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

text:
    (Nos. 51467, 51468, 51504 cons.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ROBERT PARKINS et al., Appellees.-THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. LINDA ROSS, Appellee.

      Opinion filed October 19, 1979.

      MORAN, J., dissenting.
    William J. Scott, Attorney General, of Springfield, and Daniel D. Doyle, State’s Attorney, of Rockford (Donald B. Mackay and Melbourne Noel, Assistant Attorneys General, of Chicago, and Phyllis J. Perko and Barbara A. Preiner, of the State’s Attorneys Appellate Service Commission, of Elgin, of counsel), for the People.
    Mary Robinson, Deputy Defender, and Elizabeth E. Clarke, Assistant Defender, of the Office of the State Appellate Defender, of Elgin, for appellees.
    William J. Scott, Attorney General, and C. Joseph Cavanagh, State’s Attorney, both of Springfield (Donald B. Mackay and Melbourne Noel, Jr., Assistant Attorneys General, of Chicago, and Phyllis J. Perko and Barbara A. Preiner, of the State’s Attorneys Appellate Service Commission, of Elgin, of counsel), for the People.

      John Gray Noll, of Springfield, for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

In causes numbered 51467 and 51468 the People appealed from the judgments of the circuit court of Winnebago County entered upon allowance of the motion to dismiss filed by defendants Robert Parkins and Linda Parkins, charged in a single complaint with the offense of harassment by telephone in violation of section 1 — 1 of “An Act *** to prevent harassment by the use of telephone communications ***” (the Act) (Ill. Rev. Stat. 1977, ch. 134, par. 16.4 — 1(2)). In cause No. 51504 the People appeal from the judgment of the circuit court of Sangamon County, entered upon allowance of the motion of defendant Linda Ross to dismiss similar charges. In each instance the circuit court held the statute unconstitutional and the People have appealed pursuant to Rule 302(a)(1) (58 Ill. 2d R. 302(a)(1)). The cases were consolidated in this court.

Section 1 — 1 of the Act in pertinent part provides:

“Harassment by telephone is use of telephone communication for any of the following purposes:
* * *
(2) Making a telephone call, whether or not conversation ensues, with intent to abuse, threaten or harass any person at the called number; ***.” Ill. Rev. Stat. 1977, ch. 134, par. 16.4-1(2).

Defendants contend that, when a statute “which is susceptible of application to conduct protected by the First Amendment presents the danger of a ‘chilling effect,’ ” it is unconstitutionally overbroad. They argue that the “telephone harassment statute is impermissibly vague because no standard of conduct is specified.”

The People submit that “To the extent that the telephone harassment statute might be susceptible to unconstitutionally overly broad interpretation, any such problem may be cured by the imposition by the courts of this State of a limiting construction on the statute.” The People urge this court to give effect to the “clear language of the statute” and hold that the statute, as it currently exists, only applies to telephone calls made “in an unreasonable manner.” Further, the People contend that the statute is not vague in giving notice of exactly what conduct is prohibited, and that the language of the subsection is sufficiently specific to allow those charged with enforcing the law to avoid discriminatory enforcement.

In People v. Klick (1977), 66 Ill. 2d 269, this court held unconstitutional as overbroad section 26.1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 26.1(a)(2)), which in pertinent part provided:

“(a) A person commits disorderly conduct when he knowingly:
***
(2) With intent to annoy another, makes a telephone call, whether or not conversation thereby ensues; ***.”

Subsequent to the filing of our opinion in Klick, the General Assembly enacted the statute upon which these cases are based. Pub. Act 80 — 795, passed June 26, 1977, approved September 18, 1977.

In People v. Schwartz (1976), 64 Ill. 2d 275, considering the contentions that the statute there involved was vague and overbroad the court said:

“A criminal statute violates the requirement of due process of law if it fails to adequately give notice as to what action or conduct is proscribed. (People v. Vandiver (1971), 51 Ill. 2d 525.) Impossible standards of specificity, however, are not required. (Jordan v. DeGeorge (1951), 341 U.S. 223, 231, 95 L. Ed. 886, 71 S. Ct. 703; People v. Dednam (1973), 55 Ill. 2d 565.) As stated by Mr. Justice Marshall, ‘Condemned to the use of words, we can never expect mathematical certainty from our language.’ (Grayned v. City of Rockford (1972), 408 U.S. 104, 110, 33 L. Ed. 2d 222, 228-29, 92 S. Ct. 2294.) When called upon to decide a vagueness question, a court will assume, absent contrary legislative intent, that the words of the statute have their ordinary and popularly understood meanings. (Farrand Coal Co. v. Halpin (1957), 10 Ill. 2d 507, 510.) In addition to the language used, consideration is given to the legislative objective and the evil the statute seeks to remedy. (People v. Dedham (1973), 55 Ill. 2d 565.) A statute enjoys a presumption of constitutionality. Livingston v. Ogilvie (1969), 43 Ill. 2d 9, 12.
* * *
A statutory enactment, though sufficiently clear and precise to withstand a vagueness attack, may nevertheless be impermissibly overbroad if it may reasonably be interpreted to prohibit conduct which is constitutionally protected. (Grayned v. City of Rockford (1972), 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294.)” 64 Ill. 2d 275, 280-82.

The determination of the legislative intent in requiring proof of the intent “to abuse, threaten or harass” rather than as in the earlier statute, the intent “to annoy,” would appear, appropriately, to invoke the maxim noscitur a sociis. As the Supreme Court observed in Jarecki v. G. D. Searle & Co. (1961), 367 U.S. 303, 307, 6 L. Ed. 2d 859, 869, 81 S. Ct. 1579, 1582, “The maxim noscitur a sociis, that a word is known by the company it keeps, while not an inescapable rule, is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to the Acts of Congress.” Thus the words “abuse” and “harass” take color from the word “threaten” and acquire more restricted meanings.

In People v. Raby (1968), 40 Ill. 2d 392, the court considered the validity of section 26 — 1(a) of the Criminal Code of 1961, which in pertinent part provided:

“A person commits disorderly conduct when he knowingly:
(1) Does any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace ***.” (Ill. Rev. Stat. 1967, ch. 38, par. 26 — 1.)

In discussing the statute, and holding it valid, the court said:

“It is true that section 26 — 1(a) does not attempt to particularize all of the myriad kinds of conduct that may fall within the statute. The legislature deliberately chose to frame the provision in general terms, prompted by the futility of an effort to anticipate and enumerate all of the methods of disrupting public order that fertile minds might devise.” (40 Ill. 2d 392, 396.)

We find the foregoing comment apposite. We hold that the statute is neither vague nor overbroad and the judgments are, therefore, reversed.

Judgments reversed.

MR. JUSTICE MORAN,

dissenting:

In People v. Klick (1977), 66 Ill. 2d 269, this court held a similar statute overly broad for failure to set forth objective standards by which to evaluate the conduct proscribed. The present statute has merely added new words, but, in my opinion, fails to set forth any objective standard. Here, as in Klick, the State asks that we supply the standard by holding that the present enactment applies only to telephone calls made “in an unreasonable manner.” In Klick, we declined the invitation but clearly set forth the corrective measures that the legislature could follow to avoid the present problem. The legislature having failed to implement those corrective measures, the new enactment suffers from the same malady: it is overly broad. It is my feeling that the new verbiage provides no more objective standards than the old statute, and that the majority, by its opinion, has effectively overruled the decision in Klick


source: Caselaw Access Project

author: MR. JUSTICE CLARK

license: Public Domain

text:
    (No. 51353.
    THE PEOPLE ex rel. ARTHUR FISHER et al., Appellants, v. BERNARD CAREY, State’s Attorney, Appellee.

      Opinion filed October 19, 1979.

      James J. Doherty, Public Defender, of Chicago (Matthew J. Beemsterboer, Frank R. Rago, and Barry M. Lewis, Assistant Public Defenders, of counsel), for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr and Myra J. Brown, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

James Doherty, public defender of Cook County, filed this class action, on behalf of Arthur Fisher and others who have been or will be charged with criminal offenses, to enjoin Bernard Carey, the State’s Attorney of Cook County, from intercepting subpoenaed police reports. The State’s Attorney filed a third-party action to enjoin the public defender from causing the issuance of subpoenas duces tecum upon the police department. The circuit court of Cook County, in a written opinion, denied both requests for injunctions, but held that the public defender must first seek production of the police reports under our rules of discovery (58 Ill. 2d Rules 411, 414, 415; 65 Ill. 2d Rules 412, 413) before utilizing subpoenas duces tecum; and that the State may not intercept police reports which have been subpoenaed, but the police must deliver the subpoenaed documents directly to the court. The public defender appealed and the State’s Attorney cross-appealed to the appellate court, which affirmed, with a dissent (64 Ill. App. 3d 239). We allowed the public defender’s petition for leave to appeal (65 Ill. 2d R. 315).

The undisputed facts are that the public defender, frequently before an information has been filed or an indictment returned against one who has been arrested, seeks a police report through the issuance of subpoenas duces tecum. The police department’s records division collects the materials and sends them to the assistant State’s Attorney assigned to the courtroom in which the particular case will be heard. The assistant State’s Attorney reviews the materials and then turns all or some of them over to defense counsel. Neither the Chicago Police Department nor the corporation counsel has taken a position in the action, but both want the matter resolved to avoid duplication of work.

The State’s Attorney’s contention is essentially the same as the circuit and appellate courts’ holdings. Rule 411 (58 Ill. 2d R. 411) states clearly that our discovery rules “shall become applicable following indictment or information and shall not be operative prior to or in the course of any preliminary hearing.” From this, the State’s Attorney argues that a subpoena duces tecum to obtain discoverable material before a preliminary hearing, when such material can be obtained after a probable cause determination but before trial, is improper. Only if defendant’s discovery efforts, under our rules, are unsuccessful may he seek the material by subpoena, the State’s Attorney maintains. He argues this on the grounds that the use of a subpoena duces tecum may not be used to circumvent our discovery rules, and that Rule 412(g) (65 Ill. 2d R. 412(g)) provides for the issuance of a subpoena only if the “State’s efforts” to gather discoverable material from other “governmental personnel” are unsuccessful. (The State’s Attorney says that police reports, as the public defender sought or seeks for his clients here, are discoverable under Rule 412(a)(vi) (65 Ill. 2d R. 412(a)(vi)).) The State’s Attorney is also concerned about the burden of paper work subpoenas might place on the police department. The public defender’s contentions are that our discovery rules could not abolish or limit the use of subpoenas as determined by the courts below because a subpoena is a judicial compulsory process protected by the sixth amendment; discovery and subpoenas are unrelated (in that the former procedure attempts “to see what you can find” while the latter process seeks specified items); and the State’s Attorney should not be permitted to intercept subpoenaed reports even though Rule 412(f) permits the State’s Attorney to “ensure *** a flow of information” between the investigative bodies and the defendant in the course of discovery.

We note that although the State’s Attorney prays for affirmance of the orders of the trial and appellate courts, which held that subpoenaed police reports must go directly to the court, he still somewhat inconsistently argues that his staff has a right to review the subpoenaed records of “our investigative body” before the court or the defendant gets them. (He cites our discovery rules (e.g., 65 Ill. 2d R. 412) as the basis for this view.) We note, too, that the public defender, apparently also inconsistently, during oral argument said that he was not opposed to the State’s Attorney acquiring and reviewing the police documents first. However, the public defender believes both sides should inspect the subpoenaed documents in order to be able to inform the court what the other side objects to being disclosed or has possibly removed. Under the discovery rules, the State’s Attorney is the conduit which ensures that “all material and information relevant to the accused” be given to him (65 Ill. 2d R. 412(f)). The police department of the city of Chicago is at once in the position of third party, as the public defender claims, yet an investigative agency of the Cook County State’s Attorney, as the latter claims. We believe, despite this dual role, the appropriate resolution should be as the courts below held. Subpoenaed material should be sent directly to the court because the subpoena is a judicial process or court writ, whereas discovery is the parties’ procedure, a distinguishable concept under our rules (Rule 412(g) views subpoenas separately). The court then determines the relevance and materiality of the materials, and whether they are privileged (cf. People v. Wolff (1960), 19 Ill. 2d 318, 327; People v. Wright (1964), 30 Ill. 2d 519, 532-33), as well as whether the subpoena is unreasonable or oppressive. The State’s Attorney, of course, must be fully aware of the records sought from the investigative agency by the subpoena in order for him to object.

We now reach the specific issue here: whether a subpoena duces tecum may issue for normally discoverable police reports before the determination of probable cause but after an accused has been “charged” or “booked.”

The use of subpoenas or “to have compulsory process for obtaining witnesses in his favor” {subpoenas ad testificandum) in “all criminal prosecutions” is guaranteed by the sixth amendment to the Federal Constitution, and applicable to State criminal proceedings. (Washington v. Texas (1967), 388 U.S. 14, 23, 18 L. Ed. 2d 1019, 1025, 87 S. Ct. 1920, 1925; U.S. Const., amend. VI.) This guarantee encompasses the production of documentary evidence by subpoenas duces tecum. (United States v. Burr (C.C.D. Va. 1807), 25 F. Cas. 30, 35 (delivered by Mr. Chief Justice Marshall while riding circuit); United States v. Schneiderman (S.D. Cal. 1952), 106 F. Supp. 731, 735; 8 J. Wigmore, Evidence secs. 2191, 2193 (rev. ed. 1961). See Wilson v. United States (1911), 221 U.S. 361, 372-75, 55 L. Ed. 771, 776-77, 31 S. Ct. 538, 541-42.) It is clear it is “a classic, recognized method for compelling the production of documents” (Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316, 326) and a constitutional judicial process which cannot simply be done away with or its use curtailed by our discovery rules without our seeking guidance or having substantial reason. On the basis of authority and reason, we decline to hold that the public defender may not subpoena police reports prior to a preliminary hearing.

In 1807, Mr. Chief Justice Marshall, resolving the specific problem of a defendant’s subpoena directed to the President, commented at length on subpoenas in general. His statements, germane here, were:

“What can more effectually elude the right to a speedy trial than the declaration that the accused shall be disabled from preparing for it until an indictment shall be found against him? It is certainly much more in the true spirit of the • provision which secures to the accused a speedy trial, that he should have the benefit of the provision which entitles him to compulsory process as soon as he is brought into court. ***
Upon immemorial usage, then, and upon what is deemed a sound construction of the constitution and law of the land, the court is of opinion that any person charged with a crime in the courts of the United States has a right, before as well as after indictment, to the process of the court to compel the attendance of his witnesses. Much delay and much inconvenience may be avoided by this construction; no mischief, which is perceived, can be produced by it. The process would only issue when, according to the ordinary course of proceeding, the indictment would be tried at the term to which the subpoena is made returnable; so that it becomes incumbent on the accused to be ready for his trial at that term.” (United States v. Burr (C.C.D. Va. 1807), 25 F. Cas. 30, 33-34.)

The constitutional origin of the subpoena in the sixth amendment and the antiquity of the use of subpoenas (see above) persuade us that its use is not dependent upon our discovery rules. The Supreme Court’s comments in United States v. Nixon (1974), 418 U.S. 683, 698, 41 L. Ed. 2d 1039, 1058, 94 S. Ct. 3090, 3103, citing Bowman Dairy Co. v. United States (1951), 341 U.S. 214, 220, 95 L. Ed. 879, 885, 71 S. Ct. 675, 679 — that the subpoena “was not intended to provide a means of discovery for criminal cases” — are. also persuasive. “To ensure that justice is done, it is imperative that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.” (United States v. Nixon (1974), 418 U.S. 683, 709, 41 L. Ed. 2d 1039, 1064, 94 S. Ct. 3090, 3108.) Finally the statutory provision — that “[i] t shall be the duty of the clerk of the court to issue subpoenas, either on the part of the people or of the accused ***” (Ill. Rev. Stat. 1975, ch. 38, par. 155 — 2)—is also persuasive evidence that the use of subpoenas is a judicial process, constitutionally and statutorily independent of this court’s discovery rules. We find nothing in the above authorities which commands the public defender to first utilize our discovery rules before utilizing subpoenas, especially when those rules apply only after a preliminary hearing. If that were so, he would be effectively barred from any formal recourse to evidence gathering until after the determination of probable cause. (We note, without attaching particular significance at this time, that the State may subpoena witnesses and documents for grand jury proceedings.)

In addition to our conclusion that this court’s discovery rules may not, without substantial reason, and do not here, limit a criminal party’s access to a court’s compulsory process, we find another reason for permitting the public defender to subpoena police reports which are not privileged (People v. Moses (1957), 11 Ill. 2d 84, 89) subsequent to charging an accused but before a preliminary hearing. A preliminary hearing is a critical stage of criminal proceedings necessitating the presence of defense counsel. (Coleman v. Alabama (1970), 399 U.S. 1, 9-10, 26 L. Ed. 2d 387, 397, 90 S. Ct. 1999, 2003. Accord, People v. Adams (1970), 46 Ill. 2d 200.) Presence of counsel at the preliminary hearing implies more than observation. Counsel is expected to skillfully examine and cross-examine witnesses to expose weaknesses in the State’s case; “fashion a vital impeachment tool for use in cross-examination” at trial; and discover the State’s case against a defendant. (People v. Adams (1970), 46 Ill. 2d 200, 206.) If defense counsel is to do this effectively, he must be prepared. It does not seem unreasonable to allow defense counsel access by subpoena to police reports that are not privileged to adequately prepare. Our decisions in People v. Tennant (1976), 65 Ill. 2d 401, 411, and People v. Horton (1976), 65 Ill. 2d 413, 417, are supportive: “where *** there was an adequate opportunity for cross-examination of the preliminary hearing testimony of a witness who dies prior to trial, the earlier testimony of that witness is properly admitted at trial” (People v. Tennant (1976), 65 Ill. 2d 401, 411); “[a] dequate opportunity to cross-examine means an opportunity to effectively cross-examine, and merely providing an opportunity to cross-examine at the preliminary hearing is not per se adequate opportunity” (People v. Horton (1976), 65 Ill. 2d 413, 417). Moreover, focusing on the period of time between being “charged” and the preliminary hearing, and given the “critical” character of the latter, we believe the four requirements for issuance of a subpoena, set out in United States v. Nixon (1974), 418 U.S. 683, 699-700, 41 L. Ed. 2d 1039, 1059, 94 S. Ct. 3090, 3103, have been met in the cases before us:

“(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general ‘fishing expedition. ’ ”

The State’s Attorney is concerned that allowing police reports to be subpoenaed prior to preliminary hearings will place a burden on the police department. The department itself has not objected but only wants to produce the records once. (Apparently the public defender would cause a second subpoena to issue if the State’s Attorney failed to turn over the requested materials.) The State’s Attorney has failed to demonstrate that the police department would be unduly burdened.

In view of our holding that the State’s Attorney may not be the conduit for subpoenaed police reports, we believe it unnecessary or redundant, then, to enjoin him from intercepting those materials. He may not intercept them. However, as we stated earlier, this does not bar him from seeing what materials the public defender’s subpoena of police report has produced. He must have knowledge of the materials in order to raise reasonable objections to subpoenas.

We share the State’s Attorney’s concern that the issuance of subpoenas duces tecum prior to a preliminary hearing could be abusive and could be utilized as a discovery tool. Accordingly, we limit our holding: a police report is subject to a subpoena duces tecum prior to a preliminary hearing but subsequent to the charging of an accused (which encompasses a formal complaint as well as an information or an indictment (Ill. Rev. Stat. 1975, ch. 38, par. 102 — 8)). As a term of art, “charging an accused” means and occurs only upon formal presentation of the written statement, accusing a person of the commission of an offense, to the court. (Ill. Rev. Stat. 1975, ch. 38, par. 102 — 8.) Here, however, we use the term loosely to encompass the time, prior to a preliminary hearing, during which it is or becomes clear what offenses an accused will be formally charged with. We emphasize that the court must not hesitate to act on motions to quash subpoenas which are oppressive, unreasonable or overbroad.

For these reasons we affirm those parts of the decisions below which direct the police department to deliver subpoenaed records directly to the court, deny the public defender’s request for injunctive relief, and reverse that portion of the decisions holding that the public defender may not cause a subpoena to be issued until after discovery has proved unsuccessful. The cause is remanded to the circuit court of Cook County for further proceedings consistent with this opinion.

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

      In oral argument, the State’s Attorney said he had no objection to a defendant presenting witnesses at a preliminary hearing. Would he object to a defendant attempting to subpoena a witness for a preliminary hearing?


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

text:
    (No. 51414.
    ARCHIE L. YELEY, Appellee, v. THE BARTONVILLE FIRE AND POLICE COMMISSION et al., Appellants.

      Opinion filed October 19, 1979.

      CLARK, J., dissenting.
    Davis & Morgan,of Peoria (Roy G. Davis, of counsel), for appellants.
    John F. Boos, of Peoria, for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendants, the Bartonville Fire and Police Commission and the board of trustees of the village of Bartonville, appealed from the judgment of the circuit court of Peoria County ordering that a writ of mandamus issue reinstating plaintiff, Archie L. Yeley, to the rank of sergeant of the Bartonville police force and that he be paid the salary and other benefits accruing to that rank. The appellate court affirmed (64 Ill. App. 3d 448), and we allowed defendants’ petition for leave to appeal.

The minutes of the meeting of the board of trustees of the village of Bartonville held on April 24, 1975, show that the trustees voted to eliminate the detective division from its police department and create a supervisory investigative unit. The resolution further provided that the chief of police was to be instructed to implement the supervisory investigative unit for the next eight months and make reports to the board of trustees concerning its progress. The trustees also authorized the appointment of another sergeant, and the chief of police advised the trustees that plaintiff, effective that date, April 24, 1975, had been promoted to the rank of sergeant.

The minutes of the meeting of the board of trustees held on November 13, 1975, reflect that the chief of police reported that “due to the rising costs which would cause the budget of the Bartonville Police Department to go over the appropriation” he was recommending that the supervisory investigative unit be discontinued and that the command officers of the police force be reduced so that it would consist of himself and two sergeants rather than, as at present, of himself and three sergeants. He also stated that one patrolman had resigned and that he was not recommending a replacement “so as to hold the budget in line in the best way possible with the appropriation for this department.” The trustees approved the recommendation, and notice of the action taken was given the defendant fire and police commission. On December 10, 1975, following a meeting of the defendant commission, plaintiff received written notice that he had been reduced in rank from sergeant to patrolman.

The decision of the question here presented rests upon the construction of section 10 — 2.1—18 of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 10 — 2.1—18), which in pertinent part provided:

“When the force of the fire department or of the police department is reduced, and positions displaced or abolished, seniority shall prevail and the officers and members so reduced in rank, or removed from the service of the fire department or of the police department shall be considered furloughed without pay.”

The circuit court found that the reorganization of the police department was proper and “the plaintiff failed to present evidence to establish otherwise.” It ordered the issuance of mandamus on the ground that “ ‘seniority’ as found in Chapter 24, section 10 — 2.1—18 of the Illinois Revised Statutes should be defined as overall length in service and not time in grade.” In affirming the judgment the appellate court held that under the provisions of the section “there can be no reduction in rank without a reduction in the force. Section 10 — 2.1—18 is not invoked until and unless the force is reduced and positions are displaced or abolished thereby.” (64 Ill. App. 3d 448, 452.) The appellate court held further that “seniority,” as provided in the statute, meant seniority in rank and not seniority of overall service.

Plaintiff contends that under the provisions of the Illinois Municipal Code (Ill. Rev. Stat. 1977, ch. 24, par. 1 — 1—1 et seq.) defendants were not authorized to reduce plaintiff in rank unless there was an accompanying reduction in the police force and that such reduction can be effected only when there is “a good faith, impartial reorganization of the force.” It is the contention of defendants that the municipality was authorized to reduce the number of officers within a rank without an accompanying reduction in the size of the entire force.

We agree with the appellate court that section 10 — 2.1—18 is correctly construed to apply to seniority in rank and not in length of service with the department. We do not agree, however, that the reduction in rank cannot be effected without an overall reduction in the force. In Kennedy v. City of Joliet (1942), 380 Ill. 15, the court said:

“The basic purpose of both the Civil Service act and the Fire and Police Commissioners act is to afford reasonably satisfactory protection to public employees within the scope of the respective laws. The Fire and Police Commissioners act does not purport to deny a city the inherent right to discharge or lay off employees in good faith because of lack of work or for purposes of economy. Power to discharge or lay off employees in such cases exists independently of the provisions of the statute. The requirements relating to suspension and discharge tend to effectuate the purpose of the law, namely, to prevent the discharge or suspension of employees for political or other inadequate reasons and, in furtherance of this purpose, merely regulate the procedure by which an officer may be discharged or suspended for reasons personal to himself.” 380 Ill. 15, 21.

The circuit court made a specific finding that the reorganization of the police department was proper and that the plaintiff failed to present any evidence to establish otherwise. Having failed to prove the absence of good faith in the reduction by the village board of the number of sergeants, we find that the reduction was proper and was not barred by section 10 — 2.1—18 of the Code.

Plaintiff contends too that before he can be reduced in rank from sergeant to patrolman for nondisciplinary reasons, he was entitled to a hearing. Under the provisions of the statute plaintiff is “considered furloughed without pay” from the position of sergeant. In Powell v. Jones (1973), 56 Ill. 2d 70, 78, it was observed that “the requirements of due process are necessarily proportional to the weight of that interest in balancing it against the countervailing interests of society in effective and efficient governmental operation.” In Powell, the plaintiff asserted the right to a hearing after he was laid off by the Civil Service Commission for reasons of economy and efficiency. Powell recognized qualitative differences between layoffs and discharges and that variances in procedure between the two were constitutionally permissible. The court said:

“Discharge is a drastic, permanent action with far-reaching consequences. Regardless of the announced reason therefore, the very fact of discharge has an adverse effect upon prospects for future employment. By contrast a layoff does not reflect unfavorably upon an employee. It is not, ordinarily, viewed as a permanent situation, and in this case the very statute which authorizes such action requires preferential treatment as to reemployment and affords alternatives.” 56 Ill. 2d 70, 80.

In our opinion the rationale of Powell v. Jones is applicable here. Plaintiff was not entitled to a hearing.

For the reasons stated, the judgments of the appellate and circuit courts are reversed.

Judgments reversed.

MR. JUSTICE CLARK,

dissenting:

I would affirm the appellate court.

I agree with the majority and the appellate court that “section 10 — 2.1—18 [Ill. Rev. Stat. 1975, ch. 24, par. 10 — 2.1—18] is correctly construed to apply to seniority in rank and not in length of service with the department.” (77 Ill. 2d at 274.) However, I disagree with the majority on two points.

First, a reading of section 10 — 2.1—18 indicates rather clearly that reduction in rank cannot be effected without a reduction in force (which did not occur here):

“When the force of the fire department or of the police department is reduced, and positions displaced or abolished, seniority shall prevail and the officers and members so reduced in rank, or removed from the service of the fire department or of the police department shall be considered furloughed without pay.” (Emphasis added.)

The portion of that paragraph which states “and positions displaced or abolished” should be read in the conjunctive, and not in the disjunctive, as the majority impliedly does. The paragraph begins with the essential problem before stating the statutory resolution: “When the force *** is reduced, *** seniority shall prevail ***.” There has been no reduction in force in this case, only a “reduction in rank.” If “reduction in rank” had been intended as a separate ground by the legislature, it would have used the disjunctive conjunction or and not the conjunctive conjunction “and [positions displaced or abolished] ” (emphasis added). The majority has not adequately addressed this issue.

Second, due process entitled the plaintiff to a hearing. There are, of course, “qualitative differences” (77 Ill. 2d at 275) between a discharge for cause and a layoff for purposes of economy and efficiency. (Powell v. Jones (1973), 56 Ill. 2d 70, 80.) Nevertheless, where a party has a property right in a benefit, such as public employment, or, as here, public employment in a particular position, he has a right to a hearing before his termination or “furlough.” In Powell this court stated:

“Given the expansion of due process guarantees to encompass a broad range of interests now classified for due process purposes as ‘property,’ and the specific holdings of Roth and Sindermann, it is apparent that while every public employee does not have a right to continued employment, a public employee can have such a right dependent upon the surrounding circumstances including existing rules and understandings. *** a public employee may be able to show, from surrounding circumstances, that he has a legitimate claim to continued employment, and it is clear that such claim, whether characterized as ‘property’ or otherwise, has now been held to be entitled to due process protection.” (56 Ill. 2d 70, 77.)

Accord, Board of Regents v. Roth (1972), 408 U.S. 564, 577, 33 L. Ed. 2d 548, 561, 92 S. Ct. 2701, 2709; Perry v. Sindermann (1972), 408 U.S. 561, 33 L. Ed. 2d 570, 92 S. Ct. 2694.

I believe surrounding circumstances, including the statute, establish plaintiff’s claim of entitlement to the position of sergeant, resulting in a property right which should not be denied him without a hearing. Section 10 — 2.1—17 of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 10 — 2.1—17) requires that a hearing be given to a police officer who is to be removed or discharged. This provision evidences that a police officer has a property interest in — an economic benefit is derived from — his employment. The character of his property interest or economic benefit is not changed merely because the purposes or motives for terminating him differ from time to time. Whether the police officer is discharged for cause or laid off for budgetary reasons, his economic benefit, his property interest, remains intact. Hence, I suggest the statute establishes a policeman’s property interest in both his rank and employment, and that property interest may not be ignored by his summary termination. A hearing would also help determine whether a cutback in numbers or reduction in rank was made in good faith, or for other less laudatory reasons.

For these reasons, I dissent from the majority’s opinion, and would affirm the appellate court.


author:
MR. JUSTICE CLARK
      MR. JUSTICE WARD,

text:
    (No. 51204.
    ROBERT J. DOLAN, Appellant, v. M. A. GALLUZZO, Appellee.

      Opinion filed October 19, 1979.

      WARD, J., and GOLDENHERSH, C.J., dissenting.
    O’Brien, Healy, Wade, Abate & McNamara, of Rockford (Alex M. Abate and Mary P. Gorman, of counsel), for appellant.
    Thomas, Kostantacos, Traum & Reuterfors, of Rockford (Kenneth W. Traum, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The circuit court of Winnebago County permitted the plaintiff, Robert J. Dolan, and the defendant, Dr. M. A. Galluzzo, to take an interlocutory appeal from an order in limine. The appellate court affirmed (62 Ill. App. 3d 832), and we granted the plaintiff leave to appeal (65 Ill. 2d R. 315).

The plaintiff brought a malpractice action against the defendant, a licensed podiatrist (Ill. Rev. Stat. 1973, ch. 91, par. 73 et seq.), for an allegedly negligent osteotomy (surgical cutting of a bone) performed on his left foot in 1974. The plaintiff also alleged the defendant failed to obtain his informed consent because the defendant had not indicated the possible complications of the osteotomy. Upon learning of the plaintiff’s intention of having orthopedic surgeons testify and aware of significant disagreement between them and podiatrists, the defendant moved in limine to exclude all testimony by physicians and surgeons. The circuit court, after denying the first motion in limine and acting upon the second, ordered the plaintiff not to present “the testimony of any physician and surgeon for the purpose of proving” the standard of care a podiatrist owes a patient, or for the purpose of demonstrating that the failure of the defendant to inform the plaintiff “of the reasonable [szc] foreseeable risks of the procedure *** was or was not consistent with the standard of care owed by a podiatrist to a patient.”

The circuit court’s two certified issues, concerning the standard of care and informed consent, can be reduced to the basic issue of whether or not a plaintiff may establish the standard of care a podiatrist owes a patient by offering the testimony of a physician or surgeon, or another expert other than a podiatrist. The appellate court and the parties correctly characterize this narrow issue as a case of first impression in Illinois.

Because the State has “long recognized podiatrists as a separate and distinct profession of healers who are severely limited in their practice and whose educational requirements are substantially different than those of physicians,” and because “the treatments utilized by the podiatric profession *** are substantially different from those utilized by physicians and orthopedic surgeons” (a view in which the plaintiff and defendant concur), the appellate court concluded the “defendant has the right to have his competence judged by the standards of his own distinct profession and not by those of any other.” (62 Ill. App. 3d 832, 836.) The plaintiff contends that the expert testimony of a physician would simply aid the fact finder in determining the standard of care a podiatrist owes a patient. He further suggests that the podiatric standard of care may be lower than that which should be owed; if so, the testimony of a physician would help establish that. The defendant counters that the plaintiff voluntarily consulted the defendant. Further, the defendant points out, the legislature has expressly recognized the existence of various schools of medicine (Ill. Rev. Stat. 1973, ch. 91, par. 1 et seq.); accordingly, a practitioner should be judged by the standards of his expressly recognized school.

In medical malpractice suits, the plaintiff must establish the standard of care through expert testimony. (Walski v. Tiesenga (1978), 72 Ill. 2d 249, 256; Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 423. See Illinois Pattern Jury Instructions, Civil, No. 105.01 (2d ed. 1971).) One commentator has stated that the standard of care for a podiatrist (or chiropodist) is the exercise of “such reasonable and ordinary skill and diligence as are ordinarily exercised by the members of the profession in good standing *** in the same general line of practice.” (2 J.. Dooley, Modern Tort Law 601 (1977). Accord, Annot., 80 A.L.R.2d 1278 (1961).) The clear implication of this statement is that “a practitioner of one school of medicine is not competent to testify as an expert in a malpractice action against a practitioner of another school of medicine.” (Annot., 85 A.L.R.2d 1022, 1023 (1962). Accord, e.g., Bender v. Dingwerth (5th Cir. 1970), 425 F.2d 378, 384, applying Texas law; Hart v. Van Zandt (Tex. 1965), 399 S.W.2d 791, 797; Klimkiewicz v. Karnick (1962), 150 Colo. 267, 275, 372 P.2d 736, 740; Sheppard v. Firth (1959), 215 Or. 268, 271-72, 334 P.2d 190, 192; Bryant v. Biggs (1951), 331 Mich. 64, 49 N.W.2d 63.) “School of medicine” has not been very specifically defined in the case law or treatises. A “nutshell” description is set out in 70 C.J.S. Physicians and Surgeons sec. 44, at 953 (1951), and quoted in Bryant v. Biggs (1951), 331 Mich. 64, 73, 49 N.W.2d 63, 68:

“A school of medicine relates to the system of diagnosis and treatment. While the law recognizes that there are different schools of medicine, it does not favor, or give exclusive recognition to, any particular school or system of medicine, as against the others. When a patient selects a practitioner of a recognized school of treatment he adopts the kind of treatment common to that school, or, as otherwise stated, he is presumed to elect that the treatment shall be according to the system or school of medicine to which such practitioner belongs.”

See also Joost, Schools of Medicine, Medical Malpractice in Illinois, 44 Chi.-Kent L. Rev. 115 (1967), and Comment, Medical Malpractice — Expert Testimony, 60 Nw. U.L. Rev. 834, 839-42 (1966).

The rationale of the general rule restricting expert testimony regarding the standard of care owed by a practitioner of a certain school of medicine is that “there are different schools of medicine with varying tenets and practices, and that inequities would be occasioned by testing the care and skill of a practitioner of one school of medicine by the opinion of a practitioner of another school” (85 A.L.R.2d 1022, 1023; see citations above). The practitioner of a particular school of medicine is entitled to have his conduct tested by the standards of his school. E.g., Sutton v. Cook (1969), 254 Or. 116, 121-22, 458 P.2d 402, 404. Cf generally Annot., 31 A.L.R.3d 1163 (1970), and Little v. Cross (1976), 217 Va. 71, 225 S.E.2d 387, which deal with the competence of a general medical practitioner to testify against a specialist. Cf. also Burrow v. Widder (1977), 52 Ill. App. 3d 1017, 1028-29, and Skaug v. Johnson (1975), 29 Ill. App. 3d 238, 242.

Illinois statutes (Ill. Rev. Stat. 1973, ch. 91, par. 1 et seq., and Ill. Rev. Stat. 1977, ch. Ill, par. 3401 et seq.) provide for the regulation of practitioners of medicine and surgery, physical therapy, nursing, pharmacy, dental surgery, podiatry, optometry, etc. This is a clear expression by the legislature of public policy to recognize and regulate various schools of medicine. The various acts regulating the health professions (Ill. Rev. Stat. 1973, ch. 91; Ill. Rev. Stat. 1977, ch. 111) provide for different training, and regulate the treatment each profession may offer. (Also, the Medical Practice Act provides that this “Act shall not apply to dentists, pharmacists, optometrists, or other persons lawfully carrying on their particular profession ***.” (Ill. Rev. Stat. 1973, ch. 91, par. 16v; Ill. Rev. Stat. 1977, ch. 111, par. 4474. See Sutton v. Cook (1969), 254 Or. 116, 458 P.2d 402.)) We simply are not disposed to provide for what, in effect, may result in a higher standard of care when the legislature, by recognizing various schools of medicine, has not done so. To do so would not only be unfair to podiatrists [i.e., to allow practitioners of other schools to testify regarding the standard of care podiatrists owe), but it would also assume that science and medicine have achieved a universal standard of treatment of disease or injury. Such is not the case. In its wisdom, the legislature has recognized a fundamental tenet of contemporary life: no one person, group or school has yet succeeded in abstracting a universal medical method from the many changing methods used in science and medicine.

The plaintiff maintains, on the basis of Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, we should permit the jury “to hear expert testimony that podiatrists do not have an adequate standard of care or an adequate procedure of obtaining informed consent.” In Darling, an action against a hospital for allegedly negligent treatment, this court concluded that a hospital’s duty is not exclusively determined by the customary care hospitals in the community offer. (33 Ill. 2d 326, 331-32.) State licensing regulations, hospital accreditation standards, and the defendant’s bylaws were properly admitted. However, Darling is not so broad and should not be extended as the plaintiff contends. There the defendant was a hospital. Here the defendant is a professional. Only recently in a malpractice action against two doctors we held that the standard of care must be established by expert testimony. Walski v. Tiesenga (1978), 72 Ill. 2d 249, 256.

We therefore hold that, in order to testify as an expert on the standard of care in a given school of medicine, the witness must be licensed therein. Once the fact of such license has been established, it lies within the sound discretion of the trial court to determine if the witness is qualified to testify as an expert regarding the standard of care. (People v. Park (1978), 72 Ill. 2d 203, 209.) We recognize that a physician or surgeon may also be a licensed podiatrist and may be sufficiently qualified to testify as to the standard of care owed by podiatrists. The order of the trial court is therefore overbroad in precluding the possible testimony of a physician or surgeon under all circumstances. Also, we agree with the appellate court that “a physician or orthopedic surgeon could offer competent, expert testimony as to [his] diagnosis of the plaintiff’s present condition as well as [his] prognosis for [plaintiff’s] recovery.” 62 Ill. App. 3d 832, 836.

Since the trial court order was overbroad, it and the judgment of the appellate court affirming it are vacated, and the cause is remanded to the circuit court of Winnebago County for further proceedings consistent with this opinion.

Vacated and remanded.

MR. JUSTICE WARD,

dissenting:

I believe that the majority confuses the existence of various schools of medicine that have differing notions as to the origin and treatment of disease with the simple fact that the legislature has provided for the regulation of the various medical professions and occupations. An illustration of this confusion is the majority’s statement that the legislature, by providing for the regulation of physical therapy, nursing, optometry and other medical activities, was expressing a public policy “to recognize and regulate various schools of medicine.” This is of course wrong. The majority then concludes, and mistakenly, I consider, that in order to qualify as an expert witness one must have a license in the profession or occupation where the standard of care is in question. The holding of the license is held to be the touchstone of expert qualifications. No matter how well qualified through education, training and experience the prospective witness may be, the trial court has no discretion to allow expert testimony unless the witness is the holder of a license.

The holding here is that one would be unable to testify concerning podiatric standards of care without possessing a license in podiatry. Thus even a professor in a school of podiatry who did not happen also to be licensed to practice podiatry would not be able to testify as to the standards of care required of a podiatrist. Under the holding a physician would be unable to testify to nursing standards of care even though nurses operated under his supervision or to testify to standards for midwives, and this because the physician was not licensed as a nurse or a midwife.

The circumstances in Walker v. Bangs (1979), 92 Wash. 2d 854, 601 P.2d 1279, closely resemble those here. In that case the court held that the trial court had erred when it refused, in a malpractice trial, to admit expert testimony on the standard of care applicable to attorneys on the ground that the proposed witness, who taught in a Washington law school, had not been licensed to practice law in that State.

I believe that the requiring of a license in the field where the standards of care are under examination is to apply a purely mechanical and formalistic rule. I would adhere to the generally accepted rule that whether a witness is qualified by special skill, knowledge and experience as an expert witness is within the sound discretion of the trial judge and that this exercise of discretion is reviewable only for abuse. Evanston Best Co. v. Goodman (1938), 369 Ill. 207, 212; McCormick, Evidence sec. 13 (2d ed. 1972); Card, Illinois Evidence secs. 218, 219 (1963).

MR. CHIEF JUSTICE GOLDENHERSH joins in this dissent.


author: MR. JUSTICE UNDERWOOD MR. JUSTICE CLARK,

text:
    (No. 51011.
    POLYVEND, INC., Appellee, v. THEODORE PUCKORIUS, Director of Administrative Services, et al., Appellants.

      Opinion filed October 2, 1979.

      CLARK, J., concurring.

      William J. Scott, Attorney General, of Springfield (Michael J. Hayes, Jerome J. Webb, and Robert Orman, Assistant Attorneys General, and Peter Erlinder, law student, of Chicago, of counsel), for appellants.
    Foran, Wiss & Schultz, of Chicago (Richard G. Schultz and Nicholas J. Etten, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Plaintiff, Polyvend, Inc., filed this declaratory judgment action in October 1977 following defendants’ rejection of its bid to manufacture the 1979 multiyear motor vehicle license plates for the State of Illinois. Plaintiff’s bid, which was the only one submitted on this project, was rejected by the State pursuant to section 10.1 of the Illinois Purchasing Act (Ill. Rev. Stat. 1977, ch. 127, par. 132.10 — 1), which became effective October 1, 1977. That section provides:

“No person or business entity shall be awarded a contract or sub-contract if that person or business entity: (a) has been convicted of bribery or attempting to bribe an officer or employee of the State of Illinois in that officer or employee’s official capacity; or (b) has made an admission of guilt of such conduct which is a matter of record but has not been prosecuted for such conduct.
For purposes of this Section, where an official, agent, or employee of a business entity committed the bribery or attempted bribery on behalf of such an entity and pursuant to the direction or authorization of a responsible official thereof, the business entity shall be chargeable with the conduct.”

Plaintiff challenged the statute on various constitutional grounds: (1) section 10.1 denies procedural due process of law; (2) the statute is unconstitutionally vague and indefinite; (3) the statute constitutes a bill of attainder; (4) it invalidly delegates legislative power to an administrative official; and (5) section 10.1 cannot be retrospectively applied to a prior bribery conviction. The circuit court rejected these arguments and granted defendants’ motion for summary judgment. The appellate court, reaching only one of the issues, reversed and remanded, finding the statute unconstitutional on due process grounds. (61 Ill. App. 3d 163.) We allowed defendants’ petition for leave to appeal.

Plaintiff is an Arkansas corporation engaged in the manufacture of license plates and authorized to transact business in Illinois. Responding to an advertisement by the Illinois Department of Administrative Services for bids on the contract to manufacture the 1979 multiyear license plates, plaintiff submitted a bid in the amount of $10,390,440.40, signed by Patrick J. Stoltz as president of the plaintiff corporation. In 1974, Stoltz had pleaded guilty in Federal district court to a charge of bribery. This conviction arose out of Stoltz’ activities as president of Metal Stamping Corp., the sole owner of Polyvend, and involved the bribery of an Illinois official.

In 1973, Stoltz resigned as president of the Metal Stamping Corp., and the following year Polyvend was merged into Metal Stamping Corp. The name of the corporation subsequently was changed to that of its former subsidiary, Polyvend. Despite Stoltz’resignation as president of the corporation, he apparently continued to hold a controlling interest in the firm at the time the bid was submitted. Metal Stamping Corp. was awarded the contract to manufacture the Illinois license plates in 1976 and 1977, and Polyvend was awarded the 1978 contract. Although Polyvend submitted the only bid to manufacture the 1979 plates, it was rejected by defendant pursuant to the above-quoted statutory provision. Stoltz died in December 1978.

It is fundamental that the constitutional guarantees of procedural due process only become operative where there is an actual or threatened impairment or deprivation of “life, liberty or property. ” (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, sec. 2.) Therefore, the starting point in any procedural due process analysis is a determination of whether one of these protectable interests is present, for if there is not, no process is due. Plaintiff argues that the opportunity to contract for the sale of goods and services to the government is a legally protected property interest within the ambit of the due process clause and, therefore, cannot be eliminated without affording the would-be supplier minimal guarantees of procedural due process. With this contention, however, we disagree.

As the United States Supreme Court recognized in Board of Regents v. Roth (1972), 408 U.S. 564, 570, 33 L. Ed. 2d 548, 556-57, 92 S. Ct. 2701, 2705, “the range of interests protected by procedural due process is not infinite.” Following a review of the pertinent judicial decisions, the Roth court concluded that, “[t] o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” (408 U.S. 564, 577, 33 L. Ed. 2d 548, 561, 92 S. Ct. 2701, 2709.) Stated differently, “[t]he Fourteenth Amendment’s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits.” (Emphasis added.) 408 U.S. 564, 576, 33 L. Ed. 2d 548, 560, 92 S. Ct. 2701, 2708.

We do not think it can be said that plaintiff had “a legitimate claim of entitlement” to the future State contract involved herein. This conclusion is derived from an examination of relevant State law as well as the circumstances surrounding the bid itself. As the court stated in Roth:

“Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” (408 U.S. 564, 577, 33 L. Ed. 2d 548, 561, 92 S. Ct. 2701, 2709.)

(See also Bishop v. Wood (1976), 426 U.S. 341, 344, 48 L. Ed. 2d 684, 689-90, 96 S. Ct. 2074, 2077; Goss v. Lopez (1975), 419 U.S. 565, 572-73, 42 L. Ed. 2d 725, 733-34, 95 S. Ct. 729, 735.) Section 4 of the Illinois Purchasing Act (Ill. Rev. Stat. 1977, ch. 127, par. 132.4), which concerns advertisement for bids, expressly states that “[a] ny and all bids may be rejected ***.” Furthermore, section 17, paragraph (h), of the Department of Administrative Services’ Purchasing Rules and Regulations, issued pursuant to the Illinois Purchasing Act, provides that, if it appears to be in the best interest of the State, all bids may be rejected. Finally, both the advertisement for bids and the instructions to bidders in the instant case contained explicit language providing that the State reserved the right to reject any or all bids. Therefore, it seems clear that there was no intention to confer a “claim of entitlement” on bidders for government contracts. Absent such an interest, it cannot be said that the bidders have a recognizable property right within the meaning of the Federal or State constitutions.

Analogous to the contractor’s interest in receiving future government contracts is the interest of an individual in government employment. In Roth an assistant professor at a State university brought an action in which he alleged that the decision of the university not to renew his teaching contract for another year violated his right to procedural due process of law. The plaintiff had been hired for a fixed term of one academic year and had no tenure rights to continued employment. The plaintiff argued that he should have been given notice of any reason for nonretention and an opportunity for a hearing. After examining the terms of the plaintiff’s employment agreement with the university, however, the United States Supreme Court concluded that while he may have had “an abstract concern in being rehired” (408 U.S. 564, 578, 33 L. Ed. 2d 548, 561, 92 S. Ct. 2701, 2710), he did not have a claim of entitlement to reemployment. Therefore, the plaintiff lacked the requisite property interest necessary to require the university to comply with procedural due process requirements. See also Yeley v. Bartonville Fire & Police Com. (1979), 77 Ill. 2d 271.

Similarly, in the present case, despite the fact that plaintiff had been the successful bidder in 1976, 1977 and 1978, and had manufactured the State license plates in those years, it did not have a claim of entitlement or protectable property interest in the 1979 license plate contract. Each contract with the State was separate and independent from the other, and prior performance of a like contract did not give the contractor a preferred status or any other reasonable basis for concluding that it would receive future contracts. Polyvend’s “unilateral expectation” that it would receive the contract to manufacture the 1979 Illinois motor vehicle license plates does not constitute a protectable property interest within the meaning of the due process clause. Board of Regents v. Roth (1972), 408 U.S. 564, 577, 33 L. Ed. 2d 548, 560-61, 92 S. Ct. 2701, 2709.

In Perkins v. Lukens Steel Co. (1940), 310 U.S. 113, 84 L. Ed. 1108, 60 S. Ct. 869, the United States Supreme Court held that bidders on government contracts lack a sufficient legal interest to challenge government procurement rules and policies. Although the case was decided on principles of standing, we think the reasoning employed by the court therein is equally pertinent to the present controversy. In Perkins, the court stated:

“Like private individuals and businesses, the Government enjoys the unrestricted power to produce its own supplies, to determine those with whom it will deal, and to fix the terms and conditions upon which it will make needed purchases.” (310 U.S. 113, 127, 84 L. Ed. 1108, 1114, 60 S. Ct. 869, 876.) “Courts should not, where Congress has not done so, subject purchasing agencies of Government to the delays necessarily incident to judicial scrutiny at the instance of potential sellers, which would be contrary to traditional governmental practice and would create a new concept of judicial controversies. A like restraint applied to purchasing by private business would be widely condemned as an intolerable business handicap. It is, as both Congress and the courts have always recognized, essential to the even and expeditious functioning of Government that the administration of the purchasing machinery be unhampered.” 310 U.S. 113, 130, 84 L. Ed. 1108, 1116, 60 S. Ct. 869, 878.

See also Powell v. Jones (1973), 56 Ill. 2d 70, 82.

The decisions which plaintiff relies on, and which the appellate court cited in support of its conclusion that plaintiff had a protectable property interest, are not persuasive. In Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, the plaintiff, a medical laboratory, was informed by the Director of the Illinois Department of Public Aid that it was going to be suspended from further participation in the Medicaid program. The plaintiff thereupon filed suit seeking to restrain the Director from taking such action. In response to the Director’s contention that the plaintiff lacked standing to bring such an action because of the absence of a protectable interest, this court distinguished Perkins v. Lukens Steel Co. (1940), 310 U.S. 113, 84 L. Ed. 1108, 60 S. Ct. 869, by pointing out that, whereas in Perkins the government contractors were unable to demonstrate that a legal right had been threatened, this plaintiff did possess a protectable legal interest, “that being its expectation of continuing to receive Medicaid payments on behalf of the Medicaid recipients it services.” 68 Ill. 2d 540, 547.

This right to continuing participation in an ongoing program, which was recognized as a protectable legal right by the court, arose by virtue of the fact that the plaintiff had participated in the Medicaid program for approximately eight years prior to the decision of the Director to suspend. The program was a continuing one, not requiring annual competitive bids, in direct contrast with the present case, where plaintiff was not a participant in an ongoing, continuous program. Rather, there was simply an annual invitation to bid and a resulting annual award of the license plate contract. Being awarded the contract in a given year did not give rise to any right or interest in future State contracts, which were entirely independent matters. While plaintiff may have had “an abstract concern” in being awarded the 1979 license plate contract, it certainly did not have a legally protectable property interest and, absent such an interest, a prospective government contractor’s bid does not trigger due process safeguards.

Nor are we persuaded by Gonzalez v. Freeman (D.C. Cir. 1964), 334 F.2d 570. In Gonzalez, the plaintiff corporation, which had a record of contractual relations with the Commodity Credit Corporation for a number of years, was temporarily debarred from doing business with Commodity Credit. Plaintiff was not given any grounds for the five-year debarment and was not provided an opportunity for a hearing. Although the court did determine that the plaintiff was entitled to some procedural safeguards, including notice of specific charges and an opportunity to present evidence and to cross-examine adverse witnesses, this finding was based solely upon an interpretation of the Commodity Credit Corporation Charter Act (15 U.S.C. sec. 714 (1970)) and the Administrative Procedure Act (5 U.S.C. sec. 551 et seq. (1970)). In fact, the court explicitly refrained from deciding the constitutional question of whether the debarment violated the plaintiff’s right to due process. Consequently, Gonzalez is neither controlling nor persuasive here.

Section 10.1 clearly was enacted by the legislature in an effort to insure that those individuals and corporations who have demonstrated a lack of integrity in the past when dealing with the State not be permitted to transact business with the State in the future. While the statute certainly deals effectively with those individuals and businesses who have bribed or attempted to bribe State officials or employees, it cannot be said to deprive prospective government contractors of due process since those bidders have no recognized property rights in future government contracts in Illinois.

Nor do we think that this statute suffers from any of the other constitutional infirmities suggested by plaintiff. It is argued, for example, that section 10.1 is unconstitutionally vague and constitutes an invalid delegation of legislative power to an administrative official. Plaintiff specifically objects to the statutory phrases “business entity,” “in that officer or employee’s official capacity,” “admission of guilt,” “matter of record,” and “direction or authorization of a responsible official.”

It is clear that due process of law “requires that an act shall not be vague, indefinite or uncertain, and must provide sufficient standards to guide the administrative body in the exercise of its functions.” (People ex rel. Stamos v. Public Building Com. (1968), 40 Ill. 2d 164, 174.) The standard which we have applied in the past in determining whether a statute is unconstitutionally vague is whether the terms of the statute are so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application. (People v. Palkes (1972), 52 Ill. 2d 472, 475; Hershey Manufacturing Co. v. Adamowski (1961), 22 Ill. 2d 36, 43-44.) We do not believe that section 10.1 is such a statute. Although the phrases which plaintiff objects to are not defined in the statute, they seem to be commonly used and understood words. We do not think it can be said that persons of common intelligence would have to guess at the meaning of such everyday words as “business entity” or “admission of guilt.”

Nor do we think that this statute invalidly delegates legislative power to an administrative official. As this court stated in Hill v. Relyea (1966), 34 Ill. 2d 552, 555:

“Absolute criteria whereby every detail necessary in the enforcement of a law is anticipated need not be established by the General Assembly. The constitution merely requires that intelligible standards be set to guide the agency charged with enforcement ***.”

More specifically, we held in Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill. 2d 361, 372, that, in delegating its authority, the legislature must “provide sufficient identification of the following:

(1) The persons and activities potentially subject to regulation;
(2) The harm sought to be prevented; and
(3) The general means intended to be available to the administrator to prevent the identified harm.”

We believe that section 10.1 clearly satisfies these requirements and, therefore, precludes the type of unbridled agency discretion feared by plaintiff.

Furthermore, we reject plaintiff’s contention that section 10.1 is being applied retrospectively in violation of plaintiff’s constitutional rights. Plaintiff relies upon section 4 of the Illinois statutory construction act, which- provides:

“No new law shall be construed *** in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred *** before the new law takes effect ***.” (Ill. Rev. Stat. 1975, ch. 131, par. 4.)

Plaintiff argues that by refusing to award the 1979 license plate contract to Polyvend because of Stolz’ 1974 conviction, the State is violating section 4 of the statutory construction act and is ignoring númerous Illinois decisions which require new statutes to apply prospectively only. We do not agree.

First of all, section 10.1 was not, in our judgment, applied retroactively to plaintiff. The Act became effective on October 1, 1977, and was applied prospectively to future procurement decisions. While the law did take cognizance of past acts, it did not affect procurement decisions occurring prior to October 1, 1977. Secondly, section 4 of the statutory construction act only protects “vested rights.” (Orlicki v. McCarthy (1954), 4 Ill. 2d 342, 346.) As we concluded in the context of plaintiff’s procedural due process argument, plaintiff does not have a vested right to future government supply contracts. Absent such an interest, plaintiff’s argument that the statute violates section 4 of the statutory construction act fails.

Finally, plaintiff contends that section 10.1 is an unconstitutional bill of attainder. A bill of attainder has been defined as “a legislative act which inflicts punishment without a judicial trial.” (United States v, Lovett (1946), 328 U.S. 303, 315, 90 L. Ed. 1252, 1259, 66 S. Ct. 1073, 1078.) We do not think that section 10.1 of the Illinois Purchasing Act can be called a bill of attainder. There clearly was a judicial determination of guilt concerning a controlling shareholder and official of the corporation when Stoltz was convicted of bribery in 1974. The legislative act, section 10.1, simply attributed his guilt to the corporation. This is no different than any other civil or criminal provision which holds a corporation responsible for the acts of its officials. The only way a corporation can act is through its officers, directors and employees.

A similar problem was addressed by the United States Supreme Court in DeVeau v. Braisted (1960), 363 U.S. 144, 4 L. Ed. 2d 1109, 80 S. Ct. 1146. In that case, union officials and others challenged the constitutionality of a section of the New York Waterfront Commission Act which provided that no person could solicit or receive dues on behalf of any waterfront union if an officer of such union had been convicted of a felony. As a result of the Act, the International Longshoremen’s Association was denied dues solicitation and collection privileges because of an officer’s conviction of a felony 36 years earlier. The court, considering the claim that the Act was unconstitutional as a bill of attainder and as an ex post facto law, stated:

“Finally, section 8 of the Waterfront Commission Act is neither a bill of attainder nor an ex post facto law. *** Clearly, section 8 embodies no further implications of appellant’s guilt than are contained in his 1920 judicial conviction; ***. The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation ***. The proof is overwhelming that New York sought not to punish ex-felons, but to devise what was felt to be a much-needed scheme of regulation of the waterfront ***.” (Emphasis added.) (363 U.S. 144, 160, 4 L. Ed. 2d 1109, 1120, 80 S. Ct. 1146, 1155.)

Similarly, section 10.1 was devised as a much needed regulation of government procurement policies and cannot be said to constitute a bill of attainder.

Plaintiff’s allegation that section 10.1 violates numerous other constitutional guarantees of one who is criminally accused does not merit discussion. Section 10.1 is a civil statute and plaintiff is not being accused of criminal activity.

This statute, like all others, is presumed to be a valid enactment and the burden is on the party challenging it to establish its constitutional invalidity. (Jaris v. Public School Teachers’ Pension and Retirement Fund (1974), 58 Ill. 2d 15, 19.) In our judgment that burden has not been met. Accordingly, we hold that section 10.1 does not violate any of the constitutional guarantees asserted by plaintiff.

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

Appellate court reversed; circuit court affirmed.

MR. JUSTICE CLARK,

concurring:

I concur in the result. I do not concur in the majority’s view that the opportunity to bid is not a protectable property interest necessitating minimal due process guarantees. The majority incorrectly characterizes plaintiff’s asserted property interest here as a “ ‘claim of entitlement’ to the future State contract involved herein” (77 Ill. 2d at 294). That is not the situation at all. Of course plaintiff is not entitled to a future State contract; but plaintiff’s claimed property interest, requiring due process protection, is the opportunity to bid — not entitlement to have the bid accepted.

I agree that Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 546, and Gonzalez v. Freeman (D.C. Cir. 1964), 334 F.2d 570, 574, are not persuasive. However, Perkins v. Lukens Steel Co. (1940), 310 U.S. 113, 125, 84 L. Ed. 1108, 1114, 60 S. Ct. 869, 876, is also inappropriate. These three cases were all initially concerned with standing, which is not an issue here (and which encompasses a lower standard for determination). Moreover, Bio-Medical and Gonzalez both involved interruption of an existing or continuing relationship, which does not exist here (where the Illinois Department of Administrative Services (hereafter Department) annually invites bids to manufacture license plates and could reject any and all bids (Ill. Rev. Stat. 1977, ch. 127, par. 132.4)). Also, Gonzalez and Bio-Medical were not decided on the basis of due process.

To determine whether due process guarantees are applicable to the circumstances here, as the majority correctly points out, the first step is to establish the existence of a protectable property interest. In Board of Regents v. Roth (1972), 408 U.S. 564, 577, 33 L. Ed. 2d 548, 561, 92 S. Ct. 2701, 2709, the Supreme Court stated:

“Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law— rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” (Emphasis added.)

(Accord, e.g., Perry v. Sindermann (1972), 408 U.S. 593, 602 n.7, 33 L. Ed. 2d 570, 580 n.7, 92 S. Ct. 2694, 2700 n. 7; Bishop v. Wood (1976), 426 U.S. 341, 344, 48 L. Ed. 2d 684, 690, 96 S. Ct. 2074, 2077. See Mackey v. Montrym (1979), 443 U.S. 1, 61 L. Ed. 2d 321, 99 S. Ct. 2612.) Analysis of both Illinois statutory and common law compels the conclusion that a right to bid, or more precisely the right to an equal opportunity to bid, protected by due process if denied, exists. The Illinois Purchasing Act provides:

“It is the purpose of this Act and is hereby declared to be the policy of the State that the principle of competitive bidding and economical procurement practices shall be applicable to all purchases and contracts by or for any State Agency.” (Ill. Rev. Stat. 1977, ch. 127, par. 132.2.)

Again, it provides:

“That all purchases, contracts and expenditure of funds shall be awarded to the lowest responsible bidder considering conformity with specifications, terms of delivery, quality and serviceability ***.” (Ill. Rev. Stat. 1977, ch. 127, par. 132.6(a).)

The primary purpose of these provisions no doubt is to benefit the State; a secondary purpose, but no less important, is to permit anyone, who is responsible and qualified, to compete for a contract. (See Dement v. Rokker (1888), 126 Ill. 174, 194-97.) In the absence of statute, the State, of course, “could let contracts without competitive bidding.” (Inskip v. Board of Trustees (1962), 26 Ill. 2d 501, 512; Bohleber v. Carmi Township Hospital (1975), 30 Ill. App. 3d 969, 974.) Once a statute provides for competitive bidding, as does the Illinois Purchasing Act here, a prospective bidder may not simply be denied the opportunity to bid. On this basis, the instant case is distinguishable from Perkins v. Lukens Steel Co. (1940), 310 U.S. 113, 84 L. Ed. 1108, 60 S. Ct. 869, above, and distinct from the State’s rights under section 4 of the Illinois Purchasing Act: “Any and all bids may be rejected ***.” (Ill. Rev. Stat. 1977, ch. 127, par. 132.4.) Perkins held that the status of bidder does not result in an interest sufficient to challenge legitimate government regulations a prospective contractor must comply with; and section 4 does not compel the State to accept a bid. Here, however, plaintiff, or any prospective bidder, under section 10.1 of the Illinois Purchasing Act (Ill. Rev. Stat. 1977, ch. 127, par. 132.10 — 1), would not even be permitted to acquire the status of bidder (Perkins) and would be prevented from submitting a bid (which can then be rejected). Several older cases of this court have held that the statutory requirement of competitive bidding “necessarily implies equal opportunity to and freedom in all whose interests or inclinations might thus impel them to compete at the bidding.” (Dement v. Rokker (1888), 126 Ill. 174, 196. Accord, Holden v. City of Alton (1899), 179 Ill. 318, 324, and Callaghan & Co. v. Smith (1922), 304 Ill. 532, 540-41.) The opportunity to bid on a government contract, therefore, is a property right, protected from unfair competition and interference by the State without due process.

By implication, the State’s argument that plaintiff has not been permanently debarred, or that section 10.1 does not effect such a result, is mistaken. The State asserts that the bid for only a single contract was rejected, thus implying plaintiff should try again “next year.” The record establishes that one reason the bid was rejected was section 10.1, set out in full in the majority opinion (77 Ill. 2d at 292). Section 10.1’s language is: “No person or business entity shall be awarded a contract ***.” The language used is in the nature of a universal denial with no time period or limitation on such preclusion set out.

It is true, as plaintiff maintains, that section 10.1 (Ill. Rev. Stat. 1977, ch. 127, par. 132.10 — 1) provides for no notice and hearing or other recourse. However, a statute, constitutionally defective in this respect, may be cured by administrative regulations. (Bell v. Burson (1971), 402 U.S. 535, 542-43, 29 L. Ed. 2d 90, 96, 91 S. Ct. 1586, 1591; accord, Pollion v. Lewis (N.D. Ill. 1971), 332 F. Supp. 777, 778-79.) The Department’s “Purchasing Rules and Regulations Covering Procurement of Commodities, Equipment, Printing, Purchases from Small Businesses, and Guidelines for Procurement of Printing Paper, Stationery and Envelopes” (hereafter Rules) provides for “Rights to Appeal”:

“Any decision rendered by the Procurement Division, Department of General Services [now Department of Administrative Services] pursuant to these Purchasing Rules and Regulations may be appealed to the Director of General Services by filing with him a written statement setting forth all the facts and circumstances together with the basis for making such appeal.” (Rules, pt. I, sec. 28.)

(Plaintiff did not pursue this appeals route.) Whether this “appeal” is sufficient for due process purposes must be subjected to analysis. Plaintiff denies the Rules’ section 28 appeal is sufficient as a “hearing,” denies it is adequate because it occurs subsequent to a decision of debarment, and denies it is even correctly applicable to the instant case because the decision here was pursuant, at least partially, to section 10.1 of the Illinois Purchasing Act rather than wholly pursuant to the Rules.

United States Supreme Court decisions, primarily in this decade (beginning with Goldberg v. Kelly (1970), 397 U.S. 254, 25 L. Ed. 2d 287, 90 S. Ct. 1011), have shown a propensity towards requiring “some kind of hearing *** at some time before a person is finally deprived of his property interests.” (Wolff v. McDonnell (1974), 418 U.S. 539, 557-58, 41 L. Ed. 2d 935, 952, 94 S. Ct. 2963, 2975.) What kind of hearing, its nature or the extent of its proceedings has not been clarified by that court. Indeed, the decisions, except in applying their rationales to the facts before them, have been vague, even tolerantly inconsistent — perhaps of necessity given the multitude of circumstances in which due process attaches. (E.g., contrast Wolff v. McDonnell (1974), 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963, Mitchell v. W. T. Grant Co. (1974), 416 U.S. 600, 40 L. Ed. 2d 406, 94 S. Ct. 1895, and Arnett v. Kennedy (1974), 416 U.S. 134, 40 L. Ed. 2d 15, 94 S. Ct. 1633, with Goldberg v. Kelly (1970), 397 U.S. 254, 25 L. Ed. 2d 287, 90 S. Ct. 1011, Boddie v. Connecticut (1971), 401 U.S. 371, 28 L. Ed. 2d 113, 91 S. Ct. 780, and Mathews v. Eldridge (1976), 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893. See Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267, 1274 (1975) (hereafter Friendly).) What the Supreme Court has consistently said is that the process due or procedural requisites for a hearing may vary according to the government function and interest involved, the private interest affected by the government action, and the nature of the proceedings; due process in one case may not be satisfactory in another. (Wolff v. McDonnell (1974), 418 U.S. 539, 560, 41 L. Ed. 2d 935, 953, 94 S. Ct. 2963, 2977; Bella. Burson (1971), 402 U.S. 535, 540, 29 L. Ed. 2d 90, 95, 91 S. Ct. 1586, 1589; Boddie v. Connecticut (1971), 401 U.S. 371, 378-79, 28 L. Ed. 2d 113, 119, 91 S. Ct. 780, 786; Goldberg v. Kelly (1970), 397 U.S. 254, 263, 25 L. Ed. 2d 287, 296, 90 S. Ct. 1011, 1018.) Due process “ ‘is not a technical conception with a fixed content unrelated to time, place and circumstances’ ” but “ ‘is flexible and calls for such procedural protections as the particular situation demands.’ ” (Mathews v. Eldridge (1976), 424 U.S. 319, 334, 47 L. Ed. 2d 18, 33, 96 S. Ct. 893, 903.) According to Mathews, this necessitates “consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” 424 U.S. 319, 335, 47 L. Ed. 2d 18, 33, 96 S. Ct. 893, 903. See Friendly, 123 U. Pa. L. Rev., 1278; and K. Davis, Administrative Law of the Seventies 266-68 (1976).

The private interest affected here, of course, is plaintiff’s right to have the opportunity to bid. As is clear from the cases above, the importance of the right affected has a bearing on the adequacy of the hearing available. Plaintiff’s right is not in the nature of a deprivation of personal or real property; nor is it a deprivation of liberty; nor is plaintiff’s right to do business interfered with. (There is, of course, no “right” to State contracts (Ill. Rev. Stat. 1977, ch. 127, par. 132.4; Gonzalez v. Freeman (D.C. Cir. 1964), 334 F.2d 570, 574).) Plaintiff undoubtedly would not discourage anyone from perceiving its loss of the right to present a bid as a loss of a $10 million contract. However, the loss is strictly only the prevention of participation in competition (for bids), the outcome of which is uncertain. The right which plaintiff possesses then is only to compete with others for a contract. It has no expectation of receiving the contract. If the bidder is notified by letter, as here, that its bid is denied pursuant to section 10.1 of the Illinois Purchasing Act, the result is the loss of only that contract for that year — before a party may avail itself of section 28 of the Rules. If the Department has erred, section 28 provides the mechanism for correction. If the Department has not erred, the bidder is debarred permanently. I believe the deprivation here is much less severe than deprivation involving loss of livelihood, liberty or profession (Goldberg, Wolff and Bell respectively).

The “risk of an erroneous deprivation” (Mathews v. Eldridge (1976), 424 U.S. 319, 335, 47 L. Ed. 2d 18, 33, 96 S. Ct. 893, 903), pursuant to section 10.1 of the Illinois Purchasing Act and under the Rules’ section 28 “hearing” is minimal. Supreme Court decisions in this decade do not dictate the type of hearing and extent of proceedings required. Judge Friendly of the Second Circuit United States Court of Appeals has written:

“The term ‘hearing,’ like jurisdiction,’ is ‘a verbal coat of too many colors.’ Professor Davis has defined it as ‘any oral proceeding before a tribunal.’ Broad as that definition is, it may not be broad enough. Although the term ‘hearing’ has an oral connotation, I see no reason why in some circumstances a ‘hearing’ may not be had on written materials only.” (Friendly, 123 U. Pa. L. Rev. 1267, 1270.)

Section 28 is just such a circumstance, since the risk of error is not great. I appreciate the concern about the margin of error, but disagree that the margin is substantial, and note that section 28 allows for just such margin of error. First of all, the conviction or admission of guilt would be a matter of public record. Second, the Department would have access to bidding documents and corporate charters to lessen the possibility of error. Third, whatever denial of association between the corporation and guilty party and roles played by either, whatever extenuating circumstances, whatever explanation or justification a debarred bidder wishes to present to the Director could be adequately and competently done in the “written statement” permitted by the Rules’ section 28. Beyond this I do not see what a hearing of the nature urged by plaintiff, or additional or substitute safeguards, would accomplish. (See People ex rel. Scott v. Illinois Racing Board (1973), 54 Ill. 2d 569, 577-78, where a statute, permitting summary disqualification for a harness racing license on the basis of pending criminal charges, was construed; the license applicant was found to be “clearly disqualified.”)

I perceive the government’s interest to be substantial. The State is concerned with efficiently and effectively making its purchases. Necessarily, delaying the award of a bid, pending a hearing to determine whether a bidder should be permanently debarred, makes no sense because the State must expedite the award on behalf of the public. Moreover, the State should keep public funds free from any impropriety, even the appearance of impropriety. Additional or substitute proceedings would add administrative and financial burdens which are unwarranted and unnecessary. Application of the Mathews test sustains the sufficiency of the Rules ’ section 2 8 hearing or appeal.

Plaintiff also argues that the hearing is required before a right is permanently deprived and cites Fuentes v. Shevin (1972), 407 U.S. 67, 32 L. Ed. 2d 556, 92 S. Ct. 1983. As the circumstances exist here, I disagree. First, since a bidder’s interest in getting a contract is no greater than another bidder’s interest in a given competiton for the manufacture of one year’s license plates and since the State may reject any and all bids, including the lowest bid, there is no harm in holding the Rules’ section 28 appeal subsequent to the rejection of the bid. Second, as noted above, the margin of error is limited. Third, later Supreme Court cases have qualified the “requirement” of holding a hearing before the deprivation of a right. Mitchell v. W. T. Grant Co. (1974), 416 U.S. 600, 611, 40 L. Ed. 2d 406, 415, 94 S. Ct. 1895, 1902, held that a “hearing must be had before one is finally deprived” of a property interest (emphasis added). Postponement of an inquiry is not violative of due process where an ultimate determination will be had. (Judge Friendly’s opinion in Frost v. Weinberger (2d Cir. 1975), 515 F.2d 57, 66-68, is essentially in accord. Accord, K. Davis, Administrative Law of the Seventies 268-72 (1976). Contra, Mattern v. Weinberger (3d Cir. 1975), 519 F.2d 150.) Barry v. Barchi (1979), 443 U.S. 55, 65, 61 L. Ed. 2d 365, 375, 99 S. Ct. 2642, 2649, noted that where a State’s interest is substantial, and so long as a party’s interest is not “baselessly compromised,” a post-suspension hearing on the deprivation of a property interest can pass constitutional muster.

Plaintiff contends, too, that the Rules’ section 28 is applicable only where the decision made by the Department is “pursuant to these Purchasing Rules.” Because here the decision to reject was, at least partially, pursuant to section 10.1 of the Illinois Purchasing Act, section 28’s appeal route is unavailable, plaintiff maintains. We find that argument involves semantics at best, frivolity at worst. All decisions, apropos of the purchase of commodities and equipment on behalf of the State, are made pursuant to the Rules. This is clear from the statute requiring promulgation of the Rules:

“All purchases, contracts or other obligation or expenditure of funds by any State agency shall be in accordance with rules and regulations governing such State agency procurement practices and procedures which it shall promulgate and publish in sufficient number for distribution to persons interested in bidding on purchases or contracts to be let by such State agency.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 127, par. 132.5.)

The rejection of a bid, even on the basis of section 10.1 of the Illinois Purchasing Act, is a decision apropos of the purchase of commodities and equipment on behalf of the State. The language of section 17 of the Rules, “Grounds for Rejection of Bids,” is not exclusive (especially subsections (a) and (c)).

For these reasons I am able to concur in the result of the majority’s opinion but not in the reasoning. Plaintiff had a protectable property interest (which it should not lose without benefit of due process).