author: JUSTICE UNDERWOOD

text:
    (No. 57811.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JAMES W. FOSTER, Appellee.

      Opinion filed December 1, 1983.

      Neil F. Hartigan, Attorney General, of Springfield, and Ronald C. Dozier, State’s Attorney, of Bloomington (Ellen Flaum and Kenneth A. Fedinets, Assistant Attorneys General, of Chicago, and Robert J. Biderman and Garry W. Bryan, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Daniel D. Yuhas, Deputy Defender, and Gary R. Peterson, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Following a jury trial in the circuit court of McLean County the defendant, James Foster, was convicted of conspiracy to commit robbery, and sentenced to an extended term of six years’ imprisonment. Based upon its interpretation of the Illinois conspiracy statute (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 2) the appellate court reversed in a Rule 23 order (110 Ill. App. 3d 1208). We granted the State’s petition for leave to appeal.

On September 28, 1981, defendant initiated his plan to commit a robbery when he approached John Ragsdale in a Rantoul bar and asked Ragsdale if he was “interested in making some money.” Defendant told Ragsdale of an elderly man, A. 0. Hedrick, who kept many valuables in his possession. Although Ragsdale stated that he was interested in making money he did not believe defendant was serious until defendant returned to the bar the next day and discussed in detail his plan to rob Hedrick. In an effort to gather additional information, Ragsdale decided to feign agreement to defendant’s plan but did not contact the police.

On October 1, defendant went to Ragsdale’s residence to find out if Ragsdale was “ready to go.” Since Ragsdale had not yet contacted the police he told defendant that he would not be ready until he found someone else to help them. Ragsdale informed the police of the planned robbery on October 3. Defendant and Ragsdale were met at Hedrick’s residence the following day and arrested.

The appellate court determined that the conspiracy statute (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 2) required actual agreement between at least two persons to support a conspiracy conviction. Reasoning that Ragsdale never intended to agree to defendant’s plan but merely feigned agreement, the court reversed defendant’s conviction.

On appeal to this court the State argues that under the conspiracy statute it suffices if only one of the participants to the alleged conspiracy actually intends to agree to commit an offense. Alternatively, the State contends that there was sufficient evidence to convict defendant even under the appellate court’s interpretation of the statute.

The question is whether the Illinois legislature, in amending the conspiracy statute in 1961, intended to adopt the unilateral theory of conspiracy. To support a conspiracy conviction under the unilateral theory only one of the alleged conspirators need intend to agree to the commission of an offense. (See Burgman, Unilateral Conspiracy: Three Critical Perspectives, 29 DePaul L. Rev. 75 (1979).) Prior to the 1961 amendment the statute clearly encompassed the traditional, bilateral theory, requiring the actual agreement of at least two participants. (People v. Borrelli (1946), 392 Ill. 481, 493; see also People v. Bryant (1951), 409 Ill. 467, 469.) The relevant portion of the former statute is as follows:

“If any two or more persons conspire or agree together *** to do any illegal act *** they shall be deemed guilty of a conspiracy.” (Emphasis added.) (Ill. Rev. Stat. 1961, ch. 38, par. 139.)

The amended version of the statute provides:

“A person commits conspiracy when, with intent that an offense be committed, he agrees with another to the commission of that offense.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 38, par. 8 — 2(a).

Since the statute is presently worded in terms of “a person” rather than “two or more persons” it is urged by the State that only one person need intend to agree to the commission of an offense. In support of its position the State compares the Illinois statute with the Model Penal Code conspiracy provision and the commentary thereto. The Model Penal Code provision is similar to section 8— 2(a) in that it is also worded in terms of “a person”:

“A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:
(a) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime ***.” (Emphasis added.) Model Penal Code sec. 5.03 (Tent. Draft No. 10, 1960).

The commentary following section 5.03 expressly indicates the drafters’ intent to adopt the unilateral theory of conspiracy. More importantly, the comments specify the drafters’ reason for abandoning the traditional language ‘ ‘two or more persons’ ’:

“The definition of the Draft departs from the traditional view of conspiracy as an entirely bilateral or multilateral relationship, the view inherent in the standard formulation cast in terms of ‘two or more persons’ ***.” Model Penal Code sec. 5.03, Comment, at 104 (Tent. Draft No. 10, 1960).

There is no question that the drafters of section 8 — 2(a) were aware of this provision since several references were made to the Model Penal Code in the committee comments to section 8 — 2. (Ill. Ann. Stat., ch. 38, par. 8 — 2, Committee Comments, at 458-60 (Smith-Hurd 1972).) Consequently, the State reasons that the drafters would not have deleted the words “two or more persons” if they had intended to retain the bilateral theory. Similar reasoning was employed in State v. Marian (1980), 62 Ohio St. 2d 250, 405 N.E.2d 267, and State v. St. Christopher (1975), 305 Minn. 226, 232 N.W.2d 798, where the courts were asked to interpret statutory provisions analogous to section 8— 2(a). In each of those decisions it was determined that deletion of the words “two or more persons” from the State’s conspiracy statute reflected a legislative intent to abandon the bilateral theory. The Ohio court, however, also relied to a considerable degree upon the absence from Ohio criminal law of a statute making solicitation to commit a crime an offense. Illinois does have such a statute. Ill. Rev. Stat. 1981, ch. 38, par. 8 — 1.

While impressed with the logic of the State’s interpretation of section 8 — 2(a), we are troubled by the committee’s failure to explain the reason for deleting the words “two or more persons” from the statute. The committee comments to section 8 — 2 detail the several changes in the law of conspiracy that were intended by the 1961 amendment. (Ill. Ann. Stat., ch. 38, par. 8 — 2, Committee Comments, at 458-60 (Smith-Hurd 1972).) The comments simply do not address the unilateral/bilateral issue. The State suggests that the new language was so clear on its face that it did not warrant additional discussion. We doubt, however, that the drafters could have intended what represents a rather profound change in the law of conspiracy without mentioning it in the comments to section 8 — 2. Nor do we regard the reasoning of the Indiana Supreme Court in Garcia v. State (1979), 271 Ind. 510, 394 N.E.2d 106, cited by the State, as applicable here. Moreover, the precedential value of the Indiana, Ohio and Minnesota decisions is diminished when compared to other foreign decisions which, despite statutes which speak in terms of “a person,” require actual agreement between at least two persons to support a conspiracy conviction. Compare Colo. Rev. Stat. sec. 18 — 2— 201 (1973), with People v. Johnson (1975), 189 Colo. 28, 536 P.2d 44; Conn. Gen. Stat. Ann. sec. 53a — 48 (1972), with State v. Marra (1978), 174 Conn. 338, 387 A.2d 550; Wis. Stat. Ann. sec. 939.31 (1958), with State v. Copening (1981), 103 Wis. 2d 564, 309 N.W.2d 850; 18 Pa. Cons. Stat. Ann. sec. 903 (1973), with Commonwealth v. Lamb (1983), 309 Pa. Super. Ct. 415, 455 A.2d 678; Fla. Stat. Ann. sec. 777.04 (1976), with Ramirez v. State (Fla. App. 1979), 371 So. 2d 1063.

As earlier noted, Illinois does have a solicitation statute which embraces virtually every situation in which one could be convicted of conspiracy under the unilateral theory. Moreover, the penalties for solicitation and conspiracy are substantially similar. There would appear to have been little need for the legislature to adopt the unilateral theory of conspiracy in light of the existence of the solicitation statute. Even though the Model Penal Code also contains a separate solicitation offense (Model Penal Code sec. 5.02 (Tent. Draft No. 10, 1960)) and still provides for the unilateral theory, its commentary makes explicit its intent to do so. The absence of similar comments upon our statute seems difficult to explain if the intent was the same.

We cannot agree with the State’s argument that section 8 — 2(b) of the statute supports a unilateral interpretation of section 8 — 2(a). Section 8 — 2(b) provides:

“It shall not be a defense to conspiracy that the person or persons with whom the accused is alleged to have conspired:
* * *
(4) Has been acquitted, or
(5) Lacked the capacity to commit an offense.” (Ill. Rev. Stat. 1981, ch. 38, pars. 8 — 2(b)(4), (5).)

The State argues that subsections (4) and (5) focus on the culpability of only one of the conspirators and are therefore consistent with a legislative intent to adopt the unilateral theory. However, the committee comments clearly indicate that the limited purpose of those subsections is to avoid the recurrent problems inherent in conducting separate trials:

“Previously, acquittal of all other conspirators absolved the remaining one, since, theoretically, there must be at least two guilty parties to a conspiracy. [Citation.] However, this rationale was rejected as being too technical and overlooking the realities of trials which involve differences in juries, contingent availability of witnesses, the varying ability of different prosecutors and defense attorneys, etc.” Ill. Ann. Stat., ch. 38, par. 8 — 2, Committee Comments, at 459 (Smith-Hurd 1972).

Additionally, if the drafters had intended to adopt the unilateral theory in section 8 — 2(a), it would have been unnecessary to include section 8 — 2(b) in the statute, since the provisions of section 8 — 2(b) are encompassed by the unilateral theory.

It is also not without significance that two appellate court panels have construed section 8 — 2(a) as encompassing the bilateral theory of conspiracy (People v. Hill (1982), 108 Ill. App. 3d 716, and People v. Ambrose (1975), 28 Ill. App. 3d 627) since its amendment in 1961. While it is trae that a legislature’s failure to amend a statute after judicial interpretation is not conclusive evidence of the correctness of that interpretation, such inaction is suggestive of legislative agreement. (Union Electric Co. v. Illinois Commerce Com. (1979), 77 Ill. 2d 364, 380; People v. Hairston (1970), 46 Ill. 2d 348, 353.) We agree with defendant that, here, the legislature’s failure to act after the decisions in Ambrose and Hill lends considerable support to the conclusion that a bilateral theory of conspiracy was intended, particularly since Ambrose was a 1975 decision. We are also mindful of the rule of construction in Illinois which requires us to resolve statutory ambiguities in favor of criminal defendants. People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 370-71.

For the above reasons we conclude that section 8 — 2(a) encompasses the bilateral theory of conspiracy.

Our conclusion requires consideration of the State’s argument that there was sufficient evidence to convict defendant even under the bilateral theory of conspiracy. We find no basis for this assertion and agree with the appellate court that at best the jury could have found beyond a reasonable doubt only that Ragsdale considered defendant’s offer before going to the police.

The judgment of the appellate court is therefore affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: JUSTICE MORAN

license: Public Domain

text:
    (No. 57818.

      In re JAMES EUGENE ACKERMANN, Attorney, Respondent.

      Opinion filed December 1, 1983.

      Theresa M. Gronkiewicz, of Chicago (John C. O’Malley, of counsel), for the Administrator of the Attorney Registration and Disciplinary Commission.
    Jack Toporek, of Chicago, for respondent.
   JUSTICE MORAN

delivered the opinion of the court:

The Administrator of the Attorney Registration and Disciplinary Commission filed a nine-count complaint before the Commission charging respondent, James E. Ackermann, with professional misconduct. All nine counts charged that he had neglected legal matters entrusted to him. The Hearing Board found respondent guilty on all counts. It also found that respondent had been addicted to alcohol during the period of time involved herein. It recommended that, in addition to being censured, respondent be placed on probation for two years. The Administrator filed exceptions with the Review Board, which had adopted the findings of the Hearing Board, but recommended that respondent be suspended for three years, that the order of suspension be stayed, and that he be placed on probation for three years. Respondent appeals from the report and recommendation of the Review Board.

One question is raised: Is the sanction recommended by the Review Board appropriate under the circumstances of this case?

Respondent, James E. Ackermann, has been practicing law in Illinois since 1962. This is the first time he has been the subject of a disciplinary proceeding. His professional problems are traced to a period of time beginning in 1974, shortly after the death of his law partner, and ending in 1980, when he voluntarily entered the alcoholic-treatment center at Lutheran General Hospital in Park Ridge. During this period he became addicted to alcohol and thereby became incapable of managing his personal and professional life. The nine-count complaint filed May 6, 1981, by the Administrator reflects a pattern of negligent management of legal matters beginning in 1974.

Counts I, IV, V and VIII involve dissolutions of marriage. Count I relates to the representation of Janet Hedger. Respondent received $100 towards a $250 fee. He prepared documents which were signed by the Hedgers in September of 1978. Subsequent to the preparation of these papers, respondent scheduled, but did not keep, various court dates. Mrs. Hedger met with respondent at the Richard J. Daley Center on one of these scheduled court dates. She testified that respondent told her a new law eliminated the necessity of parties appearing before the judge to obtain a divorce. She was given papers to sign and was told that she was technically divorced. Several months later respondent informed her that she would have to appear in court for the divorce. A petition for dissolution of marriage was never filed. Mrs. Hedger ultimately was forced to retain new counsel in June of 1979.

The facts relevant to count IV are: Mary Wudtke, the wife of respondent’s client Richard Wudtke, alleged that he neglected a dissolution-of-marriage proceeding. Respondent first met with the Wudtkes in February 1979. Mrs. Wudtke maintained that at a July 1979 meeting with the Wudtkes at the Richard J. Daley Center, respondent told Mrs. Wudtke to sign a property settlement and a pro se appearance form, and told her that the dissolution of marriage “would be all taken care of since an uncontested divorce did not necessitate a court appearance.” Respondent denied this allegation, and the testimony of his client, Richard Wudtke, rebuts Mrs. Wudtke’s statement. The petition for dissolution of marriage was dismissed for want of prosecution, the dismissal order was vacated, and the judgment of dissolution of marriage was entered on September 7,1979.

The facts of count V set forth another failure by respondent to file a petition for dissolution of marriage. Respondent received a $200 retainer fee from Theresa Deering in December 1977. Although he prepared the necessary papers and began negotiations with an attorney representing Mr. Deering, he did not follow through, and eventually Mrs. Deering sought new counsel.

Count VIII involves both a dissolution-of-marriage case and a criminal battery charge which arose out of the marital relationship. Respondent’s client, Frank Marcus, paid him $172.56 in April 1980 to defend him in the criminal charge and represent him in the dissolution-of-marriage case. A default judgment was entered against Marcus in the dissolution-of-marriage case when respondent failed to appear or plead, necessitating the retention of new counsel to represent him. A public defender was eventually appointed by the court in the criminal case after respondent failed to make several scheduled appearances.

Counts II and VII involve neglect in the administration of estates. In count II, respondent failed to obtain transfer of title to twenty-five $100 United States Savings Bonds for his client, Mrs. Tillie Peters. He had been retained by Peters in July 1977 to represent her interest as sole legatee in the estate of Patrick Grace. He received a fee of $765 from his client and did prepare and file appropriate tax returns. He also resolved Peters’ interest in a pension plan and an insurance policy. With regard to the savings bonds, respondent testified that he submitted improper forms to the Treasury Department. The bonds were returned to him, where they remained in his files from 1977 through 1979, when he resubmitted them to the Treasury Department.

The evidence relevant to count VII of the complaint indicates that respondent was retained by Raymond Beineman to settle the estate of Ida Smith, receiving $1,100 in attorney fees. Pursuant to this matter, he received a check in 1977 for $3,592.59 to be used to pay the inheritance tax. The check was never cashed but remained in his file until October 1979. He finally filed the inheritance tax return early in 1980 and has since reimbursed Beineman for the interest and penalties incurred as a result of the late filing. Respondent was also required to redeem $925 in Series E Savings Bonds registered in the name of Leon F. Smith with Ida Smith named as a co-owner. He testified that he prepared documents necessary for redemption but, as with the Grace estate, prepared them on the wrong form. Beineman eventually redeemed the bonds himself.

Counts III, VI and IX all involve real estate transactions. Respondent’s representation of Northwestern Cutlery Supply Company is the subject of count III. Respondent had incorporated the business in 1975 and represented his client in the purchase of real estate later that year. Following the closing, he failed to record the deed evidencing the conveyance of the property. In addition, he did not comply with repeated requests for the return of all corporate records and materials pertaining to the real estate transaction. He testified that he lost the file. The client maintains that respondent never informed them or their new counsel that the file had been lost.

With regard to count VI, the evidence established that respondent was retained by Joseph Sekera in August 1977 to negotiate the sale of one property and the purchase of another. Pursuant to the sales transaction, respondent was to hold $800 in escrow to pay the 1977 taxes on the property when they became due, as well as the prorated 1978 taxes. Any excess funds on deposit after payment of the taxes were to be returned to Sekera. Respondent failed to pay the tax bills. Sekera learned of the delinquent tax bills in May of 1979, and upon contacting respondent he was assured that respondent would take care of the matter. The combined tax bill was $661.30. Respondent sent Sekera a check for $138.70 but failed to pay the tax bill. The mortgagee eventually paid the taxes. In November 1980 Sekera filed a complaint against respondent with the Attorney Registration and Disciplinary Commission. Respondent repaid the mortgagee in January 1981, including interest and penalties incurred.

Count IX involves a matter similar to count III. Respondent was engaged in 1974 by Mr. and Mrs. Frank Munaretto to represent them in the purchase of real estate. As in count III, respondent prepared the necessary documents and handled the closing but failed to record the conveyance. He also neglected to record the release of the seller’s mortgage and to obtain title insurance on the property. The clients were required to retain other counsel to represent them in these matters.

Respondent argues that all counts in the complaint can be traced to behavior symptomatic of organic brain syndrome due to repeated intoxication. Memory lapses, poor judgment, procrastination and inability to meet deadlines or perform duties are all characteristic of this syndrome. In addition, he points to the 14 years prior to the addiction when he practiced law without difficulty, as well as the past three years when he has adhered to strict rehabilitation. Respondent testified, as did his wife and sister, regarding his gradual reliance on alcohol. He traces his heavy drinking to the death of his brother in 1969 and his law partner in 1973.

On September 29, 1980, respondent voluntarily admitted himself to the alcoholic-treatment center at Lutheran General Hospital. His treatment involved three weeks of hospitalization and six weeks of outpatient care. As part of this program he became a member of Alcoholics Anonymous. He has abstained from drinking since admission to the hospital. The psychiatrist who directs the program at the hospital testified that respondent is in remission, with the chance of recurrence decreasing with time. Respondent is said to be conducting his life in a “normal” fashion. This includes interrelating with family and friends, as well as conducting his practice in a “responsible manner.”

The facts in this case are not in dispute. The evidence has clearly and convincingly shown, and the respondent has admitted, virtually every factual allegation in the complaint. From our review of the record, we agree with the hearing and review boards that respondent has been guilty of repeated acts of negligence toward clients who relied on him to represent them in legal matters.

The final decision of what sanction is appropriate in a disciplinary action rests with this court. (In re Chapman (1983), 95 Ill. 2d 484, 492; In re Kink (1982), 92 Ill. 2d 293, 302; In re Hopper (1981), 85 Ill. 2d 318, 323.) The conclusions of the Hearing Board and Review Board serve as recommendations. While a determination of the proper sanction involves analysis of the facts and circumstances of the particular case, “where the facts are similar to those in other cases, a uniform standard of discipline should be sought.” In re Feldman (1982), 89 Ill. 2d 7, 11; In re Kink (1982), 92 Ill. 2d 293, 302; In re Clayter (1980), 78 Ill. 2d 276, 283.

This court has consistently found that “neglect in the performance of an attorney’s duties to a client can be sufficient to warrant disciplinary action.” (In re Berkos (1982), 93 Ill. 2d 408, 413; In re Chapman (1978), 69 Ill. 2d 494, 501; In re Taylor (1977), 66 Ill. 2d 567, 571.) “ ‘The traditionally high standards of the legal profession impose upon an attorney the duty to represent a client with zeal and diligence.’ ” (In re Kink (1982), 92 Ill. 2d 293, 302; In re Chapman (1978), 69 Ill. 2d 494, 501.) Respondent’s conduct in relation to the nine counts involved in this case was clearly in violation of this standard.

A number of disciplinary cases that have come before this court reflect misconduct similar to that presented in the instant case. In In re Levinson (1978), 71 Ill. 2d 486, an attorney was suspended for a period of six months and until further order of the court. There, respondent failed to proceed in an adoption proceeding and misrepresented facts to his clients, resulting in a substantial delay in finalizing the adoption. A legal-assistance agency ultimately completed the proceedings three years later.

Additionally, respondent failed to pay his attorney registration fee, to answer the complaint or to appear before the hearing or review boards. Although the respondent alluded to his son’s terminal illness, which he said required almost constant attention, he never presented any evidence to the disciplinary bodies and made no showing to the court that the son’s illness existed during the relevant period. Unlike Levinson, the respondent in the instant case has been cooperative with the investigatory bodies. Moreover, he has offered substantial evidence of his alcohol dependency and his subsequent rehabilitation, as well as the direct effect his disability had on his professional conduct.

The attorney in In re Levin (1979), 77 Ill. 2d 205, was suspended for three months for neglect in the handling of a personal injury case. He failed to file answers to interrogatories, resulting in the dismissal of one defendant. In addition, he failed to finalize a settlement and failed to produce his client for a deposition, which resulted in the case being dismissed. No significant evidence was offered in mitigation.

Respondent in In re Johnson (1982), 93 Ill. 2d 441, received a sanction of suspension for one year for two instances of negligent conduct. In a divorce proceeding, he failed to enter a dissolution-of-marriage decree. In the administration of an estate, he failed to make a final report and account, which failure resulted in the issuance of contempt citations against his client and additional expenses for the estate. No evidence was offered in mitigation. Although the type of misconduct displayed in Levin and Johnson is similar to that involved in the instant case, the failure of the respondents in the former cases to offer significant evidence in mitigation serves to distinguish them from the case at bar.

We find the patterns of conduct in In re Taylor (1977), 66 Ill. 2d 567, and In re Simpson (1971), 47 Ill. 2d 562, most analogous to the case at bar. Simpson and Taylor involved multiple acts of attorney negligence. The attorneys in Simpson and Taylor were each suspended for one year for neglecting legal matters entrusted to them by clients who had advanced money for fees and costs. Simpson failed to commence a divorce action and remained incommunicado from his client for a period of two years. In addition, he retained money entrusted to him for the purpose of procuring a surety bond. The court characterized this behavior as “tantamount to a ‘designed fraudulent conversion’, rather than lax business methods.” In re Simpson (1971), 47 Ill. 2d 562, 567.

Although Simpson claimed domestic difficulties and alcoholism as mitigating factors, there did not appear to be any evidence of rehabilitation from the alcohol dependency. Moreover, in contrast with this case, Simpson displayed an unwillingness to cooperate throughout the disciplinary proceedings.

The attorney in In re Taylor (1977), 66 Ill. 2d 567, also failed to perform or complete legal services after accepting fees. Specifically, he failed to appear at a scheduled hearing in a criminal case, neglected to commence a divorce action, and failed to follow through in a wrongful death case. Taylor argued that any sanction was inappropriate in a disciplinary case based on neglect. Moreover, he challenged the constitutionality of Canons 6 and 7 of the Code of Professional Responsibility. No evidence, however, was offered in mitigation of the charges against him.

When deciding attorney discipline cases involving neglect, this court has imposed all sanctions provided by our Rule 771 (87 Ill. 2d R. 771). The sanctions include censure (In re Ahern (1961), 23 Ill. 2d 69; In re Kink (1982), 92 Ill. 2d 293), suspension (In re Simpson (1971), 47 Ill. 2d 562; In re Taylor (1977), 66 Ill. 2d 567), and disbarment (In re Clark (1956), 8 Ill. 2d 314). In In re Chapman (1983), 95 Ill. 2d 484, a neglect case, this court, utilizing its inherent authority to impose discipline not provided for by Supreme Court rule, ordered a sanction of “probationary suspension.”

The respondent in Chapman was found to have neglected an appeal and had been disciplined on two prior occasions for similar misconduct. The court, however, took into consideration a former alcohol-abuse problem which, at the time of hearing, was said to be under control. It therefore imposed a two-year suspension to be stayed during a concurrent period of probation. The court relied heavily on the reasoning followed in an earlier case, In re Driscoll (1981), 85 Ill. 2d 312.

In Driscoll, the respondent converted the proceeds of his clients’ settlement, which he had been ordered to deposit in the clients’ account. Repeated demands were made for the money. In order to pay the first clients the funds to which they were entitled, respondent converted the funds of another client. Driscoll introduced substantial evidence that he was an uncontrolled alcoholic at the time of his offenses. In addition, he presented convincing evidence of his rehabilitation. Although the court stated that the nature of respondent’s behavior would normally warrant disbarment, it was willing to take into consideration the effect alcohol addiction had on the attorney’s behavior and the evidence of his rehabilitation. “[A]s an experiment in dealing with impaired attorneys” (85 Ill. 2d 312, 317), Driscoll was given a six-month suspension and was ordered to continue his rehabilitation program under the supervision of the Attorney Registration and Disciplinary Commission following his suspension.

Courts and professional organizations throughout the nation are taking steps to deal with the problems of the alcoholic or “impaired” attorney. This court has adopted a new rule — Rule 772 (94 Ill. 2d R. 772) — which codifies and expands upon the experimental sanction imposed in Chapman. This rule, which became effective October 1, 1983, provides for probation for a specified period of time, or until further order of the court, in conjunction with a suspension which, in certain cases, may be stayed in whole or in part. This type of sanction may be imposed by the court if the attorney demonstrates that he:

“(1) can perform legal services and the continued practice of law will not cause the courts or profession to fall into disrepute;
(2) is unlikely to harm the public during the period of rehabilitation and the necessary conditions of probation can be adequately supervised;
(3) has a disability which is temporary or minor and does not require treatment and transfer to inactive status; and
(4) is not guilty of acts warranting disbarment.” (94 Ill. 2d R. 772(a).)

In addition, an attorney placed on probation will have to comply with the specific conditions of probation set out in the court’s order.

Respondent has offered substantial evidence that he was under the influence of alcohol from 1974 through 1980 and that the greater part of his misconduct was traceable to behavior symptomatic of his alcoholism. The evidence of alcohol dependency and subsequent rehabilitation, in the instant case, closely parallels that found in Driscoll. The misconduct of respondent, however, is not as egregious as that displayed by the respondent in Driscoll. Moreover, respondent has shown more of a causal link between his alcoholism and the negligent pattern of misconduct than the respondents in either Driscoll or Chapman. We find respondent’s voluntary admission to the alcoholic-treatment center prior to the initiation of disciplinary proceedings especially impressive. Further, he has demonstrated an understanding and appreciation of his wrongdoing and has expressed regret. Finally, he has repaid all clients for unearned fees, as well as any penalties or interest they may have incurred due to his neglect.

This court recognizes the value of considering alcoholism as a mitigating factor in cases where there is detailed evidence to link the attorney’s drinking to his misconduct. (In re Driscoll (1981), 85 Ill. 2d 312, 315.) Nonetheless, Driscoll recognized alcoholism as diminishing responsibility, not eliminating it. “[0]ur 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.” (85 Ill. 2d 312, 316.) The behavior referred to in Driscoll was conversion rather than the neglect involved in the instant case. We cannot overlook, however, the inconvenience and financial hardship respondent’s misconduct has caused the clients involved.

“The purpose of a disciplinary proceeding is to safeguard the public and maintain the integrity of the legal profession.” (In re Levin (1979), 77 Ill. 2d 205, 211.) With this goal in mind, we have considered the sanctions imposed in the analogous cases discussed above, along with the strong mitigating circumstances of the instant case. In addition, we have given consideration to the position taken by the Administrator in oral argument before this court. The Administrator acknowledged that respondent’s misconduct was far less egregious than that evidenced in Driscoll and that respondent had provided substantial evidence of impairment and voluntary recovery, unlike the respondent in Taylor.

The Administrator, therefore, recommended a six-month suspension, that the suspension be stayed, and that respondent be placed on probation for a period of two years. We adopt this recommendation as an appropriate sanction in this case and so order. In addition, as a condition of probation, respondent is to completely abstain from the use of alcohol.

Suspension ordered but stayed; conditional probation entered.


text:
    (No. 57819.
    INTERLAKE, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Willie B. Allen, Appellee).

      Opinion filed December 1, 1983.

      Robert B. Ulrich, of Chicago (Seyfarth, Shaw, Fair-weather & Geraldson, of counsel), for appellant.
    Discipio, Martay, Caruso & Simard, of Chicago (Francis M. Discipio, of counsel), for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

This worker’s compensation case arose on May 13, 1975, when claimant, Willie Allen, an employee of respondent, Interlake, Inc., fell into an 18-inch recessed area in the factory floor. As he fell, his back struck a machine part, and he immediately felt low back pain. He saw the company physician, who advised him to consult his family doctor. His family doctor treated him with pain and nerve medications, but without any lasting success. Claimant continued to work, but from late 1975 to early 1977 he sought additional medical advice from four different physicians, taking a medical leave of absence from work in 1976 to undergo therapy treatments prescribed by one doctor. When these failed to provide permanent relief, he consulted Dr. Arthur Connor in early 1977, who subsequently performed a spinal fusion and a right-side hemilaminectomy at L4 and L5.

Claimant testified that he cannot walk without the use of a cane, which was prescribed for him after the operation. He continues to have low back pain and has not returned from his medical leave of absence. Claimant, who has a seventh-grade education, and whose work experience is limited to jobs requiring physical labor, has not sought other work. He testified that he is unable to perform even simple household chores, such as dishwashing.

Prior to the 1975 work accident, claimant had injured his back twice. As the result of a 1970 work accident, a left-side hemilaminectomy at L4 and L5 had been performed with a resulting loss of a year’s work. That workmen’s compensation claim had been settled. After returning to work, claimant was examined by Dr. Edward Grossman, whose medical report noted instability in the lumbosacral area and the possible future need for a spinal fusion. Although claimant testified that he sought no medical attention for his back between 1972 and 1975, he admitted on cross-examination that he saw Dr. Carell Hutchison on several occasions in 1974 for injuries he incurred in an automobile accident. Dr. Hutchison’s report stated that claimant had a recurrent low back syndrome with left-sided problems, that he wore a lumbosacral corset, and that the car accident seemed to have exacerbated a preexisting back injury.

An arbitrator for the Industrial Commission found that the 1975 work accident caused claimant to become wholly and permanently incapable of work and awarded compensation in the amounts of $88.90 per week for 323 weeks and $13.30 for one week under section 8(f) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.8(f)). Both parties sought review by the Industrial Commission, which affirmed the arbitrator’s award. Respondent sought certiorari, and the circuit court of Cook County reversed and remanded, ordering the Commission to consider a 1972 report by Dr. Gross-man which had been excluded at arbitration. Upon remand and admission of this report, the Commission again affirmed the arbitrator’s award, and the circuit court confirmed. Respondent has appealed directly to this court pursuant to our Rule 302(a) (87 Ill. 2d R. 302(a)).

At arbitration, Dr. Robert Busch, who was called by claimant, testified that the 1975 work accident could have caused claimant’s condition, that the condition was permanent, and that claimant could not return to work. Dr. John Dwyer, called as a witness by respondent, concurred with Dr. Busch on causation, but respondent made an offer of proof that if Dr. Dwyer were allowed to consider Dr. Grossman’s report, Dr. Dwyer would testify that the work accident did not cause claimant’s condition. Dr. Dwyer also stated that, in his opinion, claimant could return to work that did not require repetitive lifting of more than 25 pounds or extensive climbing or walking. On review before the Commission, Dr. Connor testified that claimant’s condition could have been caused by the 1975 work accident, and that claimant was unable to return to work for both physical and psychological reasons.

Relying on claimant’s impeachment, the differing medical testimony, and the fact that claimant had not sought work, respondent urges that the Commission findings as to causation and disability are contrary to the manifest weight of the evidence. It is axiomatic that questions of witness credibility and the resolution of disputed medical opinions are for the Commission as the trier of fact. (Ragler Motor Sales v. Industrial Com. (1982), 93 Ill. 2d 66, 71; Keystone Steel & Wire Co. v. Industrial Com. (1978), 73 Ill. 2d 290, 293; Lachona v. Industrial Com. (1981), 87 Ill. 2d 208, 215; South Import Motors, Inc. v. Industrial Com. (1972), 52 Ill. 2d 485, 489.) While different conclusions could be drawn from the evidence, we are unable to say that those drawn by the Commission are contrary to the manifest weight of the evidence. Odie v. Industrial Com. (1982), 88 Ill. 2d 514, 519; Pulliam Masonry v. Industrial Com. (1979), 77 Ill. 2d 469, 472.

The judgment of the circuit court of Cook County is accordingly affirmed.

Judgment affirmed.


text:
    (No. 57853.
    (No. 57992.
    WILLIAM J. MOORE, Special Adm’r, Appellee, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, Appellant. — JOHN DELANEY, Appellee, v. JONES & LAUGHLIN STEEL CORPORATION et al., Appellants.

      Opinion filed December 1, 1983.

      James P. Daley and John P. Milroy, of Chicago, for Appellant.
    Edmund J. Burke and Gary W. Bozick, of Hoffman, Burke & Bozick, of Chicago, for appellee.
    James L. Pittman & Associates, Ltd., of Chicago (James L. Pittman and Mark E. Christensen, of counsel), for appellants.
    Alan C. Mendelson, of Chicago, for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

On the court’s own motion these two cases were consolidated for opinion after oral argument. They present a single issue for review: Did the trial court abuse its discretion when it denied the defendants’ motion to dismiss based upon the doctrine of forum non conveniens?

In each case, the defendants’ motions to dismiss the action on the grounds of forum non conveniens were denied by the trial court. Pursuant to Supreme Court Rule 306(a)(1)(ii) (87 Ill. 2d R. 306(a)(l)(ii)), each defendant sought review of the trial court’s ruling in the appellate court. In exercising its discretion under the rule, the appellate court denied the petitions. Thereafter, this court allowed defendants’ petitions for leave to appeal pursuant to Rule 315 (87 Ill. 2d R. 315).

Implicit in the doctrine of forum non conveniens is the existence of at least two forums in which the controversy may be litigated. (Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 371; People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, 112, cert. denied (1979), 441 U.S. 932, 60 L. Ed. 2d 660, 99 S. Ct. 2052.) The inquiry therefore focuses upon the relative convenience of the available forums.

It was stated by the court in Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 514, that “\f\orum non conveniens is a doctrine that is founded in considerations of fundamental fairness and sensible and effective judicial administration.” The doctrine assumes that the court has the power to assert jurisdiction. However, under the doctrine, the court may decline to exercise jurisdiction whenever, after balancing all factors essential to the trial of a particular case, it appears that it may be more conveniently tried in another forum. Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 364-65; Lonergan v. Crucible Steel Co. of America (1967), 37 Ill. 2d 599, 606; Cotton v. Louisville & Nashville R.R. Co. (1958), 14 Ill. 2d 144, 150; Whitney v. Madden (1948), 400 Ill. 185, 189, cert. denied (1948), 335 U.S. 828, 93 L. Ed. 382, 69 S. Ct. 55.

In Adkins the court discussed the factors that must be balanced by the trial court in ruling upon a motion to dismiss on the basis of forum non conveniens. These factors include the location of witnesses, the availability of compulsory process to secure attendance of unwilling witnesses, the ease of access to sources of proof, the possibility of a view of the site of the occurrence, the tax burden as well as the imposition of jury service upon the residents of the community, the congestion of the court dockets, and the relative convenience of the parties. (Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 514.) (See also Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 372-73; Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111, 118-19; People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, 110-11, cert. denied (1979), 441 U.S. 932, 60 L. Ed. 2d 660, 99 S. Ct. 2052. Accord, Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508-09, 91 L. Ed. 1055, 1062-63, 67 S. Ct. 839, 843.) However, the plaintiff’s choice of forum is accorded great weight and will not be disturbed unless the balance strongly favors the defendant. See Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 366; Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 372-73; Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111, 118; People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, 110-11, cert. denied (1979), 441 U.S. 932, 60 L. Ed. 2d 660, 99 S. Ct. 2052.

Broad discretion is vested in the trial court in determining whether particular facts and circumstances warrant dismissal of a case based upon forum non conveniens. The court’s decision will be reversed on review if it can be shown that, in deciding as it did, there was an abuse of discretion. People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, 110-11, cert. denied (1979), 441 U.S. 932, 60 L. Ed. 2d 660, 99 S. Ct. 2052; Fender v. St. Louis Southwestern Ry. Co. (1971), 49 Ill. 2d 1, 4.

In cause No. 57853, the plaintiff, William J. Moore, special administrator of the estate of Carol A. Matijevich, brought an action in the circuit court of Cook County seeking damages against the defendant, Chicago and North Western Transportation Company. The defendant is a Delaware corporation with its principal place of business in Cook County, Illinois. It owns and operates a railroad in many areas, including Adams County, Wisconsin.

Plaintiff’s decedent, Carol A. Matijevich, was killed on January 24, 1982, at a railroad crossing in Adams County, when the car she was driving collided with a train owned by defendant. At the time of her death, Mrs. Matijevich was a resident of Marquette County, Wisconsin.

The circuit court of Marquette County appointed plaintiff, father of decedent and an Illinois resident, as special administrator of her estate. Plaintiff engaged a law firm in Cook County, Illinois, and on April 8, 1982, this suit was filed in the circuit court of that county. Plaintiff charged defendant with negligence for violating various Wisconsin statutes. On October 4, 1982, an amended complaint was filed under the Wisconsin wrongful death statute and again charged defendant with violating several Wisconsin statutes.

In support of the motion to dismiss, defendant argues that all of the relevant contacts with this litigation are located in Wisconsin. It contends that Wisconsin is the situs of the occurrence, the place of residence of decedent at the time of her death and the place of the administration of her estate, the residence of decedent’s surviving children, the residence of all known witnesses, and the residence of the treating paramedics and physicians, and that Wisconsin law will apply. These facts are uncontroverted in the record.

Plaintiff argues that his choice of Illinois as a forum should be given paramount consideration since he is an Illinois resident. Further, Cook County is the place of defendant’s business and location of all of defendant’s business records.

This court has held that although a plaintiff’s freedom to select a forum is significant, there are numerous cases which properly accord less deference to a plaintiff’s choice of forum. See Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 372-73; Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111, 118, and cases cited therein.

Plaintiff was appointed by a Wisconsin court, and authorization of that court would be required in order for him to make a settlement of the cause of action. Further, plaintiff must account to the Wisconsin court for any sums received by settlement or litigation, and distribution of such sums would be under the jurisdiction of that court. (See Chicago, Rock Island & Pacific R.R. Co. v. Igoe (7th Cir. 1955), 220 F.2d 299, 304.) In light of the representative capacity in which plaintiff here acts, his residency has no relationship to the litigation except as a nominal party. Thus, under the facts of this case, plaintiff’s choice of Cook County, Illinois, is of minimal significance.

The only factor connecting the defendant with Illinois and this litigation is that defendant’s principal place of business is located in Cook County. The fact that a railroad does business in Illinois has been held not to be controlling in disposing of a motion to dismiss on the basis of forum non conveniens because it is “assumfed] that both courts can obtain jurisdiction over the defendant.” Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 515. See also Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 372.

As noted above, the possibility of having a jury view the scene of an accident is an important consideration in ruling upon a forum non conveniens motion to dismiss. The accident upon which this action is based occurred at a railroad crossing in Adams County, Wisconsin, over 200 miles from Cook County, Illinois. This means that a jury in Wisconsin would be able to view the site of the accident, but that an Illinois jury could not conveniently do so. See Adkins v. Chicago, Rock Island & Pacific R. R. Co. (1973), 54 Ill. 2d 511, 515.

Both parties concede that Wisconsin law will apply to decide this controversy. The need to apply the law of a foreign jurisdiction has been considered a significant factor favoring dismissal of a suit on grounds of forum non conveniens. See, e.g., Jones v. Searle Laboratories (1982), 93 Ill. 2d 366; People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, cert. denied (1979), 441 U.S. 932, 60 L. Ed. 2d 660, 99 S. Ct. 2052; Piper Aircraft Co. v. Reyno (1981), 454 U.S. 235, 70 L. Ed. 2d 419, 102 S. Ct. 252; Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839.

The location of witnesses and other sources of proof is another important factor to be weighed. Defendant states that all of the relevant witnesses reside in Wisconsin and are not subject to the subpoena power of our courts. In addition, all of the medical evidence is located in Wisconsin. Plaintiff responds that the testimony of witnesses unwilling to testify without subpoena could be introduced through depositions. However, this court has held that depositions are an inadequate substitute for live testimony. (Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 374.) It is clear that the convenience of both plaintiffs and defendant’s witnesses would be served by trial of this cause in Wisconsin.

Factors of public interest must also be taken into account. This court has previously taken notice of the congested condition of the dockets in the circuit court of Cook County. (Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 375; Fender v. St. Louis Southwestern Ry. Co. (1971), 49 Ill. 2d 1, 6.) As stated in Jones, “ '*** Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. ***’ ” (Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 373, quoting Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508-09, 91 L. Ed. 1055, 1062, 67 S. Ct. 839, 843.) We see no reason to burden the judicial system of Cook County by allowing this case to be tried in that county when it has no significant factual connections to that county.

Under the facts and circumstances of this case, as related above, we find that the trial court abused its discretion in denying defendant’s motion to dismiss. Accordingly, the order of the circuit court of Cook County is reversed and the cause is remanded to that court with directions to grant the defendants’ motion to dismiss.

In cause No. 57992, plaintiff, John Delaney, filed an action in the circuit court of Cook County against defendants, Jones & Laughlin Steel Corporation (Jones & Laughlin), and Youngstown Sheet and Tube Company (Youngstown). Plaintiff seeks damages against the defendants for personal injuries allegedly suffered while he was working at a steel factory which is jointly owned and operated by the defendants.

The defendants are foreign corporations. Jones & Laughlin is a Pennsylvania corporation with its principal place of business in Pittsburgh, Pennsylvania. Youngstown is an Ohio corporation with its principal place of business also in Pittsburgh, Pennsylvania. Both corporations do business in Illinois.

Plaintiff’s employer, the Hunter Construction Company (Hunter), is an Indiana corporation with its principal place of business there. Hunter contracted with Jones & Laughlin for services to be performed at the defendants’ factory in Lake County, Indiana. Plaintiff alleges that he was injured while working at that factory when a blast furnace adjacent to the job site exploded. Plaintiff claims that the explosion was caused by molten slag coming into contact with water in a nearby slag pit.

Vulcan Materials Company (Vulcan), is a New Jersey corporation with its principal place of business in Birmingham, Alabama. Youngstown contracted with Vulcan for the digging and hauling of slag from a slag pit on the factory premises. Vulcan’s headquarters for the administration of that contract are in Cook County, Illinois. It is defendants’ position that Vulcan was in control of the slag pit here in question. Vulcan, however, is not a party to this lawsuit.

In support of the motion to dismiss, defendants argue that the location of witnesses and other sources of proof demonstrate that Indiana is the most convenient forum. Defendants claim that most of the witnesses reside in Indiana and that medical evidence is also located there. Defendants further argue that Indiana is a more convenient forum because that is the situs of the accident and because the law of that jurisdiction will be applied to decide this dispute. In response, plaintiff asserts that more than 30 Hunter employees who are residents of Illinois were present at the job site when he was injured. Plaintiff also claims that more than 20 Vulcan employees who are residents of Illinois have knowledge of the scene and the safety procedures used by defendants at the slag pit and job site. Plaintiff further states that , medical evidence is located in Illinois as well as Indiana. Plaintiff’s treating surgeon is a resident of Illinois and one of the two hospitals in which he was admitted is located in Illinois.

The possibility of having a jury view the scene of an accident is an important consideration. (See Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 515.) However, in contrast to cause No. 57853, we do not consider it significant in this instance since the job site at which plaintiff was injured is only 25 miles from the proposed site of trial. Because the distance is not so great, an Illinois jury would be able to view the scene, if necessary. In addition, although the need to apply the law of a foreign jurisdiction weighs in favor of defendant, we do not feel that this factor in this case is sufficient to justify dismissal of the cause on the basis of forum non conveniens.

As previously noted, all factors essential to the trial of a particular case must be balanced in determining whether to dismiss an action on forum non conveniens grounds. Our only concern on review is whether the trial court’s decision constituted an abuse of discretion and not whether the reviewing court would have resolved the issue as did the trial court. (See Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 378.) We recognize that the facts and circumstances of this cause present a different case for deciding a forum non conveniens motion than those in cause No. 57853. After balancing all of the relevant factors concerning this litigation and the chosen forum, we conclude that the trial court did not abuse its discretion when it denied defendants’ motion to dismiss. Accordingly, the judgment of the circuit court of Cook County is affirmed.

57853 — Reversed and remanded, with directions.

57992 — Judgment affirmed.


text:
    (No. 57889.
    GARBE IRON WORKS, INC., Appellee, v. GEORGE J. PRIESTER et al., Appellants.

      Opinion filed December 1, 1983.

      Ned Danger, of Chicago, for appellants.
    Richard L. Horwitz and David J. Chroust, of Drendel, Schanlaber, Horwitz & Oakes, and James Edwards, of Edwards, Parker & Jordan, all of Aurora, for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Plaintiff, Garbe Iron Works, Inc., initiated these proceedings to enforce a mechanic’s lien against defendants George J. Priester, Veta D. Priester and National Precast, Inc. The circuit court of Cook County dismissed the complaint for plaintiff’s failure to file within the statutory limitation period of two years (Ill. Rev. Stat. 1979, ch. 82, par. 9). The appellate court reversed and remanded, holding that National Precast’s filing for bankruptcy extended the time within which plaintiff could file its suit. (110 Ill. App. 3d 948.) We granted defendants’ petition for leave to appeal.

National Precast, Inc. (the contractor), contracted with George and Veta Priester (the owners) to erect certain structural steel framework on the latters’ property and engaged plaintiff to supply labor and materials. Plaintiff completed its performance on February 2, 1979, and filed a claim for a mechanic’s lien on May 2, 1979, of which the owners were notified. When plaintiff was not paid for its work and sought to enforce its lien, it was necessary, under the statutory provisions, to join both the contractor and the property owners (Ill. Rev. Stat. 1979, ch. 82, par. 28), and that suit be filed within two years after completion of performance (Ill. Rev. Stat. 1979, ch. 82, par. 9). However, on August 11, 1980, National Precast had filed a petition for bankruptcy under chapter XI of the Bankruptcy Act (11 U.S.C. sec. 1 et seq. (1976 and Supp. 1979)). That act provides that a bankruptcy filing automatically stays the commencement or continuation of any proceedings against the debtor, including the issuance of process (11 U.S.C. sec. 362 (Supp. 1979).) Consequently, plaintiff was unable to pursue its suit to enforce the mechanic’s lien since a necessary party, National Precast, could not be joined.

Plaintiff thereafter filed a complaint in the bankruptcy court seeking a modification of the automatic stay. On December 23, 1980, 133 days after National Precast filed for bankruptcy, the bankruptcy court entered an order permitting plaintiff to proceed against National Precast. Plaintiff received notice of that order on January 9, 1981, and filed this suit to enforce its mechanic’s lien on March 16, 1981, 42 days after the two-year limitation period had expired. Plaintiff added a second count to its complaint on October 20, 1981, which sought a personal judgment against the property owners for payments made to National Precast in violation of sections 27 and 32 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1981, ch. 82, pars. 27, 32).

Defendants subsequently moved to dismiss the complaint because plaintiff had failed to file within two years after completion of performance (Ill. Rev. Stat. 1979, ch. 82, par. 9). Defendants also alleged that neither count stated a cause of action. The circuit court granted defendants’ motion without specifying the grounds and dismissed plaintiff’s complaint with prejudice.

The appellate court concluded that the section 9 limitation period was effectively tolled for 133 days — the amount of time plaintiff was prevented from filing suit due to the Bankruptcy Act’s automatic stay provision. Since suit was filed within this extended time period, that court concluded the complaint should not have been dismissed.

At issue is whether a bankruptcy filing by a necessary party in an action to enforce a mechanic’s lien extends the amount of time the subcontractor has to file suit. We conclude that it does and consider section 108(c) of the Bankruptcy Act to be dispositive. It provides:

“[l]f applicable law *** fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor *** and such period has not expired before the date of the filing of the petition, then such period does not expire until the later of—
(1) The end of such period, including any suspension of such period occurring on or after the commencement of the case; and
(2) 30 days after notice of the termination or expiration of the stay under section 362, 922, or 1301 of this title ***.” 11 U.S.C. sec. 108(c) (Supp. 1979).

Subsection (1) seems clearly applicable to the present case. To enforce its lien it was mandatory that plaintiff join both the contractor and the property owners (Ill. Rev. Stat. 1979, ch. 82, par. 28). By virtue of the automatic stay, however, plaintiff was precluded for 133 days from proceeding against National Precast. According to section 108(cXl) plaintiff should have been allowed an additional 133 days to file suit after the two-year limitation period had expired on February 2, 1981. The filing of the complaint on March 16, 1981, was therefore timely.

Defendants argue that section 108(cXl) should have no application here since it is only triggered when a particular statutory scheme provides for the suspension of a limitation period, and our statutes do not provide for suspension in these circumstances. The sole basis for their argument is a legislative statement that section 108(cXl) includes any special suspensions of limitation periods (11 U.S.C.A. sec. 108, Legislative Statements, at 101 (1979).) Nowhere, however, do the legislative statements or the committee notes indicate that the application of section 108(cXl) is limited to such situations, and to so hold would require a strained construction of that section and defeat its apparent purpose. The fact that the legislative statement indicates that 108(cXl) “includes” special statutory provisions suspending limitations otherwise applicable implies a broader purpose than that attributed to it by defendants. While not entirely free from doubt, the intent of sections 108(cXl) and (2) seems to be to extend the period within which a creditor may act by the greater of (1) the period granted by a particular statutory scheme, (2) the period during which action has been stayed by the Bankruptcy Act, or (3) 30 days after notice of the termination of the stay. Defendants correctly note that the limitation period contained in section 9 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1981, ch. 82, par. 9) is not an ordinary statute of limitation since it conditions the right to enforce a mechanic’s lien and not just the remedy (North Side Sash & Door Co. v. Hecht (1920), 295 Ill. 515, 520). They rely on our decision in Demchuk v. Duplancich (1982), 92 Ill. 2d 1, for the proposition that special limitation periods cannot be tolled. We held there that conditions of minority or incompetency would not toll the special limitation period contained in the Dramshop Act. Our decision, however, was specifically grounded on the legislature’s failure to provide for tolling under those circumstances. Here, unlike Demchuk, section 108(c) of the Bankruptcy Act sets forth specific guidelines for tolling under existing circumstances. This court has, in fact, never held that special limitation periods could not be tolled, and in Levine v. Unruh (1968), 99 Ill. App. 2d 94, 240 N.E.2d 521, our appellate court stated that such limitations were subject to the tolling provisions of the Bankruptcy Act.

Defendants contend, too, that reliance on the public record will become impracticable if tolling is permitted. They reason that subsequent purchasers of property will be unable to determine the viability of a mechanic’s lien if the time in which it must be enforced can be extended by a bankruptcy filing. Defendants misjudge the magnitude of the problem. Our decision requires only that prudent purchasers determine whether a necessary party to a foreclosure suit has filed for bankruptcy. We do not consider that the additional effort thus called for necessitates a contrary decision.

Also unpersuasive is defendant’s contention that the automatic stay provision in section 362 of the Bankruptcy Act is not applicable to the present facts since no direct relief from National Precast was sought. Section 362, however, broadly and plainly prohibits the commencement of any type of proceeding against the debtor (11 U.S.C. sec. 362 (Supp. 1979)), and this action, under the statute, could not have been commenced without joining the debtor as a party defendant. Plaintiff was unquestionably subject to the automatic stay and correctly delayed filing suit until it was lifted.

Defendants next challenge count II of plaintiff’s amended complaint for failure to state a cause of action. As earlier noted, count II sought damages from the property owners for improper payments allegedly made to the contractor. Defendants do not contest that such payments would violate sections 27 and 32 of the Mechanics’ Liens Act (111. Rev. Stat. 1981, ch. 82, pars. 27, 32). Rather, they argue that plaintiff’s only remedy is an action to enforce its mechanic’s lien. We disagree. Section 28 of the Mechanics’ Liens Act states:

“If any money due to the laborers, materialmen, or sub-contractors be not paid within 10 days after his notice is served *** then such person may either file a claim for lien or file a complaint and enforce such lien within the same limits as to time and in such other manner as hereinbefore provided for the contractor in section 7 and sections 9 to 20 inclusive, of this Act, or he may sue the owner and contractor jointly for the amount due in the circuit court, and a personal judgment may be rendered therein, as in other cases.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 82, par. 28.)

The final clause of the above sentence enables a subcontractor to seek a personal judgment against the owner and the contractor whenever the owner, with notice of the subcontractor’s claim, fails to make payment on such claim. Accordingly, count II of plaintiff’s amended complaint states a cause of action. Since count II is not an action to enforce a mechanic’s lien it is not governed by the two-year limitation period contained in the Mechanics’ Liens Act. Applicable instead is the five-year period set forth in section 15 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 16), and count II was filed well within that period.

For the foregoing reasons the judgment of the appellate court is affirmed.

Judgment affirmed.


text:
    (No. 57904.

      In re MARRIAGE OF CYNTHIA KAY UPHOFF, Appellant and Cross-Appellee, and DAVID MICHAEL UPHOFF, Appellee and Cross-Appellant.

      Opinion filed December 1, 1983.

      Duane D. Young, of Costello, Long, Young & Metnick, of Springfield, for appellant and cross-appellee.
    Thomas J. Logue, of Glenn & Logue, of Mattoon, for appellee and cross-appellant.
   JUSTICE MORAN

delivered the opinion of the court:

On January 4, 1982, the circuit court of Coles County entered a judgment of dissolution of marriage in this case. Both parties appealed from the second part of the bifurcated proceedings, which dealt with property distribution, maintenance and child support. A majority of the appellate court found the appeal of the plaintiff, Cynthia Kay Uphoff, untimely and, therefore, dismissed her appeal for lack of jurisdiction. As such, the appellate court heard only the appeal of the defendant, David Michael Uphoff, and remanded the cause to the trial court to enter a new order of property distribution, maintenance and child support. A petition for rehearing was denied. (110 Ill. App. 3d 608.) This court granted leave to appeal.

The sole issue on appeal is whether the appellate court erred in finding plaintiffs notice of appeal untimely.

The relevant facts in this case center on a series of post-trial steps taken by the parties following the January 4, 1982, circuit court judgment. Defendant filed a post-trial motion on January 22, 1982. Plaintiff filed her post-trial motion on February 5, 1982, one day after the 30-day statutory period within which to file such a motion. (Ill. Rev. Stat. 1979, ch. 110, par. 68.3.) Both post-trial motions were denied by the trial court on March 26, 1982. Within 30 days of this order, on April 22, 1982, the plaintiff filed her notice of appeal. The defendant filed his notice of cross-appeal later that same day.

The appellate court entered a rule upon plaintiff to show cause why her appeal should not be dismissed. The majority opinion found that because plaintiffs post-trial motion was untimely, “the judgment was not stayed and a notice of appeal on April 22 from a judgment entered January 4 was likewise untimely.” 110 Ill. App. 3d 608, 609.

The dissent focused on the express verbiage of Supreme Court Rule 303(a) (87 Ill. 2d R. 303(a)), in force at that time and since amended, which stated in relevant part:

“[T]he notice of appeal must be filed *** within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or nonjury case, within 30 days after the entry of the order disposing of the motion.” (Emphasis added.)

Because the rule refers only to “a” timely post-trial motion, the dissent found plaintiff’s notice of appeal timely since it was filed within 30 days after the ruling on defendant’s post-trial motion.

The precise question here has never been ruled upon. Specifically, May a party perfect an appeal by filing a timely notice of appeal from the disposition of the opposing party’s post-trial motion? Reaching the answer to this question requires an interpretation of Supreme Court Rule 303(a) (87 Ill. 2d R. 303(a)) prior to its amendment effective October 1, 1983. Further, it is necessary to refer to our decision in Elliott v. Willis (1982), 92 Ill. 2d 530.

Elliott was a wrongful death action. The plaintiff filed a post-trial motion the day after the trial court’s judgment order was entered. This post-trial motion was denied and plaintiff immediately filed a notice of appeal. The defendants filed a post-trial motion the following day, which was within 30 days of the original trial court judgment. Following the denial of this post-trial motion, defendants filed a notice of appeal. The appellate court found that under Rule 303(a) one party’s filing of a notice of appeal divests the trial court of jurisdiction to pass on the opposing party’s post-trial motion. As such, it held defendant’s notice of appeal, based on the denial of its post-trial motion, was untimely.

In reversing the appellate court, this court found that the filing of a notice of appeal by one party does not cut off the right of another party to file a timely post-trial motion. “Although the jurisdiction of the appellate court attaches instanter upon the filing of a notice of appeal [citation], we find that the circuit court retained jurisdiction to hear the defendants’ post-trial motion ***.” (92 Ill. 2d 530, 543-44.) Since defendant’s notice of appeal was filed “within 30 days after the entry of the order disposing of the [post-trial] motion” (87 Ill. 2d R. 303(a)), the notice of appeal was found to be proper.

The majority opinion in the instant case found that “Elliott made clear that the trial court retains jurisdiction to dispose of all timely post-trial motions, even though the dispositions are seriatim. It did not say that the trial court retains general jurisdiction until all such timely motions are disposed of ***.” (110 Ill. App. 3d 608, 610.) The majority found that Elliott did not change the “fundamental principle” that a party must either file a post-trial motion or a notice of appeal within 30 days of the entry of the judgment appealed.

The appellate court misconstrues our decision in Elliott as well as the clear language of Rule 303(a) (87 Ill. 2d R. 303(a)). Neither Elliott nor Rule 303(a) would indicate that plaintiff's notice of appeal was not timely. Elliott clarified the fact that a party’s opportunity to file a timely post-trial motion is not lost because an opposing party files a notice of appeal. Implicit in the decision is the court’s retention of complete jurisdiction until after the disposition of the last timely post-trial motion. As long as any party’s timely post-trial motion remains undisposed, the underlying judgment is not final, notice of appeal is premature and complete jurisdiction remains in the circuit court. (City of DeKalb v. Anderson (1974), 22 Ill. App. 3d 40, 43-44.) Here, plaintiff’s untimely post-trial motion is irrelevant regarding the timeliness of her notice of appeal. Had she filed a notice of appeal prior to the trial court’s disposition of defendant’s timely post-trial motion, the notice would have been premature, since no final judgment had been entered.

The finding of the majority opinion of the appellate court in the instant case that appellant was limited to filing either a post-trial motion or a notice of appeal within 30 days of the judgment appealed is, generally, a correct statement. The 30-day period for filing of a notice of appeal, however, runs from final judgment which, in the instant case, was March 26, 1982 — the day the circuit court disposed of the last pending post-trial motion. “Such a motion not only extends the circuit court’s jurisdiction, but also extends the appellate court’s potential jurisdiction, the time within which a notice of appeal may be filed, until 30 days after the motion is denied.” (Sears v. Sears (1981), 85 Ill. 2d 253, 258.) Thus, notice of appeal filed by plaintiff on April 22, 1982, was timely since it was within the 30-day period required by Rule 303(a) (87 Ill. 2d R. 303(a)).

Our Rule 303 (87 Ill. 2d R. 303) has been amended and, as noted above, became effective on October 1, 1983 (94 Ill. 2d R. 303). As amended, Rule 303 addresses the issue confronted in the instant case. The earlier version of Rule 303 (87 Ill. 2d R. 303(a)) stated that notice of appeal had to be filed “within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, *** within 30 days after the entry of the order disposing of the motion.” (Emphasis added.) The amended version replaces the emphasized word “motion” with “last-pending post-trial motion.” (94 Ill. 2d R. 303(a)(l).) In so doing, the rule makes it clear that the time to appeal begins to run only after the court has disposed of the last timely post-trial motion — in this instance, the defendant’s post-trial motion.

Since the only issue raised on review is the propriety of the appellate court’s dismissal of plaintiff’s appeal, that portion of the appellate court judgment dismissing plaintiff’s appeal is reversed. The balance of the appellate court judgment is vacated, and the cause is remanded to the appellate court for reconsideration of the issues raised in the appeal and cross-appeal.

Reversed in part and vacated in part and remanded.


text:
    (No. 57968.
    GEORGE D. HARDIN, INC. et al., Appellees, v. THE VILLAGE OF MOUNT PROSPECT, Appellant.

      Opinion filed December 1, 1983.

      Richard V. Houpt, David C. Newman, and Donald J. Moran, of Chicago (Pedersen & Houpt, of counsel), for appellant.
    Herbert Lesser, of Chicago, for appellees.
    Thomas W. Kelty and Stanley L. Morris, of Pfeifer & Kelty, P.C., of Springfield, for amicus curiae Illinois Municipal League.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Plaintiffs, George D. Hardin, Inc., and Ralph Martin, filed in the Cook County circuit court a complaint on their own behalf, and on behalf of a class of similarly situated special-assessment bondholders. They sought a declaration of an express trust and an accounting from defendant, the Village of Mt. Prospect, for certain special assessments collected by it. The two named plaintiffs allege that they represent a group of holders of special-assessment bonds which defendant issued in the years 1926 through 1930, as provided by statutes, the substance of which now is found in article 9 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 9 — 1—1 et seq. (hereinafter referred to as the Local Improvement Act)). Defendant customarily issued these special-assessment bonds to contractors who constructed improvements within the village. Under the Local Improvement Act, the bonds were to be paid from the monies collected by defendant from the owners of the benefitted property against which costs of the improvement had been assessed. Defendant, acting as trustee for the bondholders (Rothschild v. Village of Calumet Park (1932), 350 Ill. 330, 339; Conway v. City of Chicago (1908), 237 Ill. 128, 136), collected the special assessments from the property owners in annual installments. During the Depression era of the 1930’s, however, property owners were often unable to pay their installments when due, and many special assessments were never fully paid. (See Gilbert, The Path of Special Assessment Bond Law in Illinois: From the Attic to the Courtroom, 27 De Paul L. Rev. 651 (1978).) All the special-assessment installments at issue in this case have been delinquent for more than 30 years.

In their complaint, plaintiffs alleged the funds collected had been commingled or improperly transferred and that defendant had not paid to bondholders all of the sums which it collected. Defendant moved to dismiss, citing section 1.1 of “An Act in relation to delinquent taxes and special assessments” (Ill. Rev. Stat. 1981, ch. 120, par. 891.1). This legislation provides, in pertinent part, as follows:

“Sec. 1.1 In cases where bonds issued by a municipality are secured *** from specific revenues other than ad valorem tax levies and the payment of the *** specific revenue has been delinquent for a period of 30 years such *** revenue shall be presumed to be uncollectible and in all such cases, the municipal treasurer shall enter upon the appropriate bond issue records where such bonds appear the words ‘CANCELLED — Revenue Uncollectible’, and shall adjust the books and records accordingly.
When such bonds have been designated as above the municipality may use any money it holds for the payment of those bonds for any general corporate purpose.”

In their reply to defendant’s motion to dismiss, plaintiffs challenged this legislation as an unconstitutional impairment of contract in violation of article I, section 10, of the Federal Constitution and article I, section 16, of the Hlinois Constitution. Plaintiffs also asserted that the quoted legislation constituted a deprivation of property without due process of law and an ex post facto law.

In a November 4, 1982, order the trial court denied defendant’s motion to dismiss, holding that section 1.1 unconstitutionally impaired the contractual obligation between the bondholder and the municipality, contrary to the Federal and State constitutional provisions. Defendant then filed a motion to reconsider, requesting that the trial court rule on the constitutionality of the two remaining provisions of the statute, sections 1 and 2 (Ill. Rev. Stat. 1981, ch. 120, par. 891, 892). Section 1, much like section 1.1, provided that special-assessment installments delinquent for more than 30 years were presumed to be uncollectible but, unlike section 1.1, stated that money which the municipality held for payment to bondholders was to be used for projects similar to those for which the monies had originally been collected. Section 2 established a two-year grace period for municipalities to collect special-assessment installments delinquent for 30 years or to commence actions to foreclose liens thereon. In a second order, filed January 10, 1983, the trial court held that only those portions of sections 1 and 1.1 which permitted municipalities to use special-assessment funds for purposes other than bond payments constituted an unconstitutional impairment of contract. The second order did not discuss the constitutionality of section 2. The trial court then gave defendant 28 days in which to answer the complaint and stated that there was no just cause to delay appeal of the order.

This order, which extended the time for filing an amended pleading, is clearly not a final, appealable order, and does not become so by addition of the “no just cause to delay appeal” language (Crane Paper Stock Co. v. Chi cago & Northwestern Ry. Co. (1976), 63 Ill. 2d 61, 66). Rule 302(a) (87 Ill. 2d R. 302(a)) permits direct appeals to this court only where a statute has been held invalid by a final judgment of the trial court, which this order is not. Because of the importance to municipalities of the constitutional issue here involved, however, we have concluded to retain the case and decide the question in the exercise of our supervisory authority under article VI, section 16, of our constitution. People v. Heddins (1977), 66 Ill. 2d 404, 406; Crane Paper Stock Co. v. Chicago & Northwestern Ry. Co. (1976), 63 Ill. 2d 61, 67; Brokaw Hospital v. Circuit Court (1972), 52 Ill. 2d 182, 187.

A preliminary question involves the parties’ dispute over the scope of the order below. Plaintiffs contend that the trial court’s second order effectively narrowed its first decision, and thus the two orders should be read together as striking only those portions of sections 1 and 1.1 permitting municipalities to use special-assessment funds for other purposes. Defendant argues that the second order confirmed and restated the trial court’s initial decision that the legislation was completely invalid. Furthermore, defendant reasons that even if the second order were to be narrowly construed, the rest of the statute would be meaningless.

Although the scope of the trial court decision is unclear, even assuming arguendo that the trial court struck only those portions of the statutes which permit municipalities to use assessment monies for other purposes, those provisions are not severable. If only those particular portions are stricken, what remains is a statute permitting municipalities to cancel bonds which have been delinquent for 30 years, but which does not direct disposition of collected but undisbursed funds. The general rule in determining whether an invalid portion of a statute is severable so that the remainder may stand is that the unconstitutional part does not invalidate the balance if what remains “ '*** is complete in itself and capable of being executed wholly independently of that which is rejected *** unless it can be said that the General Assembly would not have passed the statute with the invalid portion eliminated.’ ” (Commercial National Bank v. City of Chicago (1981), 89 Ill. 2d 45, 73, quoting Village of Oak Lawn v. Marcowitz (1981), 86 Ill. 2d 406, 421; City of Carbondale v. Van Natta (1975), 61 Ill. 2d 483, 490; Livingston v. Ogilvie (1969), 43 Ill. 2d 9, 23.) Applying that rule here, it seems apparent that invalidating the authority to use the collected funds for other municipal purposes leaves the statute meaningless insofar as it relates to the defaulted bond collections — the bonds have been cancelled but the funds cannot be used. Clearly, we believe, a major purpose of the General Assembly in enacting the legislation would be frustrated. Without the municipal benefits resulting from release of the funds, we believe this legislation would not have been adopted. Consequently, in our judgment the bond-cancellation provisions cannot stand alone.

Defendant does not dispute the existence of a contract between defendant and plaintiffs based on its issuance of special-assessment bonds. Defendant does, however, argue that the challenged legislation does not impair any obligation of contract, because upon their enactment, sections 1 and 1.1 became part of the contract between the municipality and the bondholders. We do not agree. The contracts between the municipality and the bondholders in this case were entered into more than 40 years before enactment of the challenged legislation. The law is well settled that only statutes in force at the time a contract is made are incorporated therein. Ogden v. Saunders (1827), 25 U.S. (12 Wheat.) 213, 323-24, 6 L. Ed. 606, 644; W.B. Worthen Co. v. Kavanaugh (1935), 295 U.S. 56, 60, 79 L. Ed. 1298, 1301, 55 S. Ct. 555, 556, citing Sturges v. Crowninshield (1819), 17 U.S. (4 Wheat.) 122, 197, 4 L. Ed. 529, 549; Home Building & Loan Association v. Blaisdell (1934), 290 U.S. 398, 429, 78 L. Ed. 413, 423-24, 54 S. Ct. 231, 237.

Defendant’s second argument in favor of the constitutionality of sections 1 and 1.1 requires a more detailed analysis. Although acknowledging that the language of the contract clause is absolute, defendant correctly observes that the Federal Constitution’s clause prohibiting impairment of contractual obligations has not been so interpreted. The United States Supreme Court, in Home Building & Loan Association v. Blaisdell (1934), 290 U.S. 398, 428, 78 L. Ed. 413, 423, 54 S. Ct. 231, 236, recognized that the contract clause “is not to be read with literal exactness like a mathematical formula.” (See also City of El Paso v. Simmons (1965), 379 U.S. 497, 508, 13 L. Ed. 2d 446, 454, 85 S. Ct. 577, 583; United States Trust Co. v. New Jersey (1977), 431 U.S. 1, 52 L. Ed. 2d 92, 97 S. Ct. 1505.) We see no reason why the virtually identical language in our State Constitution should not be interpreted in the same fashion. Both United States Supreme Court decisions and decisions of this court have held that the contract clause does not immunize contractual obligations from every conceivable kind of impairment or from the effect of a reasonable exercise by the States of their police power. See, e.g., Allied Structural Steel Co. v. Spannaus (1978), 438 U.S. 234, 241, 57 L. Ed. 2d 727, 734, 98 S. Ct. 2716, 2721; City of El Paso v. Simmons (1965), 379 U.S. 497, 509, 13 L. Ed. 2d 446, 455, 85 S. Ct. 577, 584; Meegan v. Village of Tinley Park (1972), 52 Ill. 2d 354, 358.

In our judgment the opinion of the United States Supreme Court in United States Trust Co. v. New Jersey (1977), 431 U.S. 1, 52 L. Ed. 2d 92, 97 S. Ct. 1505, is dis-positive of this case, for the circumstances there considered insufficient to sustain legislative alteration of contractual obligations were substantially more compelling than here. In that case, the States of New York and New Jersey, by a 1962 statutory covenant, limited the ability of the Port Authority of New York and New Jersey to divert, for purposes of subsidizing rail-passenger transportation, certain revenues and reserves previously pledged as security for bonds issued by the Port Authority. Concurrent legislation in both States some 12 years later purported to retroactively repeal the earlier covenant. That legislation was attacked as impermissibly impairing the obligations of the Authority bonds issued prior to repeal. While the State court held the repealing legislation was a reasonable exercise of the State’s police power (United States Trust Co. v. State (1976), 69 N.J. 253, 353 A.2d 514), the Supreme Court reversed on the ground that the 1974 repealer statute was an unconstitutional impairment of the Port Authority’s contract with its bondholders. In reaching this conclusion, the court reviewed at length the history of the contracts clause and noted that it has upheld State legislation impairing contracts in very few cases. Only once in this century, in the case of Faitoute Iron & Steel Co. v. City ofAsbury Park (1942), 316 U.S. 502, 86 L. Ed. 1629, 62 S. Ct. 1129, has the court upheld a statute that impaired contract rights of municipal bondholders. In that case, the challenged legislation permitted a bankrupt local government to go into receivership, but it also provided significant protections for all creditors: any bankruptcy repayment plan required approval of 85% of all. creditors, and nonconsenting creditors were to be bound by the plan only after a State court determination that the municipality could not otherwise pay its creditors and that the repayment plan was in the best interest of all creditors.

The legislation before us is clearly distinguishable from that upheld in Faitoute. In contrast to the provisions for creditors in that case, sections 1 and 1.1 here provide no protective measures of any sort to the bondholders; instead, they permit a blanket cancellation of all special-assessment bonds on which payments have been delinquent for 30 years, and conversion of any remaining funds to other corporate purposes.

Nor do justifications offered for this legislation approach the compelling levels of the reasons held insufficient in United States Trust Co. There the court invalidated the statute even though the country was experiencing an energy crisis of unprecedented dimensions, and the legislative action had been designed to encourage energy conservation and reduce air pollution by attracting former automobile commuters to an enlarged rail system. Although acknowledging the benefits that could inure to the public through this exercise of the State’s police power, the court held that these positive aspects of the legislation did not outweigh the harm bondholders would undergo. This harm, although incapable of any precise definition, was characterized as a “thin” secondary market for the bonds accompanied by a price drop in relation to other formerly comparable securities.

Here, the justifications offered for the contractual impairment are, in our judgment, much less persuasive than in either Faitoute or United States Trust Co. Those justifications are said to be the easing of municipal record-keeping burdens and the elimination of municipal liability for improper record keeping, commingling, conversion or erroneous disbursement of funds. Dealing with old records, lost owners and missing bonds is doubtless a difficult, expensive, and time-consuming task, as defendant contends, although we note that one of the named plaintiffs here is one of the original contractors who constructed the improvement, taking the bonds in payment. Compared with the energy-conservation and pollution-reduction benefits which were insufficient to save the statute in United States Trust Co., however, the justifications defendant offers for sections 1 and 1.1 fade into relative insignificance. Simplifying municipal record keeping and eliminating the possibility of stale claims are simply insufficient bases for upholding a statute which, without notice of any type, permits cancellation of valid bonds and conversion of undisbursed funds.

We accordingly hold that all portions of section 1 and 1.1 of “An Act in relation to delinquent taxes and special assessments” (Ill. Rev. Stat. 1981, ch. 120, pars. 891, 891.1) that deal with special assessments are unconstitutional impairments of contractual obligations in violation of the Federal and State constitutions.

The judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.


text:
    (No. 58042.

      In re THOMAS WILLIAM SCHEUNEMAN, Attorney, Respondent.

      Opinion filed December 1, 1983.

      "WARD, J., took no part.
    James J. Grogan, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    William J. Harte, Ltd., of Chicago (William J. Harte, of counsel), for respondent.
   JUSTICE MORAN

delivered the opinion of the court:

On November 18, 1981, respondent, Thomas W. Scheuneman, pleaded guilty to a three-count information charging him with knowingly and wilfully failing to file Federal income tax returns for the years 1975, 1976 and 1977 in violation of title 26, United States Code, section 7203. Respondent was sentenced to 60 days’ confinement in the Community Based Work-Release Program at the Chicago Metropolitan Correctional Center, and two years’ probation conditioned upon his performance of community service, one day per week, throughout the probationary period.

The day after respondent pleaded guilty, he voluntarily informed the Illinois Attorney Registration and Disciplinary Commission of the Federal proceedings against him. Based upon this information, the Inquiry Board issued a complaint which alleged that respondent was guilty of conduct which tended to defeat the administration of justice and to bring the legal profession into disrepute.

Before the Hearing Board, respondent admitted that he was guilty of professional misconduct and expressed his remorse. In mitigation, 13 witnesses, including judges, lawyers and lay persons testified as to respondent’s excellent reputation in the community, his honesty and fitness to practice law. The Hearing Board’s report noted the mitigating factors of this case, including respondent’s naval service, his participation in pro bono work, his unusual personal and financial hardship, the continuing illness of his son, and his cooperation at every level of the proceedings before the Federal district court and the Attorney Registration and Disciplinary Commission. The Board found the mitigating circumstances sufficiently compelling and unanimously recommended censure.

The Administrator filed exceptions which did not dispute the mitigating factors found by the Hearing Board. Instead of censure, the Administrator suggested that respondent be suspended for the duration of the Federal probationary period, that the suspension order be stayed, and that respondent be placed on probation. The Review Board, however, recommended, in a five-to-three decision, that the appropriate sanction was six months’ suspension. The three dissenting members favored the Hearing Board’s recommendation of censure.

The only issue to be resolved is the appropriate disciplinary sanction under the facts and circumstances of this case.

This court has consistently held that a conviction for failure to file income tax returns brings the legal profession into disrepute. (In re Hopper (1981), 85 Ill. 2d 318, 322; 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.) Final responsibility for determining the discipline to be imposed rests in this court. In reaching that determination, we may properly consider the respondent’s conduct and all facts and circumstances in aggravation and mitigation. (In re Neff (1980), 83 Ill. 2d 20, 25; In re Cook (1977), 67 Ill. 2d 26, 32; In re Lytton (1971), 48 Ill. 2d 390, 391.) Respondent here does not dispute that discipline is warranted; however, he claims that certain factors mitigate his misconduct and, as such, censure is the appropriate sanction.

The record indicates that after receiving his undergraduate degree in 1962, respondent entered the United States Navy. From 1962 to 1965, he served as a combat intelligence specialist on Navy combatant ships. During his last year of service, respondent volunteered for duty in Viet Nam, thereby extending his military service for one year. After concluding his active military service, respondent married and entered law school. He graduated first in his class and was admitted to practice in 1969. Respondent was continually employed in the legal profession from 1969 to 1983. Presently, he resides in California, where he is employed by a corporation and is not engaged in the general practice of law.

In 1972, respondent’s marriage ended in divorce. Respondent claims that he could not meet his daily living expenses because of the financial burden brought on by the divorce. He also stated that his son suffered from an acute asthmatic condition during the period here in question. This condition caused his son to be hospitalized on the average of once a month and, on at least two occasions, his son almost died from the illness.

Respondent maintains that his failure to file tax returns was due to a misconception of the Federal tax laws. He denied that he wilfully avoided his obligations. Respondent maintains that his income was always reported and that withholding taxes were paid. He testified that he did not know that he could file a tax return without simultaneously paying, in full, all taxes due and owing. Being under this misapprehension, he stated that when he calculated the balance of taxes owed, he did not have the money to tender with the return and consequently did not file.

To support his position that censure is the appropriate sanction here, respondent relies upon two unpublished orders entered by this court. In In re Melvan M. Jacobs (1981), M.R. 2675, the respondent was convicted of wilfully failing to file Federal income tax returns for the years 1968 through 1971. The taxes for those years were subsequently paid in full and all later returns were promptly filed. During the years in question, Jacobs’ firm’s partnership returns, showing his income, were properly filed. He filed for extensions of time to file after having paid approximately $80,000 toward expected liability. The Review Board there considered the mitigating circumstances of Jacobs’ busy practice, his involvement in charitable activities, and the serious illness of his wife and child sufficiently compelling to warrant censure rather than suspension.

In In re Frank W. Oliver (1980), M.R. 2454, the respondent was convicted of knowingly and wilfully failing to file income tax returns for two years. He was sentenced to 60 days in the Chicago Metropolitan Correctional Center. The Review Board there concluded that Oliver’s excellent reputation as an attorney and his past service to unpopular causes were mitigating circumstances which justified censure rather than suspension.

We agree with respondent’s contention that predictability and fairness require that there be a degree of consistency in the sanctions imposed for similar types of conduct.

For the foregoing reasons, respondent is censured.

Respondent censured.

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