following day, and the minor was committed to the Department of Corrections. The appellate court found that the Juvenile Court Act did not grant to the juvenile court the authority to extend an original probationary period in the absence of a finding that the conditions of probation had been violated. It stated:

“[W]e hold that the court lacked statutory authority to extend the probationary period, as the court first did on November 26, 1974, in the instant case. Therefore, we necessarily conclude that because the first extension was invalid, the subsequent extension of January 16, 1975, was invalid. *** Respondent [the minor] was not validly on probation as of April 18, 1975, so the court, on April 19, 1975, erroneously found respondent in violation of probation.” (Emphasis added.) (In re Sneed (1977), 48 Ill. App. 3d 364, 369-70.)

Accordingly, the appellate court reversed the finding of probation violation and vacated the order of commitment to the Department of Corrections. This court affirmed. In re Sneed (1978), 72 Ill. 2d 326.

In the present cases, the trial courts lacked the statutory authority under the Juvenile Court Act to place the minors on an indefinite term of probation. Those portions of the judgment granting probation for an indefinite term were consequently void and of no effect. Since each minor was not validly on probation at the time each was charged with a probation violation, the subsequent orders of revocation were likewise void.

Accordingly, we affirm the judgments of the appellate court with respect to R.H. and B.W.S. (cause Nos. 53344 and 53687, respectively). We affirm those portions of the judgments as to T.E. and S.C.G. (cause Nos. 53329 and 53716, respectively) which reverse the orders of probation and probation revocation but reverse the portions of the judgments which remanded the causes with directions to impose a definite term of probation and to determine if the probation violation occurred during such term. The orders of the circuit courts of McLean and Kankakee counties in cause Nos. 53329 and 53716, respectively, are reversed and the causes remanded to said circuit courts for further proceedings consistent with the views expressed herein.

53329 — Appellate court affirmed in part and reversed in part; circuit court reversed; cause remanded.

53344 — Judgment affirmed.

53687 — Judgment affirmed.

53 716 Appellate court affirmed in part and reversed in part; circuit court reversed; cause remanded.

MR. JUSTICE SIMON,

concurring:

Although I concur in the majority opinion and judgment, I feel it in order to observe that while the majority and dissent express different views of jurisdiction to revoke the probationary disposition in these cases, by accepting either approach the same result can be reached. Under the majority view the original dispositional orders were void. Consequently each minor is theoretically still subject to an appropriate dispositional order on the original adjudication of delinquency. Ill. Rev. Stat. 1977, ch. 37, par. 705-1.

Under the minority view the dispositions were voidable and the improper dispositions of probation for indefinite terms were waived because the minors did not appeal. Consequently each minor, upon revocation of the improper term of probation, received a new disposition (Ill. Rev. Stat. 1977, ch. 37, par. 705 — 3(6)). The new disposition was one he could have received on the original adjudication.

In either case the dispositional orders under which three minors were committed to the Department of Corrections and one now continues on a definite term of probation could have been properly entered under the authority of the original adjudication of delinquency.

MR. JUSTICE UNDERWOOD,

dissenting:

I do not agree that the trial court orders granting probation were void, and I find nothing in this court’s opinion in In re Sneed (1978), 72 Ill. 2d 326, which holds void an order granting probation for an indefinite period. That opinion simply indicated probation should be for specified periods, and invalidated, on due process grounds, an extension of the period of probation without notice, hearing, and a finding of violation.

It is undisputed that the trial courts in these consolidated cases had jurisdiction of the subject matter of these cases and of the persons of the involved minors. In these circumstances their acts in placing the minors on probation for an indefinite period were simply errors, correctable like any other error, by appeal. (People v. Holzapple (1956), 9 Ill. 2d 22.) The erroneous orders were voidable, not void, and, no appeal having been taken, the errors were waived. People v. Jennings (1952), 411 Ill. 2d 21, 26-27; People v. Rose (1969), 43 Ill. 2d 273, 279; People v. Core (1971), 48 Ill. 2d 544, 545-46.

RYAN and CLARK, JJ., join in this dissent.


author:
MR. JUSTICE UNDERWOOD
      MR. JUSTICE SIMON,

text:
    (No. 54022.
    JENNIFER JOHNSON, Appellant, v. THE BOARD OF EDUCATION OF DECATUR SCHOOL DISTRICT NO. 61, Appellee.

      Opinion filed June 26, 1981.

      Drach, Terrell & Deffenbaugh, P.C., of Springfield, for appellant.
    Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Decatur (John T. Taylor, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Plaintiff, Jennifer Johnson, a teacher in the Decatur high schools, sought a declaratory judgment and a writ of mandamus in the circuit court of Macon County. She alleged that she had been dismissed by the board of education of Decatur School District No. 61 of Macon County in violation of section 24 — 12 of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 24 — 12), which accords certain rights to those teachers who have entered upon “continued contractual service” (tenure). The circuit court found that plaintiff had not achieved tenure and denied the reinstatement and damages requested by her. The appellate court affirmed. (87 Ill. App. 3d 441.) We granted plaintiff’s petition for leave to appeal.

Plaintiff, who had taught in the district as a part-time teacher during a portion of the 1973-74 school term, served as a full-time high school art teacher for the 1974-75 and 1975-76 school terms. In March 1976 plaintiff was dismissed effective at the end of the 1975-76 term because of a shortage of funds. The sufficiency of the notice of dismissal is not questioned. Prior to the end of that term, however, the board offered and plaintiff accepted part-time work for the 1976-77 term teaching an art class at each of two separate high schools. During the 1977-78 school term she taught art full time in a middle school in the district. In March 1978, on adate which the parties agree was more than 60 days prior to the end of the 1977-78 term, plaintiff received a notice by registered mail, stating that she would not be reemployed during the ensuing year. No hearing was scheduled by the board in connection with the 1978 dismissal, as would have been necessary for a tenured teacher. Plaintiff did not work for the board in any capacity during the 1978-79 school term, although two nontenured full-time art teachers were employed by the board during that term.

Section 24 — 11 of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 24 — 11) provides, in part:

“Sec. 24 — 11. Boards of Education — Boards of School Inspectors — Contractual continued service. As used in this and the succeeding Sections of this Article, ‘teacher’ means any or all school district employees regularly required to be certified under laws relating to the certification of teachers, ‘board’ means board of directors, board of education or board of school inspectors, as the case may be, and ‘school term’ means that portion of the school year, July 1 to the following June 30, when school is in actual session. This Section and Sections 24 — 12 through 24 — 16 of this Article apply only to school districts having less than 500,000 inhabitants.
Any teacher who has been employed in any district as a full-time teacher for a probationary period of 2 consecutive school terms shall enter upon contractual continued service unless given written notice of dismissal stating the specific reason therefor, by registered mail by the employing board at least 60 days before the end of such period. If, however, a teacher has not had one school term of full-time teaching experience before the beginning of such probationary period, the employing board may at its option extend such probationary period for one additional school term by giving the teacher written notice by registered mail at least 60 days before the end of the second school term of the period of 2 consecutive school terms referred to above. Such notice must state the reasons for the one year extension and must outline the corrective actions which the teacher should take to satisfactorily complete probation.
Any full-time teacher who is completing the first year of the probationary period described in the preceding paragraph, or any teacher employed on a full-time basis not later than January 1 of the school term, shall receive written notice from the employing board at least 60 days before the end of any school term whether or not he will be re-employed for the following school term. If the board fails to give such notice, the employee shall be deemed reemployed, and not later than the close of the then current school term the board shall issue a regular contract to the employee as though the board had reemployed him in the usual manner.
Contractual continued service shall continue in effect the terms and provisions of the contract with the teacher during the last school term of the probationary period, subject to this Act and the lawful regulations of the employing board.”

Section 24 — 12 of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 24 — 12) provides, in part:

“Sec. 24 — 12. Removal or dismissal of teachers in contractual continued service. If a teacher in contractual continued service is removed or dismissed as a result of a decision of the board to decrease the number of teachers employed by the board or to discontinue some particular type of teaching service, written notice shall be given the teacher by registered mail at least 60 days before the end of the school term, together with a statement of honorable dismissal and the reason therefor, and in all such cases the board shall first remove or dismiss all teachers who have not entered upon contractual continued service before removing or dismissing any teacher who has entered upon contractual continued service and who is legally qualified to hold a position currently held by a teacher who has not entered upon contractual continued service. *** If the board within 1 calendar year thereafter increases the number of teachers or reinstates the position so discontinued, the positions thereby becoming available shall be tendered to the teachers so removed or dismissed so far as they are legally qualified to hold such positions.
If a dismissal or removal is sought for any other reason or cause, including those under Section 10 — 22.4, the board must first approve a motion containing specific charges by a majority vote of all its members. Unless the teacher within 10 days requests in writing of the board that no hearing be scheduled, the board shall schedule a hearing on those charges before a disinterested hearing officer on a date no less than 30 nor more than 60 days after the enactment of the motion. Written notice of such charges shall be served upon the teacher at least 21 days before the hearing date. Such notice shall contain a bill of particulars. ***.
Before setting a hearing on charges stemming from causes that are considered remediable, a board must give the teacher reasonable warning in writing, stating specifically the causes which, if not removed, may result in charges.”

Both of the quoted sections conclude with paragraphs requiring full-time teaching service, or its statutorily defined equivalent, in order to achieve tenure in the special education and junior college programs.

Since the March 1976 written notice of dismissal stated a specific reason, was sent by registered mail, and was received more than 60 days prior to the end of the 1975-76 term, it satisfied the requirements of section 24 — 11 concerning dismissal of a teacher in the second consecutive probationary term. The March 1978 written notice of dismissal was received more than 60 days prior to the end of the 1977-78 term, thus it satisfied the requirements of section 24 — 11 concerning dismissal of a teacher in the first of two consecutive probationary terms. Plaintiff claims, however, that she was not properly dismissed in 1978 because the board did not comply with requirements of section 24 — 12 concerning dismissal of teachers who have attained tenure. The board neither scheduled a hearing in connnection with the 1978 dismissal, as would be required in the case of dismissal of a tenured teacher for cause, nor offered the plaintiff one of the full-time art teacher positions occupied by nontenured teachers during the 1978-79 term. Plaintiff bases her claim that she was a tenured teacher during the 1977-78 term on the fact that, despite the 1976 notice of dismissal, she had been employed in a part-time position during a school term (1976-77) immediately following two consecutive terms (1974-75 and 1975-76) of full-time teaching. This case thus presents the question whether, after a second-term probationary teacher has received an appropriate notice of dismissal from her employing board, she should be accorded tenure rights by reason of subsequent part-time work for the same board.

The dispositive factor in our consideration is a determination of the intent of the legislature in enacting sections 24 — 11 and 24 — 12 of the School Code. One objective of teacher tenure is “to assure continuous service on the part of teachers of ability and experience.” (Lenard v. Board of Education (1979), 74 Ill. 2d 260, 268.) The tenure system is, we believe, intended to provide continuity and stability for students; provide some degree of job security, thus affording teachers the ability to pursue a career free from arbitrary hiring and firing; attract teachers of high quality; and retain experienced teachers. Since, however, the statutes create liabilities where none would otherwise exist, they must be strictly construed in order not to unduly interfere with the responsibility of local boards to efficiently operate the educational systems. Illinois Education Association Local Community High School District 218 v. Board of Education (1975), 62 Ill. 2d 127.

Section 24 — 11 focuses on the notice of dismissal as the operative fact in preventing tenure from arising. The statute gives teachers considerable protection, since it requires that the board take action in order to prevent tenure and treats silence as resulting in tenure. Once an appropriate notice of dismissal is given to a teacher completing his second consecutive probationary term, however, no tenure rights result, in the absence of some proof of intent to circumvent the spirit of the statute. Since plaintiff was given an appropriate notice in March 1976, she cannot be said to have had any tenure rights later in 1976, when she was offered the part-time employment.

This court recently stated:

“ ‘Contractual continued service shall continue in effect the terms and provisions of the contract with the teacher during the last school term of the probationary period’ or continue at a salary not reduced from that of the previous year, except under specified conditions. (Ill. Rev. Stat. 1977, ch. 122, par. 24 — 11.) For this reason, among others, the terms of continued employment for a tenured teacher differ from those of the average employment contract. Under the latter, the employer offers a salary, the amount being totally discretionary, in exchange for a particular job performance, and if the employee is unwilling to accept the terms, employment may be terminated. A tenured teacher, however, has the option of declining the new contract and continuing employment, under the provisions of the School Code, at a salary and according to the terms of the prior year’s contract.” (Bond v. Board of Education (1980), 81 Ill. 2d 242, 249-50.)

In the present case the plaintiff, after receiving her 1976 notice of dismissal, did not qualify for the latter category. If she had rejected the board’s subsequent offer of part-time employment she would have had no right to continued employment. The offer and acceptance of that part-time employment could not alone raise her status to that of a tenured teacher in view of the earlier dismissal. The fact that the 1976 notice did not denigrate plaintiff’s abilities is not relevant, since the purpose of the probationary period is not only to test the teacher’s ability, but also to assess whether such talents are needed by the employing school. Our conclusions are similar to those of the courts of New York, which do not generally treat part-time teaching as sufficient to constitute service for the purpose of acquiring tenure (In re Rosenberg (1976), 51 App. Div. 2d 551, 378 N.Y.S.2d 433; In re Nyboe (1958), 7 App. Div. 2d 822, 181 N.Y.S.2d 132; see In re Becker (1961), 9 N.Y.2d 111, 172 N.E.2d 568, 211 N.Y.S.2d 193), although part-time service is sometimes relied upon by those courts to find acquiescence and estoppel in cases where the employing board fails to take formal action to deny tenure. (See In re Matthews (1979), 67 App. Div. 2d 790, 412 N.Y.S.2d 501; In re Dwyer (1978), 61 App. Div. 2d 859, 402 N.Y.S.2d 67.) In the present case, of course, the board had taken action in 1976 to prevent tenure from accruing.

Our statute emphasizes the necessary relationship between full-time teaching and tenure. Section 24 — 11, after requiring that a candidate for tenure serve as a full-time teacher for a probationary period of two consecutive terms, states the effect of “contractual continued service”:

“Contractual continued service shall continue in effect the terms and provisions of the contract with the teacher during the last school term of the probationary period, subject to this Act and the lawful regulations of the employing board.” (Ill. Rev. Stat. 1977, ch. 122, par. 24-11.)

“Contractual continued service” thus continues in effect the full-time service of the preceding two terms. Even if employment in the term immediately following the two probationary terms were to be sufficient alone, despite appropriate notice, to confer tenure rights, such employment would need to be on conditions equal to those of the employment during the last term of the probationary period, that is, employment on a full-time basis. Too, the General Assembly may have believed that part-time teaching allows a divided loyalty and the pursuit of other activities. It may have been regarded as indicating a lack of the devotion to a profession which was desirable where a grant of long-term job security is contemplated.

The fact that section 24 — 11 provides for extension of the two-term probationary period in the case of a teacher who does not have a third term of full-time teaching experience (see Glover v. Board of Education (1975), 62 Ill. 2d 122) emphasizes the fact that the tenure system has as its goal the continued service of “teachers of ability and experience” (emphasis added) (Lenard v. Board of Education (1979), 74 Ill. 2d 260, 268). Full-time teaching in the probationary period not only allows the board to observe the teacher under the stress of a full work load, but also gives the teacher experience. Full-time teaching after the probationary period and in the early stages of a teaching career continues to assure the board that skills will be properly developed so that the teacher retained will become an experienced, seasoned teacher. Plaintiff’s reliance on Brown v. Board of Education (1976), 38 Ill. App. 3d 403, is misplaced. In Brown the appellate court held that a teacher who had taught full time from 1957 to 1972, acquiring tenure in 1959, did not lose that tenure merely because she had, because of poor health, taught half time during the 1972 — 73 school term. Part-time teaching agreed to by an experienced teacher who has tenure at the time of agreement may not cause that teacher to lose tenure, but part-time teaching cannot be relied upon by a nontenured teacher to establish tenure.

Courts of other States have discussed, in cases not cited by the parties, the relationship of their teacher-tenure statutes to those teaching part time. (Independent School District No. 10 v. Lollar (Okla. Ct. App. 1976), 547 P.2d 1324; State v. Redman (Alaska 1971), 491 P.2d 157; Frye v. School Committee (1938), 300 Mass. 537, 16 N.E.2d 41; Sherrod v. Lawrenceburg School City (1938), 213 Ind. 392, 12 N.E.2d 944.) It does not appear, however, that the statutes involved in those cases emphasized full-time employment to the extent our General Assembly has.

If the legislature had intended to accord tenure rights to those who teach on less than a full-time basis it would surely have given some guidance with respect to the difficult questions which would result. Foremost among these is determining the amount of teaching which would be sufficient to entitle one to tenure. Equitable treatment of those referred to as “substitute” teachers might be particularly difficult to achieve. (See Ryan v. Superintendent of Schools (1973), 363 Mass. 731, 297 N.E.2d 37.) Another problem is that of determining the nature of the tenure achieved by those teaching less than full time. If part-time teaching could result in tenure rights to full-time employment, districts which employ part-time teachers would have more “fully tenured” teachers than they have full-time teaching positions. Such proliferation of “fully tenured” teachers could, conceivably, result in an abundance of part-time teachers who would be preferred for full-time positions over career-oriented new teachers seeking full-time positions. If, on the other hand, tenure rights were to be fractionalized, the complications are obvious. School administrators would need to fit the “fractionally tenured” teachers together like a jigsaw puzzle. The growing number of “fractionally tenured” part-time teachers might undermine the desirable continuity and stability normally afforded students by full-time teachers, who have time to develop greater rapport with their students. Problems such as these may have been the reason for the General Assembly’s emphasis upon the relationship between full-time teaching and tenure. In any event, given that emphasis, we believe the statute must be applied as we have interpreted it here. Accordingly, the judgment of the appellate court is affirmed.

Judgment affirmed.

MR. JUSTICE SIMON,

dissenting:

The majority reasons that Ms. Johnson, the teacher, had not achieved tenure and consequently was properly terminated. I disagree on the question of tenure. Although the school board here gave the teacher a notice that she would be dismissed at the end of the 1975-76 school year, it changed its mind before the dismissal took effect. It offered to continue her employment in the following school year, but only part time. The board thereby waived or withdrew its dismissal notice, particularly inasmuch as retaining her was not conditioned in any way upon the notice remaining valid. The continued employment of a teacher in a teaching capacity after the successful completion of 2 years of probationary service should be enough to grant the teacher tenure, even though the teacher is given a reduced teaching load.

The teacher-tenure statute (Ill. Rev. Stat. 1977, ch. 122, par. 24 — 11) is specific in requiring that probationary service be full time. There is no corresponding requirement that tenure, or “contractual continued service” as it is called, be full time. Tenured service is to be under the same “terms and provisions” as the last term of the probationary period, but nothing in the statute indicates that the teaching load is to be identical. The statute provides specifically for transfers and salary reductions, but places no limitation on the power of the school board and teacher to agree to reduce a teaching load to part time. I believe that this was not an oversight, but is consistent with the object of the tenure system.

The purpose of tenure is to assure teachers of ability and experience a continuous service, with rehiring based upon merit instead of partisan, political, or capricious reasons. (Donahoo v. Board of Education (1952), 413 Ill. 422, 425.) When teachers pass from probation to tenure they must do so on the basis of their performance. The statute is so drafted that continued hiring by the school board is presumed to be a favorable comment on the teacher’s performance.

Continued hiring of a teacher, even only under a reduced teaching load, is also a favorable comment on the teacher’s performance, especially when, as was the case here, the reason for the part-time hiring was shortage of funds and had nothing to do with the teacher’s professional performance. The board concedes that here the teacher was initially notified that she would be dismissed at the end of the school year because of the need to decrease the number of teachers employed. Her abilities and experience had nothing to do with the reduction. It was not unreasonable to conclude that, if the board could have found the necessary funding to continue an educational program calling for the teacher’s talents, she would have been retained. When, therefore, she was not dismissed at the end of the year, but instead was offered continued part-time service, the proper conclusion would be that she had demonstrated to the board’s satisfaction the teaching ability and 2 years’ experience necessary to achieve tenure.

At the end of the 1975-76 school term, the school board had three options. It could dismiss Ms. Johnson. It could rehire her, thus granting her tenure. Or it could extend her probationary term for another year (see Glover v. Board of Education (1975), 62 Ill. 2d 122). The board chose to rehire her without extending her probationary status. I believe that the circumstances surrounding the rehiring of Ms. Johnson after 2 years of successful probationary teaching demonstrated the board’s intention to grant her tenure.

The tenure requirements of school systems in other States are instructive. Massachusetts makes no distinction between full- and part-time teaching for tenure purposes, so long as the employment has been substantial. (Frye v. School Committee (1938), 300 Mass. 537, 540, 16 N.E.2d 41, 42.) Indiana also makes no distinction because, like our statute, its “law does not require that teachers shall teach every day, or every hour of every day. Such subjects as art or music may require fewer hours of teaching.” (Sherrod v. Lawrenceburg School City (1938), 213 Ind. 392, 394, 12 N.E.2d 944, 944-45.) Ms. Johnson is an art teacher.

Oklahoma treats full- and part-time teachers the same because its statute does not make separate classifications for full- and part-time teaching. (Independent School District No. 10 v. Lollar (Okla. Ct. App. 1976), 547 P.2d 1324.) And in Alaska, tenure is given to those whose statutory time in service has “afforded the Board of Education an adequate opportunity to observe the quality of [their] performance. *** When such a teacher’s duties are regular and substantial enough to afford intelligent evaluation, we perceive little in the way of persuasive policy considerations for excluding such service from the ambit of our tenure laws.” (State v. Redman (Alaska 1971), 491 P.2d 157, 159.) Alaska treats full- and part-time teaching the same.

Even in those States where part-time service does not count towards obtaining tenure (see, e.g., In re Nyboe (1958), 7 App. Div. 2d 822, 181 N.Y.S.2d 132), that rule does not apply to part-time service following the completion of a full-time probationary period. (In re Matthews (1979), 67 App. Div. 2d 790, 792, 412 N.Y.S.2d 501, 503.) “All petitioner need show is that she continued in [the board’s] employ beyond the probationary term and that she continued to receive her salary with the knowledge and consent of the [board].” (In re Dwyer (1978), 61 App. Div. 2d 859, 402 N.Y.S.2d 67, 68.) So long as our statute does not make a distinction between full- and part-time teaching for purposes of tenure after 2 years of full-time teaching during the probationary period has been satisfied, I believe that no such distinction should be created.

Practically speaking, our schools currently face unprecedented difficulties as bloated teaching staffs must be trimmed to meet declining enrollments. The necessary consequence in many cases may be that full-time teachers will have to take salary cuts or reduce their teaching loads. Doing either should not reflect on their status as tenured teachers. Accepting higher pay or increased teaching loads did not affect tenure status when staffs were low and enrollments high; accepting lower salaries or decreased teaching loads should not affect tenure status when the situation is reversed. The majority points out some of the difficulties school boards will face when they have more tenured teachers than can be employed full time. Where teachers are willing to reduce their teaching to a part-time schedule in the face of decreased demand for their services, I do not believe they should also suffer denial of tenure. I respectfully dissent.