text:
    (No. 56904.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant and Cross-Appellee, v. MYRON GURELL et al., Appellees and Cross-Appellants.

      Opinion filed October 4, 1983.

      Rehearing denied December 2, 1983.

      Neil F. Hartigan, Attorney General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Michael B. Weinstein, Assistant Attorney General, and Glenn E. Carr, Michael Kreloff, Stuart Sikes, and Lynn Worley, Assistant State’s Attorneys, of counsel), for the People.
    John W. Cooley, of Stone, McGuire & Benjamin, and Judith Schwartz Sherwin, of Gutstein & Schwartz, all of Chicago, for appellees and cross-appellants.
    Greg McHugh, of River Forest, and Kathy Swanson, of Evanston, for amicus curiae Illinois Citizens for Better Care.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

This case involves a criminal prosecution initiated pursuant to the Nursing Home Care Reform Act of 1979 (Ill. Rev. Stat. 1979, ch. 111½, par. 4151 — 101 et seq.). Early in 1981, defendants were partners in the operation of the Mill View Nursing Center. They were charged in the circuit court of Cook County with certain violations of the Act. The court held the Act and regulations promulgated thereunder unconstitutional. The State appealed directly to this court. 87 Ill. 2d R. 603.

Pursuant to the Act, the Illinois Department of Public Health is required to license and certify facilities such as Mill View. (Ill. Rev. Stat. 1979, ch. 111½, par. 4153— 101.) To carry out these regulatory functions the Department is authorized to prescribe minimum standards for these facilities by way of Department rules and regulations. Ill. Rev. Stat. 1979, ch. 111½, par. 4153 — 202.

Sections 1 — 129, 1 — 130 and 1 — 131 of the Act (Ill. Rev. Stat. 1979, ch. 111½, pars. 4151-129, 4151-130, 4151 — 131) define three classes of violations — type A, type B and type C.

Section 1 — 129 provides:

“A ‘Type “A” violation' means a violation of this Act or of the rules promulgated thereunder which creates a condition or occurrence relating to the operation and maintenance of a facility presenting a substantial probability that death or serious mental or physical harm to a resident will result therefrom. (Ill. Rev. Stat. 1979, ch. 111½, par. 4151-129.)

Section 1 — 130 defines a type B violation as follows:

“A ‘Type “B” violation’ means a violation of this Act or of the rules promulgated thereunder which creates a condition or occurrence relating to the operation and maintenance of a facility directly threatening to the health, safety or welfare of a resident.” (Ill. Rev. Stat. 1979, ch. 111½, par. 4151-130.)

Section 1 — 131 defines a type C violation as follows:

“A ‘Type “C” violation’ means a violation of this Act or of the rules promulgated thereunder which creates a condition or occurrence relating to the operation and maintenance of a facility which indirectly threatens the health, safety or welfare of a resident.” (Ill. Rev. Stat. 1979, ch. 111½, par. 4151-131.)

Section 3 — 305 (Ill. Rev. Stat. 1979, ch. III½, par. 4153— 305) provides civil penalties for a violation of the Act or any rule adopted thereunder.

In addition to the civil penalties, section 3 — 318 (Ill. Rev. Stat. 1979, ch. 111½, par. 4153 — 318) provides that no person shall “[ijntentionally fail to correct or interfere with the correction of a Type ‘A’ or Type ‘B’ violation within the time specified on the notice or approved plan of correction” and provides that a violation of this section constitutes a Class A misdemeanor.

Early in 1981, pursuant to section 3 — 301 of the Act (Ill. Rev. Stat. 1979, ch. 111½, par. 4153 — 301), the Department gave notice to the Mill View facility that it was in violation of numerous Department regulations, including the following:

“The facility shall have written policies and procedures, governing all services provided by the facility which shall be formulated by a Resident Care Policy Committee consisting of at least the administrator, the advisory physician or the medical advisory committee and representatives of nursing and other services in the facility. These policies shall be in compliance with the Act and all rules promulgated thereunder. These written policies shall be followed in operating the facility and shall be reviewed at least annually by this committee, as evidenced by written, signed and dated minutes of such a meeting. (B, C)”
“All medications shall be administered only by licensed medical or licensed nursing personnel in accordance with their respective licensing requirements. They shall be administered as soon as possible after doses are prepared and administered by the same person who prepared the doses for administration, except under single unit dose packaged distribution systems. Each dose administered shall be properly recorded in the clinical record by the person who administers the doses. (See 09.01.04.00) (A, B)”
“Medically prescribed diets shall be recorded in the resident’s medical record and served as ordered. The resident shall be observed to determine acceptance of the diet and these observations shall be recorded in his record. (B, C)”

The designations of A, B or C in parentheses following each regulation indicate the class of violation that may apply to the particular regulation.

Inasmuch as the trial court disposed of this case on the pretrial motion, and no evidence was taken, we do not have a detailed picture of the facts involved.

On August 11, 1981, six charges were filed against the defendants, each of whom was a general partner in Mill View Associates, the operator of the Mill View Nursing Home facility. In four counts, the defendants are charged with having on April 28, 1982, April 29, 1982, June 15, 1981, and June 27, 1981, committed the offense of failure to correct violations in that they intentionally failed to correct the type B violation of “unlicensed personnel administering medication and performing medical procedures,” within the time specified in a report of correction. A fifth count charged that on or about March 3, 1981, through July 1, 1981, defendants committed the offense of failure to correct violations in that they intentionally failed to correct a type B violation of “failure to record observations of resident’s acceptance of medically prescribed diets in the resident’s clinical records” within the time specified in a report of correction. A sixth charge alleged that on or about July 1, 1981, defendants committed the offense of failure to correct violations in that they intentionally failed to correct the type B violation of “failure to document that a resident care policy in the facility had been reviewed annually by a resident care policy committee” within the time specified in the approved plan of correction. These criminal charges stem from alleged violations of the three regulations quoted above.

In a pretrial motion the defendants moved to quash the misdemeanor complaints, alleging that the Nursing Home Care Reform Act of 1979 and the regulations were unconstitutional.

Section 1 — 113 of the Act (Ill. Rev. Stat. 1979, ch. 111½, par. 4151 — 113) exempts from the operation of the Act a home, institution or other place operated by the Federal government or agency thereof, or by the State of Illinois. The defendants challenged the constitutionality of the statute and rules and regulations on several grounds. The court granted the motion to quash, holding that the provision of section 1 — 113 of the Act excluding from its operation facilities operated by the State violated the equal protection clause of the fourteenth amendment. The court also held that the fact that the same violations of the rules and regulations of the Department could be both a civil violation and a criminal violation rendered the rules vague, in violation of the fourteenth amendment. As to the other constitutional challenges to the statute and to the rules and regulations, the court held against the defendants, and found that the statute and the rules and regulations were not constitutionally invalid in those respects.

The defendants have cross-appealed and have again raised those constitutional challenges in this court. They will be considered later in this opinion. The State has appealed from the trial court’s order holding that the statute violated the equal protection clause and that the rules and regulations were unconstitutionally vague.

We first consider the validity of the exemption of State-operated facilities from regulation by the Act under section 1-113 (Ill Rev. Stat. 1979, ch. 111½, par. 4151-113). The trial court held this to be a violation of the equal protection clause of the fourteenth amendment of the United States Constitution.

In considering this question, we must first define the proper test to be applied to the challenged legislation. The defendants argue that we are dealing with a fundamental right, and argue that the statute therefore must meet strict judicial scrutiny and a compelling State interest for the exemption must be shown. The People, on the other hand, claim that the statute in question governs economic rights, does not involve a fundamental right, and need only have a rational relationship to a legitimate State purpose to be upheld, thus meeting the so-called minimum-scrutiny test.

Defendants cite San Antonio Independent School Dis trict v. Rodriguez (1972), 411 U.S. 1, 36 L. Ed. 16, 93 S. Ct. 1278, for the proposition that strict judicial scrutiny and the need for compelling State interests are appropriate tests when a fundamental right is impaired by State legislation. This, of course, is a recognized principle of law. However, we are not in this case dealing with a fundamental right. In Rodriguez it was argued that the right to an education was a fundamental right, which required the application of the strict-scrutiny test. The Supreme Court in Rodriguez reviewed several of its decisions where similar contentions had been made and stated, “[I]t is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. Thus, the key to discovering whether education is ‘fundamental’ is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution.” (Emphasis added.) (411 U.S. 1, 33-34, 36 L. Ed. 2d 16, 43, 93 S. Ct. 1278, 1297.) Although the right to engage in a chosen occupation or profession is a significant right, it does not require the application of the strict-scrutiny test. The court, in Rodriguez, evidenced an unwillingness to expand the class of “fundamental rights” previously recognized. No case has been called to our attention in which the right to economic gain or the right to carry on one’s business or profession has been held to be a fundamental right guaranteed by the Constitution. The proper test to be applied in making an equal protection determination therefore is not strict scrutiny. In determining whether the statute under consideration is valid, it need have only a rational relationship to a legitimate State purpose to be upheld.

A statute is presumed valid, and the burden is on the party challenging its validity to prove that it is unconstitutional. (See Scott v. Department of Commerce & Community Affairs (1981), 84 Ill. 2d 42, 50.) It is the defendants’ position that the exemption of facilities operated by the State from the operation of the statute has no rational basis. We do not agree. In Friedman & Rochester, Ltd. v. Walsh (1977), 67 Ill. 2d 413, this court stated:

“The equal protection clauses of the State and Federal constitutions do not prohibit the legislature from pursuing a reform ‘one step at a time,’ or from applying a remedy to one selected phase of a field while neglecting the others. (Williamson v. Lee Optical of Oklahoma, Inc. (1955), 348 U.S. 483, 489, 99 L. Ed. 563, 573, 75 S. Ct. 461; Illinois Coal Operators Association v. Pollution Control Board (1974), 59 Ill. 2d 305, 312-13.) As the United States Supreme Court has stated, ‘a legislature need not run the risk of losing an entire remedial scheme simply because it failed, through inadvertence or otherwise, to cover every evil that might conceivably have been attacked.’ (McDonald v. Board of Election Commissioners (1969), 394 U.S. 802, 809, 22 L. Ed. 2d 739, 746, 89 S. Ct. 1404).” (Friedman & Rochester, Ltd. v. Walsh (1977), 67 Ill. 2d 413, 421-22.)

In our case the legislature chose to deal with the problems it perceived in the nursing-home industry one step at a time by regulating private facilities. Legislative classifications need not be faultless. The State need only have a reasonable basis for the classification. (Dandridge v. Williams (1970), 397 U.S. 471, 485, 25 L. Ed. 2d 491, 501-02, 90 S. Ct. 1153, 1161; New Orleans v. Dukes (1976), 427 U.S. 297, 302, 49 L.Ed. 2d 511, 517, 96 S. Ct. 2513, 2515.) The State has pointed out in its brief that State-operated facilities are under the direct control of the State and that most of these facilities are regulated by statutes other than the one in question. Thus, whereas the State has no means of controlling the operation of privately owned facilities other than through the statute in question, it does have direct control over the operation of State-owned facilities without the aid of the statute now under consideration. The urgent need of the legislation would properly be perceived by the legislature to be in the private nursing home area and not in the area of institutions operated by the State. There exists, therefore, a rational basis for focusing the application of this statute on privately owned and operated nursing homes and attacking the problem first in that area, where the legislature perceived the greatest need to be. The defendants have not shown a violation of the equal protection clause of the State or Federal constitutions.

The defendants in this court assert that the exemption of State-operated facilities from the operation of the statute constitutes special legislation in violation of section 13 of article IV of the Illinois Constitution. This court has held that the standards used in determining an equal protection challenge are to be utilized in determining a challenge to the statute under the special legislation provisions of our constitution. We held above that the legislation has a rational relationship to a legitimate State purpose. The different treatment accorded State-operated facilities does not therefore constitute special legislation. See Illinois Housing Development Authority v. Van Meter (1980), 82 Ill. 2d 116, 124; Anderson v. Wagner (1979), 79 Ill. 2d 295, 314; S. Bloom, Inc. v. Mahin (1975), 61 Ill. 2d 70, 76-77.

The trial court stated that it did not find that section 3 — 318(a) of the Act (Ill. Rev. Stat. 1979, ch. 111½, par. 4153 — 318(a)), the section defining the crimes under the Act, was vague. The court also stated that it did not find sections 1 — 129 and 1 — 130 vague (the definition of types A and B violations). The court also found that there had not been an unlawful delegation of authority by the legislature to the Department. The court found, however, that the rules and regulations of the Department were vague, taking into consideration that the same violation can be a civil violation and a criminal violation. The court specifically found the rules and regulations valid in other respects. We must, therefore, consider whether the rules and regulations are so vague as to violate due process.

A statute or a regulation is unconstitutionally vague and violates due process when a person of ordinary intellect cannot readily ascertain its meaning. A criminal statute violates due process when it does not impart sufficient notice as to what conduct is forbidden.

Impossible standards of specificity, however, are not required. (People ex rel. Difanis v. Barr (1980), 83 Ill. 2d 191, 205.) The due process clauses of the Illinois and Federal constitutions are not violated if the duty imposed by the statute is described in sufficiently definite terms to serve as a guide to those who must comply with it. (Scott v. Department of Commerce & Community Affairs (1981), 84 Ill. 2d 42, 50.) In Schiller Park Colonial Inn, Inc. v. Berz (1976), 63 Ill. 2d 499, 513, this court stated:

“A statute is not rendered unconstitutionally vague, however, merely because the imagination can conjure up hypothetical situations in which the meaning of some terms may be in question.”

The trial court’s primary concern with the regulations was that a violation of a regulation may subject the violator to both a civil and a criminal penalty. We find that this possibility does not render the regulations vague for the reasons discussed herein. Sections 1 — 129, 1 — 130 and 1— 131 of the Act set out earlier in this opinion define the nature of the conduct that may constitute type A, B and C violations. A type A violation creates a “substantial probability that death or serious mental or physical harm to a resident will result therefrom.” A type B violation creates a condition “directly threatening to the health, safety or welfare of a resident.” A type C violation creates a condition which “indirectly threatens the health, safety or welfare of a resident.” The regulations flesh out the general nature of the violations defined in these sections by setting out specific conditions or conduct deemed to constitute violations and after each regulation the specific type of violation (A, B or C) that such condition or conduct may constitute. Each regulation has after it multiple designations such as “A, B” or “B, C.” It is not these multiple designations that the trial court held rendered the regulations vague, and we find that such multiple designations do not make the regulations unconstitutionally vague. Varying degrees of the conditions or conduct proscribed by the regulations may justify a greater or lesser penalty. Also, as noted below, if the operator of the facility questions the designation of the type of violation, a hearing and review of the administrative decision by the court may be had. Although the same conditions may form the basis for both a civil and criminal penalty under the Act, they do not constitute both a civil and a criminal violation. The Act provides for notice by the Department to the facility of a violation. (Ill. Rev. Stat. 1979, ch. 111½, par. 4153 — 301.) The facility is entitled to have a review of the Department’s decision (Ill. Rev. Stat. 1979, ch. 111½, par. 4153 — 703), and the administrative decision on review may be reviewed by the circuit court under the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 111½, par. 4153 — 713). After having received notice of the violation under the statute, the operator of a facility has a duty to abate or eliminate the violation or, in cases involving type B or C violations, to submit a plan of correction to the Department. (Ill. Rev. Stat. 1979, ch. 111½, par. 4153 — 303.) Civil penalties may be imposed for the original violation. (Ill. Rev. Stat. 1979, ch. 111½, par. 4153 — 305.) However, criminal penalties are not imposed for the original violation. So far as is relevant to this case, the Act provides that criminal penalties may be imposed only for the intentional failure to correct a type A or type B violation within the time specified in the notice, or approved plan of correction. (Ill. Rev. Stat. 1979, ch. 111½, par. 4153 — 318.) Thus, although the violation of the regulation may form the basis for both a civil and a criminal penalty, only the civil penalty may be imposed for the original violation, whereas the criminal penalty under the Act is imposed only for an intentional failure to correct the original violation within the time specified after notice of the violation and the time within which correction must be made has been given to the facility.

Contrary to the defendants’ contention, the Act is very specific as to what conduct constitutes the criminal offense — intentional failure to correct the type A or B violation specified in the notice given to the facility. If there were any question as to whether the conduct specified in the notice constitutes a violation of the Act or the regulations or whether, the conduct constitutes a type A, B or C violation, the Act provides for a hearing and judicial review of the Department’s decision in this regard. In this case the defendants were given notice of the violations, all of which were type “B” violations. Certain time periods were specified within which the violations were to be corrected. The defendants are charged with intentionally failing to correct the type B violations within the time periods. We do not find the total scheme of the Act, as implemented by the rules and regulations, to be vague or that it constitutes a violation of due process.

Defendants also raise a factual challenge to the criminal proceeding and claim that they were not given proper notice of the Department’s rejection of their plan of correction or an opportunity to file a modified plan pursuant to the Act. This case is here only on the pleadings and following the trial court’s determination that the Act was unconstitutional. Defendants’ contention does not involve a constitutional question. If the defendants were not given an opportunity to exercise those rights provided in the Act, this is a matter that can be raised in the trial court on remand.

Defendants, by way of cross-appeal, have raised several issues on which the trial court had ruled adversely to their position. The defendants first claim that the Act consti-

tutes an unlawful delegation of legislative authority to the Department. The question of unlawful delegation is intertwined with the question of vagueness as it relates to due process, which we have just discussed. To satisfy the due process requirement, 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. (Polyvend, Inc. v. Puckorius (1979), 77 Ill. 2d 287, 299.) In addressing the delegation of authority question, this court has stated:

“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 ***.” Hill v. Relyea (1966), 34 Ill. 2d 552, 555.

Thus, adequate standards must be contained in the Act to satisfy both the due process requirement and the delegation-of-legislative-authority requirement. The adequacy of the standards, however, is not necessarily determined in both situations by the same tests. See Polyvend, Inc. v. Puckorius (1979), 77 Ill. 2d 287, 299-300.

This court has stated many times that the General Assembly cannot delegate its general legislative authority to determine what the law is; however, it may delegate the authority to execute the law and to do those things which the legislature might properly do but cannot do as understandingly or advantageously. See Hill v. Relyea (1966), 34 Ill. 2d 552, 555.

This court, in Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill. 2d 361, after reviewing previous decisions of this court, stated:

“Accordingly, we find that the view which has developed through the decisions of this court in recent years requires that the legislature, in delegating its authority 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.” (Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill. 2d 361, 372.)

The Act necessarily delegates considerable authority to the Department to promulgate regulations and to enforce both the regulations and the Act. However, under the tests set out in Stofer, we find that the Act contains adequate guidelines. The persons and activities subject to the Act involve the operation of long-term-care facilities with the exception noted in the Act. (Ill. Rev. Stat. 1979, ch. 111½, par. 4151 — 113.) The harm sought to be prevented is evident from the definitions of types A, B and C violations to which we have previously referred. (Ill. Rev. Stat. 1979, ch. 111½, pars. 4151-129, 4151-130, 4151-131.) The means available to the Department to prevent the harm are spelled out in the Act and include licensing (Ill. Rev. Stat. 1979, ch. 111½, par. 4153 — 101 et seq.) and both civil and criminal penalties (Ill. Rev. Stat. 1979, ch. 111½, pars. 4153 — 301 et seq., 4153 — 318). The standards set forth in the Act are sufficient. More specific direction to the Department would simply add needless detail.

Defendants contend that the Act and rules and regulations constitute an ex post facto law in violation of the fourteenth amendment. The basis for this contention is found in the argument that the Act does not define the crimes and thus the definition of what constitutes an offense under the Act is left to those who administer it. This argument loses sight of the fact that the conduct that constitutes the crime under the Act, as we have previously stated, is not a violation of the rules or regulations but is a failure to correct the violation after it has been determined that such a violation exists and notice has been given to the facility. Assuming that, because of inadequate standards, definition of a violation is left to those who administer the Act, this still does not constitute an ex post facto law, because the conduct that will constitute the offense is stated and defined at the time that notice of the violation is given. The conduct that constitutes the criminal violation (intentional failure to correct the violation) necessarily occurs after the offense has been defined. (See Stein v. Howlett (1972), 52 Ill. 2d 570, 584.) We see no merit in the ex post facto contention.

Defendants next argue that the Act constitutes a bill of attainder. An essential requirement of a bill of attainder is that it be a legislative act which inflicts punishment without a judicial trial. (See Polyvend v. Puckorius (1979), 77 Ill. 2d 287, 301.) The statute we now consider clearly provides for a judicial determination of the criminal charges against defendants. (Ill. Rev. Stat. 1979, ch. 111½, pars. 4153 — 318(b), (c).) As to civil penalties that may be assessed by the Department, the Act likewise provides that the defendants are entitled to a hearing. (Ill. Rev. Stat. 1979, ch. 111½, pars. 4153-307, 4153-703 through 4153 — 712.) The defendants focus on only one aspect of the accepted definition of a bill of attainder. In United States v. Lovett (1946), 328 U.S. 303, 315, 90 L. Ed. 1252, 1259, 66 S. Ct. 1073, 1079, the court stated that previous decisions of that court stand for the proposition that “legislative acts *** that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder ***.” (Emphasis added.) The defendants contend that the legislature, in the Act in question, narrowly focused not on health-care providers in general, but on the privately owned nursing homes. Thus, it is only on the italicized portion of the definition of a bill of attainder that the defendants focus and not on the judicial-trial aspect. We have indicated above that the Act does not inflict punishment without a judicial trial.

In Nixon v. Administrator of General Services (1977), 433 U.S. 425, 53 L. Ed. 2d 867, 97 S. Ct. 2777, the court stated:

“Appellant’s characterization of the meaning of a bill of attainder obviously proves far too much. By arguing that an individual or defined group is attainted whenever he or it is compelled to bear burdens which the individual or group dislikes, appellant removes the anchor that ties the bill of attainder guarantee to realistic conceptions of classification and punishment. His view would cripple the very process of legislating, for any individual or group that is made the subject of adverse legislation can complain that the lawmakers could and should have defined the relevant affected class at a greater level of generality. Furthermore, every person or group made subject to legislation which he or it finds burdensome may subjectively feel, and can complain, that he or it is being subjected to unwarranted punishment. [Citation.] However expansive the prohibition against bills of attainder, it surely was not intended to serve as a variant of the equal protection doctrine, invalidating every Act of Congress or the States that legislatively burdens some persons or groups but not all other plausible individuals.” Nixon v. Administrator of General Services (1977), 433 U.S. 425, 470-71, 53 L.Ed. 2d 867, 908-09, 97 S. Ct. 2777, 2804.

It appears from the defendants’ contention that they are here using the bill-of-attainder argument as a variant of the equal protection argument we have heretofore addressed. Since we have found that the Act does not violate the equal protection clause and, as we have indicated, the Act provides for judicial determination, we find no merit in the bill-of-attainder argument.

Finally, defendants claim that the Act and Department regulations violate due process because they unreasonably limit the right to private employment and the right to engage in a chosen profession. Over 30 years ago this court dealt with a similar issue in Klein v. Department of Registration & Education (1952), 412 Ill. 75, where the court stated:

“The right to pursue a trade or calling is, however, subordinate to the right of the State to limit such freedom of action where the public health, safety or welfare may require. [Citations.] In instances where the police power is invoked to regulate and supervise a legitimate occupation, the restraint imposed must be reasonable. The legislative determination that regulations are needful is not conclusive and is always subject to review. In order for such regulations to be lawfully imposed upon the constitutional rights of the individual to pursue his trade, profession or business, the act passed under the guise of a measure to protect the public health, safety and welfare must have a definite relation to the ends sought to be attained. [Citations.]” Klein v. Department of Registration (1952), 412 Ill. 75, 78-79.

As we have already determined that the Nursing Home Care Reform Act of 1979 (Ill. Rev. Stat. 1979, ch. 111½, par. 4151 — 101 et seq.) is reasonably related to a legitimate legislative purpose, we must dismiss this argument as well.

For the reasons set forth above, the judgment of the circuit court of Cook County is reversed insofar as it holds portions of the Nursing Home Care Reform Act of 1979 (Ill. Rev. Stat. 1979, ch. 111½, par. 4151 — 101 et seq.), and Illinois Department of Public Health Rules and Regulations promulgated thereunder, unconstitutional. We affirm that portion of the order of the circuit court of Cook County which upholds parts of the Act and parts of the rules and regulations. The cause is remanded to the circuit court of Cook County.

Affirmed in part and reversed in part and remanded.


source: Caselaw Access Project

author: JUSTICE MORAN

license: Public Domain

text:
    (No. 57167.

      In re PAUL HARVEY SCHNEIDER, Attorney, Respondent.

      Opinion filed September 23, 1983.

    Rehearing denied December 2, 1983.

      Mary M. Conrad, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    Paul Harvey Schneider, of Chicago, pro se.

   JUSTICE MORAN

delivered the opinion of the court:

The Administrator of the Attorney Registration and Disciplinary Commission filed a three-count complaint before the Commission charging respondent, Paul Schneider, with professional misconduct. Count I alleged that respondent represented clients with conflicting interests in a criminal case, and counseled certain clients to provide false information to the prosecuting attorney. Counts II and III charged him with neglect in handling legal matters entrusted to him. The Hearing Board found respondent guilty of all three counts and recommended that he be suspended from the practice of law for a period of three years, and until further order of the court. Both the Administrator and respondent filed exceptions with the Review Board, which adopted the findings of the Hearing Board but recommended that respondent be disbarred.

Two issues are raised on appeal: (1) Were the allegations contained in count I proved by clear and convincing evidence? (2) Is disbarment an appropriate sanction under the circumstances of this case?

The facts relevant to count I are as follows. On October 31, 1978, John Harvey, Alan Sherman and David Berta (defendants) were arrested in Milwaukee, Wisconsin, and charged with forgery in connection with a “check-kiting” scheme. Subsequent to their arrest they telephoned Joseph Kordan, who was responsible for planning, and providing the necessary funds for, the operation. Kordan then contacted respondent and requested that he investigate the nature of the charges pending against the men and the amount of their bail. Respondent interviewed Harvey and Sherman in jail that same evening and later reported the substance of that conversation to Kordan.

The following day respondent contacted Robert Lerner, a lawyer practicing criminal law in Milwaúkee. Pursuant to their conversation, Lerner agreed to represent the defendants. Between November 1 and November 7, 1978, respondent and Lerner had numerous telephone conversations concerning the pending charges and strategies for bond reduction. Respondent also had frequent discussions with Kordan, during which he became apprised of Kordan’s participation in the scheme.

On November 7, respondent met with Lerner at Lerner’s office in Wisconsin. The purpose of the meeting was to discuss the status of the case and to visit the defendants in jail. Respondent also paid Lerner a $1,000 retainer fee which, he received from Kordan. The events which transpired during the meeting, and the subsequent discussions at the jail, are in dispute.

Lerner, who testified for the Administrator before the Hearing Board, stated he informed respondent the defendants were in substantial jeopardy and the evidence against them was overwhelming. However, the prosecuting attorney was willing to negotiate if they would reveal the identity of the “mastermind” behind the scheme. Respondent then inquired as to “what would happen” if the defendants informed the prosecuting attorney that Richard Bernowski, who was deceased, planned the operation. Lerner replied that he did not believe Bernowski was involved, and he would not counsel his clients to lie to the authorities. He further testified that respondent indicated he was aware Bernowski was not involved in the offense. Subsequent to their meeting, Lerner stated that he and respondent spoke with the defendants at the jail. Respondent “suggested” to each of them that they inform the prosecuting attorney Bernowski planned the scheme.

Respondent testified for the Administrator as an adverse witness. He stated that he did not apprise Lerner of Kordan’s involvement in the offense because Kordan did not want his identity disclosed. He further stated that Kordan paid him $1,000 in legal fees, and that he considered himself the attorney for defendants and Kordan until sometime subsequent to November 7, 1978. Respondent admitted that he mentioned Bernowski’s name to the defendants, but stated he believed that he actually was involved in the offense.

Harvey and Sherman also testified for the Administrator. Harvey stated that Kordan planned the operation, but that respondent suggested they say Bernowski was responsible so as to “take the heat off.” Harvey also indicated that respondent was aware of the operation prior to the defendants’ arrests. According to the witness, he contacted respondent several weeks prior to the commission of the offense. Harvey stated that he informed respondent he was reconsidering participating in the scheme. Respondent informed him that “everything was all right [and] to go ahead” with the operation. During cross-examination, Harvey indicated that Kordan and Bernowski participated in a similar scheme in the past, and that Bernowski may have been involved in the current operation. He further stated that he considered respondent as his attorney.

Sherman’s testimony essentially corroborated Harvey’s. On cross-examination, he stated that he has been convicted of six criminal offenses.

Respondent testified on his own behalf. He related that his law practice was primarily limited to traffic court, and that he had not previously represented a defendant in a felony case. He further stated that he only represented the defendants in the instant case as an “investigative attorney.” His sole obligations were to determine the nature of the charges and to retain counsel for the defendants.

Respondent also indicated that Kordan told him Bernowski was involved in the scheme. He testified he never suggested that the defendants lie to the authorities; rather, he merely informed them that Bernowski died and they no longer needed to “protect” him. •

Three character witnesses testified for respondent and stated that he had a good reputation in the community for honesty and integrity. A number of affidavits attesting to respondent’s good character were also introduced into evidence.

The parties stipulated to the facts involved in counts II and III. Count II alleged that respondent was retained to defend Sam Beckerman in a contract suit. He filed an appearance on behalf of his client but failed to take any further action. A default judgment was entered against Beckerman, who then requested that respondent vacate the judgment. When he failed to do so, Beckerman retained a new attorney but was unable to vacate the default judgment. As a result of respondent’s conduct, Beckerman was damaged in the amount of $5,000.

Count III involved similar circumstances. Katherine Petrak retained respondent to defend her in a real estate action. He filed an appearance, but failed to take any further action until a default judgment was entered against her. Although respondent filed a motion to vacate the judgment, he failed to appear and argue the motion. Petrak subsequently retained a new attorney who was unable to vacate the default judgment. Respondent’s conduct resulted in damage to his client in the amount of $3,300.

Respondent contends that the allegation he counseled defendants to lie to the authorities was not proved by clear and convincing evidence, because the witnesses who testified against him were not credible. He points out that Harvey and Sherman are convicted felons, and asserts that Lerner was “bitter” because he did not receive from respondent the balance of his legal fee.

It is well settled that the Hearing Board “is in the best position to weigh conflicting testimony and to make determinations regarding the credibility of witnesses.” (In re Harris (1982), 93 Ill. 2d 285, 295, citing In re Howard (1977), 69 Ill. 2d 343, 351; In re Smith (1976), 63 Ill. 2d 250, 255; In re Bossov (1975), 60 Ill. 2d 439, 441, cert. denied (1975), 423 U.S. 928, 46 L. Ed. 2d 256, 96 S. Ct. 275.) Here, the Hearing Board was aware of Harvey’s and Sherman’s dubious backgrounds but chose to believe, with one exception noted below, their version of the events which transpired. Their testimony was corroborated in large part by Lerner, whose reputation was unimpeached. The dispute between respondent and Lerner over the final fee, manifested in a letter respondent attached to his brief,, was not made part of the record below; therefore, it will not be considered.

Respondent further alleges that the Hearing Board’s decision was improperly influenced by evidence that respondent participated in the forgery scheme, an offense for which he was not charged. We agree that Harvey’s testimony indicated respondent may have known about the scheme in advance and aided defendants in the commission of the offense. However, the Hearing Board expressly stated in its report that it disbelieved this portion of the testimony. We therefore fail to perceive how the evidence would have improperly influenced the Hearing Board’s decision regarding the misconduct charged.

Respondent next contends that the Hearing Board erred in holding that he labored under a conflict of interest. He argues that he did not undertake to represent the defendants, but merely ascertained the charges against them and retained counsel for them. However, it is customary for an out-of-State attorney to employ local counsel who is more familiar with the State law involved. Further, according to respondent’s own testimony, he acted as an “investigative” attorney for defendants from the date of their arrest until sometime after November 7, 1978, the date upon which the alleged conflict of interest arose. Harvey and Sherman testified that they considered respondent as their attorney. He met with the defendants and frequently conversed with them, attempted to obtain reduction of their bond, and worked closely with Lerner in determining how to proceed with the case. Under these facts, the Hearing Board could properly conclude that respondent acted as attorney for the defendants. Although he stated that he never intended to “formally” represent the defendants at trial, legal representation encompasses more than liti-' gation-related services. See People ex rel. Chicago Bar Association v. Barasch (1961), 21 Ill. 2d 407; People ex rel. Chicago Bar Association v. Tinkoff (1948), 399 Ill. 282.

Respondent does not dispute that he also acted as Kordan’s attorney. The conflict of interest resulting from such multiple representation is obvious. On November 7, 1978, respondent was aware that Kordan planned the scheme. On that date, Lerner informed him that it would benefit defendants if they advised the prosecuting attorney as to who was responsible for the operation. It was therefore in the defendants’ best interests to disclose Kordan’s identity, and respondent was obligated to at least apprise them of this alternative. However, because of his duty to Kordan, respondent could not very well counsel defendants to reveal Kordan as the individual responsible for the scheme. Respondent therefore placed himself in the dilemma of having to choose between conflicting duties, the precise situation which the rule against representing conflicting interests is designed to prevent. See In re LaPinska (1978), 72 Ill. 2d 461.

Because the charges contained in count I were supported by clear and convincing evidence, and the parties stipulated to the facts involved in counts II and III, we turn to the question of what sanction should be imposed. We have not been referred to, nor does our research reveal, any cases involving facts analogous to those in the instant case. However, because of the egregious misconduct in which the respondent engaged, we feel constrained to adopt the Review Board’s recommendation that he be disbarred.

In counseling his clients to falsify information to the prosecuting attorney, respondent engaged in conduct which he knew to be fraudulent and deceitful and which hampers the administration of justice. Intentional dishonest behavior has never before been countenanced; nor will it be now. Our cases have indicated that disbarment is warranted where an attorney’s conduct constitutes intentional fraud, as opposed to a mistaken judgment or lack of care. (See, e.g., In re Snitoff (1972), 53 Ill. 2d 50 (conversion of a client’s funds); In re Hopper (1981), 85 Ill. 2d 318 (dicta); In re Saladino (1978), 71 Ill. 2d 263 (dicta).) Although respondent’s behavior did not involve the typical forms of fraud, such as conversion, it was equally detrimental to his clients’ interests.

Respondent’s misconduct is exacerbated by the fact that he also undertook to represent clients with conflicting interests. The undivided loyalty to which they were entitled was thereby compromised, potentially placing respondent in the position of sacrificing certain clients for the benefit of another. Adverse employment has been proscribed under all circumstances (see In re LaPinska (1978), 72 Ill. 2d 461), and this principle can have no greater force than where a client’s liberty may be at stake.

This court has recently stated that “more severe discipline is appropriate to deter neglect in criminal cases than in civil cases.” (In re Hall (1983), 95 Ill. 2d 371, 375.) Certainly, then, the sanction should be even greater where a respondent engages in intentional misconduct which could harm a client. Indeed, the Review Board unanimously determined that the above-related conduct, standing alone, was sufficient to justify the sanction of disbarment. We agree. However, here the respondent engaged in further inappropriate behavior.

By his own admission, respondent neglected legal matters entrusted to him, with the result that his clients suffered over $8,000 worth of damages. He urges, however, a number of factors which he claims mitigate the misconduct involved in counts II and III. He points out that he plans to make restitution to his clients for the losses incurred as a result of his neglect; that he was experiencing domestic difficulties during the time the cases were pending; that the causes involved in counts II and III were the only nontraffic matters he has handled; and that he did not accept a legal fee for representing Petrak.

Respondent did not attempt to compensate his clients for their losses until after the instant complaint was filed. Further, it has been held that restitution will not excuse improper conduct. (In re Feldman (1982), 89 Ill. 2d 7; In re Sherman (1975), 60 Ill. 2d 590.) Nor should domestic difficulties absolve an attorney of his wrongdoing. (Cf. In re Smith (1976), 63 Ill. 2d 250 (severe financial and emotional problems will not excuse respondent’s misconduct in converting a client’s funds).) With regard to the fact that respondent did not accept a legal fee from Petrak, we agree with the Hearing Board’s statement that “[a] lawyer’s duty to his client is not measured by the existence or amount of his fee.”

“ ‘The traditionally high standards of the legal profession impose upon [respondent] the duty to represent a client with zeal and diligence ***.” (In re Levin (1979), 77 Ill. 2d 205, 210, quoting In re Chapman (1978), 69 Ill. 2d 494, 501.) This, in counts II and III, he has failed to do. It has been repeatedly held that negligence alone warrants the sanction of suspension. (See, e.g., In re Hall (1983), 95 Ill. 2d 371; In re Levin (1979), 77 Ill. 2d 205; In re Chapman (1978), 69 Ill. 2d 494; In re Taylor (1977), 66 Ill. 2d 567.) When coupled with respondent’s more egregious misconduct involved in count I, disbarment is required in order to maintain the integrity of the legal profession and protect the administration of justice. See In re Smith (1976), 63 Ill. 2d 250.

Accordingly, it is ordered that respondent be disbarred from the practice of law.

Respondent disbarred.


author: JUSTICE WARD

text:
    (No. 57171.
    FIRST NATIONAL BANK OF WAUKEGAN, Trustee, Appellee, v. STANLEY T. KUSPER, JR., County Clerk, Appellant.

      Opinion filed September 23, 1983.

    Rehearing denied December 2, 1983.

      Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey, Deputy State’s Attorney, and Thomas J. McNulty, Assistant State’s Attorney, of counsel), for appellant.
    Bernard Allen Fried, of Chicago, for appellee.
   JUSTICE WARD

delivered the opinion of the court:

This appeal is from a judgment of the circuit court of Cook County holding unconstitutional Public Act 81— 1076 (1979 Ill. Laws 4091), an amendment to section 235a of the Revenue Act of 1939, the section commonly known as the Scavenger Act (Ill. Rev. Stat. 1979, ch. 120, par. 716a (eff. July 1, 1980)). The judgment was entered in a declaratory judgment action filed in the name of the plaintiff trustee in behalf of the beneficiary, who owned real property that was sold pursuant to the Scavenger Act, against Stanley T. Kusper, Jr., the clerk of Cook County. Because the circuit court held a statute unconstitutional, the clerk’s appeal was taken directly to this court. 73 Ill. 2d R. 302(a).

The Scavenger Act is one of the several legislative means provided for the collection of delinquent taxes under the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 482 et seq.) (the Revenue Act). (See generally, Lawlor, Real Property Tax Delinquency and the Rehabilitation of Multi-Family Housing Stock in Chicago, Illinois: The Role of the Collection Provisions of the Illinois Revenue Act, 26 DePaul L. Rev. 1, 5 (1976) (hereafter Lawlor).) The Scavenger Act provides for a judgment for the sale to the highest bidder of “lots upon which all or a part of the general taxes for each of 5 or more years are delinquent ***.” Ill. Rev. Stat. 1979, ch. 120, par. 716a.

A sale under the Scavenger Act is a sale of the property to the highest bidder “notwithstanding the bid may be less than the full amount of taxes, special taxes, special assessments, interest, penalties and costs for which judgment has been entered.” (Ill. Rev. Stat. 1979, ch. 120, par. 716a.) In this respect, it differs from the annual sale of tax-delinquent property under section 235 of the Revenue Act (Ill. Rev. Stat. 1979, ch. 120, par. 716), which the county collector is required to conduct each year. The annual sale, which is the initial device for collecting unpaid tax debts, is a sale for the full amount of taxes owed on properties for which taxes have not been paid in any one year.

The purchaser at either of these tax sales may petition the circuit court to direct the county clerk to issue a tax deed for the property if the owner does not redeem it. Under section 266 of the Revenue Act (Ill. Rev. Stat. 1979, ch. 120, par. 747), which applies to both annual sales and scavenger sales, the petition is to be filed prior to the expiration of the period within which the owner may redeem the property. That section also requires that the purchaser give notice of the filing of this petition and of the date upon which he intends to apply for a deed pursuant to the petition to the owner, occupants of the property, and others interested in the property.

The right of the owner to redeem his property after a tax sale is assured by the Constitution of Illinois and is governed by provisions of the Revenue Act. The statutory and constitutional provisions in effect at the time of the scavenger sale of the plaintiffs property, which took place on August 29, 1980, provided that, with certain exceptions not applicable here, property sold at a tax sale could be redeemed within two years from the date of the sale. (Ill. Ann. Stat., 1970 Const., art. IX, sec. 8(a), Constitutional Commentary, at 233 (Smith-Hurd 1971); Ill. Rev. Stat. 1979, ch. 120, par. 734.) (The period of redemption has since been shortened for certain types of properties sold at a scavenger sale. Ill. Ann. Stat., 1970 Const., art. IX, sec. 8 (1981), as amended eff. Jan. 1, 1981 (Smith-Hurd Supp. 1982); Ill. Rev. Stat. 1981, ch. 120, par. 734.)

Property sold at the annual sale may be redeemed by paying the amount for which the property was sold plus an interest penalty. (Ill. Rev. Stat. 1979, ch. 120, par. 734.) Prior to Public Act 81 — 1076 (hereafter the amendment), which became effective on July 1, 1980, the Scavenger Act provided, apart from a minor difference regarding the interest penalty, that “[rjedemptions may be made from [scavenger] sales *** in the same manner and upon the same terms and conditions as redemptions from [annual] sales ***.” (Ill. Rev. Stat. 1979, ch. 120, par. 716a.) This meant that in redemptions from a scavenger sale, unlike cases of redemptions from an annual sale, the full amount of taxes owed need not be paid by the owner in order to redeem the property. The reason for the difference is, as we have stated, that a bid at the scavenger sale, unlike a bid at the annual sale, may be for less than the full amount of taxes due. Remarkably, on the 6,000 items of property sold at scavenger sales between 1967 and 1973 the average bid was only $143. Lawlor, 26 DePaul L. Rev. 1, 8 (1976).

The amendment, which we consider here, adds two provisions to the Scavenger Act. First, it provides that, in order to obtain a certificate of purchase at a scavenger sale, a purchaser must deliver to the county clerk an affidavit stating that at the sale he did not bid on property for which he is the party, or the agent of the party, responsible for paying the delinquent taxes. The constitutionality of that provision was not challenged.

The other provision, which the circuit court held invalid, adds the following paragraph to the Scavenger Act following the part of the statute providing for redemption under the same terms as those applicable to the annual sale:

“For sales taking place after January 1, 1980, notwithstanding the above, except for single family residential units, the amount required to be paid for redemption shall also include an amount equal to all delinquent taxes on such property which taxes are delinquent at the time of sale. All amounts received in excess of the amount required to be paid for redemption shall be apportioned by the county among the taxing districts in which such property is situated.” 1979 Ill. Laws 4093.

The real plaintiff in interest here, that is, the beneficiary, who is a property owner whose tax-delinquent property was sold in a scavenger sale, charged that the amendment was unconstitutionally vague, a deprivation of the constitutionally protected right of redemption in violation of due process and equal protection, and an impairment of the obligation of contracts. Too, the plaintiff said that the exception in favor of single-family residential units was a violation of the right to equal protection, was arbitrary and capricious, and a violation of the prohibition against special-privilege legislation set out in article I, section 16, of our constitution (Ill. Const. 1970, art. I, sec. 16). The judgment of the circuit court that the amendment was unconstitutional was solely upon the ground that the exception for single-family residential units was an unconstitutionally vague classification. It did not find merit in the other grounds advanced by the plaintiff.

Before we may consider the correctness of the circuit court’s disposition of the constitutional question, we must resolve certain procedural issues. Although the clerk urges that we, in any event, consider the important constitutional question raised on his appeal, he submits three procedural contentions that, if accepted, would make it unnecessary to decide the constitutional issue. The clerk maintains (1) that the plaintiff lacks standing to challenge the amendment and that the question is now moot; (2) that declaratory relief was not proper here; and (3) that the plaintiff is barred by collateral estoppel from asserting that the statute violates the right of redemption. We agree that the question has become moot and shall not reach the other questions in the appeal.

The property of the plaintiff was sold at a scavenger sale, and the sale was confirmed by the circuit court. The plaintiff then sought to redeem the property from the sale by tendering to the clerk $24.08, which amount included the amount bid on the property at the sale, which was $17, plus interest and costs. The clerk refused the tendered amount, however, stating that the amount required to redeem was $429.62. The clerk’s calculation was pursuant to the amendment, and included the total of delinquent taxes due at the time of the sale.

While there may have been an active or live controversy between the parties at the time the action was brought by the plaintiff, the defendant’s contention that subsequent events rendered the issue moot is correct. The clerk points out that the statutory time for redemption has expired and that the purchaser at the sale did not petition the circuit court to order the issuance of a tax deed in the event the property was not redeemed. We may, of course, take judicial notice of facts showing that a controversy no longer exists. Bluthardt v. Breslin (1979), 74 Ill. 2d 246, 250.

As stated, under section 266 of the Revenue Act (Ill. Rev. Stat. 1981, ch. 120, par. 747), the petition for a tax deed must be filed before the expiration of the period of redemption. Under the circumstances here, as the clerk argues, the plaintiff’s title is secure and unimpaired regardless of whether the amount demanded by the clerk for redemption was correct. The reason is that, in its pertinent part, section 271 of the Revenue Act (Ill. Rev. Stat. 1981, ch. 120, par. 752) provides:

“Unless the holder of the certificate for real estate purchased at any tax sale under this Act takes out the deed in the time provided by law, and files the same for record within one year from and after the time for redemption expires, the certificate or deed, and the sale on which it is based, shall, from and after the expiration of such one year, be absolutely null and void with no right to reimbursement.”

A matter is considered to be moot when it “presents or involves no actual controversy, interests or rights of the parties, or where the issues have ceased to exist.” (People v. Redlick (1949), 402 Ill. 270, 278-79.) Upon the question of mootness, this court has stated: “We adhere to a rigid standard which requires that where no actual rights or interests of the parties remain, the Illinois courts should not address the issues raised by the litigation.” People ex rel. Tucker v. Kotsos (1977), 68 Ill. 2d 88, 93.

The rationale for declining to adjudicate moot questions was described in People ex rel. Black v. Dukes (1983), 96 Ill. 2d 273, 276-77, where we said:

“The courts of this State should not decide a case where ‘[a]ny judgment [they] could render would be “ ‘wholly ineffectual for want of a subject matter on which it could operate’ ” ’ (Madison Park Bank v. Zagel (1982), 91 Ill. 2d 231, 235, quoting Brownlow v. Schwartz (1923), 261 U.S. 216, 217, 67 L. Ed. 620, 621, 43 S. Ct. 263, 264) and could have advisory effect only. This is true even where leave to appeal has been granted after the cause became moot. (Madison Park Bank v. Zagel (1982), 91 Ill. 2d 231, 236.) A principal reason for this well-established rule of justiciability is the fear that the parties to a dispute which for practical purposes has ceased to exist will lack the ‘personal stake in the outcome of the controversy [which serves] to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult *** questions’ (Baker v. Carr (1962), 369 U.S. 186, 204, 7 L. Ed. 2d 663, 678, 82 S. Ct. 691, 703; see County of Los Angeles v. Davis (1979), 440 U.S. 625, 59 L. Ed. 2d 642, 99 S. Ct. 1379; DeFunis v. Odegaard (1974), 416 U.S. 312, 40 L. Ed. 2d 164, 94 S. Ct. 1704) and the desire to avoid binding later courts which may be better informed on the legal issue to a precedent announced by an earlier court with less reliable information. See generally Brilmayer, The Jurisprudence of Article III: Perspectives on the 'Case or Controversy’ Requirement, 93 Harv. L. Rev. 297 (1979).”

The plaintiff has not, in response to the clerk’s argument that the purchaser’s inaction has extinguished any right of his to a tax deed, shown or even claimed any interest remaining to be protected or any threat of injury. The plaintiff has not offered any reason for us to decide the question of the plaintiff’s right to redeem on the basis of the amount tendered, except merely to serve as a guide in any future scavenger-sale litigation. This overlooks, however, that “[t]his court will not review cases merely to establish a precedent or guide future litigation.” Madison Park Bank v. Zagel (1982), 91 Ill. 2d 231, 235.

This court has drawn some exceptions to the precept against reviewing questions that have been mooted. We observed in People ex rel. Black v. Dukes: “Illinois courts have occasionally made exceptions to the mootness doctrine in cases where the magnitude or immediacy of the interests involved warranted action by the court (People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618; Environmental Protection Agency v. Pollution Control Board (1980), 88 Ill. App. 3d 71) or where the issues were likely to recur but unlikely to last long enough to allow appellate review to take place because of the intrinsically short-lived nature of the controversies in which they could arise (August H. Skoglund Co. v. Department of Transportation (1978), 67 Ill. App. 3d 276; see Sosna v. Iowa (1975), 419 U.S. 393, 399-400, 42 L. Ed. 2d 532, 540-41, 95 S. Ct. 553, 557 (one-year residency requirement)) ***.” 96 Ill. 2d 273, 277-78.

This case does not present a situation where making an exception would be appropriate. In particular, the recurrence of the question of vagueness is most improbable in view of the legislature’s having enacted an additional amendment of the statute.

The trial court’s judgment was that the exception in the amendment in favor of “single family residential units” was unconstitutionally vague. The court considered that if the term “single family residential unit” is to be construed according to its plain meaning, as the court judged that it must, it would include all single-family residential units “whether condominium, apartment or otherwise, rented or otherwise, with no reasonable basis for that classification.” The legislature has since enacted Public Act 82 — 987, effective September 9, 1982, which provided a statutory definition for the term. This is the amended paragraph, with the new language set in italics and the deleted language struck through:

“For sales taking place after January 1, 1980, notwithstanding any other provision of this Section the aboveT except for single family residential units being owner-occupied condominium units, cooperative units or dwellings, the amount required to be paid for redemption shall also include an amount equal to all delinquent taxes on such property which taxes were delinquent at the time of sale. Such delinquent taxes AH amounts received in excess ef the amount- required te be paid fer redemption shall be apportioned by the county among the taxing districts in which such property is situated.” 1982 Ill. Laws 2474.

Even if the issue here were one likely to recur in future cases, there is no reason to expect that appeals in such cases would likewise become moot. There is no reason to expect that purchasers of property at future sales would not petition for a tax deed to the property.

When the issue presented on appeal becomes moot the appeal typically will be dismissed. To do so here would be inappropriate because it would leave standing the circuit court’s unreviewed judgment that the amendment is unconstitutional. Because we do not determine the correctness of that judgment it is appropriate to vacate and set aside the judgment. Accordingly, we do so without expressing an opinion as to the merits of the circuit court’s conclusion. See People ex rel. Black v. Dukes (1983), 96 Ill. 2d 273; Madison Park Bank v. Zagel (1982), 91 Ill. 2d 231; People ex rel. Newdelman v. Weaver (1972), 50 Ill. 2d 237; La Salle National Bank v. City of Chicago (1954), 3 Ill. 2d 375.

For the reasons given, the judgment of the circuit court is vacated and the cause is dismissed.

Judgment vacated; cause dismissed.


author: JUSTICE UNDERWOOD

text:
    (No. 57288.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. RANDALL C. KAEDING, Appellee.

      Opinion filed September 23, 1983.

    Rehearing denied December 2, 1983.

      Neil F. Hartigan and Tyrone C. Fahner, Attorneys General, of Springfield (Patricia Rosen, Assistant Attorney General, of Chicago, of counsel), for the People.
    Frank Wesolowski, Jr., Public Defender, and Eugene A. Wojcik, Jr., Deputy Public Defender, both of Wheaton, for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Defendant, Randall Kaeding, pleaded guilty but mentally ill to the offense of indecent liberties with a child and was sentenced by the Du Page County circuit court to nine years’ imprisonment. Citing section 5 — 2—6 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—6), that court also ordered the Department of Corrections to provide intensive psychotherapy or, if necessary, to transfer defendant to the Department of Mental Health and Developmental Disabilities for that treatment. In addition, the December 17, 1981, sentencing order stated that either department would be required to file a treatment plan with the court within 60 days. On May 14, 1982, the Department of Corrections alternatively moved the court to vacate that order or to amend it. On May 24 defendant apparently filed his own motion to vacate or amend the order, and on June 30 filed another motion seeking to withdraw his guilty plea or amend his sentence. The circuit court vacated the sentencing order on June 30 and docketed the matter for resentencing. After a second sentencing hearing, the court concluded that it lacked jurisdiction to modify the original sentencing order and reaffirmed that order. The court went on to find that a portion of section 5 — 2—6 was void because of a constitutional infirmity, and the Department of Corrections on September 13 appealed that ruling directly to this court pursuant to Rule 302(a) (87 Ill. 2d R. 302(a)). On October 1 defendant filed another motion to withdraw his plea or modify the sentence.

We are met at the outset with a jurisdictional question. We allowed defendant leave to file a motion to strike the Department’s appeal, and he contends, apparently because the Department’s motion was not filed within 30 days of the entry of the sentencing order, that the circuit court lacked jurisdiction to reaffirm that order and declare part of section 5 — 2—6 unconstitutional. The Department, however, persuasively argues that the circuit court had jurisdiction pursuant to the revestment doctrine. Under the narrow terms of that well-established rule, litigants may revest a court which has general jurisdiction over the matter with both personal and subject matter jurisdiction over the particular cause after the 30-day period following final judgment during which post-judgment motions must ordinarily be filed. (Ridgely v. Central Pipe Line Co. (1951), 409 Ill. 46, 49; Brown v. Miner (1951), 408 Ill. 123, 126; Craven v. Cra ven (1950), 407 Ill. 252, 255; Rossiter v. Soper (1943), 384 Ill. 47, 59-60; Weisguth v. Supreme Tribe of Ben Hur (1916), 272 Ill. 541, 543; Grand Pacific Hotel Co. v. Pinkerton (1905), 217 Ill. 61, 83-84. Cf. Sears v. Sears (1981), 85 Ill. 2d 253, 260.) Although this court has not had occasion to apply the revestment doctrine in recent years (cf. Sears v. Sears (1981), 85 Ill. 2d 253, 260), it enjoys continued vitality in our appellate court. See, e.g., Sabatino v. Kozy Kottage Inn, Inc. (1981), 102 Ill. App. 3d 375, 378; Slavick v. Michael Reese Hospital & Medical Center (1980), 92 Ill. App. 3d 161, 166; Halleck v. Trumfio (1980), 85 Ill. App. 3d 1051, 1055; Faust v. Michael Reese Hospital & Medical Center (1979), 79 Ill. App. 3d 69, 72-73.

In order for the rule to apply, the parties must actively participate without objection in proceedings which are inconsistent with the merits of the prior judgment. (See Sears v. Sears (1981), 85 Ill. 2d 253, 260; Ridgely v. Central Pipe Line Co. (1951), 409 Ill. 46, 50.) Although the circuit court’s order which vacated the original sentencing order recited that jurisdiction was based on motions filed by both the Department and defendant, there is no indication in the record that defendant ever objected to the exercise of jurisdiction in connection with the Department’s motion, and it is clear that defendant’s participation in the proceedings was not only active but extensive. Furthermore, unlike the situation in Sears v. Sears (1981), 85 Ill. 2d 253, where this court recently refused to apply the revestment doctrine because the merits of the previously entered judgment were not opposed in the subsequent proceedings, the Department’s motion specifically attacked the substance of the circuit court’s sentencing order. Under these circumstances, defendant waived any right to challenge the Department’s motion and the circuit court was revested with jurisdiction over the parties.

In support of his motion to strike the Department’s appeal, defendant also contends that the circuit court’s second sentencing order “merely reaffirmed” the original order. In addition, defendant characterizes the appeal as an impermissible interlocutory appeal, arguing that two motions seeking leave to withdraw his guilty plea or to amend the sentence are still pending in the circuit court. Both of these contentions lack merit. The terms of the second sentencing order reaffirming the original order obviously went far beyond the first order because of the ruling in the second order holding part of section 5— 2 — 6 unconstitutional. Furthermore, an examination of the record reveals that the first of defendant’s motions was ruled upon by the circuit court as it served, along with the Department’s motion, as the basis for the court’s order vacating the original sentencing order. We note, too, that the circuit court’s reaffirmance of its original sentencing order, serving to fully adjudicate the rights of the parties, constituted a final judgment. (See Wilkey v. Illinois Racing Board, (1983), 96 Ill. 2d 245; People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 171. Cf. People v. Allen (1978), 71 Ill. 2d 378, 381; People v. Warship (1974), 59 Ill. 2d 125, 130.) Because defendant’s October 1 motion was not filed until after the Department had filed its notice of appeal, there were no motions pending, and the appeal was not interlocutory in nature.

When ruling that section 5 — 2—6 was unconstitutionally infirm, the circuit court stated:

“The Court further finds that Chapter 38, sec. 1005 — 2— 6(e)(1) creates a class of offender who, although found guilty but mentally ill, is not required to submit to a course of mental treatment by the sentencing Court, distinguished only by virtue of said offender’s confinement within a facility of the Illinois Department of Corrections, while all other like offenders are required to submit to a course of mental treatment prescribed by the sentencing Court; that this classification bears no reasonable relationship to any legitimate State interest and is unconstitutional and void.”

The relevant portions of section 5 — 2—6 provide:

“(a) *** The court may impose any sentence upon the defendant which could be imposed pursuant to law upon a defendant who had been convicted of the same offense without a finding of mental illness.
(b) If the court imposes a sentence of imprisonment upon a defendant who has been found guilty but mentally ill, the defendant shall be committed to the Department of Corrections, which shall cause periodic inquiry and examination to be made concerning the nature, extent, continuance, and treatment of the defendant’s mental illness. The Department of Corrections shall provide such psychiatric, psychological, or other counseling and treatment for the defendant as it determines necessary.
* * *
(e)(1) All persons found guilty but mentally ill, whether by plea or by verdict, who are placed on probation or sentenced to a term of periodic imprisonment or a period of conditional discharge shall be required to submit to a course of mental treatment prescribed by the sentencing court.
(2) The course of treatment prescribed by the court shall reasonably assure the defendant’s satisfactory progress in treatment or habilitation and for the safety of the defendant and others. The court shall consider terms, conditions and supervision which may include, but need not be limited to, notification and discharge of the person to the custody of his family, community adjustment programs, periodic checks with legal authorities and outpatient care and utilization of local mental health or developmental disabilities facilities.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005-2-6.)

As pointed out during oral argument, it is apparent that the circuit court inadvertently cited the wrong subsection as the court’s findings clearly refer to subsection (b).

In support of the circuit court’s finding, defendant argues that all persons who are sentenced under section 5— 2 — 6 must have been found by the court to have been “mentally ill at the time of the offense to which the plea is entered.” (See Ill. Rev. Stat. 1981, ch. 38, pars. 115 — 2, 115 — 3.) Consequently, asserts defendant, these persons are all members of a single class which must receive similar treatment. Defendant additionally contends that this court must strictly scrutinize section 5 — 2—6 when evaluating the circuit court’s ruling because the statute implicates the fundamental right to fair treatment in criminal proceedings guaranteed by due process.

As we understand defendant’s argument, he interprets the provision in section 5 — 2—6(e)(1) that “All persons found guilty but mentally ill [but not imprisoned] *** shall be required to submit to a course of mental treatment prescribed by the sentencing court” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—6(e)(1)) as requiring the court to prescribe treatment for every mentally ill defendant who is not sentenced to prison. Conversely, the provision of section 5 — 2—6(b) that the Department “shall provide such *** treatment for the [imprisoned] defendant as it determines necessary” (Ill. Rev. Stat. 1981, ch. 38, par. 1005— 2 — 6(b)) is interpreted by him as permitting the Department, as it has done in his case, to determine that treatment would, in a given case, be neither necessary nor helpful. Thus, urges defendant, there exists an invidious discrimination in the differing treatment given members of the single class of mentally ill defendants.

In our opinion defendant misinterprets section 5 — 2— 6(e)(1) in construing it as mandating the court to provide a course of treatment for every nonincarcerated defendant. The language of that section is not that the court must provide but, rather, that “All persons found guilty but mentally ill *** shall be required to submit to ***” treatment. In our judgment the legislature did not intend that either the court or the Department would be required to utilize limited resources, facilities and skilled personnel in treating those defendants, imprisoned or otherwise, for whom treatment would not be helpful. No other conclusion seems compatible with section 5 — 2—6(a), authorizing the court to impose upon a defendant found guilty but mentally ill the same sentence it might impose upon a defendant found guilty but not mentally ill. Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—6(a).

While our interpretation of the statute disposes of defendant’s argument, it does not completely resolve the problem troubling the trial judge. He seems to suggest that equal protection guarantees preclude dividing the responsibility for determining the treatment to be given imprisoned, as contrasted to nonimprisoned, defendants, a suggestion with which we do not agree.

Under the legislative plan before us it is clear that the difference in the way incarcerated and nonincarcerated defendants are treated lies only in the entity which is empowered to make the determination as to what course of medical treatment would be appropriate. When examining a legislative scheme which creates classifications by providing for different treatment of groups of persons, this court adheres to the framework of analysis used by the Supreme Court. (See Illinois Polygraph Society v. Pellicano (1980), 83 Ill. 2d 130, 138; People ex rel. Tucker v. Kotsos (1977), 68 Ill. 2d 88, 96-97.) Generally, “courts restrict their role to determining whether the particular legislative classification is rationally designed to further a legitimate State purpose.” (People ex rel. Tucker v. Kotsos (1977), 68 Ill. 2d 88, 96, citing Maher v. Roe (1977), 432 U.S. 464, 470, 53 L. Ed. 2d 484, 492, 97 S. Ct. 2376, 2381; San Antonio Independent School District v. Rodriguez (1973), 411 U.S. 1, 17, 36 L. Ed. 2d 16, 33, 93 S. Ct. 1278, 1288.) When the legislation threatens fundamental constitutional rights or is directed towards a “suspect” group, then — and only then-courts will examine the statute to insure that it is “ ‘tailored’ narrowly to serve legitimate objectives” (San Anto nio Independent School District v. Rodriguez (1973), 411 U.S. 1, 17, 36 L. Ed. 2d 16, 33, 93 S. Ct. 1278, 1288) in furtherance of compelling government interests. See Carey v. Population Services International (1977), 431 U.S. 678, 687, 52 L. Ed. 2d 675, 686, 97 S. Ct. 2010, 2016; Shapiro v. Thompson (1969), 394 U.S. 618, 634, 22 L. Ed. 2d 600, 615, 89 S. Ct. 1322, 1331; Village of Oak Lawn v. Marcowitz (1981), 86 Ill. 2d 406, 416.

In our judgment, section 5 — 2—6 neither threatens a fundamental constitutional right nor is directed toward a “suspect” class, and our inquiry is accordingly limited to a determination of whether section 5 — 2—6 has a rational basis. “Fundamental interests generally are those that lie at the heart of the relationship between the individual and a republican form of nationally integrated government” (People ex rel. Tucker v. Kotsos (1977), 68 Ill. 2d 88, 97), and are rooted in explicit or implicit constitutional guarantees. (See San Antonio Independent School District v. Rodriguez (1973), 411 U.S. 1, 33-34, 36 L. Ed. 2d 16, 43, 93 S. Ct. 1278, 1297.) This court, in keeping with the view of the Supreme Court, has previously recognized a responsibility not to engage in the creation of substantive constitutional rights “ '*** in the name of guaranteeing equal protection of the laws.’ ” (In re Roger B. (1981), 84 Ill. 2d 323, 327, quoting San Antonio Independent School District v. Rodriguez (1973), 411 U.S. 1, 33, 36 L. Ed. 2d 16, 43, 93 S. Ct. 1278, 1297.) We cannot agree with defendant that the fundamental right to fair treatment in the criminal process encompasses the right to judicial, instead of executive, supervision over rehabilitative programs for incarcerated defendants. Defendant does not argue that incarcerated persons form a “suspect” class, and we note that the decisions of this court and of the Supreme Court indicate that such an argument would lack merit. See Bell v. Wolfish (1979), 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861; Jones v. North Carolina Prisoners’ Labor Union, Inc. (1977), 433 U.S. 119, 53 L. Ed. 2d 629, 97 S. Ct. 2532; Estelle v. Dorrough (1975), 420 U.S. 534, 43 L. Ed. 2d 377, 95 S. Ct. 1173; McGinnis v. Royster (1973), 410 U.S. 263, 35 L. Ed. 2d 282, 93 S. Ct. 1055; People ex rel. Tucker v. Kotsos(1977), 68 Ill. 2d 88.

Because a statute carries a presumption of rationality when undergoing the traditional equal protection examination (see Illinois Polygraph Society v. Pellicano (1980), 83 Ill. 2d 130, 137; People v. Warren (1977), 69 Ill. 2d 620, 627-28), it is the defendant’s burden to demonstrate the impermissible nature of the classification created. (See People v. Pembrock (1976), 62 Ill. 2d 317, 322. Cf. People ex rel. City of Canton v. Crouch (1980), 79 Ill. 2d 356, 370; Pozner v. Mauck (1978), 73 Ill. 2d 250, 255.) Defendant does not offer any persuasive reasons as to why we should view section 5 — 2—6 as irrational, and we consider the statutory allocation of power over rehabilitative programs to be a rational means of furthering the legislative purposes underlying the Unified Code of Corrections. One of those purposes is to “prescribe sanctions proportionate to the seriousness of the offenses and permit the recognition of differences in rehabilitation possibilities among individual offenders.” (Ill. Rev. Stat. 1981, ch. 38, par. 1001 — 1—2(a).) Section 5 — 2—6 is clearly designed with that purpose in mind, as it provides a wide range of sanctions and allocates the decision-making power concerning treatment programs to the entity having custody and responsibility for supervising the defendant, a provision which strikes us as eminently sensible. Indeed, by vesting the Department with the power to determine a defendant’s needs and to implement treatment, the statute reflects the well-established view that the judiciary is ill equipped to supervise and evaluate the treatment of incarcerated defendants. See, e.g., Jones v. North Carolina Prisoners’ Labor Union, Inc. (1977), 433 U.S. 119, 126, 53 L. Ed. 2d 629, 639, 97 S. Ct. 2532, 2538; Meachum v. Fano (1976), 427 U.S. 215, 229, 49 L. Ed. 2d 451, 461, 96 S. Ct. 2532, 2540; Procunier v. Martinez (1974), 416 U.S. 396, 405, 40 L. Ed. 2d 224, 235, 94 S. Ct. 1800, 1807; People v. Williams (1977), 66 Ill. 2d 179,188; In re Washington (1976), 65 Ill. 2d 391, 399; In re Petition of Owen (1973), 54 Ill. 2d 104, 109.

For the reasons stated, we hold that section 5 — 2—6 of the Unified Code of Corrections does not deprive individuals of equal protection of the laws. Accordingly, the judgment of the circuit court is reversed and, in light of the circuit court’s reliance upon its supposed power to specify certain treatment when it sentenced defendant to the custody of the Department, the cause is remanded for resentencing.

Reversed and remanded.


author: CHIEF JUSTICE RYAN

text:
    (No. 57376.

      In re BARRY MICHAEL WOLDMAN, Attorney, Respondent.

      Opinion filed October 4, 1983.

    Rehearing denied December 2, 1983.

      Jerome Larkin, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    Barry M. Woldman, of Chicago, pro se.

   CHIEF JUSTICE RYAN

delivered the opinion of the court:

Two complaints were filed against the respondent, Barry Michael Woldman, by the Attorney Registration and Disciplinary Commission. The first complaint was in five counts, while the second complaint contained one count. The two complaints were consolidated for hearing. A panel of the Hearing Board unanimously recommended that the respondent be disbarred, and the Review Board unanimously approved the panel’s report and recommendation.

The first complaint, in counts I and II, alleged misconduct by the respondent in handling the proceeds of a $170,000 personal injury settlement the respondent had negotiated on behalf of Murray Stiles. Respondent disputes the findings as to these counts. Counts III and IV of the first complaint alleged misconduct by the respondent in the handling of the proceeds of a $10,000 personal injury settlement that had been negotiated on behalf of Thomas Rourke. Respondent admits all the allegations of misconduct in these two counts. Count V of the first complaint alleged misconduct in the distribution of a $10,000 settlement of a personal injury claim of Patricia Sapyta. Respondent admits the allegations of the misconduct charged in this count. The second complaint, in its only count, alleged misconduct of the respondent in the distribution of the settlement of a personal injury claim of Jennifer Thompson, a minor. Respondent admits the allegations of misconduct alleged in this complaint. Thus, it is only the two counts involving Murray Stiles that are disputed. Respondent also contends that the sanction of disbarment is excessive and unwarranted, in Anew of the evidence he presented concerning his character and reputation and the evidence of mitigating circumstances.

Murray Stiles retained the respondent to prosecute a personal injury claim. The respondent negotiated a $170,000 settlement of the claim. Before receiving the settlement draft, respondent and Stiles discussed how Stiles would invest the money.

According to the respondent, they negotiated an agreement evidenced by a promissory note which provided that Stiles would loan the respondent $70,000 to meet his personal and business expenses. According to Stiles, however, the respondent merely told him that he would invest his money at a 10% interest rate, and did not mention a promissory note or a security deAdce. The parties also dispute whether the respondent told Stiles about his financial condition. He had debts of $200,000, had exhausted his line of commercial credit, and had various lawsuits for unpaid debts pending against him, including a mortgage foreclosure on his home. While the respondent claims that he advised Stiles to seek independent financial and legal advice, this is denied by Stiles, who agreed to the proposition without the benefit of counsel.

On July 31, 1978, the respondent received the settlement draft of $170,000 and deposited it in his client trust account. On August 2, 1978, he issued Stiles three checks in distribution of the settlement. One was for $70,000. Stiles endorsed this check and returned it to him. The respondent testified that he also contemporaneously executed a promissory note, but that his law clerk mistakenly failed to deliver it to Stiles until a later time. Stiles denied this assertion, however, and his denial is corroborated by a letter which the respondent had written to Stiles’ new attorney, Val Bylaitis, on September 18, 1978, shortly after the settlement transaction. In this letter the respondent had told Bylaitis that no documents had been executed and no promissory note had been delivered concerning the loan, because he could not locate Stiles.

On August 18, 1978, the respondent deposited the check for $70,000 into an account used for business and personal expenses. On September 11, 1978, Stiles sent the respondent a letter, prepared by Bylaitis, which asked the respondent to make an account of these funds and return them. Two days later Bylaitis telephoned the respondent to repeat these requests. The respondent told Bylaitis he would return $40,000 immediately, but could return the remaining $30,000 only when he was able to liquidate Stiles’ investment.

When Bylaitis sent the respondent a letter confirming the telephone conversation, the respondent, as noted previously, sent Bylaitis a reply letter characterizing the transaction as a loan and admitting no documents were executed. On October 4, 1978, the respondent gave Stiles a check for $40,061.15 and a promissory note for the remaining $30,000. Before returning these funds, however, Woldman had overdrawn his account and used Stiles’ funds for business and personal expenses. None of the funds were ever invested for Stiles’ benefit as the respondent had promised.

The respondent later defaulted on the note. On February 16, 1979, following the default, Stiles’ wife wrote the Attorney Registration and Disciplinary Commission, without the knowledge or consent of her husband, and complained about the respondent’s conduct. As a result, the respondent filed a defamation action against Stiles on July 13, 1979, in the circuit court of Cook County. He also drafted a letter to the Commission, which he had Stiles sign, purporting to withdraw the disciplinary complaint.

The letter stated that the transaction was a documented loan and attached an exhibit purporting to be a copy of a note which allegedly was executed on July 31, 1978. This statement was, however, demonstrably false. In his letter to Bylaitis of September 18, 1978, which constitutes a prior written admission as we have noted, the respondent stated that he did not execute a note. Thus, the exhibit was not a copy of the note but a false document created to evidence a note which respondent claimed to have lost.

At a meeting of the parties on July 17, 1979, respondent told Stiles he would repay him $10,000 and drop his defamation action if Stiles would sign the letter asking that the disciplinary proceedings be dropped. Although Stiles knew the letter was false, he signed it to obtain part of the money due him. Before this court, the respondent contends that the factual findings showing he converted Stiles’ money and improperly negotiated a release of his defamation suit were contrary to the evidence and the law.

The Hearing Board must evaluate disputed questions of fact, and its findings, when affirmed by the Review Board, are entitled to essentially the same weight as those of any other trier of fact. (In re Hopper (1981), 85 Ill. 2d 318, 323; In re Teichner (1979), 75 Ill. 2d 88.) Under our Rule 753(c), the Administrator must prove allegations of misconduct by clear and convincing evidence. (87 Ill. 2d R. 753(c).) The credibility of the witnesses is to be determined by those who hear and observe them.

The respondent’s credibility was severely shaken by the inconsistent positions he took with regard to the transaction with Stiles. Respondent, in this court, contends that the testimony of Stiles is rendered unworthy of belief because of the inconsistent positions Stiles took concerning the transaction. The hearing panel heard and observed the witnesses and obviously did not believe the respondent’s version of what had taken place between him and Stiles. We have been shown no reason why we should not abide by the hearing panel’s assessment of the credibility of these two witnesses. Having done so, we must conclude that the findings are supported by clear and convincing evidence. We note that respondent’s conduct in the Stiles’ case parallels his conduct of mishandling the proceeds of the personal injury settlements of Thomas Rourke and Jennifer Thompson, which we will discuss later. As noted above, respondent, before the hearing panel and in his brief in this court, admits the misconduct alleged as to these two settlements.

The letter which Stiles purportedly wrote to the Commission withdrawing the disciplinary complaint does not exculpate the respondent. Allegations concerning the drafting, execution and mailing of this letter to the Commission, as well as the filing by respondent of a lawsuit against Stiles, and the release executed by the respondent in favor of Stiles contingent upon the withdrawal of the complaint filed with the Commission, are all contained in count II of the first complaint filed with the Commission. It is alleged in this count that these acts constituted conduct involving dishonesty, fraud, deceit, and conduct prejudicial to the administration of justice. The Hearing Board found that, as to all of the clients, the respondent’s conduct involved fraud, deceit, dishonesty and misrepresentation, and that his conduct was unethical, unprofessional, and tended to bring the legal profession into disrepute. These findings are supported by clear and convincing evidence. In In re Jerome (1964), 31 Ill. 2d 284, this court considered a similar situation and held that the settlement of a civil suit conditioned upon the withdrawal and dismissal of a disciplinary complaint was an attempt to purchase a result in, or to produce an effect on, the disciplinary action. As such, it was “inherently bad, and tended to defeat the administration of justice and to bring the legal profession into disrepute.” In re Jerome (1964), 31 Ill. 2d 284, 286.

In addition to the two counts involving Stiles, the respondent is charged with misconduct in handling funds of three other clients. On November 30, 1976, Thomas J. Rourke retained respondent to prosecute a claim on behalf of the estate of his deceased wife. In May 1978 respondent received a settlement draft for $10,000. Rourke, at respondent’s request, endorsed the draft. At the time, Rourke was not aware the document was a draft. He believed that it was merely some document required by the insurance company. Although Rourke had not authorized the respondent to use his funds and was not aware the respondent had them, the respondent deposited the draft in his client’s trust account. During the next year, the balance in the account fell below $10,000 on various occasions when the funds were used by respondent to meet his outstanding personal debts.

In May 1979, one year after the receipt of the settlement draft, the respondent first notified Rourke that he would distribute the funds to him. He did not tell him, however, that he had already converted the proceeds. Without advising Rourke to seek independent legal advice and informing him of his financial problems, the respondent asked Rourke if he would like him to invest the settlement funds and earn a 10% return. He suggested Rourke might like him to make such an investment because of his superior business experience. In their discussions, the parties never characterized this transaction as a loan. Rourke testified he thought respondent was going to invest the funds in “the money market.” Rourke agreed to allow the respondent to invest $4,000 of the settlement proceeds. In July 1979 respondent deducted his fee and sent Rourke a settlement check for $3,000 and a 90-day promissory note in the amount of $4,180.33. This amount was not invested but was used by the respondent for his own expenses. At the time of the hearing he still owed Rourke this amount.

On July 28, 1979,-.Patricia Sapyta retained the respondent to prosecute a personal injury claim. He negotiated a settlement of $10,000. The insurance company made payment of outstanding liens and made one check payable to respondent and Sapyta for $7,550. This check was endorsed by the payees and deposited in respondent’s client trust account. Various checks were issued in distribution of the settlement, including a check in the amount of $650 to Dr. Prasit Sri. Shortly thereafter, Sapyta told the respondent that all but $228 of Dr. Sri’s bill had been paid. She returned the check to him, asking that the $650 be redistributed. The respondent has made no distribution to date and converted the funds to his own use.

Sometime before October 24, 1977, the respondent was retained to represent Jennifer Thompson, a minor, in a personal injury claim. On October 24, 1977, the probate division of the circuit court of Cook County entered an order approving a $19,000 settlement in the case. It also approved a distribution which included a $2,792.53 payment to the Illinois Department of Public Aid in satisfaction of its lien, and the payment of attorney fees and costs, and directed that $10,487.38 be deposited to Jennifer Thompson’s account at the American National Bank. In violation of the court order, however, the respondent instead deposited the funds in his client trust account, and did not pay the Department of Public Aid or open the account in the name of the minor for over one year. In the meantime, the balance in respondent’s trust account fell below the total of the amount the court ordered for these two purposes on various occasions.

In determining whether disbarment is merited in this case, we note that predictability and fairness require a degree of consistency in the selection of sanctions for similar types of misconduct. (In re Saladino (1978), 71 Ill. 2d 263.) Intentional conversion of clients’ funds has been severely condemned by this court. When a lawyer converts a client’s funds to his own personal use, he commits an act involving moral turpitude. In the absence of mitigating circumstances, his conduct warrants disbarment. “Other offenses might be excused, but conversion to his own use of the property of his client is an offense that cannot in any degree be countenanced.” (People ex rel. Black v. Smith (1919), 290 Ill. 241, 251; see also In re Feldman (1982), 89 Ill. 2d 7, 11; In re Stillo (1977), 68 Ill. 2d 49, 54.) Each disciplinary case is unique. However, where facts are strikingly similar to those of another case, a degree of uniformity in the discipline imposed should be sought. In re Clayter (1980), 78 Ill. 2d 276, 283.

In In re Feldman, In re Stillo, In re Smith (1976), 63 Ill. 2d 250, and In re Snitoff (1972), 53 Ill. 2d 50, this court disbarred attorneys for conversion of clients’ funds under circumstances no more grievous than those present here. Also, in Smith and Feldman the court held that adverse circumstances, whether emotional or financial, while unfortunate, afford no excuse for conversion of clients’ funds. Also, in Feldman several witnesses testified to respondent’s good character and trustworthiness. The court held that this evidence would be considered along with all other facts in the case, but that it was not sufficient to overcome the positive facts evidenced by the record. Thus, the financial and emotional problems which the respondent in oúr case cites as mitigating circumstances, and the testimony as to the respondent’s good character presented to the hearing panel, although proper to be considered, do not justify or overcome the serious breach of professional responsibility shown by the record. It is the responsibility of this court, through the use of its disciplinary machinery, to protect the public from conduct such as that demonstrated by this record. By his conduct the respondent not only has breached his professional obligations to his clients and the public, but also has brought the legal profession into disrepute.

In conformity with the practice of this court in similar cases referred to above, we find the appropriate sanction to be imposed is disbarment.

Respondent disbarred.