text:
    (No. 57393.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. BARBARA BOYKIN, Appellee.

      Opinion filed February 4, 1983.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Joan S. Cherry, and Paula Carstensen, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Cook County (James H. Reddy, Assistant Public Defender, of counsel), for appellee.
    John F. McCarthy, of Chicago, and Howard H. Braverman, of Springfield (McCarthy & Levin, of Chicago, of counsel), for amici curiae the Illinois State Bar Association and the Chicago Bar Association.
   JUSTICE MORAN

delivered the opinion of the court:

Defendant, Barbara Boykin, was charged by complaint with the misdemeanor offense of battery, in violation of section 12 — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 3). Following a bench trial in the circuit court of Cook County, she was found guilty and sentenced to six months’ probation. She subsequently moved to reduce her sentence, requesting supervision in lieu of probation. The trial court ruled that defendant was not eligible for supervision under section 5 — 6—1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—1(c)), because she neither pleaded guilty to the charge nor stipulated to the facts supporting the charge or the facts supporting a finding of guilt. The appellate court reversed, concluding that supervision may be imposed following a finding of guilt after trial. (109 Ill. App. 3d 112.) We granted the State leave to appeal.

The sole issue for review is whether a defendant who has been found guilty of a misdemeanor offense following a trial is eligible for supervision under section 5 — 6— 1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005-6-l(c)).

Section 5 — 6—1(c) provides, in pertinent part:

“The court may, upon a plea of guilty or a stipulation by the defendant of the facts supporting the charge or a finding of guilt, defer further proceedings and the imposition of a sentence, and enter an order for supervision of the defendant if the defendant is not charged with a felony ***.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—1(c).

The State argues that this provision authorizes the imposition of supervision only where the defendant: (1) pleads guilty; or (2) stipulates to the facts supporting (a) the charge or (b) a finding of guilt. This is the interpretation which was adopted by the appellate court in People v. Bodine (1981), 97 Ill. App. 3d 42. Defendant interprets the statute to allow for supervision whenever an accused: (1) pleads guilty; (2) stipulates to the facts supporting the charge; or (3) is found guilty following trial. The Illinois State Bar Association and Chicago Bar Association, who were allowed to file a brief as amici curiae, argue that to construe the statute otherwise would violate a defendant’s right to equal protection and due process of law. They urge that a defendant who opts for a jury trial is improperly punished more severely than one who forgoes this right.

“The cardinal rule of statutory construction, to which all other canons and rules are subordinate, is to ascertain and give effect to the true intent and meaning of the legislature.” (People ex rel. Hanrahan v. White (1972), 52 Ill. 2d 70, 73, cert. denied (1972), 409 U.S. 1059, 34 L. Ed. 2d 511, 93 S. Ct. 562, citing People v. Hudson (1970), 46 Ill. 2d 177; People ex rel. Cason v. Ring (1968), 41 Ill. 2d 305; Electrical Contractors Association of City of Chicago, Inc. v. Illinois Building Authority (1966), 33 Ill. 2d 587.) In determining the legislative intent, courts should consider first the statutory language. (Harvey Firemen’s Association v. City of Harvey (1979), 75 Ill. 2d 358.) As noted by the State, where the language is clear “it will be given effect without resorting to other aids for construction.” (People v. Robinson (1982), 89 Ill. 2d 469, 475-76; Franzese v. Trinko (1977), 66 Ill. 2d 136, 139.) Where the language is ambiguous, however, it is appropriate to examine the legislative history. People ex rel. Hanrahan v. White (1972), 52 Ill. 2d 70.

We agree with the appellate court that the statutory language is “reasonably susceptible” to both interpretations urged. On the one hand, the use of the disjunctive “or” indicates that all three alternatives, as suggested by defendant, were contemplated as a basis for imposing supervision. (See People v. Vraniak (1955), 5 Ill. 2d 384, 389.) On the other hand, defendant’s interpretation of the statute renders supervision available, for misdemeanants, in every conceivable circumstance. Therefore, the legislature could have simply stated that supervision is a possible disposition in any misdemeanor case. It was unnecessary to spell out, as the section does, the situations in which supervision may be properly imposed. Because we recognize an ambiguity in the statutory language we will consider the legislative history, which aids in explaining the uncertain verbiage.

Prior to 1976, it was a common practice for trial courts to grant defendants supervision, regardless of whether they pleaded guilty or were found guilty after trial. In 1976, this court determined that judges lacked authority to place defendants on supervision, and referred the matter to the legislature. (People v. Breen (1976), 62 Ill. 2d 323.) Shortly thereafter, Senate Bill 1997 and House Bill 3954 were introduced to provide statutory authorization for supervision.

Senate Bill 1997 provided that a defendant may receive supervision whenever he or she “pleads guilty or is found guilty.” The sponsor of the bill described it as follows:

“I ... I think you have this . . . this bill deals with a person [who] pleads guilty or is found guilty. *** This is where he pleads guilty and he is found guilty In other words, the defendant pleads guilty or in a trial is found . . . find . . . found guilty.
* * *
[I]n regards to this, the defendant pleads guilty and is found guilty. Then in the discretion of the court, then they can place him on supervision. There is a finding. He pleads guilty or he’s found guilty.” (79th Ill. Gen. Ass’y Transcript of Senate Proceedings, Third Reading of Senate bill 1997, June 23, 1976, at 4-7.)

An amendment which would have eliminated supervision after trial was offered in the Senate and defeated.

House Bill 3954, as originally introduced, provided:

“The court may, with the consent of the defendant and the appropriate prosecuting authority, upon a stipulation by the defendant of the facts supporting the charge or a finding of guilt, defer further proceedings and the imposition of a sentence, and enter an order for supervision ***.”

Subsequently, when House Bill 3954 was reported out of committee, the words “upon a stipulation by the defendant of the facts supporting the charge or a finding of guilt” were deleted. Consequently, there was no expressed limit to the circumstances under which supervision could be imposed.

During the following House debates, two amendments to the bill were introduced. Amendment No. 1 inserted, after the word “authority,” the phrase “upon a plea of guilty by the defendant or a finding of guilt.” This amendment was tabled. Amendment No. 2, which was ultimately passed, set forth the original language of House Bill 3954.

The House debates clearly indicate that the language “a stipulation by the defendant of the facts supporting the charge” was offered in lieu of a “plea of guilty.” There was no discernible intent to eliminate supervision as an option following trial. The relevant portion of the House debates, as-cited by the appellate court, is as follows:

“Getty: ‘Amendment #1 had the language upon a plea of guilty or a finding of guilty.’
Shea: ‘And why are you tabling that Amendment?’
Getty: ‘In favor of the language “upon a stipulation of the defendant of the facts supporting the charge.” “A plea of guilty” would have a problem.’
Shea: ‘Why?’
Getty: ‘Because we’re dealing here with not a...a probationary situation but the entry of an order of supervision.’ ” 79th Ill. Gen. Ass’y, Transcript of House Proceedings, Second Reading of House Bill 3954, June 8, 1976, at 10-11.
“Schlickman: ‘Mr. Speaker, Members of the House, this is an Amendment that is agreed to by the Sponsor in lieu of *** Amendment #1. It’s an Amendment that was worked out through the cooperation of the Assistant State’s Attorney of Cook County. Specifically what it does, Mr. Speaker, is to provide that supervision may be granted in the event of a stipulation by the defendant of the facts supporting the charge, rather than upon a plea of guilty. Specifically or practically what this does, Mr. Speaker, is simply to restore the state of the law as it existed to prior to the Supreme Court Decision of the People versus Green [sic] and I move for its adoption.’
* * *
Fleck: ‘Well, would you explain the Amendment again? Maybe I misunderstood you.’
Schlickman: ‘What the Amendment does is to provide that as a condition for supervision, there must be either a stipulation by the defendant of the fact supporting the charge or a finding of guilt. Amendment #1, instead of having a stipulation, required a plea of guilty.’
* * *
Houlihan: ‘So, the only thing that Amendment #2 does is provide that supervision may be granted...upon the stipulation that the other conditions which are in the Bill are met.’
Schlickman: ‘What Amendment #2 is...is to simply substitute the stipulation of the fact...for a plea of guilty. ’
Speaker Redmond: ‘Representative Maragos.’
Maragos: ‘Pm sorry, Mr. Schlickman, I did not understand the full colloquy between you and Representative Houlihan. What is the purpose of your Amendment? Will you please explain it again?’
Schlickman: ‘The Bill, as it was introduced, provided that the court would have the authority to grant supervision if it had been consented to by the State’s Attorney. Amendment #1 provided that as a condition for supervision there should not only be the consent of the State’s Attorney, but that there be a plea of guilty by the defendant, or in the alternative a finding of guilt by the judge. What Amendment #2 is, simply...What Amendment #2 simply does is to substitute for the plea of guilty, a stipulation of fact by the defendant, so that if there is subsequently a violation of supervision, the judge could enter, automatically, a judgment against the defendant without the defendant having the opportunity of arguing the fact in the trial.’
* * *
Duff: ‘But, you’re still allowing a plea of guilty? Is that correct? I mean, is it an alternative, and not a substitution? Is that...’
Schlickman: ‘It’s an alternative.’
Duff: ‘Oh. And, the other alternative is still there?’
Schlickman: ‘Is the finding of guilt either upon a plea of guilty or upon a trial.’ ” (Emphasis added.) 79th Ill. Gen. Ass’y, Transcript of House Proceedings, Second Reading of House Bill 3954, June 9, 1976, at 50-54.

Senate Bill 1997, subsequently rewritten by a conference committee to resemble the House Bill, read: “The court may, upon a stipulation by the defendant of the facts supporting the charge or a finding of guilt, defer further proceedings ***.” (Emphasis added.) It was adopted as Public Act 79-1334.1976 Ill. Laws 622.

There is no indication that, in rewriting Senate Bill 1997, the committee intended to eliminate the possibility of supervision for defendants found guilty after trial. It seems evident that the rewording was undertaken to effect a compromise between the House and Senate bills concerning the necessity of obtaining the prosecutor’s consent prior to the imposition of supervision. In addition, the House language of “a stipulation by the defendant of the facts supporting the charge” was substituted for the Senate bill phrase “a plea of guilty.” Though worded differently, the phrase indicating that supervision may be imposed after a finding of guilt remained.

In 1977, the statute was amended to add, inter alia, the words “upon a plea of guilty or,” and this is the current version. During the debates concerning this amendment, Representative Schlickman stated:

“*** Senate Bill 228 amends the Act on supervision ***. By Amendments, certain technical changes are made to the Bill, to the Act on supervision, as adjusted [sic] by the presiding Judge of the Second Municipal District of Cook County, Harold Sullivan, contained in a Bar Association article.” (80th Ill. Gen. Ass’y, Transcript of House Proceedings, June 15, 1977, at 170.)

The relevant passage in the article states: “The statute requires either a finding of guilty or a stipulation to the facts so a plea of guilty alone may not be sufficient.” Sullivan, Supervision Comes to All of Illinois, 65 Ill. B.J. 190, 194 (1976).

It may be assumed that the purpose of the amendment was to clarify the fact that supervision is also available pursuant to a guilty plea. As noted by the dissent in People v. McGrenera (1982), 108 Ill. App. 3d 953, 963 (Londrigan, J., dissenting), “[i]t is significant that the legislature chose to add the ‘plea of guilty’ option at Judge Sullivan’s suggestion but did nothing to correct his assumption that supervision is available after a finding of guilt.”

Also noteworthy is that People v. Bodine (1981), 97 Ill. App. 3d 42, upon which the State relies, did not involve a review of the relevant legislative history. In its more recent opinion in People v. McGrenera (1982), 108 Ill. App. 3d 953, however, the same district of the appellate court did undertake such a review. In McGrenera, the court concluded that the legislature intended to allow supervision after trial, but “fell short of what seemed to be its goal.” (108 Ill. App. 3d 953, 960.) It concluded that the statutory language, put to a grammatical test, could not sustain the legislative intent and for that reason reaffirmed Bodine. In conformance with this opinion, the court has today, by supervisory order, reversed People v. McGrenera.

We note parenthetically that the fact that this court issued supervisory orders to trial courts requiring adherence to Bodine does not, as the State implies, indicate our approval thereof. The defendant in Bodine never sought leave to appeal to this court, and that decision therefore became the controlling authority which trial courts were bound to follow. Nor are we persuaded by the fact that, in 1982, a Senate bill was introduced to allow for supervision following trial. The bill was referred to the Senate Rules Committee and never acted upon. It is quite possible that the committee failed to take any action concerning the bill because the members felt that the statute already provided for supervision after trial.

The State further contends that to adopt defendant’s version of the statute would undermine the two policies upon which it is based: to ease overburdened court dockets and to benefit those defendants who manifest rehabilitative potential by admitting the nature of their criminal conduct. Our review of the House and Senate proceedings discloses no evidence that the statute was drafted with the goal of “rewarding” rehabilitative defendants. There was limited discussion during the debates of clearing minor cases from the court dockets. This may have been a factor in the decision to grant defendants supervision where they plead guilty or stipulate to the charge. The debates do not reveal, however, an intent to withhold supervision from defendants who are found guilty after trial.

The State alternatively asserts that if the “finding of guilt” language is construed to mean a finding of guilt after trial, it refers only to a bench trial. (But see Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 1—5.) Therefore, it is argued that defendants who opt for a jury trial cannot receive supervision, and that this distinction violates the equal protection clause of the Constitution. This issue is not properly before us. The State is not aggrieved by the alleged deprivation of equal protection and consequently lacks standing to raise this issue. “One who would attack a statute as unconstitutional must bring himself within the class as to whom the law is unconstitutional.” People v. Bombacino (1972), 51 Ill. 2d 17, 20, cert. denied (1972), 409 U.S. 912, 34 L. Ed. 2d 173, 93 S. Ct. 230.

After a careful review of the relevant transcripts of the legislative proceedings, we conclude that the intent of the supervision statute was to codify the pre-Brem practice. (See also 79th Ill. Gen. Ass’y, Transcript of House Proceedings, June 9, 1976, at 50, 53.) Because, as previously noted, our responsibility “is to ascertain and give effect to the true intent and meaning of the legislature” (emphasis added) (People ex rel. Hanrahan v. White (1972), 52 Ill. 2d 70, 73), we conclude that defendants charged with misdemeanors may receive supervision following trial. In reaching this conclusion, it is unnecessary to consider the argument of amici curiae.

Accordingly, the judgment of the appellate court is affirmed, the judgment of the circuit court of Cook County is vacated, and the cause is remanded to the circuit court to reconsider defendant’s eligibility for supervision.

Appellate court affirmed; circuit court vacated; cause remanded, with directions.


source: Caselaw Access Project

author: JUSTICE MORAN

license: Public Domain

text:
    (No. 56263.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. CHARLES STANLEY JOHNSON, Appellee.

      Opinion filed February 4, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Michael A. Weinstein, Assistant Attorney General, of Chicago, and Michael E. Shabat, Michele A. Grimaldi, and Lester M. Joseph, Assistant State’s Attorneys, of counsel), for the People.
    Jerome Rotenberg, of Chicago, for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, the defendant, Charles Stanley Johnson, was convicted of murder and armed violence, and was sentenced to 20 years’ imprisonment. The appellate court reversed, holding that the trial court erred in denying defendant’s motion to quash his arrest and suppress evidence. (103 Ill. App. 3d 734.) We allowed the State’s petition for leave to appeal.

This appeal requires determination of only one question. Did the police have probable cause to arrest defendant?

The body of the victim, Albert Owens, was found on October 8, 1979, in the vicinity of the 7100 block of South Halsted Street in Chicago. He had been shot several times and died from multiple gunshot wounds inflicted by both a .38- and a .45-caliber revolver.

On Friday, October 12, 1979, at about 2:00-2:30 p.m., an informant told the police that the two individuals who had committed the murder resided at 6812 South Normal in Chicago. The informant gave a detailed description of one of the suspects, whom he indicated was known as “Stan,” and also described the other suspect, whom he could not identify by name. He said Stan was approximately 5 feet 8 inches to 5 feet 10 inches tall, 25 to 30 years old, had a front tooth missing, a beard, and an “afro” hair style. The description of the other subject, while not appearing in this record, was apparently not as detailed as that given for Stan. The informant told police that Stan lived on the second floor of an apartment building and the other suspect lived in the basement apartment. Because the building was very large, the police brought the informant to the building and had him point out which apartments the suspects lived in.

The following morning, at approximately 7:30 a.m., six officers went to the Normal address. They did not have an arrest warrant. Upon arriving at the building, some of the officers were stationed at the front to insure that nobody entered or exited the building. The others went to the basement apartment, wherein one of the suspects allegedly resided, and knocked on the door. Two men answered and admitted the officers, while two other men, one of them being Michael Head, climbed out a basement window and attempted to flee. One of the officers testified that Head was wanted for armed robbery. Head’s physical description was similar to that of the unnamed suspect described by the informant. The other man fleeing with Head did not match “Stan’s” description. Both men were apprehended by the officers who remained at the front of the building. The officers asked the other basement occupants whether they knew an individual named Stan, whom the officers described, and were told that Stan lived on the second floor.

Four officers went to the front door of the second-floor apartment and two others covered the rear exit. One of the officers knocked on the front door. Dorothy Rhines, who lived with defendant, asked who was there. The officer announced, “police officers,” and told her to open the door.

From this point in time, the testimony is in conflict regarding the events which transpired. One officer testified that Rhines started screaming while unlocking the door. She opened it and ran into the hallway. At this point, the officer drew his gun. Rhines stopped, went back into the apartment, grabbed a baby, and ran into the hallway, leaving the door wide open. The officers looked in, saw defendant, who matched Stan’s description, and asked him his name. Defendant replied, “Charles Johnson.” The officer requested to see some identification and recalled that the defendant gave him a piece of identification with the name “Charles Stanley Johnson” on it. The officer then handcuffed defendant and placed him under arrest.

Rhines testified that after she opened the door she saw a police officer standing there pointing a gun at her. There were three other officers in the hallway, one of whom had a rifle. She started screaming and asked why they had guns drawn and if they had a search warrant. One of the officers responded that the only warrant he needed was in his hand, indicating the gun, and all four officers entered the apartment. She did not consent to the police entry. In response to the commotion, defendant, who had been sitting on the couch in the front room, walked toward the front door. Upon seeing the defendant, the officers told him to stand still. They asked him his name and he told them. He was then handcuffed and seated on the front-room couch. Defendant was asked if anyone else was in the apartment, and he said his brother was in a bedroom sleeping. The brother was brought out of the bedroom, handcuffed and seated next to defendant.

One of the officers walked to the back of the apartment, opened the rear door and let in the other two officers. The police then ransacked the apartment. They opened a closet door, searched the closet and recovered an air rifle, a .22-caliber rifle and a .38-caliber revolver. Defendant admitted ownership of the rifles but denied ever having seen the revolver.

Investigator James Higgins testified that after he entered defendant’s apartment, through the rear door, he walked down an inside hall, looked in an open closet, and saw the rifles and the revolver. The closet was about eight to 10 feet from the front door. He did not have a warrant and said he did not remember if the closet had a door. The officers also recovered a leather jacket in the living room of defendant’s apartment. In the jacket pocket they found a .45 clip and ammunition. The clip and bullets were later admitted into evidence; however, the jacket was never inventoried, and defendant testified that the jacket, which he said was several sizes too large for him, was his brother’s.

Shortly after his arrest, defendant was taken to police headquarters and was questioned about the Owens’ shooting. He denied any knowledge of it. One of the officers testified that defendant was left basically alone in an interview room other than for routine questions until about noon time. During this interval, a ballistics examination was conducted which showed that two .38-caliber projectiles, one recovered from the victim’s body and the other from the sidewalk near the scene of the crime, were fired from the .38-caliber revolver found in defendant’s apartment. Investigator Higgins returned from the crime lab at 12 noon and related to defendant the findings of the ballistics examination. Defendant then gave various inculpatory statements.

Defendant testified he was physically and mentally abused at the police station and only admitted to the homicide to prevent further harassment. He denied making any oral admissions; rather, he said he was told the story by the officers.

The trial court found that the police went to the apartment with the intent to make an arrest, had probable cause to do so, and looked in defendant’s closet as a reasonable precautionary measure.

The appellate court, in reversing defendant’s conviction, held that the police did not have probable cause to arrest and that, consequently, the items seized in defendant’s apartment should have been suppressed. Further, the court held that defendant’s oral inculpatory statements should have been suppressed as a product of the illegal arrest.

The standards applicable to a police officer’s probable cause assessment at the time of the challenged arrest and search are at least as stringent as the standards applied to a magistrate’s assessment; less stringent standards would encourage police to avoid obtaining a warrant. (Whiteley v. Warden (1971), 401 U.S. 560, 566, 28 L. Ed. 2d 306, 312, 91 S. Ct. 1031, 1035-36.) The minimum standards under the Federal Constitution for the issuance of a warrant in cases where an informer’s tip is part of the basis for the magistrate’s finding of probable cause have been set out in Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509, and Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584.

Aguilar established a two-part test to determine if a warrant should issue. The affidavit supporting the warrant must inform the magistrate of (1) facts which establish that the informant is credible or his information reliable; and, (2) facts showing the underlying circumstances upon which the informant based his conclusion that the suspect engaged in criminal activity. In the instant case, no question is raised concerning the reliability of the informant. Rather, defendant contends the State failed to show any facts or circumstances establishing the basis of the informant’s conclusion that he committed the homicide.

In Aguilar, a warrant was held insufficient where it was based on an affidavit which merely stated that the police had received reliable information from a credible person that narcotics were being kept on the defendant’s premises. In addition to showing facts establishing the credibility of the informant, the court said that a finding of probable cause must be supported by the underlying circumstances-from which the informant concluded the narcotics were where they were supposed to be, rather than by mere affirmations of belief or suspicion. Aguilar v. Texas (1964), 378 U.S. 108, 114-115, 12 L. Ed. 2d 723, 728-29, 84 S. Ct. 1509, 1514.

The State conceded, during oral argument, that the police did not have probable cause to seek a warrant for defendant’s arrest under Aguilar based on the informant’s tip alone. Instead, it argues that any insufficiency in the tip was remedied by corroborative facts which developed during the police investigation at the apartment building. The State relies on Spinelli, where the court announced that a tip, insufficient under the Aguilar tests but adequately corroborated by police investigation, may be considered as a basis for a finding of probable cause.

In Spinelli, the informer’s tip — held inadequate under both Aguilar tests — indicated that the defendant had been operating a handbook and was accepting wagers and disseminating wager information over the telephone. The “corroborative” information relied upon to validate the inadequate tip was that: (1) the FBI had maintained surveillance of Spinelli’s movements for five days, on four of which he had parked his car in a parking lot used by residents of a particular building and was once seen to enter a specific apartment therein; (2) an FBI check with the telephone company revealed that the apartment contained two phones with the exact numbers indicated in the tip; and (3) Spinelli was known to Federal and local law-enforcement agents as a bookmaker and a gambler.

While the court declared that sufficient detail may validate a tip, it held that this informant’s tip, combined with the corroboration, was insufficient to provide a basis for a finding of probable cause. It said that the corroborative bits of information supplied by the FBI contained “no suggestion of criminal conduct when taken by themselves — and they are not endowed with an aura of suspicion by virtue of the informer’s tip.” (Spinelli v. United States (1969), 393 U.S. 410, 418, 21 L. Ed. 2d 637, 645, 89 S. Ct. 584, 590.) The court further indicated that where the tip does not detail how the information was gathered, it must describe the accused’s criminal activity in sufficient detail to show that the tip is more than “a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” Spinelli v. United States (1969), 393 U.S. 410, 416, 21 L. Ed. 2d 637, 644, 89 S. Ct. 584, 589.

As an example of sufficient corroboration of an informant’s tip, the court in Spinelli tendered the facts in Draper v. United States (1959), 358 U.S. 307, 3 L. Ed. 2d 327, 79 S. Ct. 329. In Draper, a Federal narcotics agent was tipped by a reliable informer that the defendant recently had taken up abode at a stated address in Denver and was selling narcotics to several addicts in that city. Four days later, the informer told the agent that defendant had taken a train to Chicago on September 6 and would be returning by train from that city with three ounces of heroin on September 8 or 9. The informer gave the agent a detailed physical description of the defendant, including the clothing he would be wearing. He also told the agent the defendant would be carrying a “tan zipper bag” and habitually “walked real fast.”

On the morning of September 9, at Denver Union Station, the agent saw a person (the defendant) precisely matching the description given by the informant alight from an incoming Chicago train. He was carrying a tan zipper bag and started to walk briskly toward the exit. The agent immediately arrested and searched him. Two envelopes of heroin and a syringe were found. The court upheld this arrest and the subsequent search, saying that after the agent personally verified all but one facet of the informer’s tip, he had reasonable grounds to believe that the only remaining unverified fact — that the defendant would have the heroin on his person — was likewise true.

In applying these standards to the instant case, we must look at the information the police had and determine if the events which occurred at the apartment building sufficiently corroborated the tip to provide probable cause for defendant’s arrest. The police knew that a murder had occurred at a particular location. Four days later, a reliable informant told them two men had committed the crime, described these individuals and showed the police where they lived. Seventeen hours later, six police officers went to the building where the alleged suspects lived, surrounded it and knocked on one of the suspects’ apartment door. The State concedes, up to this point, that the police did not have probable cause to arrest. The informant’s tip did not contain any facts from which it could be concluded that defendant was responsible for the murder. The tip was a mere affirmation of suspicion inadequate under the Aguilar “basis of knowledge” test.

The State argues that the flight by Head is sufficient corroboration of the informant’s tip to provide, by inference, probable cause for an arrest of defendant. McCray v. Illinois (1967), 386 U.S. 300, 18 L. Ed. 2d 62, 87 S. Ct. 1056; People v. Holdman (1978), 73 Ill. 2d 213, cert. denied (1979), 440 U.S. 938, 59 L. Ed. 2d 496, 99 S. Ct. 1285.

In McCray, a reliable informant told police he had personally seen the defendant sell narcotics to various addicts at a specified location, and that the defendant presently had narcotics on his person and could be found at that location. When the police arrived there, they spotted a man walking with a woman. The informant pointed him out as the offender. The officers observed him separate from the woman, meet briefly with another man and then proceed alone. Upon seeing the police car, defendant hurriedly walked between two buildings. The police arrested him, and a subsequent search revealed heroin. The court said the police had probable cause to arrest and search the defendant on the basis of Draper and Aguilar, because the officers’ testimony revealed both the proved reliability of the informant’s past information and the underlying circumstances corroborating the present tip — police observation of the defendant in the same vicinity as reported by the informant, combined with the defendant’s flight upon seeing police.

In Holdman, two police officers were interviewing a robbery victim. He told the officers he had been robbed by two men who fled in a Buick driven by a third man. During the interview, two other officers, not knowing about the robbery, were on routine patrol in a marked squad car and noticed a Buick Skylark which they believed was associated with a fugitive. They pulled alongside and shined their spotlight into the vehicle. The driver of the Buick accelerated rapidly, a high speed chase ensued, and the Buick crashed into a viaduct. After the collision, the driver and passengers fled on foot. After calling for assistance, the officer chased, apprehended and brought these three men back to the crash site. The two officers interviewing the robbery victim had responded to the call for assistance, pulled up at the scene, and told the robbery victim to remain in the squad car. Instead, the victim walked to the lighted squad car in which the three fleeing suspects were seated and voluntarily identified two of them as the men who had robbed him. This court said the police had probable cause to arrest the passengers who fled from the Buick, because their on-foot flight provided the articulable facts necessary to justify an investigatory stop under Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. In addition, their attempt to elude the police was found to be in violation of the resistance statute prohibiting resisting or obstructing a police officer. See Ill. Rev. Stat. 1973, ch. 38, par. 31 — 1.

The State’s reliance here on McCray and Holdman is misplaced. In both cases, the defendants themselves attempted to flee when confronted by police. In addition, the informant in McCray personally observed the defendant engage in selling narcotics, and his tip was corroborated by police observations of activity consistent with the suspected crime and by the defendant’s flight. Holdman did not involve information from an informant, and its facts are too remote from the case at bar. The other cases cited by the State are simply distinguishable. People v. Clay (1973), 55 Ill. 2d 501 (informant’s tip corroborated by information supplied by other witnesses at the scene of the crime); People v. Dillon (1970), 44 Ill. 2d 482 (tip corroborated by police observations of activity consistent with the alleged crime); People v. Ivory (1967), 38 Ill. 2d 339 (same).

In the instant case, the police, when they knocked on the basement door, only had the conclusional remark of the informant that defendant committed the murder. At that point, they observed Michael Head attempt to flee and arrested him. Since Head was wanted for an armed robbery, his flight when confronted by police may have provided probable cause for his arrest (see Sibron v. New York (1968), 392 U.S. 40, 66-67, 20 L. Ed. 2d 917, 937, 88 S. Ct. 1889, 1904-05), but it does not corroborate the informant’s tip that defendant committed murder. The corroborating information must support the informant’s conclusion that the arrestee and no one else committed the crime. Whiteley v. Warden (1971), 401 U.S. 560, 566-67, 28 L. Ed. 2d 306, 312-13, 91 S. Ct. 1031, 1035-36.

At the time of the arrest, defendant was not engaged in criminal activity and he did not attempt to flee when police confronted him. He was in a second-floor apartment doing nothing unusual. Under these circumstances, the attempted flight by Michael Head, who was wanted for a separate crime, cannot be used to elevate the suspicions of the police to the level of probable cause for defendant’s arrest. The tip was insufficient under both Aguilar and Spinelli, and the police acted without probable cause in arresting defendant. Since the police lacked probable cause to arrest, we need not consider the contention that defendant’s warrantless arrest was improper under Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371.

Defendant was arrested, taken to the police station, and questioned intermittently until he made the oral inculpatory statements. No intervening circumstances between the arrest and the statements were shown which would serve to dissipate the taint of the illegal arrest; his inculpatory oral statements should have been suppressed. Taylor v. Alabama (1982), 457 U.S. 687, 73 L.Ed. 2d 314, 102 S. Ct. 2664; Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248; Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.

For the reasons stated, the judgment of the appellate court is affirmed.

Judgment affirmed.


author: JUSTICE GOLDENHERSH

text:
    (No. 56024.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. TERRY A. REYNOLDS et al., Appellees.

      Opinion filed February 4, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield, and J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Michael B. Weinstein and Michael V. Accettura, Assistant Attorneys General, of Springfield, and Barbara A. Preiner, Assistant State’s Attorney, and Sharon S. Broccoli, law clerk, of counsel), for the People.
    Robert K. Kilander, of Laraia & Kilander, Ltd., of Wheaton, and Stephen J. Culliton, of Civinelli, Bakalis & Culliton, of Bloomingdale, for appellees.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendants, Terry A. Reynolds and Kevin Wright, were arrested and charged with theft (Ill. Rev. Stat. 1977, ch. 38, par. 16 — 1(a)(1)), burglary (Ill. Rev. Stat. 1977, ch. 38, par. 19 — 1(a)), and possession of burglary tools (Ill. Rev. Stat. 1977, ch. 38, par. 19 — 2(a)). The circuit court of Du Page County allowed defendants’ motion to quash the arrest and suppress the evidence seized at the time of the arrest. The appellate court affirmed (101 Ill. App. 3d 576), and we allowed the People’s petition for leave to appeal (73 Ill. 2d R. 315).

The facts are adequately stated in the appellate court opinion and will be reviewed here only to the extent necessary to discuss the issues presented. At the hearing on the motion to suppress, defendants called Michael W. Glugla, formerly a police officer for the Hanover Park police department. Glugla testified that on November 25, 1979, while employed and on duty as a police officer for the Hanover Park police department, he observed a station wagon pulling a trailer with inoperative taillights. Glugla activated the red lights on top of his marked police cruiser and stopped the vehicle. As Glugla approached the station wagon from the rear he observed several cartons in the trailer with the word “Magnavox” printed on them. The open trailer was covered with a tarpaulin, but the tarpaulin was not tied down at the back of the trailer. The wind was blowing the tarpaulin in such a manner that Glugla was able to see the boxes as he walked past the trailer. Glugla stated that in the light cast by the spotlight on his squad car and his flashlight he was able to see what was written on the boxes. Glugla approached the driver, defendant Reynolds, and advised him that there was something wrong with the taillights on the trailer. Glugla asked the occupants of the car, defendants Wright and Reynolds, and a third person, Mr. Norman, where they had acquired the equipment in the trailer and their responses differed. No one could produce a bill of lading for the merchandise. The occupants were unable to identify their destination. After Glugla obtained identification from the three occupants of the vehicle, he stepped to the rear of the trailer, out of hearing range of the parties, and through his shoulder-mounted radio ran a check on the occupants, the station wagon, and the trailer. At this time Glugla was again able to view the contents of the trailer. Glugla was advised that there were no warrants on the occupants, that the station wagon was registered to Mr. Norman, and that the trailer was registered to Peckins T.V. store, located in Roselle. Glugla asked his dispatcher to call the Roselle police department to check on the security of the Peckins T.V. store. Glugla was advised that the Roselle police “had gone by the building and felt it was secure.” Glugla then asked defendants to follow him to the police station. He did not tell defendants they were under arrest. Glugla stated that had defendants refused his request to accompany him to the police station, he would not have permitted them to leave because of their inoperative taillights. Defendants followed Glugla to the police station while another police vehicle followed directly behind them. Fifteen to twenty minutes after their arrival at the police station Mr. Peckins arrived and stated that the trailer and its contents belonged to his store and that defendants did not have permission to possess them. Peckins consented to a search of the trailer, which produced several television sets and burglary tools. Glugla testified that although no citation was issued at the scene of the stop a traffic citation did eventually issue on the taillight violation. Glugla admitted that at the preliminary hearing he had made no mention of the inoperative taillights and stated that he did not use a flashlight to view the contents of the trailer. Glugla also admitted that when asked at the preliminary hearing whether he had related all of the conversation that occurred between himself and the defendants he had responded in the affirmative.

After hearing and arguments on the motion to suppress, the circuit court found that the arrest and detention of defendants occurred when Glugla directed defendants to accompany him to the police station and that the arrest was performed without reasonable grounds to believe defendants were committing or had committed an offense. The court ordered that all evidence obtained as a result of the arrest be suppressed. The appellate court affirmed.

The People contend that defendant’s compliance with Glugla’s request that they follow him to the police station was voluntary and did not constitute an arrest. They argue that in escorting defendants to the police station Glugla was acting as a safety officer; that he was confronted with a station wagon towing a trailer without taillights, on a busy highway late at night under hazardous weather conditions, and that the only reasonable course of action open to him was to escort defendants to the police station. The People note that Glugla was unable to escort defendants to their destination because defendants were unsure of where they were going and contend that leaving the car and trailer on the side of the road would have created a risk of harm to the articles in the trailer. The People state, too, that the police car which followed defendants from the scene of the stop to the police station served to protect defendants from the danger resulting from their lack of taillights.

In determining whether an arrest took place the question is not simply whether the officer’s conduct was reasonable under the circumstances, but whether a reasonable, innocent person in the defendant’s situation would have considered himself arrested or free to go. (See People v. Townes (1982), 91 Ill. 2d 32; People v. Wipfler (1977), 68 Ill. 2d 158.) A reviewing court will not disturb the circuit court’s finding on a motion to suppress unless that finding is determined to be manifestly erroneous. (People v. Holloway (1981), 86 Ill. 2d 78; People v. Clay (1973), 55 Ill. 2d 501, 505.) Defendants did not testify at the hearing on the motion to suppress. Glugla’s testimony shows that defendants would not have been free to go had they refused Glugla’s request. On this record, we cannot say that the circuit court’s determination that an arrest took place was manifestly erroneous.

Nor can we say that the court’s finding that the arrest was made without probable cause was manifestly erroneous. As this court stated in People v. Lippert (1982), 89 Ill. 2d 171:

“Probable cause for arrest exists when facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense. [Citations.] Although a ‘mere suspicion’ that the person arrested has committed the offense is an insufficient basis for arrest [citations], evidence sufficient to convict is not required [citations].” 89 Ill. 2d 171, 178-79.

The People contend that the information properly obtained as a result of Glugla’s brief, investigatory questioning was sufficient to provide a reasonable person with an articulable suspicion that defendants had committed a criminal offense and that the information relayed concerning the Roselle police department’s check of the Peckins T.V. store did not negate that articulable suspicion. As indicated in Lippert, the probable-cause test is a compromise for accommodating the “often opposing interests” of privacy and law enforcement, and there is good reason for striking the compromise somewhat on the side of privacy where it is uncertain whether any crime has occurred. (People v. Lippert (1982), 89 Ill. 2d 171, 179-80.) Regardless of Glugla’s suspicion under the circumstances confronting him that criminal activity was afoot, the record shows no known criminal activity at the time of the arrest. As the circuit court noted, Glugla had recorded the information concerning the occupants of the station wagon and their vehicle and this information would be valuable if it was later determined that an offense had been committed. Under the circumstances present here, the detention of defendants until the commission of the crime could be verified cannot be sanctioned.

For the reasons stated, the judgment of the appellate court is affirmed.

Judgment affirmed.


author: JUSTICE GOLDENHERSH JUSTICE SIMON,

text:
    (No. 56104.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MARA SIEGEL, Appellee.

      Opinion filed February 4, 1983.

    SIMON, J., dissenting.
    Tyrone C. Fahner, Attorney General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for appellant.
    Michael E. Deutsch, Shelly A. Bannister, and Brian Glick, of Chicago, for appellee.
    Frederick F. Cohn, of Chicago, amicus curiae.

   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Respondent, Mara Siegel, a licensed attorney, was summarily found in direct criminal contempt by the circuit court of Cook County, fined $1,000, and ordered incarcerated until the fine was paid. The appellate court reversed the judgment (102 Ill. App. 3d 529), and we allowed the People’s petition for leave to appeal. 73 Ill. 2d R. 315.

The facts are adequately stated in the appellate court opinion and will be reviewed here only to the extent necessary to discuss the issues. On April 28, 1980, Marie Rodriguez, charged with various criminal offenses, appeared before the circuit court. Ms. Rodriguez contended that she was a soldier and combatant fighting for Puerto Rican freedom. She contended further that she was a prisoner of war and that the circuit court had no jurisdiction over her. She waived her right to counsel for the purposes of the circuit court proceedings but asserted her “right as a prisoner of war to request legal advisers.” Due to her continued disruptive conduct the circuit court ordered that she be gagged. On April 29, 1980, the court ordered that Rodriguez be returned to the courtroom so that she could be properly advised of her right to counsel under Supreme Court Rule 401 (73 Ill. 2d R. 401). Rodriguez, bound and gagged, was brought into the courtroom by three deputy sheriffs. Respondent, who was seated in the spectators’ section of the courtroom, approached the bench. After identifying herself by name and as legal adviser for Rodriguez, she objected to the court’s jurisdiction over Rodriguez on the ground that she was a prisoner of war. The court asked if respondent had filed an appearance. She answered that she had not done so and objected to the binding and gagging of Rodriguez. She demanded that Rodriguez be treated as a prisoner of war and stated, “This is outrageous display of the United States’ cruel and inhumane treatment ***.” The court then stated:

“Let the record show I stated to you [Siegel] when you came into my chambers, you will not be allowed to stay in this courtroom unless you file an appearance the way an appearance should be filed ***.”

The court then cited respondent for contempt, fined her $1,000, and ordered that she be held in custody until the fine was paid.

The circuit court prepared a written order finding respondent in direct contempt of court. In the order, dated April 29, 1980, and stamped filed May 2, 1980, the circuit court stated that, prior to the case against Rodriguez being called, respondent appeared in his chambers and introduced herself as an attorney. The court informed her that to have standing before the court in the case against Rodriguez a formal appearance must be filed and that if she did not file an appearance she would not be allowed to address the court in open session. The order stated that respondent indicated her understanding of these requirements. The order further stated that respondent did not file an appearance as the attorney of record for Rodriguez and that when Rodriguez was brought before the bar, respondent approached the bench without authorization and addressed the court in a loud and abusive manner. The order then cited respondent’s accusation that the court had engaged in “an outrageous display of the United States’ cruel and inhumane treatment.” The order noted that when the court asked respondent during the proceedings whether she had filed an appearance she informed the court that she had not. The order stated that “both the language and physical conduct of Mara Siegel threatened a breach of the peace and caused the orderly operations of this court to be disrupted.” The order provided that because of the above-described conduct respondent was found to be in direct contempt of court and sentenced to pay a fine in the amount of $1,000. The order remanded respondent to the custody of the Cook County Department of Corrections until the fine was paid.

The People contend that respondent was properly held in contempt because she deliberately disobeyed a valid court order, interrupted the circuit court proceedings while under the duty, as a spectator, to remain silent, and attempted to represent a defendant who had waived counsel. The People also assert that in addition to defying a court order respondent violated a standing rule of the circuit court of Cook County which requires an attorney to file an appearance before representing a client in court. See Cook County Circuit Court Rule 1.4(a).

Respondent argues that the only logical inference that can be drawn from the circumstances shown is that she had no intent to commit contempt but rather that she made a good-faith effort to accommodate the legitimate needs of her client and the circuit court. Respondent states that because Rodriguez wished to avoid any action which might be construed to be recognition of the jurisdiction of the circuit court, she considered herself under explicit instructions from her client not to file an appearance. She denies that the court gave her any order in chambers concerning the filing of an appearance and maintains that she would not have spoken had she understood that she was under court order to be silent. She contends that when she saw her client being brought into the courtroom bound and gagged she behaved in a manner calculated to serve her client without obstructing court proceedings or contravening the terms of any order of which she was aware. Respondent does not contend that she was entitled to disobey a clear order of the court.

To sustain a finding of direct criminal contempt of court, it must be shown that particular conduct was calculated to embarrass, hinder or obstruct a court in its administration of justice, to derogate from its authority or dignity or bring the administration of law into disrepute. (People v. Miller (1972), 51 Ill. 2d 76, 78; In re Estate of Melody (1969), 42 Ill. 2d 451, 452.) The intent to commit contempt of court may be inferred from the contemnor’s actions (People ex rel. Kunce v. Hogan (1977), 67 Ill. 2d 55, 61), although a finding of contempt will not stand where it is shown that the attorney acted in good faith to serve her client and the court (People v. Miller (1972), 51 Ill. 2d 76, 79; People v. Kuelper (1977), 46 Ill. App. 3d 420, 423). The People contend that good faith is not a defense to a charge of refusing to obey a court order and argue that this case is distinguishable from those holding that an attorney should not be held in contempt for a few overzealous remarks made in good faith to represent a client. The distinction, they argue, is that respondent’s conduct was contemptuous, not because of what she said, but because she addressed the court at all.

The record shows that Rodriguez’ prior disruptive conduct presented the possibility of disorder in the court. Clearly respondent was aware of this volatile and difficult situation. Assuming that she considered it appropriate to object to the jurisdiction of the court and to present her contention that Rodriguez was a prisoner of war, she could have done so by a limited appearance, followed by a written motion. The fact that she chose instead to make her demands in the midst of an already unstable, difficult, and conceivably dangerous setting gives rise to a reasonable inference that her conduct was calculated to embarrass, hinder or obstruct the court in its administration of justice. We are of the opinion that the circuit court’s finding that respondent engaged in acts that were contumacious is supported by the record.

For the reasons stated, the judgment of the appellate court is reversed and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.

JUSTICE SIMON,

dissenting:

I thought it was settled that there is no direct contempt of court unless the defendant either disobeys an explicit and proper order of the court or engages in court in conduct calculated to embarrass, hinder or obstruct the court in its administration of justice, derogate from its authority or dignity, or bring the administration of law into disrepute. (12 Ill. L. & Prac. Contempt sec. 3 (1955); see, e.g., In re Estate of Melody (1969), 42 Ill. 2d 451, 452.) I see nothing in the record to indicate that there was an explicit order by the court commanding respondent not to address it until she had filed an appearance, and I do not understand the basis for the majority’s conclusion that her behavior was calculated to embarrass the court or interfere with the proceedings.

The record indicates that Ms. Siegel spoke with the circuit court judge in his chambers after she learned that the judge had ordered the family of Ms. Rodriguez excluded from his courtroom. However, there was no transcript recording that conversation. The only indications in the record in this regard are the judge’s own assertions, one made the next day (April 29, 1980) when the judge addressed the respondent orally in open court and the other incorporated in a written order dated April 29, 1980, but not filed until May 2,1980, finding Ms. Siegel in contempt.

As the courts of this State have consistently recognized, the power to punish for contempt is an extraordinary power (e.g., People v. Miller (1972), 51 Ill. 2d 76, 78; People ex rel. Andrews v. Hassakis (1955), 6 Ill. 2d 463, 466; People v. Loughran (1954), 2 Ill. 2d 258, 263; People v. Kuelper (1977), 46 Ill. App. 3d 420, 422). When direct criminal contempt allegations are founded on an act which occurs in court, as here, the contempt proceeding is generally a summary one, without notice, formal charges, pleas, jury, evidentiary record or significant opportunity for explanation or rebuttal such as would be required by the Federal Constitution in the context of any other criminal proceeding. (People v. Tomashevsky (1971), 48 Ill. 2d 559, 563-64; People ex rel. Andrews v. Hassakis (1955), 6 Ill. 2d 463, 466-67; People v. Loughran (1954), 2 Ill. 2d 258, 263.) This procedure is permissible in this rare instance because it is frequently the only way to effectively punish contumacious acts and maintain order in the courtroom while judicial proceedings are being conducted. (People v. Loughran (1954), 2 Ill. 2d 258, 263.) With this power must come restraint in its exercise. As we noted in People v. Loughran, “[i]t is readily susceptible of abuse and fraught with danger not only to personal liberties but to the respect and confidence which our courts must maintain. *** [I]t should be exercised with utmost caution and strictly restricted to acts and facts seen and known by the court, and no matter resting on opinions, conclusions, presumptions or inferences should be considered.” 2 Ill. 2d 258, 263.

A citation for direct contempt based solely on a judge’s recollections of what he said to the contemnor in chambers, a full day after that conversation occurred and not supported by any contemporaneous memorandum or any record, does not satisfy the standard announced in Loughran. It is noted that in the appellate court as well as in this court Ms. Siegel denied that the circuit court judge gave her any order in chambers concerning the filing of an appearance and maintained she would not have spoken had she understood she was under any court order to refrain from doing so.

To uphold a citation under circumstances such as these would risk compromising public confidence in the judiciary in too many ways, even if no intentional abuse ever occurs. The potential for arbitrary or vindictive action by a judge is inherent whenever his decisions are unreviewable, as they are for all practical purposes when all a reviewing court has to go on is the judge’s own version of what went on in his chambers. In addition, the possibility of honest mistake is present wherever memory must be relied on, and is a hazard to be concerned about in a case such as this where the alleged contemnor is not allowed to cross-examine the judge or present her own witnesses in support of her view that there was no order for her to disobey. The latter danger is illustrated here by the fact that the judge stated to Ms. Siegel in court on the day after their meeting in his chambers that “I stated to you when you came into my chambers, you will not be allowed to stay in this courtroom unless you file an appearance the way an appearance should be filed” (emphasis added), while in his written order dated that day, but not filed until three days later, the judge based the contempt citation on a statement he claimed to have made in chambers that she would not be allowed to address the court until she had filed her appearance. Based on the judge’s own recollection it is unclear precisely what act was prohibited by his “order” in chambers, that of remaining in the courtroom or the distinct act of addressing the court. From our perspective, this should raise substantial doubts as to whether there was any order at all that Ms. Siegel could have disobeyed, or any admonition of a type that, if disobeyed, would justify punishment for contempt.

I also cannot agree with the majority that Ms. Siegel’s contempt citation can be upheld on the theory that her actions in court were inherently contumacious or were calculated to embarrass the court. There is nothing inherently disrespectful or disruptive about failing to fill out an appearance form, or even about approaching the bench from the spectator’s section and addressing the court without having one on file. I have been unable to find any case holding it to be so, in spite of the circuit court rule requiring an appearance to be filed. In this case Ms. Siegel addressed the court at an unfortunate time, only moments after a previously loud and abusive defendant had been escorted into the courtroom bound and gagged and just as the judge was about to resume a disrupted trial. However, she had been requested by her client not to file an appearance but to be in the courtroom to advise her anyway as the trial progressed. Under these circumstances it was not unreasonable, in my judgment, for Ms. Siegel to object to her client being led into the courtroom bound and gagged, a situation which itself is normally an affront to the dignity of judicial proceedings (Illinois v. Allen (1970), 397 U.S. 337, 344, 25 L. Ed. 2d 353, 359, 90 S. Ct. 1057, 1061) and was certain to cast her client in an unfavorable light. She objected briefly, and she did so as soon as her client was brought into the courtroom and her case was called, rather than waiting for the proceedings to begin and then interrupting them.

The majority opinion acknowledges that a finding of contempt is inappropriate where an attorney acts in good faith and the attorney’s conduct is designed to serve the client and the court. The cases establishing that courts have the inherent power to enforce their orders by contempt citations do not go as far as to hold that any disobedience to a court rule is inherently contemptuous. My view of the record is that Ms. Siegel’s conduct was a good-faith attempt to represent her client and to serve both her client and the law by objecting to a defendant being brought into a courtroom bound and gagged, an objection which would always be a proper one for the record. I find nothing in this record which convinces me that Ms. Siegel intended to obstruct court proceedings even though she may have been overzealous in presenting her objection. I believe her citation for criminal contempt was an abuse of discretion and would affirm the judgment of the appellate court.


author: JUSTICE UNDERWOOD JUSTICE SIMON,

text:
    (No. 56355.
    RUTHIE L. BALCIUNAS, Plaintiff, v. BRIAN B. DUFF, Judge, et al., Defendants.

      Opinion filed February 18, 1983.

      SIMON, J., concurring.
    O’Brien, Carey, Scheuneman & O’Rourke, Ltd., of Chicago (John J. O’Toole, Tom Scheuneman, Peter Petrakis, and Milton M. Blumenthal & Associates, of counsel), for plaintiff.
    Jane Clark Casey, Deputy State’s Attorney, of Chicago, for defendant Brian B. Duff.
    Hugh C. Griffin, William J. White, and R. R. McMahan, of Chicago (Lord, Bissell & Brook, of Chicago, and Otis M. Smith, of Detroit, Michigan, of counsel), for defendant General Motors Corporation.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

This is an original action, in which we allowed Ruthie L. Balciunas (plaintiff) leave to file a complaint for the issuance of a writ of mandamus (87 Ill. 2d R. 381). That complaint seeks to compel Brian B. Duff, a judge of the circuit court of Cook County, to expunge certain pretrial discovery orders entered in the case of Balciunas v. General Motors Corporation (GMC) et al. Plaintiff also seeks to have the matter reassigned to Walter B. Bieschke, also a judge of the circuit court of Cook County, for further hearings.

In the underlying litigation, plaintiff brought an action to recover damages for severe injuries that she sustained in 1978, while she was driving a 1971 Pontiac Firebird involved in a side-impact collision. During the course of discovery, plaintiff filed a notice to produce certain documents, photographs and motion pictures. GMC filed objections thereto, and a hearing was held in February 1981 before Judge Bieschke, one of the two judges then presiding in the motion section, law division, of the circuit court of Cook County. Following the hearing, at which there was apparently some discussion concerning a protective order, Judge Bieschke entered an order which, in relevant part, provided:

“7. Paragraph 7 of Plaintiff’s Notice to Produce is hereby modified to read as follows, and defendant, GENERAL MOTORS shall produce: the complete crash test report (also known as the engineering report) including all photographs and motion pictures for all side impact crash tests from 1960 through April 2, 1978, inclusive for all GENERAL MOTORS CORPORATION Divisions, domestic and foreign, for all passenger automobiles only, including the:
a) Chevrolet, all models;
b) Pontiac, all models;
c) Buick, all models;
d) Cadillac, all models;
e) Oldsmobile, all models;
f) Opel of Germany, all models;
g) Vauxhall of England, all models;

for all versions, including:

a) Prototypes;
b) Developmental version;
c) Experimental version;
d) Production version;
e) Modified version;
f) Special - component version.
* * *
11. Paragraph 11 of Plaintiff’s Notice to Produce is hereby modified to read as follows, and defendant, GENERAL MOTORS, shall produce: any and all materials submitted by GENERAL MOTORS to the National Highway Traffic Safety Administration (NHTSA) and its predecessor National Highway Safety Bureau (NHSB) concerning Federal Motor Vehicle Safety Standard No. 214 (side door strength passenger cars) and all docket submissions relevant thereto, which are not a part of the record available to the public for inspection.
* * *
15. Defendant, GENERAL MOTORS’ request for a ‘protective order’ is hereby denied, without prejudice to GENERAL MOTORS resubmitting its request for a protective order and showing that it is legally entitled thereto.”

In May 1981, GMC filed a written motion for a protective order with accompanying affidavits of two employees, a staff analysis engineer and an engineering manager. GMC asserted that the materials requested in paragraphs 7 and 11 of petitioner’s notice to produce contained trade secrets and proprietary information and sought to limit the persons to whom plaintiff could disclose those materials. GMC also requested that the original crash-test films be viewed at GMC’s offices in Milford, Michigan. Pursuant to that motion, the parties appeared before Judge Bieschke on July 1, 1981, at which time the court heard arguments concerning the merits of the motion for a protective order, its proposed scope and the manner in which production should proceed. At the conclusion of the hearing, Judge Bieschke directed both parties to submit proposed protective orders embodying the suggestions and recommendations of the court concerning its scope.

Three further hearings were held before Judge Bieschke on August 11, September 18 and October 13. At the October 13 hearing, the court ruled that, while it was initially inclined to grant some protection against unlimited disclosure of the materials, after reviewing the proposed drafts submitted and the applicable law, GMC had not met its burden of proving that it was entitled to trade-secret protection. The court indicated that the motion would be denied without prejudice to GMC to demonstrate at a later time that it was entitled to a protective order.

Throughout the various hearings, the parties argued extensively about the breadth of the production request relating to the crash tests and the manner in which the disputed materials would be made available to plaintiff. There were between 500 and 600 side-impact crash tests performed by GMC over the period in question, consisting of approximately 15,000 documents, including diagrams and photographs, and over 500 films. The major dispute concerned production of the films. GMC represented that the original films could not be produced at plaintiff’s counsel's office in Chicago for viewing on projection equipment, rather than GMC’s special equipment located at its offices, without considerable risk of loss or damage. In addition, GMC asserted that removal of the original films from Michigan would seriously disrupt and interfere with ongoing research, development and other activities, and that the cost of reproducing the films would be in excess of $50,000. Plaintiff’s expert witness had indicated that most of the reports would not be relevant to his opinion; however, he believed it necessary to see all of them before he could identify those that were relevant. GMC had suggested, at various times, that it would minimize the burden and expense of reproducing all of the materials, without prejudicing plaintiff, if plaintiff’s expert would initially review an index list to determine which test materials would be relevant. Judge Bieschke eventually entered an order requiring GMC to produce, at the office of plaintiff’s counsel in Chicago, all of the original reports and films requested or, at its option, to provide complete authenticated reproductions, at its expense. All copies of the films were to remain the property of GMC, with plaintiff reserving the right to designate which films she would want to purchase, at her expense.

On December 1, 1981, GMC filed a petition for reconsideration of the court’s rulings. To supplement its original showing, GMC attached a rather lengthy affidavit of another staff analysis engineer which purported to explain in detail the nature of the requested information and the necessity for a protective order. GMC also sought a modification of the court’s rulings on production of the materials requested in paragraph 7 of plaintiff’s notice to produce, in view of the cost of reproduction of these materials which allegedly would have no relevancy to the pending action nor lead to the discovery of relevant information. It was also asserted that the request included approximately 221 fuel-system-integrity crash tests in which no passenger-compartment-intrusion observations were made or recorded, and which were thus of no relevance whatever to the litigation. GMC’s motion for reconsideration was allowed .by Judge Bieschke, and a hearing was scheduled before him for March 1, 1982.

On January 4, 1982, under the regular Cook County assignment system, Judge Duff succeeded Judge Bieschke as one of the two motion judges; Judge Bieschke was transferred to the trial section. The rules of the Cook County circuit court contemplate that, in these circumstances, the motion to reconsider would normally be heard by the successor motion judge. (See General Order No. 13, Circuit Court of Cook County.) Plaintiff, however, thereafter filed a motion to transfer GMC’s petition for reconsideration to the presiding judge for reassignment to Judge Bieschke. After conferring with Judge Bieschke, who indicated that Judge Duff should hear the matter, Judge Duff denied plaintiff’s motion, and the hearing was held on March 1.

At the conclusion of the March 1 hearing, Judge Duff entered an order requiring GMC to produce, at plaintiff’s attorney's office, copies of those side-impact-test reports relating to passenger-compartment intrusion, copies of representative samples of those reports relating to fuel-system integrity, and copies of the materials submitted to the National Highway Traffic Safety Administration. It was further ordered that the original films relating to passenger-compartment intrusion be made available to plaintiff’s attorney and expert at GMC’s offices in Michigan. Following such review, plaintiff could request copies of the films, the first 50 to be made at GMC’s expense. Judge Duff determined that the decision on the merits of the motion for a protective order should be reserved until the parties had completed production and a determination was made by plaintiff’s counsel as to which materials would be relevant to the litigation. In order to preserve the confidentiality of the materials until production was completed and a decision was rendered, the court issued a temporary protective order restricting and limiting disclosure in the manner requested by GMC.

There is no jurisdictional challenge to Judge Duff’s actions. Nor is it argued that Judge Duff, as one of the assigned motion judges, lacked the authority to consider GMC’s petition for reconsideration. Rather, plaintiff argues that Judge Duff reviewed and reversed orders entered by another judge of coordinate authority, and that such action is neither consistent with the orderly administration of justice nor with our judicial system. Among the cases cited by plaintiff for the above proposition, none are apposite. Primary reliance is placed upon three opinions in which this court issued either a writ of mandamus or a supervisory order: People ex rel. MacMillian v. Napoli (1966), 35 Ill. 2d 80; People ex rel. Kelly, Ketting, Furth, Inc. v. Epstein (1974), 61 Ill. 2d 229; People ex rel. Carey v. Covelli (1975), 61 Ill. 2d 394.

In Napoli, the petitioner sought a writ of mandamus to compel Judge Napoli of the circuit court of Cook County, the judge before whom petitioner’s case was pending, to treat as binding on him an order of another judge who had granted petitioner’s pretrial motion to suppress evidence. This court, in issuing the writ, pointed out that the plain language of the statute provided that evidence which had been suppressed pursuant to such a motion was inadmissible in evidence at any trial, and the State’s remedy, if it deemed that ruling erroneous, was to appeal as provided by statute.

In Epstein, the petitioner, a plaintiff in a pending action, had obtained orders restraining the payment or transfer of certain funds; a motion for a temporary injunction was scheduled to be heard before the same judge shortly thereafter. The defendants in the underlying action presented an emergency motion to another judge of that court seeking to vacate the order entered and enjoin plaintiff from proceeding with the motions for injunctive relief. That motion was allowed on the ground that the original judge had erroneously exercised chancery jurisdiction and entered “defective” orders. As in Napoli, this court commented that it was entirely clear that defendants’ remedy, if they believed themselves aggrieved by the original orders, was to appeal, and the second judge should have declined to act. It was in that judge-shopping context that this court disapproved of one judge reviewing orders entered by another judge of the same court in the same case. See also People ex rel. Phillips Petroleum Co. v. Gitchoff (1976), 65 Ill. 2d 249; People ex rel. East Side Levee & Sanitary District v. Madison County Levee & Sanitary District (1973), 54 Ill. 2d 442.

Finally, in Covelli, a search warrant has been issued by a judge of the circuit court of Cook County authorizing, for investigative purposes, the search and seizure of certain materials located in the home of an individual who had been shot to death. The deceased’s daughters thereafter filed a “Complaint in Chancery,” and pursuant thereto another judge of the same court ultimately issued an order directing that the property be returned to the plaintiffs. This court held that the remedy of the daughters under the statute governing the return of items seized pursuant to a search warrant was adequate to protect their rights, and it was therefore error for the second judge to interfere with the statutory remedy.

None of the cases cited above involved interlocutory discovery rulings entered by a motion judge who, in the ordinary course of judicial reassignment, succeeded a previously assigned judge. There is in this case nothing resembling the action of the disappointed litigants in the cited cases who sought out judges more sympathetic to their claims. There is no similar question here concerning the propriety of GMC’s actions in filing a petition for reconsideration of the previous rulings. That action was invited by Judge Bieschke, at least insofar as the protective order was concerned, and, indeed, he had allowed the petition for reconsideration and set the March 1 hearing prior to the reassignments. Thus, there is no “judge shopping” involved here, nor is it contended otherwise. While we agree that repeated reevaluations of prior discovery orders are undesirable, we do not believe GMC’s action here in seeking a reconsideration of one discovery ruling on production of materials, when there were apparently several production orders which were not disputed, evidences any bad faith or abusive tactics. Further, unlike most of the cases plaintiff relies upon, GMC pursued a proper remedy in petitioning for reconsideration of those prior interlocutory rulings which were not appealable.

In a variety of contexts, this court has stated that an interlocutory order may be reviewed, modified or vacated at any time before final judgment, and it is of no consequence that the original order was entered by another circuit judge. (E.g., Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 121; Leopold v. Levin (1970), 45 Ill. 2d 434, 446; Roach v. Village of Winnetka (1937), 366 Ill. 578, 581; Shaw v. Dorris (1919), 290 Ill. 196, 204; Fort Dearborn Lodge No. 214 v. Klein (1885), 115 Ill. 177, 181; cf. Barliant v. Follett Corp. (1978), 74 Ill. 2d 226, 231.) While those cases did not involve pretrial discovery rulings, we think that this court’s decision in Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, is virtually dispositive.

In that case, one of the defendants had moved for judgment, claiming that a previous judgment dismissing plaintiff’s suit against Yellow Cab Company was res judicata. That motion was denied by the motion judge, and the action was assigned to another judge for a pretrial conference. Defendant renewed his motion before the second judge, who, agreeing with defendant’s contention, dismissed plaintiff’s action against that defendant. On appeal, this court considered the propriety of the second judge’s action. First, the court noted that the original order denying the motion was in the nature of an interlocutory order, and that the circuit court has inherent power to amend and revise such an order prior to final judgment. The court further stated:

“In the instant case, the trial court had jurisdiction over the entire controversy, and would retain jurisdiction until final judgment. While prior rulings should be vacated or amended only after careful consideration, especially if there is evidence of ‘judge shopping’ on behalf of one who has obtained an adverse ruling, a court is not bound by an order of a previous judge (Richichi v. City of Chicago (1964), 49 Ill. App. 2d 320) and has the power to correct orders which it considers to be erroneous. Here, the cause was assigned to the second judge as a matter of procedure. The defendant could properly renew his motion, even though it had been denied by another judge, and the pretrial judge, in turn, could review and modify the first judge’s interlocutory order.” (Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 121.)

It is thus apparent that Judge Bieschke’s orders were not binding upon Judge Duff, and that he was not completely precluded from their reconsideration.

Plaintiff suggests, however, that in the limited circumstances presented here, it would have been neither impractical nor inappropriate for Judge Bieschke to rule on the motion for reconsideration, and that this court should issue mandamus to compel Judge Duff to expunge his- orders and to require reassignment of the petition to Judge Bieschke. It is submitted that a ruling by this court requiring that a motion for reconsideration of discovery orders be heard by the judge who entered those orders need not disturb the rotational-assignment system of the circuit court and would affect only an infinitesimal number of cases. GMC, on the other hand, predicts that such a requirement would have disastrous consequences on the efficient administration of justice, given the volume of cases, pretrial movements, and number of judges in the circuit court of Cook County. It seems to us, however, that the problems would not be confined to Cook County but would be at least equally troublesome for the bench and bar in the widely separated downstate counties. It seems clear that it is far preferable to place some limitations on the circumstances under which a successor judge should review or modify previous discovery orders than to impose a requirement such as that suggested by plaintiff, which, we believe, would be totally inconsistent with the orderly and efficient administration of justice in this State. See People ex rel. Brownrigg v. Brentano (1913), 259 Ill. 359.

As we have noted, in previous cases this court has indicated that prior interlocutory rulings should be modified or vacated by a successor judge only after careful consideration. (Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 121; Leopold v. Levin (1970), 45 Ill. 2d 434, 446.) In the context of discovery, where abuse is said to be widespread and delay phenomenal (Herbert v. Lando (1979), 441 U.S. 153, 176-77, 179, 202, 204-05, 60 L. Ed. 2d 115, 134, 135-36, 150, 151-52, 99 S. Ct. 1635, 1649, 1650, 1662, 1663 (majority opinion) (Powell, J., concurring) (Stewart, J., dissenting) (Marshall, J., dissenting); see also Buehler v. Whalen (1977), 70 Ill. 2d 51, 67-68; Burger, Agenda for 2000 A.D. — A Need for Systematic Anticipation, 70 F.R.D. 83, 95-96 (1976); Renfrew, Discovery Sanctions: A Judicial Perspective, 67 Calif. L. Rev. 264 (1979); Comment, Excessive Discovery in Federal and Illinois Courts: A Tool of Harassment and Delay?, 11 Loy. Chi. L.J. 807 (1980)), we think it is particularly appropriate for a judge before whom a motion for reconsideration is pending to exercise considerable restraint in reversing or modifying previous rulings. This is especially true if there is evidence of “judge shopping” or it is apparent that a party is seeking, for delay or abusive purposes, a reconsideration of prior rulings.

“ ‘[T]he objective to be obtained under the discovery rules is the expeditious and final determination of controversies in accordance with the substantive rights of the parties’ ” (Sarver v. Barrett Ace Hardware, Inc. (1976), 63 Ill. 2d 454, 460, quoting Monier v. Chamberlain (1966), 35 Ill. 2d 351, 357), and the discovery procedures themselves were designed to be flexible and confer broad discretionary powers on the trial court (63 Ill. 2d 454, 460). However, “such a breadth of power requires a careful exercise of discretion in order to balance the needs of truth and excessive burden to the litigants.” (People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 193.) Accordingly, once the court has exercised its discretion, that ruling should not be reversed by another member of the court simply because there is disagreement on the manner in which that discretion was exercised. Rather, a successor judge, before whom the case has been assigned, should revise or modify previous discovery rulings only if there is a change of circumstances or additional facts which warrant such action. Such a rule minimizes the potential for “judge shopping” and preserves the orderly and efficient functioning of the judicial system. We note, too, that our holding is in accord with the general rule in the Federal courts, which recognizes the power of a Federal district judge to revise or modify a ruling by another judge in the same case, but requires a compelling reason for such action. See Annot., 20 A.L.R. Fed. 13 (1974), and cases cited therein.

The writ of mandamus is an extraordinary remedy which should not, under normal circumstances, be used to regulate discovery in the trial court (Marshall v. Elward (1980), 78 Ill. 2d 366, 375; People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 190-92), and we accordingly decline to issue it in this case. In view of the discussion and standard embodied herein, however, we believe it desirable to afford Judge Duff or his successor in the motion-judge assignment an opportunity to reconsider this matter in light of this opinion. We therefore exercise our supervisory power and direct that he vacate the March 12 order and proceed accordingly. While we express no opinion on the merits of the motion for a protective order, we do note, as plaintiff suggests, that the terms of the “interim” protective order entered by Judge Duff are more restrictive than some of those originally agreed upon between the parties, particularly insofar as they apparently limit plaintiff’s counsel from disclosing the materials to consultants and require notification to GMC prior to disclosure to plaintiff’s experts who are potential witnesses. If any type of protective order is deemed appropriate, both sides must be heard as to its scope, and it would seem appropriate to consider incorporating those matters previously agreed upon.

We accordingly direct Judge Duff or his successor to vacate the order of March 12, 1982, and to proceed in accordance with this opinion.

Writ denied; supervisory order entered.

JUSTICE SIMON,

concurring:

I concur with the majority’s wise disposition of the propriety and scope of the protective order in this case, and with the test it suggests Judge Duff use on the remand in assessing whether any change is to be made in that order. However, I believe the majority opinion should have included directions to Judge Duff to reinstate one part of Judge Bieschke’s order, the portion requiring production of the reports and films requested by plaintiff in Chicago rather than at GMC’s offices in Michigan. The place of production is a matter of convenience to the parties rather than a safeguard that GMC requires for its protection; it is at most a part of the background against which any protective order that is entered must operate. The circumstances underlying Judge Bieschke’s order regarding the place of production are not alleged to have changed, and no new facts bearing on the issue have come to light. Under the test set forth in the majority opinion, Judge Duffs order altering the place of production was an abuse of discretion and should be expunged without further consideration of the proper place for production.