author: JUSTICE CLARK

text:
    (Nos. 55163, 55262 cons.
    CHESTER M. LONG et al., Appellees and Appellants, v. THE CITY OF NEW BOSTON et al., Appellants and Appellees.

      Opinion filed June 18, 1982.
    Rehearing denied October 1, 1982.

      Braud, Warner, Neppl & Westensee, Ltd., of Rock Island (Dennis A. De Porter, of counsel), for appellees and appellants Chester M. Long and Mary Lou Long.
    Bozeman, Neighbour, Patton & Noe, of Moline (Robert J. Noe and Max D. Cartwright, of counsel), for appellant and appellee City of New Boston.
    Samuel S. McHard, of Katz, McAndrews, Durkee, Balch & Lefstein, of Rock Island, for appellant and appellee Clair Riley.
   JUSTICE CLARK

delivered the opinion of the court:

On November 30, 1977, Chester Long was among a group of civic volunteers assisting in stringing Christmas lights over the main street of New Boston, Illinois. The Christmas decorations were a project of the city of New Boston (the city) and the New Boston American Legion Post No. 48, which had jointly purchased the lights in 1972. In the course of attaching a string of lights to a utility pole, Long was atop a ladder which was leaning against the pole, and which it is alleged no one was holding. The ladder moved, Long lost his balance, fell, and was seriously injured.

Mr. and Mrs. Long sued the city, the American Legion, and Clair Riley, the latter individually and in his capacity as mayor of New Boston. Mr. Long sought recovery for his injuries, and Mrs. Long for loss of consortium. The amended complaint was in 10 counts. Counts I through IV were directed against the city and the American Legion and were premised on liability under the Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 60 et seq.). Counts V through X charged all three defendants with negligence.

Defendants moved to dismiss the amended complaint, contending that the Structural Work Act was inapplicable to Long or to the activity in which he had been engaged. As to the negligence counts, defendants contended that they had breached no duty to Long, since he was a volunteer, and they owed him only the duty to refrain from wilful and wanton misconduct. The circuit court of Mercer County granted the defendants’ motions and dismissed the complaint on June 30,1980.

On appeal by the plaintiffs, the appellate court affirmed the judgment of dismissal of the negligence counts. The court held that on the face of the complaint Long was guilty of contributory negligence as a matter of law, and that he was therefore precluded from recovering on a negligence theory. However, the appellate court reversed the circuit court’s dismissal of the Structural Work Act counts. 95 Ill. App. 3d 430.

The city petitioned this court for leave to appeal the judgment with respect to the Structural Work Act counts, and plaintiffs petitioned for leave to appeal the appellate court’s judgment with respect to the negligence counts. We granted both petitions and consolidated the appeals.

We first consider whether the negligence counts of the complaint were correctly dismissed.

In its opinion, filed April 30, 1981, the appellate court affirmed the circuit court’s dismissal of the negligence counts on the ground that the complaint revealed on its face that Long was contributorily negligent as a matter of law, and that his contributory negligence was a complete bar to his negligence action. The record shows that neither party raised the issue of contributory negligence or of comparative negligence in the circuit court or at the initial hearing before the appellate court. Plaintiffs contended in their petition for rehearing in the appellate court, and contend here, that because the appellate court rendered its decision after this court’s decision in Alvis v. Ribar was filed (April 17, 1981), the doctrine of comparative negligence announced in that decision is applicable to this cause, rather than the doctrine of contributory negligence applied by the appellate court.

The opinion of this court in Alvis v. Ribar, filed April 17, 1981, specifically stated that the rule announced therein should apply only “to the parties before us on appeal; (1) to all cases commenced after this decision becomes final; (2) to all cases already commenced in which trial has not yet begun; and (3) to all cases on appeal in which the applicability of the comparative negligence rule was raised and properly preserved for the purpose of appeal.” (Alvis v. Ribar, slip op. at 20 (April 17, 1981).) The instant case was commenced in October of 1978; and, as we have already noted, the applicability of the comparative negligence rule was not raised in the circuit court or until the petition for rehearing in the appellate court. Plaintiffs contend, however, that this case falls into the second category of cases to which the rule of Alvis was stated to be applicable, because although it was commenced before Alvis was decided, no trial has yet begun. We think this contention must fail. The circuit court’s judgment dismissing plaintiffs’ complaint was a determination of the merits of plaintiffs’ claims with respect to the legal issues it presented. For the purpose of deciding whether a case is one to which the Alvis rule is applicable, a trial means a judicial determination of the merits of either the legal or the factual issues between the parties. (People v. Vitale (1936), 364 Ill. 589, 592.) A dismissal for failure to state a cause of action is such a determination.

We note, moreover, that in the revised opinion issued after rehearing, this court modified the above-quoted portion of Alvis v. Ribar to read:

“We hold that this opinion shall be applied to the parties before us on appeal and to all cases in which trial commences on or after June 8, 1981, the date on which the mandate in this case shall issue. This opinion shall not be applicable to any case in which trial commenced before that date — except that if any judgment be reversed on appeal for other reasons, this opinion shall be applicable to any retrial.” (Alvis v. Ribar (1981), 85 Ill. 2d 1, 28.)

Though decisions of this court are final when the opinion is filed (PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, 304-05), a later modification of a filed opinion supersedes and vacates the earlier opinion. Consequently, the above-quoted language from the modified opinion in Alvis v. Ribar states the criterion for when the doctrine of comparative negligence shall be applicable. The instant case obviously does not meet the test.

Having determined that the disposition of this case is governed by the doctrine of contributory negligence rather than that of comparative negligence, we return to consideration of the primary issue: whether the appellate court correctly affirmed the circuit court’s dismissal of the negligence counts of the complaint. As previously noted, the appellate court held that the dismissal was proper because it found the allegations of the complaint established as a matter of law that plaintiff was eontributorily negligent.

Under the law prior to Alvis v. Ribar, a plaintiff was required to prove his own exercise of due care as an essential element of his negligence action. (Carter v. Winter (1965), 32 Ill. 2d 275, 282; see Alvis v. Ribar (1981), 85 Ill. 2d 1, 6.) The absence of such a showing, or sufficient affirmative evidence of contributory negligence, was a complete bar to recovery. (Mueller v. Sangamo Construction Co. (1975), 61 Ill. 2d 441, 446; Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 425; Maki v. Frelk (1968), 40 Ill. 2d 193, 195.) Despite early statements to the contrary (Consolidated Coal Co. v. Wombacher (1890), 134 Ill. 57, 63), Illinois courts consistently held that the plaintiff had the burden of pleading freedom from contributory negligence, as well as the burden of proof on that issue (Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 424; Angelini v. Snow (1978), 58 Ill. App. 3d 116, 117; Williams v. Rock River Savings & Loan Association (1964), 51 Ill. App. 2d 5, 13; Riordan v. Chicago City Ry. Co. (1913), 178 Ill. App. 323, 327-28). Consequently, it was held that a complaint that lacked a sufficient allegation of the plaintiff’s due care or disclosed contributory negligence on its face failed to state a cause of action and was subject to a motion to dismiss. (Williams v. Rock River Savings & Loan Association (1964), 51 Ill. App. 2d 5, 13; Thoele v. Mazel (1955), 8 Ill. App. 2d 237 (abstract of decision); Stephens v. Illinois Central R.R. Co. (1930), 256 Ill. App. 111, 124-25.) Alvis v. Ribar has, of course, rendered these holdings obsolete; we note them only as they are relevant to the decision here.

Rules also developed for deciding when it was proper for the court to determine the presence or absence of contributory negligence as a matter of law, rather than leaving it to the jury as an issue of fact. This court, in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, established a single standard for determining both when contributory negligence may properly be considered by the court as a matter of law, and when a directed verdict or judgment n.o.v. should be entered: when “all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” 37 Ill. 2d 494, 510; Mundt v. Ragnar Benson, Inc. (1975), 61 Ill. 2d 151, 156-57.

The facts alleged in the complaint, which are admitted by a motion to dismiss and are therefore taken as true (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 187), are that Long ascended an unbraced, unsecured ladder that was leaning against a utility pole, to a height of 20 to 25 feet above the street. Applying the above standard, we agree with the appellate court that these facts demonstrate that Long was contributorily negligent as a matter of law.

Contributory negligence is lack of due care for one’s safety as measured by the objective reasonable-man standard. (Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 425.) In other words, the plaintiff is required to exercise that care which the reasonably prudent person would take to avoid injury in like circumstances. McInturff v. Chicago Title & Trust Co. (1968), 102 Ill. App. 2d 39, 47-48.

Failure to observe and avoid danger which is obvious to a person of ordinary intelligence has been held to be contributory negligence in numerous cases. In Mundt v. Ragnar Benson, Inc. (1975), 61 Ill. 2d 151, this court held that the plaintiff was contributorily negligent in proceeding in darkness into an area of an uncompleted building where he was aware there was an unprotected opening, through which he fell. A plaintiff who was struck by a car while attempting to cross an 8-lane highway in heavy traffic, at a point where there was no intersection or pedestrian crosswalk, although there was a pedestrian overpass within a block of the occurrence, was held to have been contributorily negligent. (Klimovich v. Crutcher (1965), 57 Ill. App. 2d 444.) In Dandurand v. Chebanse Recreation Center (1972), 8 Ill. App. 3d 508, plaintiff, a nonswimmer, was held to have been contributorily negligent when he was drowned after leaving the shallow water designated for nonswimmers and attempting to reach a raft that he had been told was in deep water.

The risk of electrocution inherent in installing a television antenna in close proximity to a power line was held to be an obvious danger, and plaintiffs who received an electric shock while so engaged were held contributorily negligent, in Stambaugh v. Central Illinois Light Co. (1976), 42 Ill. App. 3d 582, and Withey v. Illinois Power Co. (1961), 32 Ill. App. 2d 163. (See also Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 469.) Similarly, the risks of slipping and falling on a wet, muddy floor (Murray v. Bedell Co. (1930), 256 Ill. App. 247) and on snow-covered steps (Starns v. Postawko (1952), 347 Ill. App. 77 (abstract of decision)), were regarded as obvious risks of which the plaintiff should have been aware, and proceeding in the face of them was held to demonstrate a lack of due care under the circumstances.

We think that the risk inherent in climbing an unbraced, unsecured ladder to a height of 20 feet or more is obvious to the person of ordinary intelligence, and that climbing a ladder under such circumstances demonstrates a lack of the care for his own safety that a reasonably prudent person would exercise. We note that plaintiffs’ accusation that defendants acted unreasonably in failing to brace the ladder or to provide a person to secure it is an assertion that reasonable persons would recognize the risk of climbing an unbraced, unsecured ladder to such a height. Long in effect admits that his action was unreasonable, since if the danger should have been apparent to the defendants, it should have been equally so to him. We hold that the negligence counts of the complaint were properly dismissed.

We next consider whether the complaint states a cause of action under the Structural Work Act. The purpose of that act is stated in its preamble:

“An Act providing for the protection and safety of persons in and about the construction, repairing, alteration, or removal of buildings, bridges, viaducts, and other structures, and to provide for the enforcement thereof.” (Ill. Rev. Stat. 1977, ch. 48, par. 60.)

Section 1 of the Act provides:

“[A]ll scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon ***.” (Ill. Rev. Stat. 1977, ch. 48, par. 60.)

Under section 9 of the Act, a right of action accrues to persons injured by wilful violations of the Act or wilful failure to comply with its provisions. Ill. Rev. Stat. 1977, ch. 48, par. 69.

The appellate court held that the Structural Work Act applied to the facts of this case. It found that the “system of utility poles and lights which decorated the City of New Boston” was a structure within the meaning of the Act. It further found that the activity in which plaintiff Long was engaged on the ladder amounted to the erection of a structure under the Act. 95 Ill. App. 3d 430, 434.

The Structural Work Act is not applicable to any work that requires the use of a ladder. Rather the Act’s application is limited to the use of ladders in performing specified activities upon structures, listed in the statute: “erection, repairing, alteration, removal or painting ***.” (Ill. Rev. Stat. 1977, ch. 48, par. 60.) The issue, then, is: Was plaintiff, while on a ladder, engaged in an activity within the purview of the Act?

This court has never decided whether either an individual utility pole, or the network of wires, cables and utility poles that constitutes a power company’s system for the delivery of electricity, is a structure within the meaning of the Structural Work Act. In determining that the “system” consisting of the utility pole together with the decorative Christmas lights met the statutory requirement that the activity be performed on a structure, the appellate court relied on Navlyt v. Kalinich (1972), 53 Ill. 2d 137, and Wood v. Commonwealth Edison Co. (N.D. Ill. 1972), 343 F. Supp. 1270.

In Navlyt v. Kalinich, plaintiffs’ decedent was killed by the collapse of a trench in which he was installing sewer tiles in connection with the construction of two townhouses. The complaint alleged that the sewer system was being installed as an integral part of the structures being erected. This court agreed with the appellate court’s conclusion that “ ‘plaintiffs’ decedent was working upon a sewer system which we clearly conceive to be a “structure” under the Structural Work Act either considered by itself or as an integral part of the buildings being erected on a construction site.’ ” 53 Ill. 2d 137, 138-39, quoting Navlyt v. Kalinich (1970), 125 Ill. App. 2d 290, 295.

In Wood v. Commonwealth Edison Co., the plaintiff was injured when, while stringing wire, he fell from a wooden utility pole owned by the defendant electric company. The Federal district court held that the Structural Work Act applied to the case. It found that the pole, together with its crossbeams and the wire strung therefrom, met the statutory requirement of a structure. Because plaintiff was using the pole, a part of the structure, as a temporary scaffolding or support upon which to stand while altering the structure itself by stringing additional wire from it, the complaint was held sufficient to withstand a motion for summary judgment. 343 F. Supp. 1270, 1271.

We do not think that these cases provide a basis for concluding that a string of decorative lights, in combination with a utility pole previously erected for the purpose of transmitting electric power, form a “system” or “network” that constitutes a structure under the Act. Consequently, we hold that Long’s activity on the ladder could not amount to the erection of a structure.

Plaintiffs argue alternatively that the attachment of the lights to the pole constitutes the “alteration *** of a *** structure,” and is thus within the purview of the Act. To take this position is to assume that the utility pole itself is a structure, which Long was altering by the addition of a string of lights. Assuming for the sake of argument that a utility pole is a structure, however, plaintiffs’ contention still must fail, because Long was not engaged in an alteration of that structure. What he was doing was not related to the pole as a structure for the transmission of electricity; it is not analogous to the activity of a lineman replacing a rotted crossbeam or stringing new cable on a utility pole. Long’s activity was only incidentally and fortuitously concerned with the utility pole. Had he been attaching the lights to a tree when he fell from the ladder, clearly he could not claim he was engaged in the erection or alteration of a structure, and we think the fact that he happened to be attaching them to a utility pole does not alter the nature of his activity.

To state a cause of action under the Structural Work Act, a plaintiff must have been engaged in one of the structural activities specified in the Act when the injury occurred. Several decisions of the appellate court have held that the plaintiff could not recover under the Act because of the nature of the activity in which he was engaged. In Wright v. Synergistics, Inc. (1977), 52 Ill. App. 3d 233, a cafeteria worker was injured when she walked across a scaffold in leaving her place of work. The appellate court noted that the plaintiff was not involved in the construction, alteration or repair of any structure or building, but appeared to be using the scaffold merely as a convenient means of getting from one place to another. The court distinguished its earlier decision in Bennett v. Musgrave (1970), 130 Ill. App. 2d 891, which held that a nonemployee who, while inspecting a construction site at the owner’s request, was struck by a wrench that fell from a scaffold could recover under the Structural Work Act. The Wright court pointed out that the plaintiff in Bennett, though not a tradesman, worker, or employee, was “concerned with the building of a structure and playing a role in the construction project,” in distinction to the plaintiff in Wright. Wright v. Synergistics, Inc. (1977), 52 Ill. App. 3d 233, 236; see Bitner v. Lester B. Knight & Associates, Inc. (1974), 16 Ill. App. 3d 857; Kelly v. Northwest Community Hospital (1978), 66 Ill. App. 3d 679.

For the foregoing reasons, we hold that the complaint fails to state a cause of action under the Structural Work Act. The judgment of the appellate court is accordingly reversed in part and affirmed in part; the judgment of the circuit court of Mercer County is affirmed.

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


source: Caselaw Access Project

author: JUSTICE UNDERWOOD

license: Public Domain

text:
    (No. 56022.

      In re CLAUDIA K., a Minor, Appellee (Wauconda School District No. 118 et al., Appellants).

      Opinion filed June 1, 1982.
    Rehearing denied October 1, 1982.

      Brydges, Riseborough, Morris, Franke & Miller, of Waukegan (Ralph Miller, Leo J. Athas, and John M. Collins, Jr., of counsel), for appellants.
    Brooke R. Whitted and Matthew David Cohen, of Canel, Aronson & Whitted, of Chicago, for appellee.
    Julia Quinn Dempsey, Bernetta D. Bush, and Eugene M. Daly, for amici curiae State Board of Education, and Dr. Donald G. Gill, State Superintendent of Education.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Respondents, Wauconda School District No. 118 and the Special Education District of Lake County (collectively referred to here as the District), appeal from a judgment of the circuit court of Lake County issuing a writ of mandamus commanding the District to pay care and treatment costs for Claudia K., a minor ward of the court. We allowed a motion under Rule 302(b) to transfer the appeal from the appellate court to this court. 73 Ill. 2d R. 302(b).

Claudia K., who had received “A’s” and “B’s” in ninth grade, was not doing well when she quit school in the 10th grade. The record does not reflect the date she stopped attending, but she was not enrolled in September 1980. During that month, and just a short time before her 17th birthday, she was arrested in a tavern and taken to the police station. She struggled with an officer, kicking him several times, and when placed in a cell she started a fire by igniting the blankets. A delinquency petition was subsequently filed charging her with arson, and she was held in a youth detention home because of her past “psychiatric history.” The court also ordered that psychiatric diagnostic tests be conducted. Her mother, Mrs. L, refused to let Claudia come back home. At the subsequent hearing Claudia admitted the arson charge, and her mother and stepfather, after relating her three attempted suicides and their inability to control her, again refused to take her home. The court ordered Claudia placed in a foster home, and the cause was continued for further reports and consideration. In October she was adjudged a delinquent, placed on probation and continued in the foster home.

In December, the court was informed by the probation department that Claudia’s psychologist had recommended that she be transferred from Ravenswood Hospital to Barclay Hospital. There is no explanation in the record how or why Claudia was in Ravenswood, but the transfer request was in part due to the expiration of her benefits under a public aid program. The court directed that she be placed in Barclay for about two weeks, and ordered Lake County to pay the substantial costs amounting to $235 per day for the hospital and $400 per week in psychiatrist’s fees. In February 1981, Claudia was admitted to Ridge-way Hospital, an institution serviced by Associates in Adolescent Psychiatry, S.C. (AAP).

In April a supplemental petition was filed by the State’s Attorney to change Claudia’s status to that of a neglected minor. After hearing the testimony that she was actively suicidal, subject to severe mood swings and bouts of deep depression, and that, if released, she would probably commit suicide, the court vacated its previous adjudication of delinquency and adjudged Claudia a neglected minor. The Department of Children and Family Services (DCFS) was appointed temporary guardian; and the administrator of Ridgeway Hospital was ordered not to release Claudia except on notice to the probation department and then to release her only to the probation officer. The District was admonished to complete its case study evaluation of Claudia, whose mother had apparently reenrolled her in school in March, including participation from DCFS and DMHDD (Department of Mental Health and Developmental Disabilities).

The District’s involvement in this case results from obligations imposed upon it by Federal legislation (Education for All Handicapped Children Act of 1975, 20 U.S.C. sec. 1401 et seq. (1976)), and regulations promulgated thereunder (34 C.F.R. pt. 300 (1981)), together with the School Code (Ill. Rev. Stat. 1979, ch. 122, pars. 14-1 through 14-14.01) and rules promulgated thereunder by the Illinois State Board of Education (ISBE) (“Rules and Regulations for the Administration and Operation of Special Education in Illinois,” effective February 1, 1979; see 3 Ill. Reg. 932-1004 (Jan. 12, 1979), and subsequent amendments). Pursuant thereto the District must prepare, in conjunction with the parents of the child and representatives of other State agencies (i.e., DCFS, DMHDD) who might be involved at some point in providing related services, an Individualized Education Program (IEP) for every child eligible for special education services. Claudia’s IEP was not fully determined at the multidisciplinary staff conference because it was felt that she first needed to be stabilized — the IEP “to be implemented when suicidal issues are settled.” The School Code (Ill. Rev. Stat. 1979, ch. 122, par. 14 — 8.02) provides that either the parents or the District may appeal through an established administrative process if dissatisfied with the proposed IEP, but no appeal was taken.

In June Dr. Marvin Schwarz, Claudia’s attending physician and president of AAP, and Claudia’s mother (petitioners) sought a writ of mandamus to compel the District to place Claudia in an appropriate residential facility and to pay in full for all special education and related services. Following several hearings the court in July found that Claudia was a handicapped child eligible for special education and related services under both State and Federal laws and issued a writ commanding the District to place her in “an appropriate residential facility” and to assume “full financial responsibility” therefor.

In August Dr. Schwarz and Mrs. I. petitioned for a rule to show cause why the District should not be held in contempt, alleging the District had not made good-faith efforts to place Claudia. An amended order was thereafter entered directing placement by September 25. In November, after the District’s fruitless search of possible out-of-State facilities, which the court found was made in good faith, Claudia was still at Ridgeway Hospital, which had been providing her with free services and was complaining that it could not do so much longer. At this point, and after much argument and discussion, the court entered the order from which this appeal is taken. That order, which incorporated by reference earlier orders and findings, directed the District to assume total financial responsibility for Claudia’s care at Ridgeway from August 30 to December 14, 1981, including hospital expenses as well as fees for professional services rendered by AAR In addition the order provided that Claudia be transferred to Riveredge Hospital on December 14 for a period of diagnosis and evaluation until January 22, 1982. Costs of that care and treatment were to be paid in full by the District, which was also to pay for all ongoing treatment by AAP after December 14. The order was bottomed on the court’s findings that Claudia was a handicapped student entitled to special education and related services; that psychotherapy was a related service; that the District, despite its duty to do so, had failed to supply an appropriate residential placement for Claudia; that there were no appropriate State facilities available; and that Ridgeway Hospital was an appropriate placement.

The underlying problem in this case is one of liability for the cost of the intensive and expensive treatment ordered for Claudia. Simply stated, her mother and her doctor argue that the therapy she requires is necessary for her to make educational progress; therefore, under Federal and State law the District must provide it free. The District maintains that it has a responsibility to provide medical services only for diagnostic and evaluative purposes and that the treatment of her suicidal condition is a medical problem; therefore, psychotherapy, which the District considers a medical “curative” treatment, is outside its responsibility. Moreover the District argues that, because of the suicide problem, Claudia is uneducable and psychotherapy cannot be a service “related” to an educational program which cannot be developed. Many other issues are argued, but. in view of our conclusion we need discuss only the few which follow.

Claudia’s mother clearly has standing under the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, pars. 701-20, 704-1) to file petitions in juvenile actions involving her daughter. (Cf. In re Jennings (1977), 68 Ill. 2d 125, 129-31 (discussion of the operation of sections 1 — 20, 4 — 1, and 4 — 3).) Since she joined in the petition for the writ of mandamus there is no reason to address respondents’ argument that Dr. Schwarz and AAP did not have standing.

Respondents also contend that, in a proceeding under the Juvenile Court Act, the circuit court has no mandamus power other than that contained in section 5 — 8(2) of the Act, and that a school district is not an agency as therein specified and defined in section 1 — 6 (Ill. Rev. Stat. 1979, ch. 37, pars. 705 — 8(2) and 701 — 6). However, this court said in In re Greene (1979), 76 Ill. 2d 204, 213, “the juvenile court is simply a division of the circuit court (Ill. Rev. Stat. 1977, ch. 37, par. 701-8; People v. Jiles (1969), 43 Ill. 2d 145, 147) which, under article VI, section 9, of the Illinois Constitution of 1970, has jurisdiction of all justiciable matters.” The writ of mandamus was long known at common law (People ex rel. German Insurance Co. v. Williams (1893), 145 Ill. 573, 577; 55 C.J.S. Mandamus secs. 2(a), 6 (1948)) and has long been recognized to lie within the inherent power and jurisdiction of our circuit courts (e.g., People ex rel. Dickinson v. Board of Trade (1901), 193 Ill. 577, 580-81; see also People ex rel. Baird & Warner, Inc. v. Lindheimer (1939), 370 Ill. 424). Rather than restricting the general power and jurisdiction of the circuit court in a juvenile proceeding, as respondents contend is the effect of the language in section 5 — 8(2), it would appear from the scanty legislative history available that the sole purpose of that amendment was to make clear that the juvenile court could compel recalcitrant State custodial agencies to fulfill their obligations. (See comments of Sen. Netsch during Senate debates on S.B. 313, at 269 (May 24, 1979).) The cases of In re Washington (1976), 65 Ill. 2d 391, and In re Owen (1973), 54 Ill. 2d 104, relied on by petitioners, are inapposite here as both dealt with the power of a juvenile court to interfere in the internal administrative procedures of the Department of Corrections, and did not concern the power of the court, through mandamus, to compel compliance with statutory or constitutional duties.

Nor do we find merit in respondents’ present argument that they were not afforded a proper forum to contest the petition for the writ because juvenile proceedings are nonadversarial in nature and that the judge, who must act in the best interest of his ward, could not be impartial. Respondents were given ample opportunity to plead and to argue in the trial court, and at no time contended that the judge, because the action involved the rights of his ward, could not be impartial. Consequently, the issue was waived. Brown v. Lober (1979), 75 Ill. 2d 547, 556; People ex rel. Rappaport v. Drazek (1975), 30 Ill. App. 3d 310, 315.

The dispositive issue is whether the writ was properly issued in this case. Mandamus is appropriate only where there is a clear right to the requested relief, a clear duty on the part of the respondent to act, and clear authority in the respondent to comply with the terms of the writ. (United States ex rel. Girard Trust Co. v. Helvering (1937), 301 U.S. 540, 543, 81 L. Ed. 1272, 1277, 57 S. Ct. 855, 857; Horn v. Rincker (1981), 84 Ill. 2d 139, 148; People ex rel. Cannella v. City of Chicago (1955), 7 Ill. 2d 416, 418; People ex rel. Brecheisen v. Board of Review (1936), 363 Ill. 106, 112-13; Thornton, Ltd. v. Rosewell (1977), 51 Ill. App. 3d 373, 377; Naporano Metal & Iron Co. v. Secretary of Labor (3d Cir. 1976), 529 F.2d 537, 542; In re B & B Properties, Ltd. (N.D. Ga. 1976), 423 F. Supp. 23, 26; 52 Am. Jur. 2d Mandamus secs. 64, 73 (1970); 55 C.J.S. Mandamus sec. 12 (1948); see also People ex rel. Polen v. Hoehler (1950), 405 Ill. 322, 330; cf. West Side Organization Health Services Corp. v. Thompson (1980), 79 Ill. 2d 503; People ex rel. Maro v. Board of Auditors (1971), 48 Ill. 2d 202.) As this court said in People ex rel. Callahan v. Whealan (1934), 356 Ill. 328, 334, “It has been long the rule in this State that a relator in mandamus must show a clear and undoubted right to the relief prayed and a corresponding duty on the part of the respondent to do the act sought to be compelled.”

Many difficult questions are involved in the issues of Claudia’s “clear right” to the services which have been ordered to be provided and the “clear duty” of the District to provide them. Those questions include: the effect to be given Federal regulations in a State court where regulations of the designated State enforcement agency conflict; the effect, if any, of “letters of finding” by a Federal oversight agency which indicate State regulations are not in compliance with Federal guidelines; the effect of a Federal court’s order enjoining certain State enforcement agency practices where the agency has not altered its policy (see Gary B. v. Cronin (N.D. Ill. 1980), 542 F. Supp. 102, 3 Educ. for Handicapped L. Rep. 552:144), as well as an overriding concern as to how to implement a Federal program which arguably mandates comprehensive care plans without providing sufficient resources for implementation. It will suffice to discuss only whether a clear duty existed on the District’s part.

It is contended by the District that it has no power or authority to place Claudia in an institution which is not approved for placement by the Illinois State Board of Edueation and that neither Ridgeway Hospital nor Riveredge Hospital is an approved institution. Petitioners have apparently conceded that the two hospitals are not approved as they have not argued the issue in their brief here. We note in the record, however, a letter from the program approval section of the Illinois State Board of Education dated October 26, 1981, to the special education district concerning Claudia. That letter indicates that Riveredge was approved in October by the Governor’s Purchased Care Review Board for 1981-82 but that no new placements there would be allowed in 1981-82. Whether the refusal to approve further placements in 1981-82 resulted from a shortage of funds or other factors is not disclosed by this record. However during the hearings on the petition, it was argued that the School Code does not forbid placement in a nonapproved institution but states only that such placement would not entitle the District to reimbursement from the State.

Under section 14 — 7.02 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 14-7.02) a district is authorized to place children in out-of-State and private special education facilities, under certain restrictions, and reimbursement of the district for certain expenses is provided. The first sentence of the second paragraph of this section states: “No child shall be placed in a special education program pursuant to this Section if the tuition cost for special education and related services increased more than 10 percent over the tuition cost for the previous year or exceeds $4,500 per year unless such costs have been approved by the Governor’s Purchased Care Review Board.” (Ill. Rev. Stat. 1979, ch. 122, par. 14-7.02.) Even if, however, this sentence could be construed as authorizing placement in a nonapproved institution while only denying reimbursement, a regulation governing District conduct in this area leaves no doubt as to the absence of placement authority:

“No nonpublic facility shall be utilized by a district until: (1) The facility is approved by the SBE, (2) Costs have been established for it by the Governor’s Purchased Care Review Board, (3) Proposed residential placements are reviewed and approved by the Illinois State Board of Education prior to placement ***.” Adopted Amendments to the Rules and Regulations for Approval of Non-public Facilities Educating Handicapped Students under section 14 — 7.02 of the School Code, 5 Ill. Reg. 4577 (April 24, 1981).

Clearly the District had no authority to place Claudia in Ridgeway, which was unapproved, and Riveredge where, even if it was cost approved by the Purchased Care Review Board, Claudia had been denied placement by ISBE. “The writ of mandamus confers no new authority upon the person or body against whom it is issued — it creates no duty, but will issue only where the duty and authority to act already exist without the writ.” (People ex rel. Brecheisen v. Board of Review (1936), 363 Ill. 106, 112-13; see also People ex rel. Cannella v. City of Chicago (1955), 7 Ill. 2d 416.) Given the impermissibility under the Illinois regulations of Claudia’s placement by the District in either of the facilities for the cost of her care in which it had been ordered to pay, and the substantial doubts as to the proper resolution of the Federal-State questions earlier alluded to, it is clear that the writ of mandamus should not have issued against the District.

In disposing of this case on the procedural issue we recognize the possibility that further action by the trial court may be required. Nothing in this opinion is intended, of course, to preclude the authorization of such care and treatment of Claudia as the evidence may establish to be necessary and proper, or the joinder of those parties properly required for its implementation.

We accordingly reverse the judgment of the circuit court of Lake County and remand the cause to that court for such further proceedings as may be appropriate.

Reversed and remanded.


author: JUSTICE SIMON JUSTICE MORAN,

text:
    (No. 52847.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. THOMAS J. HOLT, Appellant.

      Opinion filed June 18, 1982.
    Rehearing denied October 1, 1982.

      MORAN, J., RYAN, C.J., and UNDERWOOD, J., dissenting.
    Mary Robinson, Deputy Defender, and Mark Schuster and Paul J. Glaser, Assistant Defenders, of the Office of the State Appellate Defender, of Elgin, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Herbert L. Caplan, Melbourne A. Noel, Jr., Marcia L. Friedl, Kenneth A. Fedinets, and Michael B. Weinstein, Assistant Attorneys General, of Chicago, of counsel), for the People.
   JUSTICE SIMON

delivered the opinion of the court:

This is a direct appeal of a death sentence. In a bench trial in the circuit court of Lake County the defendant, Thomas J. Holt, was convicted of murder and aggravated kidnaping. The defendant alleges many errors, but one point is dispositive of the murder case. Because the murder took place in Wisconsin, Illinois has no jurisdiction over the offense. The murder charge must therefore be dismissed. We affirm the kidnaping conviction.

After an unfortunate childhood, Thomas Holt, the defendant, settled down in Kenosha, Wisconsin, with a wife and a drug problem. The victim, 19 years old, lived with her parents in Lake Forest, Illinois. On June 20, 1979, the defendant and the victim were both in a bar in Kenosha, where the victim had driven with a girl friend. Holt offered to protect her if anyone tried to hassle her as he had seen happen the week before. When the victim and her friend left, he followed them back to Lake Forest; the victim dropped the friend off and went on to her own home. He abducted her and drove back to Wisconsin with her in the car. What happened on the ride is disputed; the defendant’s version is that things became friendly for a while. Somewhere along the way, however, he raped her. In the end, he strangled her. He buried the corpse near his home in Kenosha.

The defendant was charged at first with ordinary (knowing) murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(2)) as well as felony murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(3)). The circuit court, however, dismissed the ordinary murder count for lack of jurisdiction, because the crime was committed in Wisconsin, there being no showing that the intent to kill was formed in Illinois. The People chose not to appeal the dismissal and have expressly waived the point in their brief. Similarly, although the defendant was charged with kidnaping aggravated by rape, he was never charged with rape itself because that probably happened in Wisconsin. This appeal is about the felony-murder counts.

A State no doubt has an interest in protecting its citizens from being forcibly taken out of State and killed or raped. Perhaps Illinois could constitutionally assert jurisdiction over such crimes. Jurisdiction, however, is not always asserted to the constitutionally permissible bounds. (Cf. Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431 (civil long-arm jurisdiction).) Geographical jurisdiction over crimes has expanded considerably from its narrow and rigid common law limits, but usually not as far as the Federal Constitution may permit.

Jurisdiction has not been asserted over a series of crimes on the ground that the first crime of the series was committed in the forum State, even if the crimes were closely related or part of a common scheme. In People v. Bovinett (1979), 73 Ill. App. 3d 833, the defendant was convicted of eavesdropping in Illinois by recording telephone calls without consent, but it was held that Illinois had no jurisdiction over the count charging he used the information so obtained, since the use was in another State. Similarly, in Conley v. United States (4th Cir. 1928), 23 F.2d 226, the defendants stole Liberty Bonds in one State and were caught in another with the bonds, which had been altered at some point; the Federal court in the first State could try them for the theft, but not for the separate offense of altering the stolen bonds, because the defendants probably did that after leaving the first State.

Illinois jurisdiction is delimited by section 1 — 5 of the Criminal Code of 1961. Its pertinent parts provide:

“(a) A person is subject to prosecution in this State * * * if*
(1) The offense is committed either wholly or partly within the State; ***.
(b) An offense is committed partly within this State, if either the conduct which is an element of the offense, or the result which is such an element, occurs within the State. In homicide, the ‘result’ is either the physical contact which causes death, or the death itself; and if the body of a homicide victim is found within the State, the death is presumed to have occurred within the State.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 1-5.)

Thus, it is not enough that some part of a course of criminal conduct, some related crime, be committed in Illinois; the particular crime charged must be committed partly within this State. That is why under Illinois law Illinois cannot try Holt for rape or ordinary murder. He committed those crimes entirely in Wisconsin, though following a kidnaping that began in Illinois.

The People argue the felony-murder count is special in that one of the elements of the offense, the felony, namely the kidnaping, began in Illinois. We conclude, however, that the bare felony is not enough to confer jurisdiction on Illinois.

The felony in itself is no part of the gravamen of the offense of murder. The requirement is not simply that there was a forcible felony which preceded the murder, but that in performing the homicidal acts, the defendant was committing or attempting a forcible felony. (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(a)(3).) If, for example, a kidnaper and his victim fall in love and turn the kidnaping into an elopement, and in a marital spat that evening he accidentally kills her, it is not felony murder, although the chain of events began with a felony. What makes the present case felony murder is not that a kidnaping occurred once, in Illinois prior to the murder, but that there was an ongoing kidnaping at the time he killed her — in Wisconsin. An analogy makes this clearer. At common law, an essential element of burglary was that the crime occur at night. One could not say, however, that a midnight burglary began or was “partly” committed when night fell. And Illinois could not assert jurisdiction over a Wisconsin burglary on the ground that it was night here, too, even if the burglar left Illinois for Wisconsin at night. Similarly, the felony in felony murder is essential in the sense that if there were no felony the defendant could not do anything in the course of it, but the felony is only a precondition, not an element of independent significance. The real element of felony murder is not so much the felony itself as the special status a felon has from moment to moment while committing the felony. The special status the defendant in this case had at the moment of the homicide which made the homicide felony murder was the status of a felon in Wisconsin, not in Illinois.

The felony implies malice. It provides the mens rea as a substitute for an actual murderous mental state. An actual intent to kill would not support Illinois jurisdiction unless the defendant did something in Illinois in furtherance of that intent. Again, murder is more than an intent and a later killing; it is a killing with that intent. Jurisdiction would be proper even if less than all the criminal activity took place in Illinois, provided enough did to constitute a criminal attempt. (People v. Werblow (1925), 241 N.Y. 55, 148 N.E. 786.) The People criticize the attempt standard as too restrictive, and there is no need to decide here exactly how much activity is enough; something, however, is needed. Since an actual intent to kill arrived at in Illinois without any overt act in Illinois in furtherance of that intent would not support jurisdiction over a murder occurring in Wisconsin, neither should a bare constructive intent, implied by the felony.

A felony is action, but the point is that it is not necessarily homicidal action. It does not further a murderous intent; it is not necessarily part of the homicidal venture. It is not, therefore, automatically the kind of conduct that supports jurisdiction. Framing the charge as felony murder does not excuse the People from showing the kind of Illinois involvement necessary for murder in general. If anything, it should be more difficult to acquire jurisdiction of felony murder than intentional murder, because the defendant could hardly do anything in furtherance of a fictitious intent. The Illinois activity and the death should therefore be more directly connected than would be necessary where the defendant’s early actions are tied to the death by a plan to commit murder.

A felony might support jurisdiction if there were some intrinsic relation between it and the death: if, for example, the killing were done in furtherance of the felony, or were otherwise a danger inherent in the felony, so that one could say realistically that the felony caused the death. But that is not this case. The victim here did not die of kidnaping, she died of strangulation. Kidnapings do not ordinarily end in death by strangulation. The strangling here was not a natural result of the kidnaping, but a separate and unrelated act. First he kidnaped her; then, independently, he murdered her. The kidnaping here was only incidental, and does not change the essential character or location of the murder. The kidnaping in this State was not the commission, even “partly,” of the murder. It makes the prosecution easier in that it relieves the prosecutor of the need to prove the defendant’s actual mental state, but an incidental felony does not confer jurisdiction over a murder on a State that would otherwise lack it.

Regardless of how the murder charges here are framed, if the murderous assault or scheme did not begin until after the defendant reached Wisconsin, if he did nothing in Illinois in contemplation of homicide or great bodily harm, nothing that set the killing in motion, and did not engage in conduct in Illinois of the kind that caused the death, Illinois has no jurisdiction over the murder.

Not every element of an offense supports jurisdiction. Some elements, while essential in the sense of necessary, are not the essence of‘the crime. They are only a setting for the crime; they are neither the doing of it, nor the gist of it. For example, a felon is released from prison, moves to another State, and buys a gun. In both States it is a crime for an ex-felon to possess one. The crime did not begin when he first became a felon. The initial felony is an essential element of the offense, but we do not believe that the first State would have jurisdiction on the ground that that element was committed in that State.

Murder is not aggravated felony. Murder is homicide: killing and death. The felony in a felony murder is the occasion for the homicide and colors the way the law will view any homicide that occurs, throwing it automatically into the murder category rather than a lower grade; but it is not what murder is about. A felony as such is not a murder in progress, nor the beginning of a process of murder. A cry of “Help! Murder!” would be an exaggeration.

Section 1 — 5 does not declare that any element of the offense will support jurisdiction. The language is “the conduct which is an element of the offense, or the result which is such an element.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 1 — 5.) The “element” phrases do not expand jurisdiction but limit it. The proper meaning is that “the conduct” is enough only if it is an element of the offense; similarly, if the offense is defined solely in terms of conduct without regard to any result, there is no jurisdiction based on where the conduct causes harm.

If a crime is defined in terms of both conduct and result, those two are spoken of, somewhat confusingly, as the “elements” of the crime. For homicide, there are three “elements”: the conduct, the physical impact that causes the death, and the death itself. At common law, and in Illinois until the Criminal Code of 1961, only the impact gave jurisdiction. Section 1 — 5 provides that any one of the three is good enough, thus expanding jurisdiction. Ill. Ann. Stat., ch. 38, par. 1—5, Committee Comments (Smith-Hurd 1972).

Section 1 — 5 speaks of the conduct, not just any conduct or some conduct. The committee comments, discussing homicide in particular, speak of “the conduct” as “the conduct which puts in motion the instrument or agency of death.” (Emphasis added.) (Ill. Ann. Stat., ch. 38, par. 1—5, Committee Comments, at 20 (Smith-Hurd 1972).) What the draftsmen had in mind was something like mailing a letter bomb from one State to another, or firing a weapon across a State line.

Again, perhaps some felonies could qualify as “the conduct” of a felony murder. If the death arose out of the felony more or less accidentally, as a natural hazard of the crime rather than as a separate murder resulting from distinct conduct, the commission of the felony might be at least a key part of “the conduct” of the murder. This kidnaping, however, cannot realistically be regarded as “the conduct” of the later strangling.

The history of the language of section 1 — 5 further illuminates its meaning. The section derives from Model Penal Code section 1.03. (Ill. Ann. Stat., ch. 38, par. 1—5, Committee Comments, at 20 (Smith-Hurd 1972).) It is an amalgam of two versions of that code, the tentative draft No. 5 (1956) and the proposed official draft (1962). The provision that Illinois has jurisdiction if the offense is committed wholly or partly within the State is taken from the tentative draft. That draft went on at great length to define the meaning of “wholly” and “partly.” The definitions were organized according to how the offense was defined, and the one that concerns us deals with the case of offenses defined in terms of both conduct and results. That provision codified the attempt analysis of People v. Werblow (1925), 241 N.Y. 55, 148 N.E. 786 (opinion by Cardozo, J.) and People v. Buffum (1953), 40 Cal. 2d 709, 256 P.2d 317: A State in which the result does not occur has jurisdiction based on conduct if the conduct within the State amounts to an attempt to commit the offense. (Model Penal Code tent, draft No. 5, sec. 1.03(e) (1956).) A paragraph dealing specifically with homicide reiterated the rule: A State in which neither the impact nor the death occurred has jurisdiction only if conduct within the State amounted to an attempt to commit homicide. Model Penal Code tent, draft No. 5, sec. 1.03(f).

The tentative draft was needlessly elaborate. Both the proposed official draft and the Criminal Code of 1961 condensed it. The two condensations are substantially identical; the only difference is that the Illinois version retains the “wholly or partly” language from the tentative draft and then clarifies the meaning of “partly,” while the proposed official draft bases jurisdiction directly on what in Illinois is the definition of “partly.”

Neither the commentary to the proposed official draft of the Model Penal Code nor the committee comments on the Criminal Code of 1961 (Ill. Ann. Stat., ch. 38, par. 1—5, Committee Comments (Smith-Hurd 1972)) indicate the draftsmen intended to change the tentative draft substantively in this regard. The idea was only to simplify it and delete the obvious. Thus, the Werblow attempt analysis must have been regarded with approval. It is not fixed in statutory language, and as we said before, we do not decide whether some modification would be appropriate. We do think, however, that its position in the history of section 1— 5 supports our conclusion that at least some significant part of “the conduct” of a crime, that is some progress toward the completed offense, or at least some danger of it, must occur in Illinois before this State will exercise jurisdiction.

The only reviewing court precedent we have found that deals directly with the issue of jurisdiction over felony murder is Lane v. State (Fla. 1980), 388 So. 2d 1022. The opinion is confusing, but the decision is clear: the conviction was reversed and the cause remanded with directions to instruct the jury on retrial not to convict unless the fatal blow or the death or “an essential element of the offense which was part of one continuous plan, design and intent leading to the eventual death of the victim occurred in Florida.” (Emphasis added.) (388 So. 2d 1022, 1029.) The case therefore supports our view that the State in which the felony began does not necessarily have jurisdiction over the felony murder.

The Lane opinion relied on Conrad v. State (1974), 262 Ind. 446, 317 N.E.2d 789, and described as “adequate” (Lane v. State (Fla. 1980), 388 So. 2d 1022, 1028) the following jury instruction given in Conrad:

“ ‘[I]f *** the intent to kill was arrived at and the fatal blow struck in *** Ohio and *** such intent and action originated there and after the commission of the offense of kidnapping in *** Indiana and *** the same was not part of one continuous plan, design and intent, and not the result of one continuous course of action by the defendant, but was a separate and independent set of acts occurring outside *** Indiana, then *** Indiana would have no jurisdiction ***.’ ” (Conrad v. State (1974), 262 Ind. 446, 450, 317 N.E.2d 789, 791, quoted in Lane v. State (Fla. 1980), 388 So. 2d 1022, 1028 n.2.)

In Conrad, much as in the present case, the defendant assaulted the victim, threw him in the trunk of a car, drove off, and eventually beat the victim’s brains out on State Line Road, perhaps in the neighboring State; the case, however, does not seem to have been tried under a felony-murder theory. In Pollard v. State (1979), 270 Ind. 599, 388 N.E.2d 496, another kidnap-murder without any mention of felony murder, the Indiana Supreme Court again spoke of a “continuous plan to transport [the victim] *** to Kentucky for the purpose of killing him” (270 Ind. 599, 603, 388 N.E.2d 496, 501) and an “integral relationship between the assault, abduction and murder” (270 Ind. 599, 609, 388 N.E.2d 496, 504).

The cases the People cite are not in point. People v. Ruzas (1976), 54 App. Div. 2d 1083, 389 N.Y.S.2d 205, was not about where the felony murder could be tried, but about where the underlying felony could be tried. The defendants had already been convicted of the minder, in the county where they did the shooting, and the issue was whether the armed-robbery charges could have been tried there as well, so that under New York’s mandatory joinder rule the failure to join all the charges barred a later prosecution for the armed robbery in the county where it occurred. The case is also distinguishable on its facts. The defendants shot a State Trooper while fleeing after the felony. Such a shooting is a common and natural ending to an armed robbery; it might well be said that there was an integral relation between the two crimes and that the felony caused the death. Finally, there was no question of jurisdiction (among States), but only of venue (choice of counties), and the court’s comments on the subject were based on a New York statute which the opinion never describes.

United States v. Busic (2d Cir. 1978), 592 F.2d 13, did not involve felony murder at all, but the special Federal offense of aircraft piracy resulting in the death of another person, a violation of an antihijacking statute. The offense was essentially an aggravated form of aircraft piracy, and the court properly held that it fell within the Federal aircraft jurisdiction even if the death occurred on the ground. Again, the death was integrally related to the hijacking, being an inherent danger of the hijacking as the defendants carried it off rather than the result of conduct by the defendants distinct from the hijacking.

In short, no reviewing court has ever actually sustained jurisdiction over a felony murder solely on the ground that the felony occurred within the State. For the reasons discussed above, we do not think this court, in this case, should be the first.

The reason is that, in the present case, there is no evidence to support an affirmative inference that anything jurisdictionally significant happened in this State. The body was found in Wisconsin, and that is presumptively where the death occurred (cf. Ill. Rev. Stat. 1979, ch. 38, par. 1-5(b) (codifying the presumption when the body is found in this State)). The defendant’s statements are the only evidence of exactly what happened, and they place everything of importance in Wisconsin. The general circumstances of the crime support the view that Holt did the killing in Wisconsin on the spur of the moment, perhaps unintentionally, while drugged and drunk — perhaps when a crazy hope to turn the kidnaping into a romance failed. There is no reason to believe that the murder happened in Illinois and the prosecution does not contend it did; nor is there any evidence that the defendant ever considered it or did anything vaguely murderous while in this State. The probability that the rape and murder happened in Wisconsin is the likely reason why the People abandoned their ordinary-murder charge and never charged rape. The most that can be said for the possibility that something jurisdictionally adequate happened in Illinois is that the evidence does not conclusively rule it out.

Jurisdiction must be proved beyond a reasonable doubt (People v. Pride (1959), 16 Ill. 2d 82; People v. Strook (1932), 347 Ill. 460; People v. Massarella (1979), 80 Ill. App. 3d 552), at least if no presumption arises from the finding of the body in Illinois. The evidence of Illinois jurisdiction over the present murder is insufficient. The portions of the judgment convicting the defendant of murder and sentencing him to death are therefore reversed, and the murder charges are dismissed for lack of jurisdiction.

The defendant’s challenge to his kidnaping conviction is not prominent in his brief, and only two points deserve comment.

Holt claims that certain items of the victim’s clothing and personal effects were found in an illegal search and should have been suppressed. However, his “claim to privacy from government intrusion is [not] reasonable in light of all the surrounding circumstances” (Rakas v. Illinois (1978), 439 U.S. 128, 152, 58 L. Ed. 2d 387, 406, 99 S. Ct. 421, 435). The evidence was found underneath an open porch, by an assistant district attorney who was on the scene to advise the police searching the defendant’s apartment upstairs. After sitting on the porch for a while, trying to keep out of the way, she got bored and starting walking around. She first observed the evidence while standing in a neighbor’s yard. While she may have been alert, in a passive sort of way, for anything she might see, and although after seeing something that looked like the victim’s clothes she did go under the porch to look more closely, we think the “search” was not substantially more intrusive than might be expected of neighborhood children and animals. The defendant had no reasonable expectation of privacy in the unsecured common area in which the evidence was more or less inadvertently found.

In a handwritten letter to the judge before trial, the defendant asked that his public defender be replaced by private counsel, explaining only that he felt the public defender did not have his best interests at heart and that he and the public defender could not get together and prepare a proper case. He now complains that the judge did not pursue the matter. While it would have been better practice for the judge to investigate, his failure to do so was not reversible error in this case. Holt never made any specific accusations or gave any particulars suggesting the attorney was in fact not representing Mm properly. His dissatisfaction seems to have been oMy a general distrust of the public defender, and perhaps a natural reaction to being told he did not have much of a defense. Even now, with the benefit of Mndsight, he does not suggest any way in wMch the attorney was inadequate.

The defendant received a fair trial, and the evidence against Mm was overwhelming. The conviction for kidnaping in its various forms must be affirmed. The judgment of conviction and sentence for murder are vacated. As it appears that no separate sentence for kidnaping was entered, the cause is remanded to the circmt court of Lake County for sentencing on the kidnaping counts.

Affirmed in part and vacated in part; cause remanded, with directions.

JUSTICE MORAN,

dissenting:

The majority initially indicates that Illinois could “perhaps” constitutionally assert jurisdiction over an offense in wMch the victim is abducted in tMs State and subsequently murdered in another State. It declines to do so, however, and, for authority, cites two cases in which the courts would not assume jurisdiction over a series of crimes where oMy the first offense occurred in the forum State. (See Conley v. United States (4th Cir. 1928), 23 F.2d 226; People v. Bovinett (1979), 73 Ill. App. 3d 833.) I do not find these cases analogous to the instant circumstances.

Both Conley and Bovinett involve the commission of a series of separate crimes. For example, the defendant in Conley was charged with stealing Liberty Bonds and with altering the stolen bonds, which are two distinct offenses. The court held that the State in wMch the bonds were stolen had no jurisdiction over the “alteration” charge because that offense was committed in another State. Similarly, in Bovinett, the defendant was charged with eavesdropping and with using the information thereby obtained. These were separate offenses, and since defendant used the information in another State, it was held that Illinois lacked jurisdiction over that count. In effect, the courts concluded that just because one offense occurs in the forum State does not mean that court has jurisdiction over other related offenses.

Here, we are not dealing with separate, related offenses. We are dealing with separate elements of the same offense. Felony murder is codified as a single offense, the essential composites of which are (1) a murder that (2) occurs during the commission of a forcible felony other than voluntary manslaughter. (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(3).) The majority recognizes the felony component of the offense, but concludes, without citing any authority, that it is “only a precondition, not an element of independent significance.” (91 Ill. 2d at 485.) I disagree. The felony is more than a condition of the offense; it is an essential element thereof, without which a defendant could not be convicted of the crime. Simply stated, without a felony, there can be no felony murder. See People v. Kolep (1963), 29 Ill. 2d 116, 120-21; cf. People v. Viser (1975), 62 Ill. 2d 568, 581 (without a death, there can be no felony murder).

Where an element of the offense occurs within the forum State, that State may constitutionally assume jurisdiction over the offense. (Lane v. State (Fla. 1980), 388 So. 2d 1022 (where a crime is committed partly in one State and partly in another, defendant may be tried in either State); State v. Harrington (1969), 128 Vt. 242, 260 A.2d 692 (same principle); cf. Leonard v. United States (5th Cir. 1974), 500 F.2d 673 (where an element of the crime occurs on Federal land, the Federal court has jurisdiction even though the “gist” of the offense occurs elsewhere); Simpson v. United States (9th Cir. 1916), 229 F. 940, cert. denied (1916), 241 U.S. 668, 60 L. Ed. 1229, 36 S. Ct. 552 (defendant, charged with the offense of issuing a false certificate of deposit, is amenable to prosecution in the State in which the certificate is signed in blank, although it is unlawfully filled in in another State).) “A sovereign has jurisdiction to try an offense where only a part of that offense has been committed within its boundaries.” (Leonard v. United States (5th Cir. 1974), 500 F.2d 673, 674.) Here, the aggravated kidnaping, a felony, commenced in Illinois and continued into Wisconsin. This is sufficient to confer jurisdiction over the felony-murder offense. See Ill. Rev. Stat. 1979, ch. 38, pars. 1—5(a)(1), (b); People v. Perry (1961), 23 Ill. 2d 147, cert. denied (1962), 369 U.S. 868, 8 L. Ed. 2d 86, 82 S. Ct. 1035 (Illinois has jurisdiction over conspiracy charge where overt act in furtherance thereof occurred in this State).

Further support for the view that the felony is an essential element of felony murder may be found in court decisions considering the issue of venue. Although jurisdiction and venue are clearly not based upon the same legal concepts, and I do not mean to imply that the same rules are applicable to each, nevertheless an analogy may appropriately be drawn. For example, in State v. Zimmer (1967), 198 Kan. 479, 426 P.2d 267, cert. denied (1967), 389 U.S. 933, 19 L. Ed. 2d 286, 88 S. Ct. 298, the defendant was charged with felony murder predicated on kidnaping. The evidence indicated that the victim was abducted in one county and apparently murdered in another county. At issue was whether venue over the murder offense could properly be established in the county in which the kidnaping (a felony) initiated. In concluding that it could, the court stated:

“Appellant was charged in the information with felony murder, that is, killing while engaged in the perpetration of a felony, namely, kidnaping. The jury was instructed upon this type of murder and appellant stands convicted thereof. Hence the kidnaping was an essential element of the murder offense. Inasmuch as the initial abduction occurred in Shawnee county and the kidnaping was triable there, venue on the murder charge became permissible there ***.” (Emphasis added.) (198 Kan. 479, 498-99, 426 P.2d 269, 283.)

See also State v. Duvaul (1978), 223 Kan. 718, 576 P.2d 653; cf. State v. Smith (1979), 92 N.M. 533, 591 P.2d 664; People v. Powell (1967), 67 Cal. 2d 32, 429 P.2d 137, 59 Cal. Rptr. 817.

In Zimmer, the court’s conclusion that venue was proper where the victim was abducted rests on the premise that the felony was an essential element of the felony-murder offense. This same reasoning is applicable to the instant case. The felony element should be no less essential where the issue is which State has jurisdiction, as opposed to which county has venue. Consequently, the commission of a felony in the forum State should be sufficient to confer jurisdiction over the felony-murder offense.

Further, I do not find the analogy of the common law “midnight” burglary on point. Obviously, Illinois cannot assume jurisdiction over a Wisconsin burglary because it happens to be night time in Illinois at the time of the offense. The defendant would not have committed any element of the crime in Illinois. The relevant portion of section 1 — 5 authorizes Illinois to assume jurisdiction over an offense only where “the conduct which is an element of the offense *** occurs within the State.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 1-5(b).) Committing a felony is defendant’s conduct; nightfall is not. It seems that resort to an analogy such as this manifests the weakness in today’s opinion.

After determining that the felony is merely a “precondition” to the offense of felony murder, the majority appears to retreat from this position and concede that the felony is an element of the crime. However, it concludes that “[n]ot every element of an offense supports jurisdiction. Some elements, while essential in the sense of necessary, are not the essence of the crime.” (91 Ill. 2d at 487.) Section 1 — 5 does not intimate that only certain elements are sufficiently essential to sustain jurisdiction. As noted above, it requires only that the conduct which is an element of the offense occur in Illinois. (Ill. Rev. Stat. 1979, ch. 38, par. 1-5(b).) The majority has now undertaken to rewrite this requirement to provide for jurisdiction only if conduct which is the “essence” of the offense occurs in this State. I am convinced that if this is what the legislature meant to provide, it would have, and could have easily, done so.

The majority again seeks support for its position through an analogy which is distinguishable from the instant case. In the hypothetical involving an Illinois felon buying a gun, what makes the gun purchase a crime is the person’s status as a felon due to prior criminal conduct. What makes felony murder a crime is felonious action, not the perpetrator’s status. If a defendant once convicted of a felony thereafter murders someone, he cannot be guilty of felony murder just because he happens to be a felon at the time of the offense.

Nor do I find persuasive the resort to the committee comments for purpose of divining the legislative intent. One quoted comment states that the applicable “conduct” is that “which puts in motion the instrument or agency of death.” (Ill. Ann. Stat., ch. 38, par. 1—5, Committee Comments, at 20 (Smith-Hurd 1972).) The majority goes on to note that kidnaping “cannot realistically be regarded as ‘the conduct’ of the later strangling.” (91 Ill. 2d at 488.) I agree, but this observation is not responsive to the issue. The committee comment referred in particular to the offense of homicide. The issue in this case is not jurisdiction over a homicide; it is jurisdiction over felony murder. Here, kidnaping is the felonious conduct of the felony-murder offense.

In addition, I feel that application of the Werblow attempt analysis to felony murder is inappropriate. An attempt requires an intent to commit the particular offense. (Ill. Rev. Stat. 1979, ch. 38, par. 8—1.) The whole point of felony murder is that the death may be unintentional, and “[t]here is no such criminal offense as an attempt to achieve an unintended result.” (People v. Viser (1975), 62 Ill. 2d 568, 581.) Today’s opinion indicates that it may be sufficient if there is “at least some danger” that the offense will be completed. (91 Ill. 2d at 490.) It seems to me that felony murder is a codified offense precisely because there is the danger that death will result during the commission of a forcible felony. This is all too true of kidnapings, which, with unfortunate frequency, culminate in the victims’ deaths.

Lane v. State (Fla. 1980), 388 So. 2d 1022, is cited for the proposition that the State in which the felony began does not necessarily acquire jurisdiction over a felony-murder charge. I believe that this is a complete misinterpretation of the Lane decision, and it is therefore necessary to set forth in detail the facts and legal principles involved in the case. The defendant in Lane was charged in the alternative with first degree (premeditated) murder and felony murder, predicated on robbery or attempted robbery. The evidence adduced at trial indicated that defendant robbed and beat the victim in Florida. He then placed him in the trunk of his car and drove to a bridge in Alabama, where he again beat him and left the body. A toxicologist who performed the autopsy testified that the victim died in Alabama. Thus, the issue was whether Florida could assume jurisdiction over an offense commenced in that State but concluded in another State.

The court determined that Florida could properly assert jurisdiction over the offense if an essential element of the crime occurred within the State. It went on to explain that “[i]n the instant case that would mean establishing either that the premeditation to murder the victim was formulated in the State of Florida or that the underlying felony, in this case the robbery, occurred in the State of Florida.” (Emphasis added.) (388 So. 2d 1022, 1028.) Again, in referring to the offense with which defendant was charged, the court stated:

“One of the essential elements of this offense is the premeditated design of the [defendant] to effect the death of the victim or, in the alternative, the perpetration of or an attempt to perpetrate a robbery upon the victim. It is our view that if either of these alternative essential elements of the offense occurred within the State of Florida, then Florida has jurisdiction to try the [defendant].” 388 So. 2d 1022, 1028.

The principle which the court has thus articulated is clear: If the underlying felony occurred in the forum State, that State has jurisdiction over the felony-murder charge. This follows from the court’s determination, with which I agree, that the felony is an essential element of the offense.

In the instant case the majority has completely ignored the above quotations and focused solely on the holding that, on retrial, defendant should not be convicted unless the fatal blow or the death or “an essential element of the offense which was part of one continuous plan, design and intent leading to the eventual death of the victim occurred in Florida.” (388 So. 2d 1022, 1029.) However, as the Lane court subsequently indicated, these jurisdictional guidelines were to be applied at defendant’s retrial for first-degree murder. (388 So. 2d 1022, 1029.) Indeed, the contention upon which defendant appealed to the Florida Supreme Court was framed as follows: “The [defendant] contends that the State of Florida has no jurisdiction to charge or try [him] with first-degree murder because neither the death occurred in the State of Florida nor was it established that the fatal blows were struck in the State of Florida.” (Emphasis added.) (388 So. 2d 1022, 1026.) It is therefore apparent that defendant did not challenge the State’s authority to prosecute him for felony murder and the above-quoted jury instruction did not apply to that offense. Hence, the only principle enunciated with regard to felony murder indicates that the State in which the felony occurs may assume jurisdiction over the offense of murder.

Pollard v. State (1979), 270 Ind. 599, 388 N.E.2d 496, and Conrad v. State (1974), 262 Ind. 446, 317 N.E.2d 789, cases involving a kidnap and murder, are also cited for the proposition that the offenses must form one continuous plan in order for a State to obtain jurisdiction over an out-of-State murder. However, these cases apparently did not involve felony murder. The issue was jurisdiction over a mur der charge, and thus the offenses had to somehow form a continuous plan in order to sustain jurisdiction. Otherwise, no element of the murder offense could have occurred in the forum State.

Finally, the majority concludes that “there is no evidence to support an affirmative inference that anything jurisdictionally significant happened in this State.” (91 Ill. 2d at 492.) This statement is simply not true. The evidence indicates that defendant abducted the victim in Illinois. Whatever other crimes were perpetrated in Wisconsin, the aggravated kidnaping commenced here. I cannot believe that the commission of such a serious felony should be considered “jurisdictionally” insignificant.

In conclusion, today’s opinion treats this case as if it involved two separate offenses, so-called “ordinary” murder (a term which appears to be without legal significance) and aggravated kidnaping. Because only one offense, felony murder, is at issue, and an essential element of that offense occurred in Illinois, I believe we may properly assume jurisdiction over the complete offense. Accordingly, I would affirm the trial court’s decision on the jurisdictional issue, and reach the merits of defendant’s other challenges to his murder conviction.

RYAN, C.J., and UNDERWOOD, J., join in this dissent.