author: MR. JUSTICE MORAN

text:
    (No. 52943.
    DALE CHASTEK, Appellee, v. JOAN ANDERSON et al., Appellants.

      Opinion filed January 20, 1981.

      SIMON, J., took no part.
    Tyrone C. Fahner and William J. Scott, Attorneys General, of Springfield (Paul J. Bargiel and Patricia Rosen, Assistant Attorneys General, of Chicago, of counsel), for appellants.
    Cassiday, Schade & Gloor, of Chicago (A. Jeffrey Seidman, Rudolph G. Schade, Jr., and Ann C. Standlee, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

In the circuit court of Cook County, plaintiff, Dale Chastek, sought a permanent injunction restraining the Department of Registration and Education (Department) from conducting a hearing against him on a pending complaint. Plaintiff and the Department each filed a motion for summary judgment. The trial court granted plaintiff’s motion, finding the statute under which he was charged by the Department invalid, and issued a permanent injunction restraining the Department from conducting a hearing based upon its complaint.

The issues are (1) whether section 7(11) of “An Act to regulate the practice of dental surgery and dentistry ***” (Ill. Rev. Stat. 1977, ch. 111, par. 2222(11)) is vague, thereby depriving plaintiff of his constitutional right to due process, and (2) whether “unprofessional conduct” under the statute includes conduct of the type alleged against plaintiff.

The facts are not in dispute. On August 31, 1979, the Department filed what we will refer to as a three-count complaint against plaintiff, a registered dentist and orthodonist, charging him with unprofessional conduct in the treatment of three patients. The first count alleged that plaintiff rendered improper treatment to one patient for nine years which resulted in a condition known as “cross bite.” The improper treatment asserted included failure to take cephalometric head plates and failure to advise necessary extraction of certain teeth prior to the placing of braces. The second count alleged that plaintiff rendered improper treatment to another patient for eight years, including failure to take cephalometric head plates, improper placement of a retainer which interfered with the consumption of food, and failure to provide dental records to the dentists who assumed subsequent treatment of the patient. The third count alleged improper treatment of another patient for eight years which resulted in a malocclusion. The improper treatment asserted in connection with this patient included failure to take cephalometric head plates and failure to order oral surgery when necessary. The Department sought to suspend or revoke plaintiff’s dentist and orthodonist licenses on the ground that the above acts and omissions constituted “unprofessional conduct” under section 7(11) of the statute.

Prior to a hearing on the Department’s complaint, plaintiff sought and was issued a temporary restraining order against defendant in the trial court on November 7, 1979. On December 21, the trial court found the statute void and entered a permanent injunction preventing the Department from conducting a hearing to suspend or revoke plaintiff’s licenses.

The statute in question provides:

“The Department of Registration and Education may refuse to issue, may suspend or may revoke a license for any one or any combination of the following causes:
* * *
11. Improper, unprofessional or dishonorable conduct.” (Ill. Rev. Stat. 1977, ch. 111, par. 2222.)

Plaintiff contends that the statutory phrase allowing license revocation for improper, unprofessional or dishonorable conduct is vague, thereby depriving him of his constitutional right to due process. He argues that section 7(11) of the statute affords him no advance notice of the type of acts that constitute “unprofessional conduct.”

Plaintiff cites several cases in which the courts have not allowed license revocations. (Megdal v. Oregon State Board of Dental Examiners (1980), 288 Or. 293, 605 P.2d 273; Turna v. Board of Nursing (1979), 100 Idaho 74, 593 P.2d 711; State Board of Dentistry v. Blumer (1977), 78 Mich. App. 679, 261 N.W.2d 186; Lester v. Department of Professional & Occupational Regulations (Fla. App. 1977), 348 So. 2d 923.) None of these cases, however, found a statute allowing license revocation for unprofessional conduct to be unconstitutional. Blumer disallowed license revocation because the board involved did not further define unprofessional conduct. The other cases disallowed license revocation because the statute in question did not afford notice that the conduct with which the doctors were charged fell within the purview of the statute. In none of these cases, however, did the acts alleged reflect on the person’s fitness to practice his profession. In fact, several of these cases imply that the statutes in question did place the person on notice that conduct relating to his fitness to practice would fall under the statute. For example, in Megdal, in which a dentist was charged with making intentional misrepresentations to his malpractice insurer, the court stated:

“It might be agreed that the term [unprofessional conduct] covers conduct in the course of rendering the professional service on the one hand, and on the other that it excludes the licensee’s purely private affairs unrelated to any relevant professional qualification or performance. But between these two poles, there may be questions how far ‘unprofessional conduct’ extends to financial arrangements or to mixing professional with other relationships.” 288 Or. 293, 315, 605 P.2d 273, 284.

Similarly, in Turna, where a nurse was charged with discussing alternative treatments with a patient, the court stated, “With respect to [the nurse], however, there appears to be no contention whatever that she is unfit to nurse ***.” (100 Idaho 74, 80, 593 P.2d 711, 717.) In contrast, the alleged conduct in the instant case specifically reflects on the plaintiff’s fitness to practice his profession.

This court has held that a statute does not violate the due process clauses of the United States or Illinois constitutions, on grounds of vagueness, if the duty imposed by the statute is prescribed in terms definite enough to serve as a guide to those who must comply with it. (E.g., Stein v. Howlett (1972), 52 Ill. 2d 570, 579-80; Jaffe v. Cruttenden (1952), 412 Ill. 606, 609.) Many courts have upheld the validity of similar statutes providing for license revocation against constitutional challenges based on vagueness. Shea v. Board of Medical Examiners (1978), 81 Cal. App. 3d 564, 574, 146 Cal. Rptr. 653, 659-60 (unprofessional conduct); Buhr v. Arkansas State Board of Chiropractic Examiners (1977), 261 Ark. 319, 322, 547 S.W.2d 762, 764, en banc (gross immorality and unprofessional conduct); Richardson v. Florida State Board of Dentistry (Fla. App. 1976), 326 So. 2d 231, 233 (misconduct which would bring discredit upon the dental profession); Hoke v. Board of Medical Examiners (W.D.N.C. 1975), 395 F. Supp. 357, 358 (grossly immoral conduct); Martinez v. Texas State Board of Medical Examiners (1972), 476 S.W.2d 400, 404 (grossly unprofessional or dishonorable conduct); Board of Medical Examiners v. Mintz (1963), 233 Or. 441, 446-49, 378 P.2d 945, 947-49 (unprofessional or dishonorable conduct); Reyburn v. Minnesota State Board of Optometry (1956), 247 Minn. 520, 523-24, 78 N.W.2d 351, 355 (unprofessional conduct); Bell v. Board of Regents (1946), 295 N.Y. 101, 108-111, 65 N.E. 2d 184, 187-89 (unprofessional conduct); In re Cherry (1942), 289 N.Y. 148, 158, 44 N.E.2d 405, 411 (unprofessional conduct); Walker v. Corwin (1941), 210 Minn. 337, 340, 300 N.W. 800, 801 (gross moral or professional misconduct); Warnshuis v. State Board of Registration in Medicine (1938), 285 Mich. 699, 703-04, 281 N.W. 410, 411 (grossly unprofessional and dishonest conduct); Sapero v. State Board of Medical Examiners (1932), 90 Colo. 568, 574-75, 11 P.2d 555, 557-58 (immoral, unprofessional or dishonorable conduct); Ramsay v. Shelton (1928), 329 Ill. 432, 444 (unprofessional or dishonorable conduct).

Plaintiff argues that Shea, Martinez, Richardson, Reybum, Cherry and Warnshuis are distinguishable in that the statutes involved have language defining unprofessional conduct. Although these cases involve statutes with some definitional verbiage, the additional language was not utilized by the courts in arriving at the conclusion that the doctors’ actions constituted unprofessional conduct. Consequently, the notice to persons involved that their actions fell under the ambit of the statute was no greater than if the additional language were absent. For example, in Shea v. Board of Medical Examiners (1978), 81 Cal. App. 3d 564, 146 Cal. Rptr. 653, the court upheld the revocation of a physician’s certificate by the State Board of Medical Examiners for unprofessional conduct. The statute defined unprofessional conduct as gross immorality, and the commission of any act involving moral turpitude, dishonesty or corruption. The court found that Dr. Shea’s conduct did not fall within any act specified by the statute. The court held, however, that it is unnecessary for a statute to enumerate specific acts which constitute unprofessional conduct. It analyzed the statute in terms of its purpose, which was to assure the high quality of medical practice. The court then held that, although unprofessional conduct should not be given an overly broad connotation, “it must relate to conduct which indicates an unfitness to practice medicine.” 81 Cal. App. 3d 564, 575, 146 Cal. Rptr. 653, 660.

Similarly, in Board of Medical Examiners v. Mintz (1963), 233 Or. 441, 378 P.2d 945, the Oregon Supreme Court revoked a physician’s license for unprofessional conduct. The statute outlined several grounds for license revocation, one of which was unprofessional conduct. Oregon Revised Statutes, section 677.010(L), provided that unprofessional conduct or dishonorable conduct was conduct unbecoming a person licensed to practice medicine or detrimental to the best interest of the public. Yet, the defining language of the statute was not the factor that gave the physician notice that his conduct, administering drugs for the purpose of performing an abortion, was unprofessional. The court held, “The fact that it is impossible to catalogue all of the types of professional misconduct is the very reason for setting up the statutory standard in broad terms and delegating to the board the function of evaluating the conduct in each case.” 233 Or. 441, 448, 378 P.2d 945, 948.

In Reyburn v. Minnesota State Board of Optometry (1956), 247 Minn. 520, 523-24, 78 N.W.2d 351, 355, the Minnesota Supreme Court affirmed an order denying an optometrist an injunction that would have prevented a hearing to suspend or revoke his license. The statute. allowed suspension or revocation for unprofessional conduct, which was defined as any conduct of a character likely to deceive or defraud the public. The court held “ ‘unprofessional conduct’ is of itself, without amplification, a sufficiently definite ground upon which the board may revoke or suspend a license.” 247 Minn. 520, 525, 78 N.W.2d 351, 356.

The rationale in the cases upholding these statutes is that it is impossible to categorize all the acts constituting terms such as “unprofessional conduct” or “gross immorality.” Further, terms such as “unprofessional conduct” are susceptible to common understanding by the members of the profession. When combined with the legislative purpose of protecting the public from people unfit to practice, the term “unprofessional conduct” provides fair notice to licensed professionals and is not unconstitutionally vague.

The statute at issue lists 20 separate grounds for which a dentist can have his license revoked, one of which is unprofessional conduct. The principal purpose of the statute is to protect the health, safety and welfare of the public. Section la of the statute (Ill. Rev. Stat. 1977, ch. 111, par. 2202) provides:

“The practice of dentistry in the State of Illinois is hereby declared to affect the public health, safety and welfare and to be subject to regulation and control in the public interest. It is further declared to be a matter of public interest and concern that the dental profession merit and receive the confidence of the public and that only qualified persons be permitted to practice dentistry in the State of Illinois. This Act shall be liberally construed to carry out these objects and purposes.”

The meaning attached to a statutory provision is derived from an examination of the language of the statute and its purpose. (Miller v. Department of Registration & Education (1979), 75 Ill. 2d 76, 81.) Thus, plaintiff should be put on notice that he could have his license revoked for unprofessional conduct that is harmful to the health, safety and welfare of the public. We are not here faced with one alleged act of negligence. In this case, plaintiff is alleged to have committed repeated negligent acts. Clearly, repeated acts of negligence by a dental practitioner toward his patients are actions that endanger the health, safety and welfare of the public and, therefore, constitute unprofessional conduct. It is unreasonable to presume that a dentist is not apprised of the possibility his license could be in jeopardy for repeated acts of incompetent treatment.

Moreover, the statute necessarily must be broad because it would be impossible for the statute to catalogue specifically every act of unprofessional or dishonorable conduct which would justify the refusal or revocation of a license. (People ex rel. State Board of Health v. Apfelbaum (1911), 251 Ill. 18, 22-23.) See Wegmann v. Department of Registration & Education (1978), 61 Ill. App. 3d 352, where a dentist was suspended for inhaling nitrous-oxide gas during office hours, thereby rendering himself senseless.

Plaintiff contends that, although the acts alleged against him may constitute negligence and professional malpractice, the term “unprofessional conduct” applies only to wilful acts on his part. Plaintiff has not cited any authority nor has our research revealed any support for this allegation. Plaintiff also argues that the legislature intended to exclude negligence and malpractice as grounds for license revocation. In support of this argument, he points to other Illinois statutory provisions that specifically use terms such as “malpractice” or “incompetence.” His examples include optometrists (Ill. Rev. Stat. 1977, ch. 111, par. 3814(c)), which refers to “gross malpractice”; physicians (Ill. Rev. Stat. 1977, ch. 111, par. 4433(27)), which refers to “professional incompetence”; professional engineers (Ill. Rev. Stat. 1977, ch. 111, par. 5124(2)), which refers to “gross negligence, incompetence or misconduct”; and psychologists (Ill. Rev. Stat. 1977, ch. 111, par. 5316(2)), which refers to “gross negligence.” According to plaintiff, if the legislature had intended to allow a dentist’s license to be revoked for repeated negligence, the statutory language would have specifically reflected that intent.

In ascertaining legislative intent, the entire statute must be considered (People ex rel. Morrison v. Sielaff (1974), 58 Ill. 2d 91, 93) as well as giving effect to “the evil to be remedied and the object to be attained” (People ex rel. Simpson v. Funkhouser (1944), 385 Ill. 396, 403). When section 7(11) of the statute is considered in light of the goal of providing competent dental treatment for the benefit of the health, safety and welfare of the public, the legislative purpose would be frustrated if the statute did not encompass repeated acts of negligence. Further, to conclude that the legislature intended to suspend or revoke the license of other professionals for malpractice or incompetence, while excluding dentists, would create an anomalous situation.

We therefore hold that section 7(11) of the statute (Ill. Rev. Stat. 1977, ch. 111, par. 2222(11)) is not unconstitutionally vague and that repeated acts of negligence may constitute unprofessional conduct within the meaning of the statute.

For the above stated reasons, the judgment of the circuit court of Cook County is reversed.

Judgment reversed.

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


source: Caselaw Access Project

author: MR. JUSTICE CLARK

license: Public Domain

text:
    (Nos. 53021, 53028 cons.
    ANDOMARO HERNANDEZ, Appellee, v. THE DEPARTMENT OF LABOR et al., Appellants.

      Opinion filed January 20, 1981.

      SIMON, J., took no part.
    Tyrone C. Fahner and William J. Scott, Attorneys General, of Springfield (Myra Turner, Assistant Attorney General, of Chicago, of counsel), for appellant Department of Labor.
    Paul Jordan Cherner and Janet E. Goldberg, of Friedman & Koven, of Chicago, for appellant Lab-Line Instruments, Inc.
    Alan A. Alop, Jane Alshuler, Debra L. Raskin and John Bouman, of Chicago, for appellee.
    Katz, Friedman, Schur & Eagle, of Chicago, for amicus curiae United Automobile, Aerospace and Agricultural Implement Workers of America.
   MR. JUSTICE CLARK

delivered the opinion of the court:

This unemployment compensation case (Ill. Rev. Stat. 1977, ch. 48, par. 300 et seq.) resulted from a lawsuit filed pursuant to the Administrative Review Act (Ill. Rev. Stat. 1977, ch. 110, par. 264 et seq.). The dispute arose from a claim for benefits filed personally by the plaintiff, Andomaro Hernandez, with the assistance of an agency interpreter, on September 21, 1977. The claims adjudicator found plaintiff ineligible for benefits due to alleged work-related misconduct consisting of three consecutive unauthorized absences, and sent a letter written entirely in English to this effect to the plaintiff on October 21. The letter also purported to inform plaintiff of his right to appeal this determination within nine days of the date it was mailed.

Plaintiff and members of his household speak only Spanish. Accordingly he took this letter to a friend for translation. The friend completely mistranslated the letter, leaving plaintiff uninformed of its true content. Plaintiff personally visited the unemployment office on November 3, 1977, to investigate the delay in receiving benefits and at that time first learned of the ineligibility finding from an agency interpreter. He filed an appeal that same day. The Department of Labor’s referee ruled on appeal that he lacked jurisdiction to review the adjudicator’s determination because plaintiff had filed his appeal late. This ruling was timely appealed, but the decision was affirmed by the Board of Review of the Department of Labor (the Board). A timely complaint was filed in the circuit court of Cook County, which was dismissed on the Board’s motion. Another timely appeal was taken to the appellate court. The appellate court reversed the circuit court and remanded the cause for a determination on the merits. 79 Ill. App. 3d 635.

We granted the Board and Lab-Line Instruments, Inc. (Lab-Line), plaintiff’s former employer, leave to appeal and consolidated the cases. We also granted the United Automobile, Aerospace and Agricultural Implement Workers of America leave to file an amicus curiae brief in support of the plaintiff. We reverse the appellate court.

The facts on which this appeal is to be judged are found in plaintiff’s complaint and the testimony of the plaintiff during the proceedings before the referee. Lab-Line filed an answer to plaintiff’s complaint which largely consisted of averments that it was “without knowledge sufficient to form a belief as to the truth of the allegations” in the complaint. The Board apparently did not file an answer to plaintiff’s complaint or a record of the proceedings on review in the circuit court, but did move to dismiss the complaint. The parties also filed memoranda of law. The proceedings before the referee were made part of the record in the appellate court on motion of the Board.

This record shows that plaintiff filed his claim for benefits personally on September 21, 1977, and was assisted by a Spanish-speaking interpreter employed by the Department of Labor. Plaintiff at this time provided information contained on a standard agency benefit claim form. This form apparently was examined by the referee, but was not submitted on the record. No testimony regarding representations or advice provided plaintiff by the agency on September 21 appears on the record. The adjudicator thereafter ruled plaintiff ineligible and mailed the notice to that effect on October 21. No evidence was presented as to when it was received. The notice, which is not contained in the record, apparently stated that an appeal of the determination had to be taken within nine days of October 21. The referee stated on appeal that the plaintiff would have been allowed to appeal as late as October 31, because October 30 was a Sunday, making October 31 the first weekday after the nine-day appeal period had run.

The plaintiff testified at the hearing before the referee, through an interpreter, that immediately upon receiving the notice, he took it to a friend for translation. The friend only informed him that the letter said he was discharged for unauthorized absences, something he knew already. The plaintiff said he trusted the translation because his friend was attending school and knew more English than he did. Plaintiff had never attended school. When he did not receive certification forms, which must be filled out to receive benefits, he visited the unemployment office again on November 3, 12 days after the notice was mailed, and was informed in Spanish that he was ruled ineligible. He was advised of his appeal rights and filed one that same day.

Initially we note that no issue has been raised regarding information employers are required to provide to terminated employees (see, e.g., Dep’t of Labor Reg. 14(a) (eff. Sept. 22, 1977)), section 703 of the Unemployment Insurance Act (Ill. Rev. Stat. 1977, ch. 48, par. 453), concepts of waiver or estoppel, the custom or practice of the agency, or the clarity of the notice itself. We therefore assume for purposes of this case that such issues are irrelevant.

The Illinois Constitution in relevant part states that “Circuit courts shall have such power to review administrative action as provided by law.” (Ill. Const. 1970, art. VI, sec. 9.) The Administrative Review Act, which is applicable (see Ill. Rev. Stat. 1977, ch. 48, par. 520; Ill. Rev. Stat. 1977, ch. 110, par. 265), states in pertinent part:

“If under the terms of the Act governing the procedure before an administrative agency an administrative decision has become final because of the failure to file any document in the nature of objections, protests, petition for hearing or application for administrative review within the time allowed by such Act, such decision shall not be subject to judicial review hereunder excepting only for the purpose of questioning the jurisdiction of the administrative agency over the person or subject matter.” Ill. Rev. Stat. 1977, ch. 110, par. 265.

Plaintiff’s appeal from the determination of ineligiability was governed by section 800 of the Unemployment Insurance Act, which, at that time, stated:

“Except as hereinafter provided, appeals from a claims adjudicator shaU be taken to a Referee. *** Unless the claimant or any other party entitled to notice of the claims adjudicator’s ‘finding’ or ‘determination,’ as the case may be, or the Director, within seven days after the delivery of the claims adjudicator’s notification of such ‘finding’ or ‘determination,’ or within nine days after such notification was maHed to his last known address, files an appeal therefrom, such ‘finding’ or ‘determination’ shaH be final as to aU parties given notice thereof.” (Ill. Rev. Stat. 1977, ch. 48, par. 470.)

See also Dep’t of Labor Reg. 23 (eff. May 14, 1977).

The nine-day limitation contained in section 800 is analogous to a statute of limitations provision for those parties “given notice thereof.” (See Zimmerman Brush Co. v. Fair Employment Practices Com. (1980), 82 Ill. 2d 99; Springfield-Sangamon County Regional Plan Com. v. Fair Employment Practices Com. (1978), 71 Ill. 2d 61, and cases therein cited.) It is a mandatory rather than a directory provision because the consequence of noncompliance, that the claims adjudicator’s determination be considered final, is clearly provided in the Act. (See Zimmerman Brush Co. v. Fair Employment Practices Com. (1980), 82 Ill. 2d 99, 106, citing Tuthill v. Rendelman (1944), 387 Ill. 321, 350, which in turn cited Clark v. Quick (1941), 377 Ill. 424, 430.) It is undisputed here that plaintiff was “given notice” by the agency, and he apparently received it in sufficient time to permit compliance with its terms. The argument advanced here, however, is that plaintiff did not have “actual notice” of the contents of the notice because he spoke only Spanish and his friend incorrectly translated the contents of the notice.

In this regard, we find the reasoning of the Supreme Judicial Court of Massachusetts persuasive. In DaLomba v. Director of the Division of Employment Security (1975), 369 Mass. 92, 337 N.E.2d 687, plaintiff, a Portugese immigrant not versed in English, applied for unemployment compensation with the assistance of an interpreter. A notice of the denial of her claim and of her appeal rights was mailed and received by plaintiff, who took the notice to a neighbor for translation. The neighbor mistranslated the notice, causing her to fail to file an appeal within seven days of the time the notice was mailed, the appeal period provided by statute. The plaintiff, several days beyond the applicable period for appeals, became concerned about the delay in receiving benefits, went to a service organization for help, discovered the true content of the notice, and immediately filed an appeal. The court held that notices written in English were “reasonable and are sufficient to constitute effective notice” (369 Mass. 92, 96, 337 N.E.2d 687, 689), and pointed out that a decision in the plaintiff’s favor “might lead to a claim that a notice in English is insufficient as to illiterates and all non-English speaking persons” (369 Mass. 92, 96, 337 N.E.2d 687, 690). Since the notice was adequate, the untimely appeal therefrom was considered barred, the court relying on cases which parallel our own in requiring compliance with procedural rules. (Cf. People v. Stueve (1977), 66 Ill. 2d 174, 178; Hamilton Corp. v. Alexander (1972), 53 Ill. 2d 175, 178; People v. Nordstrom (1967), 37 Ill. 2d 270, 273.) As the DaLomba court stated: “[L] ate filing is fatal.” 369 Mass. 92, 96, 337 N.E.2d 687, 690.

No persuasive distinction of DaLomba has been offered, and that court’s reasoning is equally persuasive here. There, as here, the statute required the notice to be “given” to benefit applicants ruled ineligible. (Mass. Ann. Laws, ch. 151A, sec. 39 (Law. Co-op 1976).) There, as here, the applicant spoke no English, took the notice to a friend for translation and received an inaccurate report of its contents.

Although the parties have not raised the issue, we note that, in 1976, the Massachusetts legislature amended the statute to allow the agency to hear a case filed late if it was untimely filed for good cause. (Mass. Ann. Laws, ch. 151A, sec. 39 (Law. Co-op 1980 Supp.).) It is by no means certain, however, that one who receives an erroneous notice translation would be allowed to file late under this provision.

Similarly without substance is the claim that the due process clauses contained in the Illinois (Ill. Const. 1970, art. I, sec. 2) and United States (U.S. Const., amend. XIV) constitutions require us to allow plaintiff’s appeal of the ineligibility determination. Such claims have been thoroughly considered and rejected under principles we need not belabor here. (See Commonwealth v. Olivo (1975), 369 Mass. 62, 337 N.E.2d 905; Guerrero v. Carleson (1973), 9 Cal. 3d 808, 512 P.2d 833, 109 Cal. Rptr. 201, cert. denied (1974), 414 U.S. 1137, 38 L. Ed. 2d 762, 94 S. Ct. 883.) No persuasive distinction of those cases has been offered.

Our statute does not provide for late filings for excusable neglect or for good cause, although we note that the time for filing has been extended recently to 30 days (Pub. Act 81 — 1477 (approved Sept. 15, 1980)) and that notices are now routinely sent in Spanish to those, like this plaintiff, who have been identified as Spanish-speaking. (See Benefit Section Bulletin No. 1434 (Nov. 26, 1979).) These changes operate prospectively, however (see Zimmerman Brush Co. v. Fair Employment Practices Com. (1980), 82 Ill. 2d 99, 108-09), and we are unwilling ourselves to further amend the statute by engrafting onto it a good-cause or excusable-neglect provision, which would allow the appeal period to be extended in this case, on grounds that a benefit applicant cannot understand the English language.

Plaintiff argues that the appellate court decision did not require bilingual notices, but merely allowed this plaintiff to appeal the adverse determination of the claims adjudicator. Employers and employees each have an interest in the prompt consideration of benefit claims; each side may, depending on the circumstances, desire to have the merits of such a claim considered before the facts go stale. Employers are certainly interested in learning quickly the extent of their financial responsibility, while recently terminated employees are interested in promptly ascertaining the amount of benefits they will receive, if any. Thus, if the agency desired to remain faithful to these purposes, it would have to provide bilingual notices were we to affirm the appellate court.

The nine-day appeal period represented a legislative compromise between conflicting forces of policy: the desire to further the beneficent purposes of the Act and the desire to further those purposes quickly and ensure that those receiving benefits actually need them. Exceptions to this requirement, if any are to be fashioned, must be symmetrically applied and, therefore, carefully formulated so as to ensure that the beneficent purposes of the Act are not ultimately defeated. And, as stated once in dissent, in words that have not lost their vitality:

“Rules of procedure are a necessary part of an orderly system of justice. Their efficacy, however, depends upon the willingness of the courts to enforce them according to their terms. Changes in rules whose inflexibility has turned out to work hardship should be effected by the process of amendment, not by ad hoc relaxations by this Court in particular cases. Such dispensations in the long run actually produce mischievous results, undermining the certainty of the rules and causing confusion among the lower courts and the bar.” (Thompson v. Immigration & Naturalization Service (1964), 375 U.S. 384, 390, 11 L. Ed. 2d 404, 408, 84 S. Ct. 397, 400 (Clark, J., dissenting).)

See also Davis, Foreword to K. Davis, Discretionary Justice at v (1976).

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

Appellate court reversed; circuit court affirmed.

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


author: MR. JUSTICE UNDERWOOD

text:
    (No. 53441.

      In re DAVID SAUL COHEN, Petitioner.

      Opinion filed January 20, 1981.

      SIMON, J., took no part.
    Paul E. Thompson, of Thompson & Thompson, of Long Grove, for petitioner.

      Charles S. Morgan, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

The petitioner, David Saul Cohen, was disbarred on consent on October 24, 1975, when this court allowed his motion to strike his name from the roll of attorneys (73 Ill. 2d R. 762). On January 9, 1979, he filed a petition for reinstatement pursuant to our Rule 767 (73 Ill. 2d R. 767). At the subsequent hearing before the Hearing Board of the Illinois Attorney Registration and Disciplinary Commission, petitioner, five attorneys and a judge of the circuit court of Cook County testified on his behalf. In addition there were presented into evidence letters from petitioner’s employer and the executive director of a volunteer organization for which petitioner acted as an officer. All the witnesses recommended reinstatement. The Administrator presented no evidence but cross-examined the witnesses and objected that the petition was premature. The Hearing Board recommended that the petitioner be reinstated, finding that he was fully rehabilitated and fit to resume the practice of law and that no public interest would be served by delaying his reinstatement. The Administrator filed exceptions to these findings. The Review Board, though noting some progress toward rehabilitation by petitioner, found that he had failed to meet his burden of proof and recommended that his petition for reinstatement be denied. Petitioner has filed exceptions to the report and recommendation of the Review Board pursuant to Rules 753(e) and 767 (73 Ill. 2d Rules 753(e), 767).

The petitioner was admitted to the practice of law in Illinois in 1954. He was a sole practitioner in Chicago for a number of years, moved to the north suburbs and later practiced law in a partnership, all apparently without incident. Petitioner was elected as a trustee of the village board of Morton Grove, a position similar to that of aider-man or city councilman. In that capacity, and on at least three occasions in 1971 and 1972, he accepted bribes in the form of cash payments and inflated legal fees relating to action by the village board. In 1975 he was convicted in the United States District Court for the Northern District of Illinois on his plea of guilty to violating the extortion provisions of title 18, section 1951, of the United States Code (18 U.S.C. sec. 1951 (1976)), commonly known as the Hobbs Act. He was sentenced to one year imprisonment, of which seven months was served in a minimum-security facility and 60 days in a work-release program, pursuant to which he clerked for his former partner. A tax deficiency was assessed against the petitioner, due in part to his failure to report income from the bribes.

The petitioner notified all his clients that he would no longer be able to represent them, and notified the Attorney Registration and Disciplinary Commission that he wished to strike his name from the roll of attorneys. He was divorced shortly before his release from custody, and thereafter moved to Florida, where he was employed by a friend in a frozen-food company which has grown greatly during his employment.

Petitioner became associated with a Florida not-for-profit rehabilitation organization known as Transition, Inc. He has served on its board of directors and as its treasurer and vice-president. The organization consists of volunteers who counsel, advise and assist individuals as they leave prison and reenter society.

Petitioner testified at the hearing that he recognized the seriousness of the actions for which he was convicted, and has expressed remorse for the breach of trust as a public official and attorney. His professional career ended, his home life deteriorated, he served a prison term, and he had to begin anew in a new community and in new employment. Summarily stated, those testifying at the hearing indicated petitioner had been a trusted, well-respected member of the bar, with an excellent reputation; that his misconduct would not be repeated and that he was fit to resume the practice of law. While the Administrator’s cross-examination established that some of the witnesses had little contact with the petitioner after he moved to Florida or were unfamiliar with the details of his conviction, it was also indicated by them that their opinions remained unchanged.

The burden of showing by clear and convincing evidence that he is rehabilitated and fit to resume the practice of law rests upon petitioner. (In re Wigoda (1979), 77 Ill. 2d 154; In re Nesselson (1979), 76 Ill. 2d 135.) While this court has the ultimate responsibility to impose and enforce attorney discipline (In re Zahn (1980), 82 Ill. 2d 489; In re Leonard (1976), 64 Ill. 2d 398), the findings and recommendations of the Inquiry, Hearing and Review Boards are entitled to and receive our serious consideration. These boards, with the exception of the Review Board, see and hear the witnesses and play important roles in screening and hearing cases, making factual findings in contested matters and developing uniformity in our disciplinary system.

The guidelines set out in our Rule 767 for the hearing panel provide:

“The panel shall consider the following factors, and such other factors as the panel deems appropriate, in determining the petitioner’s rehabilitation, present good character and current knowledge of the law:
(a) the nature of the misconduct for which the petitioner was disciplined;
(b) the maturity and experience of the petitioner at the time discipline was imposed;
(c) whether the petitioner recognizes the nature and seriousness of the misconduct;
(d) when applicable, whether petitioner has made restitution;
(e) the petitioner’s conduct since discipline was imposed; and
(f) the petitioner’s candor and forthrightness in presenting evidence in support of the petition.” (73 Ill. 2d R. 767.)

In Wigoda we recently stated: “Rehabilitation, the most important consideration in reinstatement proceedings, is a matter of one’s ‘return’ to a beneficial, constructive and trustworthy role.” (In re Wigoda (1979), 77 Ill. 2d 154, 159.) In Nesselson we noted in allowing the petition for reinstatement that the petitioner expressed recognition that the conduct for which he was disciplined was improper and he showed remorse for his conduct. In re Nesselson (1979), 76 Ill. 2d 135.

Here, too, guilt is undisputed and petitioner has expressed profound awareness of the seriousness of his transgressions. It is clear that the repercussions from his breach of the public trust have profoundly affected his professional and personal life. His remorse and regret for the manner in which his actions have reflected upon himself, his profession and those close to him is apparent from this record. The Hearing Board had an opportunity to appraise petitioner’s candor and sincerity. Its members apparently felt that his candor, coupled with the recommendations from witnesses who represent a cross section of petitioner’s past, before and after disbarment, his present business career, his personal life, and community service, constituted clear and convincing evidence that petitioner is rehabilitated and a fit person to resume the practice of law. The testimony portrays an attorney with an otherwise good reputation who participated in a series of offenses representing a serious breach of public trust. However, he has apparently cooperated fully with all authorities, from investigators to prosecutors to prison and parole officials, and finally volunteered to assist others making the transition from prison to private life. He voluntarily moved to have his name removed from the roll of attorneys.

The Administrator objects that the petition is premature. The petitioner has now been disbarred for more than five years. While we do not intend to minimize the gravity of his offense, the period of disbarment coincides with the discipline imposed and the time required before reinstatement in other cases. (In re Groshong (1980), 83 Ill. 2d 27 (3Vi> years’ disbarment on consent, misappropriation of client funds); In re Zahn (1980), 82 Ill. 2d 489 (10 years’ disbarment, misappropriation of client funds); In re Wonais (1979), 78 Ill. 2d 121 (3Vi years’ disbarment on consent, solicitation to commit bribery) ;In re Wigoda (1979), 77 Ill. 2d 154 (4Vz years’ suspension and disbarment on consent, false income tax returns in failing to report a bribe); In re Thomas (1979), 76 Ill. 2d 185 (5 years’ disbarment on consent, purchasing personal injury actions from solicitors); In re Kien (1977), 69 Ill. 2d 355 (18 months’ suspension from date respondent voluntarily withdrew from practice, payment to secure testimony of opposition witness); In re Cook (1977), 67 Ill. 2d 26 (3 years’ suspension from date respondent voluntarily withdrew from practice, perjured testimony to Federal grand jury and United States Senate subcommitee); In re Leonard (1976), 64 Ill. 2d 398 (3 years’ suspension from date respondent voluntarily withdrew from practice, involvement in bribery of public official).) While each disciplinary and reinstatement action is unique (In re Clayter (1980), 78 Ill. 2d 276, 283) reinstatement in this case is not disproportionate to the discipline involved in the cited cases. In re Wigoda (1979), 77 Ill. 2d 154, 163.

We agree with the Hearing Board that petitioner has sufficiently demonstrated his rehabilitation. In our judgment no public interest would be served by postponing petitioner’s reinstatement. It is accordingly ordered that he be reinstated upon the role of attorneys admitted to practice law in this State.

Petitioner reinstated.

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


text:
    (No. 52926.
    NILES POLICE DEPARTMENT, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Clarence Brink, Appellee).

      Opinion filed January 20, 1981.

      SIMON, J., took no part.
    Musschoot, Womack & Galich, of Chicago (Andrew A. Galich and Michael C. Filler, of counsel), for appellant.
    Murges & Bowman, Ltd., of Chicago (George J. Murges and John T. Bowman, of counsel), for appellees.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

An arbitrator for the Industrial Commission awarded claimant, Clarence Brink, compensation from respondent, the village of Niles police department, for permanent total disability pursuant to section 8(f) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.8(f)). The Commission affirmed the award, and its decision was confirmed by the circuit court of Cook County. Respondent appealed to this court under our Rule 302(a). 73 Ill. 2d R. 302(a).

Claimant, who was 54 years of age at the time of the accident, had worked 414 years as maintenance director for respondent prior to April 15, 1975. On that date claimant, at the direction of his supervisor, was melting down used lead for bullets. The lead, which was heated to 1,800 degrees Fahrenheit, exploded, spraying claimant with molten lead, some of which covered and entered his eyes. Claimant underwent emergency treatment to remove lead from the exposed parts of his body and from his eyes, and underwent further surgery on subsequent dates to remove other pieces of lead from his eyes. He had no previous problems with his eyes and did not wear glasses.

Claimant testified that prior to working for respondent he had worked for a dairy company 22 years and that he had attended two years of college. Since the accident, he said that he constantly wears dark glasses with shields on the sides, even in the shower, and sometimes wears welders’ goggles that fit around his face and prevent light from entering the center or sides. He no longer reads and limits his television watching to one hour a day. He complained that his eyes became sore and watered in any kind of light, and will occasionally fester. Some mornings his left eyelid is stuck shut and he has to use his fingers to open it. Claimant had sought a job in a talk with the Niles village manager sometime in 1976, but had not sought employment since he moved to Florida in September of that year. The Niles chief of police testified concerning the benefits received by the claimant following his accident and stated that claimant never proved to the department’s satisfaction that he was physically fit to come back to work.

Experts for the claimant and respondent disagreed on claimant’s present condition and whether it was caused by the lead explosion. Claimant’s treating physician, Dr. Richard Katz, testified that claimant suffered multiple abrasions of the cornea and conjunctiva and had severe photophobia, which is extreme sensitivity to light. Dr. Katz prescribed eye drops and dark glasses for claimant, noting there was no treatment for photophobia. He stated there was no relation between visual acuity, which remained good in claimant, and photophobia. According to Dr. Katz, photophobia may be present with no objective symptoms. In his opinion there was a causal relationship between the accident and claimant’s condition. It was his opinion also that the only type of work claimant could perform would be that which did not involve continuous use of his eyes.

Dr. Morris D. Bennin testified for the respondent that he examined claimant and diagnosed mixed astigmatism with presbyopia, a normal condition of age requiring glasses for reading. This condition was not caused by trauma. There were no objective findings of photophobia, which Dr. Bennin defined as a more than normal reaction to light, but he prescribed tinted glasses for claimant. He stated there could be subjective symptoms of photo-phobia without objective symptoms. It was Dr. Bennin’s opinion that claimant is able to work.

Dr. Bruce Golden, called by respondent, testified that he examined claimant and diagnosed his condition as dry-eye syndrome, in this case caused by the failure of tears to form evenly over the eye, leaving irritating dry spots on the cornea. It was Dr. Golden’s opinion that this condition was not caused by trauma. He stated photophobia is a subjective complaint which may have physical manifestations, but he did not find any such physical manifestations in claimant. It was his opinion that the claimant could return to work.

Dr. John Fournier testified for claimant that his examination of claimant consisted of several tests. One test was contralight testing, which showed a marked decrease in acuity when illumination was increased. Dr. Fournier observed increased tear production and involuntary eyelid closing during the contralight testing, which indicated unusual discomfort. He diagnosed the condition as dry-eye syndrome and bilateral photophobia. It was his opinion that this condition was caused by trauma, and is permanent. Dr. Fournier noted that someone with photophobia could be in the sunlight occasionally without dark glasses for short periods, but would experience discomfort. His suggested treatment would be the wearing of dark glasses, hourly eye drops and ointment on the eyes at night. It was his opinion that the types of work claimant could perform would be limited.

Respondent also called a private investigator to testify before the Commission. That witness had conducted a surveillance of claimant in Port Charlotte, Florida, over a period of several months in 1977. The investigator observed claimant outside in sunlight without his glasses on two occasions. Several minutes of video tape and several photographs purporting to show claimant outside his Florida home without his glasses were introduced into evidence. This evidence represented the results of over 20 hours of surveillance during some 12 trips by the investigator to claimant’s home.

Respondent argues that the Industrial Commission finding that claimant is permanently and totally disabled is erroneous. It is, of course, axiomatic that a factual determination by the Industrial Commission as to the nature and extent of disability will not be set aside by a court unless that finding is contrary to the manifest weight of the evidence. (Gates Division, Harris-Intertype Corp. v. Industrial Com. (1980), 78 Ill. 2d 264; Chicago Transit Authority v. Industrial Com. (1975), 61 Ill. 2d 78; Board of Trustees of University of Illinois v. Industrial Com. (1973), 55 Ill. 2d 293.) As we have repeatedly stated, it is the province of the Industrial Commission to weigh the evidence and draw reasonable inferences therefrom in the first instance, and we wül not overturn its findings simply because a different inference could be drawn. Sterling Steel Casting Co. v. Industrial Com. (1979), 74 Ill. 2d 273.

A claimant is permanently and totally disabled under the Workmen’s Compensation Act when the claimant is unable to make some contribution to the work force sufficient to justify the payment of wages. (Gates Division, Harris-Intertype Corp. v. Industrial Com. (1980), 78 Ill. 2d 264; A.M.T.C. of Illinois, Inc. v. Industrial Com. (1979), 77 Ill. 2d 482; C.R. Wikel, Inc. v. Industrial Com. (1977), 69 Ill. 2d 273; Consolidated Freightways, Inc. v. Industrial Com. (1976), 64 Ill. 2d 312.) While the burden of proof is upon the claimant to show the nature and extent of his injuries and the resulting inability to secure gainful employment (A.M.T.C. of Illinois, Inc. v. Industrial Com. (1979), 77 Ill. 2d 482), a claimant is not required to demonstrate total incapacity or helplessness before a permanent total disability award may be granted under the Act. (Inland Robbins Construction Co. v. Industrial Com. (1980), 78 Ill. 2d 271; E. R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353.) The respondent argues, however, that the claimant must prove he has actively sought some kind of employment and been turned down because of the disability. We agree that there is such an initial burden upon the claimant. However, one may be so disabled “ ‘that he can perform no services other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist.’ ” (2 A. Larson, Workmen’s Compensation sec. 57.51, at 10 — 164.22 (1980), quoting Lee v. Minneapolis Street Ry. Co. (1950), 230 Minn. 315, 320, 41 N.W.2d 433, 436. See Arcole Midwest Corp. v. Industrial Com. (1980), 81 Ill. 2d 11; Gates Division, HarrisIntertype Corp. v. Industrial Com. (1980), 78 Ill. 2d 264; South Import Motors, Inc. v. Industrial Com. (1972), 52 Ill. 2d 485.) Once a claimant establishes that his disability is in that category, it then becomes the burden of the respondent employer to prove the availability of steady work. (Sterling Steel Casting Co. v. Industrial Com. (1979), 74 Ill. 2d 273; E. R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353.) “There is no presumption that, merely because claimant is physically able to do light work, appropriate employment is regularly available to him.” (2 A. Larson, Workmen’s Compensation sec. 57.51, at 10 — 164.53-54 (1980).) The respondent made no attempt to demonstrate the availability of work suitable to claimant’s limited capabilities (Inland Robbins Construction Co. v. Industrial Com. (1980), 78 Ill. 2d 271), and in the circumstances of this case, we believe claimant’s showing has been sufficient. (Sterling Steel Casting Co. v. Industrial Com. (1979), 74 Ill. 2d 273.) Two experts expressed the opinion that claimant would have difficulty performing any kind of work. One stated claimant would be unable to perform work which would involve the continuous use of his eyes. While respondent elicited testimony that even with claimant’s disability he could possibly type (though there is no evidence that claimant has typing skills) and that he could possibly count money in subdued lighting, respondent has not established that there is any reasonably stable labor market for individuals so skilled.

Respondents’ videotapes showing claimant in sunlight do little to support its case. From more than 20 hours of surveillance the investigator obtained less than 5 minutes of film showing claimant outdoors without dark glasses. This is not inconsistent with Dr. Fournier’s opinion that someone with photophobia could be in the sunlight without dark glasses for short periods with some discomfort, and it falls considerably short of establishing fraud or misrepresentation by claimant or his fitness for normal employment.

Respondent also argues that the claimant has not established his disability by competent evidence, “of which there are or have been objective conditions or symptoms proven” as required by section 8(b)(7) of the Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.8(b)(7)). (This provision was deleted by Public Act 79 — 79, effective July 1, 1975 (1975 Ill. Laws 211), shortly after the date of claimant’s accident.) Respondent’s contention is not well taken. The above section refers to objective conditions or symptoms of the accidental injury, not of disability. Consolidated Freightways, Inc. v. Industrial Com. (1976), 64 Ill. 2d 312; Pathfinder Co. v. Industrial Com. (1976), 62 Ill. 2d 556; City of Chicago v. Industrial Com. (1974), 59 Ill. 2d 384.

Respondent’s final argument is that it was denied due process of law because it was not allowed to present further rebuttal medical testimony to the Commission prior to oral argument. It appears that on February 27, 1979, after the parties had each presented the medical testimony of two experts, the commissioner closed proofs and set oral argument for July 18, with the statement that respondent could bring in an expert if it was absolutely necessary to rebut one piece of evidence. The commissioner expressed reluctance to keep proofs open in a case nearly 4 years old. There is a motion in the record dated July 3, 1979, which seeks to continue the oral argument beyond July 18. There is no order continuing the case and there is a dispute whether an oral order for continuance was granted. It is, of course, appellant’s responsibility to demonstrate from the record that the error he claims actually occurred. (Berry v. Industrial Com. (1978), 72 Ill. 2d 120.) This court has generally held that whether or not additional evidence will be heard by the Commission is a question within its sound discretion. (Wirth v. Industrial Com. (1974), 57 Ill. 2d 475.) So far as the record reveals, the Commission refused to continue the case beyond the date set for oral argument and the commissioner involved denied allowing the motion to continue the hearing for additional proofs. There is nothing in this record indicating the necessity to keep proofs open to rebut medical testimony, or that the Commission abused its discretion in refusing to do so.

In this case it is clear that differing reasonable inferences could be drawn from the medical evidence together with the claimant’s testimony, and we cannot say that the Commission’s determination that claimant met his burden of proving that he is permanently and totally disabled by the accident is contrary to the manifest weight of the evidence. The judgment of the circuit court of Cook County is accordingly affirmed.

Judgment affirmed.

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


text:
    (No. 53850.
    THE PEOPLE ex rel. BERNARD CAREY, State’s Attorney, Petitioner, v. VINCENT BENTIVENGA, Judge, et al., Respondents.

      Opinion filed January 20, 1981.

      SIMON, J., took no part.
    Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr, Adrienne Noble Nacev and Adam N. Stillo, Jr., Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Timothy K. McMorrow, Assistant Public Defender, of counsel), for respondent Siedlecki.
   MR. JUSTICE MORAN

delivered the opinion of the court:

This original proceeding for the issuance of a writ of mandamus is brought by the State’s Attorney for Cook County (petitioner) to compel Judge Vincent Bentivenga of the circuit court of Cook County (respondent) to expunge an order entered by him in a criminal proceeding. The order granted William Siedlecki (defendant) probation upon being found guilty of burglary by respondent in a bench trial.

The portions of the statutes with which we are concerned read as follows:

“A period of probation, a term of periodic imprisonment or conditional discharge shall not be imposed for the following offenses. The court shall sentence the offender to not less than the minimum term of imprisonment set forth in this Code for the following offenses, and may order a fine or restitution or both in conjunction with such term of imprisonment:
* * *
A Class 2 or greater felony if the offender had been convicted of a Class 2 or greater felony within ten years of the date on which he committed the offense for which he is being sentenced.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3(c)(2)(F).)
“Sentence of imprisonment for felony.
(a) A sentence of imprisonment for a felony shall be a determinate sentence set by the court under this Section, according to the following limitations:
* * *
(5) for a Class 2 felony, the sentence shall be not less than 3 years and not more than 7 years.” Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-1 (a)(5).

The issue to be resolved is whether the respondent had a statutory duty to sentence the defendant in accordance with the cited statute. Petitioner argues that because defendant, at the time of sentencing, had a previous conviction for burglary (a Class 2 felony) within 10 years he was not eligible for probation and that the order was therefore void. Defendant argues (1) that the court should stay the mandamus proceeding to permit defendant to file a section 72 petition (Ill. Rev. Stat. 1979, ch. 110, par. 72) in the trial court; (2) that the sentencing statute is unconstitutional as applied to the facts of his case; and (3) that this court should, under Supreme Court Rule 615 (73 Ill. 2d R. 615), reduce defendant’s sentence from burglary to criminal trespass to land.

After a bench trial before respondent, the defendant was found guilty of burglary, a Class 2 felony. The evidence showed that he unlawfully entered an auto parts store and took one can of oil having a retail value of $1.55. A sentencing hearing was held in which the State informed respondent that the defendant had previously been convicted of burglary on October 9, 1975. Respondent sentenced defendant to two years’ felony probation, the first five months of which were to be served in the Cook County jail. The State objected that the sentence was improper due to the fact that the defendant had been previously convicted of another Class 2 felony within 10 years of the commission of the instant offense. The State pointed out that the defendant was, therefore, not qualified to receive probation.

The defendant first urges this court to stay the proceeding for original mandamus to allow the defendant to file a section 72 petition in the trial court. The purpose of a section 72 proceeding is to allow the correction of errors which occurred during trial which were unknown to both the court and the parties and which would have changed the disposition of the case if known. (People v. Berland (1978), 74 Ill. 2d 286, 314, cert. denied (1979), 444 U.S. 833, 62 L. Ed. 2d 42, 100 S. Ct. 64.) Although the defendant does not expressly state the basis of the claimed error, we assume it relates to defendant’s claim that at the time of sentencing respondent was unaware of the sentencing statute here relied on by the petitioner. After sentencing, the following colloquy occurred:

“MR. DAVY [Assistant State’s Attorney] : Judge, I would ask that the case be recalled. I believe that was an improper sentence under the statute.
THE COURT: Bring out the defendant again, please.
* * *
THE COURT: Mr. Davy, you wish to make some objections to the Court’s authority to place the defendant on probation because he had a previous conviction for burglary?
MR. DAVY: That is correct.
* * *
MR. DAVY: Under the statute I believe that this defendant is not qualified for a sentence of probation.
THE COURT: Mr. Knutz [defense attorney], are you aware of the section of the statute he is citing?”

Contrary to the argument of defendant, we find from the above cited language that the judge, in sentencing the defendant, was well aware of the statutory provision found in section 5 — 5—3(c)(2)(F) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3(c)(2)(F)). We consequently find no merit to defendant’s argument that a section 72 petition would be an appropriate remedy.

The defendant does not challenge the fact that the sentencing statute mandates the imposition of a three-year term of imprisonment. In a similar case, People ex rel. Hanrahan v. Wilson (1971), 48 Ill. 2d 30, a defendant was found guilty of possession of heroin. He had a history of prior convictions, including one for possession of heroin. The applicable statute prohibited the granting of probation to “any violator who has been convicted of any subsequent offense.” (Ill. Rev. Stat. 1967, ch. 38, par. 22 — 40.) The statute required that, for any subsequent offense, the minimum penalty to be imposed was five years’ imprisonment. Nonetheless, the trial court granted the defendant probation for five years, the first year to be served in the House of Correction. This court held that such provision by the legislature was mandatory, prohibited the granting of probation, and required the imposition of the minimum sentence of five years’ imprisonment. In the present case, the legislature has clearly made the judgment that probation may not be given to a repeat offender.

The defendant, however, argues that the sentencing statute is unconstitutional as applied. The defendant contends that the imposition of a three-year minimum term under the facts of this case would “shock the moral sense of the community” so as to render the sentencing statute unconstitutional. He points out that the burglary consisted of the taking of an article with a value of only $1.55.

It is a settled rule of law that the legislature has the authority to set the nature and extent of penalties. Courts will not interfere with such legislation unless the challenged penalty is clearly in excess of the very broad and general constitutional limitations applicable. People v. Landers (1927), 329 Ill. 453, 457; People v. Smith (1958), 14 Ill. 2d 95, 97.

In Rummel v. Estelle (1980), 445 U.S. 263, 63 L. Ed. 2d 382, 100 S. Ct. 1133, the Supreme Court examined the Texas recidivist statute. The defendant had received a mandatory life sentence under the statute after his conviction for obtaining $120.75 by false pretenses following two previous felony convictions which involved a total of $108.36. The court upheld the constitutionality of this sentence as applied. As in the case before us, the defendant in Rummel did not challenge the constitutionality of the statute per se but rather attacked the statute as applied to the facts in his case. He argued that his sentence was grossly disproportionate to his offense. The court found unpersuasive defendant’s argument that the amount of money involved was “petty” and should therefore not subject him to the recidivist statute. The court found:

“[T]he interest of the State of Texas here is not simply that of making criminal the unlawful acquisition of another person’s property; it is in addition the interest, expressed in all recidivist statutes, in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.
* * *
This segregation and its duration are based not merely on that person’s most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.” Rummel v. Estelle (1980), 445 U.S. 263, 276-85, 63 L. Ed. 2d 382, 392-97, 100 S. Ct. 1133, 1140-45.

In the present case, the Illinois legislature has determined that a repeat offender should be dealt with more harshly. The crux of this decision is not the magnitude of a particular offense for which he is convicted but rather is the failure of the recidivist to change his pattern of nonconforming behavior. We, therefore, do not agree with defendant’s view that a sentence of three years “shocks the moral sense of the community.” The defendant has committed two serious felonies and must be treated accordingly. We find no merit to defendant’s contention that the statute is unconstitutional as applied.

The defendant also urges this court to reduce defendant’s offense of burglary to that of criminal trespass to land under Supreme Court Rule 615 (73 Ill. 2d R. 615). However, Supreme' Court Rule 615 is limited to actions which are before the reviewing court on appeal. Since this is a mandamus action, we will not examine factual matters to decide the propriety of reducing the charge against defendant. In a mandamus action the court is limited to deciding matters of law only. Touhy v. State Board of Elections (1976), 62 Ill. 2d 303, 312.

For the reasons above stated a writ of mandamus shall issue directing the respondent judge to vacate the order granting defendant probation and to enter sentence in accordance with law.

Writ awarded.

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


author: MR. JUSTICE RYAN

text:
    (No. 53051.
    BERTHA REIDELBERGER, Indiv. and as the Adm’x, Appellant, v. HIGHLAND BODY SHOP, INC., Appellee.

      Opinion filed January 20, 1981.

      SIMON, J., took no part.
    John Dale Stobbs, of Stobbs & Sinclair, of Alton, for appellant.

      James E. Gorman, of Reed, Armstrong, Gorman & Coffey, of Edwardsville, for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

This appeal concerns the propriety of the action of the circuit court of Madison County in granting plaintiff’s (Bertha Reidelberger) motion for a new trial. The jury, in this products liability case, returned a verdict in favor of the defendant, Highland Body Shop, Inc. The judge granted the plaintiff’s motion for a new trial. The appellate court, with one judge dissenting, reversed the circuit court. (79 Ill. App. 3d 1138.) We granted leave to appeal under our Rule 315. 73 Ill. 2d R. 315.

The plaintiff’s 17-year-old son, Terry Reidelberger, was killed in a single-car accident when the automobile he was driving went out of control after passing another vehicle. The complaint sought damages from the defendant body shop, where repairs to the car had been performed some three months before this accident. Approximately one month before trial, plaintiff submitted a motion in limine to Judge Moses Harrison. The relevant portions of the motion sought to prohibit questions concerning, and discussion of:

“(b) The purported speeds of the decedent’s vehicle and the vehicle passed by the decedent some two miles from the scene of the accident ***.
(c) The purported movements of the decedent’s vehicle in the Grant Fork Turns some five miles from the scene of the accident.
(d) The purported statement of Ellen Niggli, a non-party witness, made two days after the accident to Trooper Loyet ***.

The judge granted these portions of the motion, directing the defendant not to refer directly or indirectly by opening statement, question or otherwise to these items without first taking the matter up with the court.

Although the in limine order was entered by Judge Harrison, the trial was presided over by Judge Victor Mosele. The trial was marked by a great deal of bickering between counsel. The jury found for the defendant. The plaintiff filed a motion for a new trial, which was granted by Judge Mosele. The basis for the new trial was alleged violations of the in limine order. The judge, in granting the motion for a new trial, stated:

“This order was directly violated by the defendant in his opening statement when he referred to the plaintiff’s leapfrogging movements not at the scene of the accident. In chambers, it was once again made clear to the defendant that speeds and movements of the car not at the scene of the accident were inadmissible. Subsequent to the conference in chambers the order was violated by the defendant with respect to witness Loyet, witness Niggli, witness Strohbeck, witness Stumpf, and witness Saathoff. Due to the repeated violations of the motion in limine and the court’s direction in chambers, the prejudicial impact upon the jury was such that it was impossible for the plaintiff to receive a fair trial.”

The appellate court reversed Judge Mosele’s order, finding that Judge Mosele abused his discretion. We now affirm the decision of the appellate court.

Great deference is generally given to decisions of trial judges in granting or denying motions for new trial. (See Workman v. Goldford (1967), 86 Ill. App. 2d 403; Warren v. Patton (1954), 2 Ill. App. 2d 173; see generally 2 Ill. L. & Prac. sec. 792, at 769 (1953).) A court on review will not reverse the trial court’s decision to grant a new trial merely because it would have come to a different conclusion on the facts. (See Swift & Co. v. Madden (1896), 63 Ill. App. 341; see generally 5A C.J.S. Appeal and Error sec. 1583, at 35 (1958).) The decision of a trial court to grant a new trial is an exercise of discretion which should not be disturbed unless a clear abuse of that discretion is shown. (See Ervin v. Sears, Roebuck & Co. (1976), 65 Ill. 2d 140; Department of Public Works & Buildings v. Russell (1963), 28 Ill. 2d 491; Department of Public Works & Buildings v. Roehrig (1976), 45 Ill. App. 3d 189; see generally 5 Am. Jur. 2d Appeal and Error sec. 772, at 215 (1962).) In determining whether that discretion was abused, the reviewing court will consider whether the jury’s verdict was supported by the evidence and whether the losing party was denied a fair trial. See Bradley v. Caterpillar Tractor Co. (1979), 75 Ill. App. 3d 890.

It is plaintiff’s theory that the accident was caused by a bent or defective rear axle which had been installed by the defendant in the automobile which her son was driving. The defendant contends that the bent axle was the result of the accident, which the defendant contends was caused by the manner in which the decedent drove the automobile. The jury returned a verdict for the defendant. It is not contended, and the trial court did not find, that the verdict was against the manifest weight of the evidence. There is sufficient evidence in the record from which the jury could find that the bent axle was caused by the accident instead of being a cause of the accident, and from which the jury could find that the accident was caused by the driving of the decedent. We must therefore consider, in our determination of whether the trial court abused its discretion in allowing the plaintiff’s motion for a new trial, whether the plaintiff was denied a fair trial.

The trial court granted the new trial because of the conduct of the defendant’s counsel, which it felt constituted violations of the in limine order. An in limine motion permits a party to obtain an order before trial excluding inadmissible evidence and prohibiting interrogation concerning such evidence without the necessity of having the questions asked and objections thereto made in front of the jury. Thus, the moving party will be protected from whatever prejudicial impact the mere asking of the questions and the making of the objections may have upon a jury. (See Department of Public Works & Buildings v. Sun Oil Co. (1978), 66 Ill. App. 3d 64.) The ability to restrict interrogation makes the in limine order a powerful weapon. This power, however, also makes it a potentially dangerous one. Before granting a motion in limine, courts must be certain that such action will not unduly restrict the opposing party’s presentation of its case. Because of this danger, it is imperative that the in limine order be clear and that all parties concerned have an accurate understanding of its limitations. This court must therefore determine whether the order in this case was in fact clear and whether the reasons stated by the circuit court for granting a new trial are indeed supported by the record. If they are not, the circuit court will have abused its discretion.

As noted above, the trial judge, in granting a new trial, specified the violations of the in limine order which he thought required such action. The first alleged violation occurred during opening statement by defendant’s attorney, who stated:

“The evidence will show there were two cars there at the scene of the accident. These two cars had been, for want of a better term, leapfrogging down the highway. They left the Grant Fork area, and there were four or five young men in the second car; two young girls and Terry Reidelberger in the other car. If I can recall the sequence— but first there is another witness named Dean Saathoff, and his wife, who was riding with him, but at one point, if I can remember the sequence, but the boys said they came up on the Reidelberger car. They tried to pass it about — ”

At this point, plaintiff’s counsel objected, essentially claiming that the term “leapfrogging” violated the in limine order. Since there had been no changes in the in limine order at that point, the restrictions contained in Judge Harrison’s original order were still applicable. Leapfrogging, in that it refers to vehicle movement, falls within the second in limine restriction contained in the plaintiff’s in limine motion set out above. If the term referred to movements within five miles of the site of the accident, it was proper under the original order. Grant Fork, as set out in the motion in limine, appears to be located at the five-mile distance limit. The attorney’s statement appears to refer to leapfrogging after the car left Grant Fork. If so, the purported movements were clearly within the five-mile limit. This was in fact the case when later it was established that the purported leapfrogging referred to movements one or two miles from the scene.

Even if the statement would have referred to movements at a questionable distance, previous comments made by the court just prior to opening statements would have led the attorney for the defendant to assume that his intended statement would be acceptable. In denying a motion of the plaintiff, the court stated:

“Each side is entitled to present his own theory of the case; that as I understand it, Mr. Gorman’s [defense counsel] theory is the bent axle was caused by the impact, and one of the related factors was the speed, whatever it is, was of such force that would cause an axle to be bent in that fashion. I think that’s admissible. I am going to allow him to make an opening statement the way he wants it.”

In light of the order’s restrictions and the court’s comment, the defendant could hardly be accused of violating the in limine order in this regard.

The circuit court further charged in the order granting the new trial that the court’s expectations regarding the order were made abundantly clear to the defendant in a conference held shortly after the “leapfrogging” comment. This statement is not supported by the record, however. During the conference, and later, the court made several statements adopting differing restrictions as to movement and speed. These statements are not only inconsistent with the original order, but also with each other. For instance, during a conference shortly after the leapfrogging statement, the court stated:

“The only thing I am saying, in reference to the actions of the car a mile or two down the road is not admissible.”

• Apparently the court wished to alter the restriction in the original order dealing with movement. It wished to reduce the discussion of movement from actions five miles away to some lesser distance. Some time later the court stated:

“I don’t think I’m going to— You may be mistaken as to what my limitations are. I think you can have testimony regarding the movement of the car prior to this accident in that it was normal, abnormal or whatever. What I am limiting you to is the speed of the automobile a mile or two down the road. I think when you get in the immediate vicinity of the accident, half a mile, I think the testimony of the speed is good. But as to the movement of the car and the actions of the car a mile or two or three or four miles down the road, I think it’s alright.”

Here again the court appears to be altering the restrictions set out in the original order. The discussion of speed not at the scene was reduced from two miles to one-half mile. The discussion of movement was changed from the limitation set out in the previous statement. Later the court stated, “Now if this man’s driving was the proximate cause of this accident, he is entitled to show the driving of your man [decedent]. Now the question is how far back you go.” Finally, the court ruled that the defendant could not show driver-induced movements of the car except immediately prior to the accident. Certainly the rulings of the court during trial were not consistent with the limitations contained in the original pretrial in limine order.

Also, the rulings of the court during trial were not sufficiently specific or clear. For instance, it is not clear, when the court stated that “movements of the car and the actions of the car a mile or two or three or four miles down the road, I think it is all right,” whether the court was referring only to movements of the car caused by a defect in the vehicle, or whether the court was referring to driver-induced movements. Granting a new trial because of conduct of counsel which did not violate the original in limine order and because of what the court in retrospect perceived to be violations of rulings made during the trial, which the record reveals were neither clear nor consistent, constitutes a clear abuse of discretion.

The defense counsel had a right to present evidence to support his theory of the case. Thus, evidence of speed and driver-induced movements of the vehicle were relevant, not as evidence of contributory negligence, but as evidence of the cause of the accident. The limitations of the original in limine order were sufficiently broad to permit the defendant to prove its theory of the case, yet they prohibited the defendant from introducing evidence of speed and movements of the vehicle so distant from the scene of the accident that such evidence would be irrelevant. The plaintiff, of course, was anxious to eliminate as much of the evidence of speed and erratic movements of the vehicle as possible and argued during trial that such evidence only tended to prove contributory negligence, which is not relevant in a products liability case.

There was a needless amount of bickering and argument among counsel and by counsel with the court during the trial. Such conduct only serves to create confusion and can easily lead a judge to inadvertently vary his position or change his rulings. At the time the trial judge granted the new trial, the transcript of the testimony had not been prepared. The trial judge did not therefore have an opportunity to review the record to ascertain whether the in limine order or his rulings had in fact been violated or whether his rulings had been consistent.

This court’s reading of the record, however, finds that the trial court’s rulings were not particularly clear. The statements by the court at trial set progressively more restrictive limitations on the discussion of speed and movement than those contained in Judge Harrison’s original in limine order. The most restrictive statement was set out in the new trial order. As shown above, it considered all discussion of speed and movement not at the scene of the accident to be violations of the in limine order. Neither the pretrial in limine order nor any ruling of the court during trial held that all evidence of speed and movements of the vehicle not at the scene of the accident was inadmissible. While we are sure the trial court was not aware of the breadth of these inconsistencies when granting the new trial order, they were in fact confusing. The granting of a new trial for these alleged violations is an abuse of discretion.

The circuit court listed a further ground for its new trial order. The attorney for the defendant allegedly violated the in limine order during his questioning of witnesses Loyet, Niggli, Strohbeck, Stumpf and Saathoff. Unfortunately, the trial court did not specify the instances where these transgressions occurred. Here again the trial judge, when he granted the new trial, did not have the benefit of the transcript, and his ruling had to be based on his recollection of the events at trial, which contained many assertions by counsel not supported by testimony. After having examined the entire record, we find very little interrogation by defense counsel and very few statements by witnesses which border on a violation of either the original order or of the court’s subsequent rulings. These few instances do not constitute such conduct as could be said to deny the plaintiff a fair trial.

The in limine order prohibits interrogation or testimony relating to the hospital conversation between Officer Loyet and Ellen Niggli. The only questioning by the defense counsel of Officer Loyet on this matter is as follows:

“Q. And following your investigation, did you speak to a young lady that was in one of the cars, Ellen Niggli, at the hospital following the accident?
MR. STOBBS [plaintiff’s counsel] : Your Honor, we’re going to object to that. It is not relevant or material, and the Court has previously so ruled.
THE COURT: The question is, did you speak; I mean, that by itself is alright.”

The court recognized that merely asking the officer if he spoke to Miss Niggli at the hospital was alright. Any prejudice to plaintiff could only exist in the substance of the conversation. No prejudice arose by merely mentioning that a conversation took place. There was nothing in the question or the answer sought that implied that the contents of the discussion were injurious to the plaintiff’s position. We cannot view this as a violation of the in limine order.

We also find no violation of the order in the two instances in questioning witness Niggli which refer to in limine order matter. Those passages are as follows:

“MR. GORMAN [defense counsel] : Ellen, did the State Trooper come to the hospital and talk to you about the accident?
A. No.”

As stated above, the mere asking if the officer talked to her does not violate the order. This witness was further questioned as follows:

“Q. Now regarding the speed, let me just ask you this question; when this happened, was Terry Reidelberger going pretty fast?
MR. STOBBS: You mean when the car left the roadway or as he was passing?
MR. GORMAN: The witness doesn’t need these—
MR. STOBBS: We are going to object unless he fixes a time and place.
THE COURT: Can you specify?
MR. GORMAN: As the accident— just before the car goes out of control.
A. I don’t remember.”

The reference to speed here was within the permissible distance limitation of both the in limine order and the subsequent court rulings.

During the cross-examination of witness Strohbeck, one of the passengers in the vehicle passed by the Reidelberger car just prior to the accident, the following exchange occurred:

“Q. Mr. Stobbs asked if there were any cars in the area before and you said that there were none coming. Where was this first car that came up, that you noticed coming from the scene, from what direction?
A. We passed them back more near Grant Fork Corners. We knew they were back there.
Q. And that was about how far from the place of the accident?
A. When we passed the cars?
Q. Yes.
A.. I don’t know, three or four miles back from where the accident happened, where the Grant Fork Comers are.
MR. STOBBS: The court has previously ruled that anything that transpired— We are talking about something else, but I think the point is it is not really relevant.
MR. GORMAN: It is, Your Honor, as to the first car on the scene.
THE COURT: So.
MR. GORMAN: He now gives it as the reason they—
THE COURT: Let’s move on.”

On direct examination the witness had testified that there were other cars behind the car in which he was riding when the decedent passed him. The witness further stated that after the accident the car he was in stopped but then left the scene without going to the wrecked car. He stated that the reason they left to' get help was because there were other cars coming up behind them. The complained-of interrogation was in relation to the witness’ explanation for leaving the scene of the accident and in no way related to evidence concerning the movement of the decedent’s vehicle. These questions were not in violation of the in limine order or the later rulings of the court at trial.

Michael Stumpf, the driver of the car decedent was passing when the accident occurred, was called as a witness for defendant and the following occurred:

“Q. As you Eire going south, the way you were, at some point do you cross the 70 overpass?
MR. STOBBS [plaintiffs counsel]: Objection, Your Honor. It’s irrelevant and immaterial.
THE COURT: Go ahead.
MR. GORMAN [defense counsel] : I am just bringing him—
THE COURT: Okay.
MR. GORMAN: Do you cross the 270 overpass that evening?
A. Yes.
Q. And at that time right there around the overpass, did you pass a vehicle?
MR. STOBBS: Objection again, Your Honor. That’s immaterial. The Court has ruled upon it.
THE COURT: How far is this from the scene?
MR. GORMAN: This is what, two miles, Mike?
THE COURT: The objection is sustained.
MR. GORMAN: Your Honor, it is not as to anything regarding speed at this point. It’s just identification of the vehicles.
MR. STOBBS: The objection stands, Your Honor. The Court has ruled upon it.
THE COURT: The objection is sustained.”

This line of questioning did not relate to speed or movement of the decedent’s vehicle and therefore did not violate the restrictions of the in limine order or the court’s rulings.

The same can be said of the exchange occurring during the testimony of Sue Saathoff:

“Q. Now had— Did the car that you saw in the field— Had you seen it there any time earlier?
MR. STOBBS: Objection, Your Honor, irrelevant.
MR. GORMAN: This is just identity of the cars.
MR. STOBBS: Not fixed as to place, time.
THE COURT: You will have to specify what period.
MR. GORMAN: Back at the overpass of 270, did any vehicles pass you going in a southerly direction—
MR. STOBBS: Objection.
THE COURT: Sustained.”

The restriction of the in limine order which this question supposedly violates is contained in paragraph number one of the motion set out earlier in this opinion. The restriction was as to the “purported speed of decedent’s vehicle and the vehicle passed by the decedent some two miles from the scene of the accident.” Nothing in this interrogation relates to speed. As defense counsel stated, the question only went to the identity of the car in the field. We see no violation here of the in limine order.

The order granting the new trial stated that the in limine order was violated in the defense counsel’s questioning of witnesses Loyet, Niggli, Strohbeck, Stumpf and Saathoff. We have had the benefit of the transcript of the testimony of these witnesses in reviewing the decision of the trial judge, a benefit he did not have when considering the motion for a new trial. As indicated, a review of the interrogation of these witnesses by defense counsel reveals no violation of the limitations of the in limine order.

For the reasons stated, we conclude that the plaintiff suffered no prejudice and was not denied a fair trial because of the conduct of defense counsel complained of. The granting to the plaintiff of a new trial was therefore a clear abuse of discretion. The judgment of the appellate court is affirmed.

Judgment affirmed.

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