author: JUSTICE SIMON JUSTICE MORAN,

text:
    (No. 57377.

      In re RAY JEFFREY COHEN, Attorney, Respondent.

      Opinion filed October 21, 1983.

      MORAN and UNDERWOOD, JJ., dissenting.
    Jerome Larkin, of Chicago, for the Administrator of the Attorney Registration Disciplinary Commission.
    Epton, Mullin, Segal & Druth, Ltd., of Chicago (Thomas E. Kluczynski, Barry B. Gross, and Mary E Stafford, of counsel), for respondent.
   JUSTICE SIMON

delivered the opinion of the court:

The amended complaint in this disciplinary proceeding charged respondent, Ray Jeffrey Cohen, who was licensed to practice law in 1965, with commingling and converting funds belonging to a client as well as funds which were entrusted to him by clients for the purpose of paying bills for medical services. The relevant facts were undisputed.

With respect to the charge of converting funds belonging to a client, the facts were that, after settling a personal injury claim for the client, the respondent on June 17, 1977, deposited the $7,000 insurance company draft in his business account at the Water Tower Bank. On that day he also drew and delivered to his client a post-dated check drawn on his Water Tower Bank account in the amount of $4,027.92, representing the settlement amount payable to the client less attorney fees and expenses. This check, dated June 24, 1977,was deposited by the client on the day it was dated in another bank. It reached the Water Tower Bank on June 27 but was returned by that bank the same day to the client’s bank marked “NSF” (not sufficient funds).

After four months the client, who had not yet received payment, filed a complaint with the Attorney Registration and Disciplinary Commission, and approximately two weeks later, the respondent gave his client a cashier’s check in the amount due to him. From the time the NSF check was drawn until restitution was made to the client, the respondent’s account at the Water Tower Bank was overdrawn on several occasions; the only days on which the account showed a balance sufficient to cover the check given the client were between June 30 and July 4, 1977, and between July 6 and July 10, 1977. Although the Water Tower Bank credited the respondent’s account with the $7,000 deposit on the date it was made, June 17, 1977, by June 24, 1977, there were no longer sufficient funds in the account to cover that check. The highest balance in the account during August and September 1977 was $1,061 on September 16, 17 and 18.

The second charge against the respondent related to withholding of payments which were owing to a physician for his medical services. The facts were that the respondent withheld payments from disbursements to 16 clients in personal injury suit settlements in amounts sufficient to pay the fees of the treating physician, Dr. Janin J. Raoul. These sums were withheld for a period of more than two years, although the respondent had personally guaranteed the payment of the fees in order to obtain medical reports from Dr. Raoul. During that period, the withheld sums amounting to $2,175 were deposited in the respondent’s general business accounts, and these accounts were overdrawn on various occasions.

The third charge was similar to that with respect to failing to pay Dr. Raoul, but involved another physician, Dr. Sidney Alpert, and the failure to pay $2,125 in medical bills owed by 12 of the respondent’s clients.

The respondent did not make complete restitution to Dr. Raoul until 10 months after the doctor filed a complaint with the disciplinary commission and to Dr. Alpert until seven months after Dr. Alpert filed a similar complaint.

The respondent acknowledged that he failed to maintain a fiduciary account. His explanation regarding the NSF check was that he routinely sent his bank statements to his accountant without examining them and was therefore unaware that the; check he gave his client was dishonored until the client filed his complaint with the disciplinary commission. Had he known earlier that the client had not received the money to which he was entitled, he would have made the check good. He testified that the client did not contact him about the NSF check and, as soon as he learned from the disciplinary commission that the client had not received payment, he delivered a cashier’s check in the full amount he owed the client. The client died prior to the taking of evidence in this case, and there is no evidence in the record of any communications between the client and the respondent during the period between the time the check was dishonored and the client filed his complaint with the disciplinary commission on October 26, 1977. The respondent denied that there were any such communications or that he had any knowledge prior to correspondence from the Commission that the check had been dishonored. The respondent testified that although he kept a running balance on his checking account in his checkbook, he never reconciled his bank account but instead left the matter of recontiliation entirely to his accountant.

The respondent blamed his faüure to pay Dr. Raoul and Dr. Alpert on his poor bookkeeping practices; he conceded, however, that there were instances where he had withheld funds from his distribution to his clients in order to pay physician’s fees and then neglected to pay them. Although both doctors eventually sent him a list of the fees they claimed they were owed, the respondent attributed his delay in paying these amounts to difficulties he encountered in verifying them because of problems in locating check stubs, cancelled checks and old files and also to marital difficulties which resulted in a prolonged separation from his family attended by severe emotional distress. He explained that because of his depression over his marital situation he found it hard to concentrate on activities which required a great deal of effort, such as locating and examining old files.

The Hearing Board’s view was that the incidents of commingling and conversion were neither inadvertent nor “technical,” as the respondent claimed. Rather, it concluded that the respondent’s conduct resulted from a dishonest motive, finding as a matter of fact that the respondent engaged in dishonesty, fraud and misrepresentation.

The Hearing Board recommended a one-year suspension, and the Review Board recommended a three-year suspension. The Administrator complains in this court that the sanction recommended is too lenient and that the respondent should be disbarred. The respondent on the other hand argues that based on precedent, the facts presented by the Administrator, the commendable past conduct of the respondent and mitigating circumstances, no discipline is warranted, but if he is to be disciplined nothing more severe than censure is appropriate.

An attorney is accountable for funds coming into his possession which belong to a client. Countenancing the mishandling of client’s funds by an attorney because of inattention to them and to the handling of the attorney’s own bank accounts unacceptably diminishes the importance of this serious responsibility. (In re Grant (1982), 89 Ill. 2d 247, 254.) Had the respondent maintained a trust account, as he was required to do, instead of commingling his own funds with those of his client, and had the trust account been responsibly supervised, it would have contained adequate funds to cover the check the respondent gave to his client, and the funds withheld to pay the physicians would not have been used for the respondent’s personal purposes. This court warned in In re Clayter (1980), 78 Ill. 2d 276, 281, and in In re Grant (1982),89 Ill. 2d 247, 253, that commingling often results in wrongful conversion, and the difficulty in which the respondent finds himself is striking proof of the accuracy of that observation. This is why this court has repeatedly announced that commingling is an unacceptable practice regardless of why it occurred. In re Grant (1982), 89 Ill. 2d 247, 253.

It is clear that the respondent must be sanctioned for his misconduct in failing to maintain a trust account, commingling funds and conversion of funds belonging to clients. The severity of the sanction depends on whether the conclusion of the Hearing Board that the respondent was guilty of dishonest motives is based on clear and convincing evidence or whether, as the respondent claims, his problems are attributable only to neglect, sloppiness, inadvertence, and inattention. In re McLennon (1982), 93 Ill. 2d 215, 221; In re Clayter (1980), 78 Ill. 2d 276, 283. With respect to the NSF check, it is clear that the respondent used his client’s funds for four months. We are hampered, however, in searching for support for the Hearing Board’s finding by the unavailability of the client. Were the client available to testify, perhaps the record would be far different than it is. On the basis of the record as it exists, however, and on which we must rely, there is no evidence that the client complained to the respondent or that the respondent knew his check had been dishonored. The respondent acted promptly after being notified by the disciplinary commission that the client had complained to it to restore the client’s funds by delivering a cashier’s check to him. We cannot assume that the client notified the respondent of the NSF check when no such evidence is in the record, even though it is unlikely that the client did not complain to the respondent or at least try to reach him to complain. Moreover, had the client redeposited the check on the date it was returned to his bank, it is likely that it would have reached the Water Tower Bank at a time when the respondent’s account contained sufficient funds to cover the check. These circumstances raise some doubt about whether the respondent’s motives in his dealing with his client were dishonest, and in any event dishonest motives in this regard have not been proved by the clear and convincing evidence which is the standard required in disciplinary proceedings by our Rule 753(c) (87 Ill. 2d R. 753(c)). In re Crane (1983), 96 Ill. 2d 40, 65.

It is clearer that for a period of time the respondent knew he had clients’ funds in his possession which were supposed to have been paid to Dr. Raoul and Dr. Alpert but instead appropriated them to his own use, retaining them for as long as three or four years. It is true, as the respondent points out, that after the passage of at least a year Dr. Raoul and Dr. Alpert both sent him separate lists of patients whose fees they claimed were due, but neither list was accurate. Both lists contained names of patients for whom no recovery had been effected or for whom the doctors had already received payment. Several of the names furnished by the physicians to the respondent were not included by the Administrator in his amended complaint, most likely indicating that the Administrator, after investigation, determined that the respondent owed nothing for these clients. This, however, does not excuse the respondent’s failure to pay the fees for those patients listed in the amended complaint when the respondent first withheld these funds from the client. Had he paid them at that time there would have been no need for the physicians to submit lists to the respondent of what they thought several months or even years later were their unpaid bills.

It is clear, as the Hearing Board determined, that there were clients who did entrust the amount they owed Dr. Raoul and Dr. Alpert to the respondent, and the respondent failed to pay these bills for up to four years after he received the funds. A poor system of distributing settlements or sloppy bookkeeping, to which the respondent attributed his delay in paying these fees, does not justify his failure to make prompt payment. In re Grant (1982), 89 Ill. 2d 247, 254.

Moreover, the evidence affirmatively supports the finding that dishonest motive rather than a poor bookkeeping or payment system explains the delay in settling with the physicians. Responding by letter to an inquiry by one of the Commission’s attorneys concerning Dr. Raoul’s complaint, the respondent explained:

“As to how this could have occurred? My only answer is that I used to pay the doctor upon receipt from my client of a signed statement indicating his receipt of his share of the settlement. Unfortunately, I have since discovered that since the client often wouldn’t sign it and return it (out of neglect, not dissatisfaction) and thus I would have nothing to ‘trigger’ my payment of the doctor.”

This explanation is demonstrably not a valid one, for in the case of all of Dr. Raoul’s patients listed in the amended complaint with the exception of one, the respondent had in his possession a settlement sheet signed by the client on which the amount of expenses retained by the respondent to pay the doctor was set forth as well as the respondent’s fee and the amount received by the client. Thus, the respondent had these settlement sheets to “trigger” his payment to Dr. Raoul, but he nevertheless failed to pay him the amount the client had left in the respondent’s safekeeping for that purpose. The respondent had his clients sign similar settlement sheets for the amounts owed to Dr. Alpert.

In view of the unsatisfactory nature of the respondent’s explanation, we are not persuaded by the respondent’s argument that the instances alleged in the amended complaint of patients whose fees were not paid to Dr. Raoul and Dr. Alpert were the result of inadvertence rather than an intentional practice and that no pattern of failure to pay the physicians was established. On the contrary, the pattern the respondent followed in withholding fees he represented to his client he would pay to a physician was one which he could expect to go undetected for a long period of time, for the doctor would have no knowledge that the claim had been settled and the client had no reason to believe that his doctor had not been paid. (In re Grant.) In his brief the respondent lists six categories into which the doctors’ fees involved in this case fell. The sixth category was described by the respondent as follows: “On certain cases money for the doctors had been withheld and the doctors had not been paid — on these cases the doctors were paid by Mr. Cohen.” Unfortunately for the physicians and for the respondent, in these instances, which involve almost all of the patients whose names are set forth in the amended complaint, the physicians did not receive payment until several years after the respondent withheld the money to pay them and until several months after the doctors complained to the Commission; the withholding of payments to these physicians for the length of time the respondent used these funds has not been satisfactorily explained by the respondent.

According to Dr. Raoul’s testimony, the respondent refused to take his telephone calls and the doctor was only able to reach the respondent to complain his fees had not been paid when immediately after he tried unsuccessfully to call the respondent, he had his receptionist, posing as a client, call the respondent who then immediately answered the phone. All of these circumstances lead us to conclude that the evidence supported the Hearing Board’s finding that the respondent’s motives were dishonest with respect to his failure to pay the physicians.

We do not regard the respondent’s conduct as being as flagrant as that of attorneys in cases such as In re Bizar (1983), 97 Ill. 2d 127, In re Grant (1982), 89 Ill. 2d 247, In re Kesler (1982), 89 Ill. 2d 151, In re Feldman (1982), 89 Ill. 2d 7, In re Snitoff (1972), 53 Ill. 2d 50, or In re Gartland (1970), 47 Ill. 2d 177, where the charge was conversion of funds and the sanction imposed was disbarment or suspension for one year or longer. For example, in In re Grant (1982), 89 Ill. 2d 247, the attorney was suspended for two years after separately converting funds belonging to six different clients, giving at least two clients checks which were returned because of insufficient funds, keeping clients waiting in one instance at least six months and in another instance a year and a half until he made restitution, and failing to respond to calls from clients inquiring about what had happened to their money. In In re Bizar (1983), 97 Ill. 2d 127, the attorney, who was suspended for a year, endorsed his client’s name and deposited a settlement, check in his own account without informing the client, proceeded to use the funds for his own purposes and then took the position that the client had loaned him the money, testimony which the Hearing Board did not believe.

We have said that our goal is to impose sanctions “consistent with those imposed in cases with factual situations, substantially similar to the case under consideration” while at the same time acknowledging that “each case is unique.” (In re Freel (1982), 89 Ill. 2d 263, 270.) In In re McLennon (1982), 93 Ill. 2d 215, 221, we said “while absolute uniformity in the imposition of discipline, realistically viewed, may not be achievable, similar cases ought to receive similar treatment.” Although the following types of considerations have never been regarded as controlling in deciding what discipline should be imposed, and disbarment or suspension for as long as two years has been ordered even in instances when one or more of the following mitigating factors have been present (In re Grant (1982), 89 Ill. 2d 247, 254; In re Feldman (1982), 89 Ill. 2d 7, 13), they have consistently and traditionally been referred to by this court as factors in mitigation of the seriousness of the offense charged and they are presented in mitigation by the respondent here: the respondent has been in practice for 18 years and this is the only time he has been charged with misconduct (In re Freel (1982), 89 Ill. 2d 263, 270; In re Clayter (1980), 78 Ill. 2d 276, 283; In re Sherman (1975), 60 Ill. 2d 590, 593; In re Bizar (1983), 97 Ill. 2d 127); the respondent made complete restitution to his client and to both physicians several months before the Disciplinary Commission filed a complaint against him (In re Bizar; In re Sherman (1975), 60 Ill. 2d 590, 592); the respondent’s contributions to the public good through community work and civic effort have been extensive (In re Clayter (1980), 78 Ill. 2d 276, 283; In re Kesler (1982), 89 Ill. 2d 151, 163); his history of community service and pro bono work has been significant (In re Grant (1982), 89 Ill. 2d 247, 254; In re Coburn (1982), 92 Ill. 2d 472, 474-75); without compensation, the respondent took a case to the United States Supreme Court (Kasper v. Pontikes (1973), 414 U.S. 51, 38 L. Ed. 2d 260, 94 S. Ct. 303) which broadened voting rights throughout the country; and in addition he devoted his time and effort to combating a zoning ordinance which subsequently proved to have been connected with an alleged bribe to a member of the Chicago city council (see Chicago Park District v. Kenroy, Inc. (1980), 78 Ill. 2d 555), which allowed commercial development of a large area on the northwest side of Chicago which, as a result of civic effort of which the respondent was a part later, became a major neighborhood park and recreation facility. In addition, two Cook County circuit court judges, an associate judge of the Cook County circuit court, the Cook County clerk, and an insurance company representative who often was the respondent’s adversary testified regarding his good reputation for honesty and integrity, his ability as a lawyer and his reputation for devoting himself to community service. A physician who treated the respondent’s clients testified he has “never had any problem receiving payment for his services out of settlements negotiated by” the respondent. In re Bizar (1983), 97 Ill. 2d 127; In re Kesler (1982), 89 Ill. 2d 151, 163; In re Clayter (1980), 78 Ill. 2d 276, 283.

Notwithstanding these mitigating factors, all of which speak loudly in the respondent’s favor, we must keep in mind that the respondent’s misconduct was not an isolated • incident. There is a pattern of misbehavior here involving 28 separate payments owing by the respondent to two physicians which became due at various times over a period of three years in the case of Dr. Raoul and two years in the case of Dr. Alpert. In addition, of course, while perhaps not the consequence of dishonest motives, the respondent’s improper handling of the $4,027.92 owing to his client must also be considered in deciding what sanction is appropriate. Because of the respondent’s misconduct, the legal profession has been brought into disrepute. (See In re Feldman (1982), 89 Ill. 2d 7, 13.) The court’s responsibility in a disciplinary proceeding is “ ‘to safeguard the public, maintain the integrity of the legal profession and *** protect the administration of justice from reproach.’ ” (In re Feldman (1982), 89 Ill. 2d 7, 12; In re Grant (1982), 89 Ill. 2d 247, 254.) Suspension rather than censure is therefore in order. In view of the relatively modest amounts which were withheld from Dr. Raoul and Dr. Alpert, the fact that respondent’s misconduct was limited to his dealings with only two physicians and one client and the mitigating circumstances the respondent has advanced, we believe that suspension for 18 months is a fair sanction, as well as one consistent with others we have imposed.

Respondent suspended.

JUSTICE MORAN,

dissenting:

I find that the sanction imposed by the majority is not commensurate with the misconduct of respondent. This' court has held that “[wjhen a lawyer *** converts a client’s funds to his own personal use he commits an act involving moral turpitude, and, in the absence of mitigating circumstances, such conversion is a gross violation of the attorney’s oath, calling for the attorney’s disbarment.” In re Stillo (1977), 68 Ill. 2d 49, 54.

We are confronted, in the instant case, with a lawyer who deposited clients’ money in a general business account, rather than an identifiable trust account, in total violation of the prohibition against commingling codified in Rule 9 — 102 of the Code of Professional Responsibility (87 Ill. 2d R. 9 — 102). Moreover, by depleting the account to a level below the amount due the client, respondent was guilty of conversion. (In re Freel (1982), 89 Ill. 2d 263, 272.) A great deal of attention has been given to “motivation” in the disposition of this case. Motive is not an element in disciplinary actions for conversion. This court has, however, found it appropriate to consider dishonest motive in its determination of the nature and severity of sanctions to be imposed in such cases. In re McLennon (1982), 93 Ill. 2d 215, 221; In re Clayter (1980), 78 Ill. 2d 276, 283.

Both the hearing and review boards found that respondent’s misconduct was not inadvertent or “technical” but rather the result of dishonest motive. The majority concurs that respondent’s motives were dishonest regarding the withholding of the doctors’ fees but does not find that dishonest motive was clearly and convincingly proved regarding respondent’s dealings with his client. (98 Ill. 2d at 139-40.) I find the hearing and review boards’ finding of dishonest motive and intent in relation to the client fully supported by the facts and circumstances herein.

“Motive and intent are rarely the subject of direct testimony; they must ordinarily be inferred from conduct and from the circumstances under which that conduct took place.” {In re Schwarz (1972), 51 Ill. 2d 334, 336.) It strains the imagination to believe that respondent was unaware, for over four months, that the $4,027.92 check he had issued to his client had been returned “NSF” (not sufficient funds). Certainly the burden is not on a client to complain, as inferred by the majority, in order for the court to conclude that dishonest motive is present. Respondent deposited the $7,000 settlement draft into a business account which he knew had a history of overdrafts. In addition, he expended all but a small percentage of the settlement funds within one week of deposit while waiting more than four months to make restitution.

While the specific facts of every case must be considered, “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, 275.) Respondent has engaged in a pattern of commingling funds of clients, converting these funds, and failing to promptly pay funds owing to both clients and doctors. This court has imposed more stringent sanctions than an 18-month suspension in cases involving similar or less egregious misconduct.

In In re Grant (1982), 89 Ill. 2d 247, respondent, in four instances, converted funds collected in settlement of clients’ personal injury claims. As in the instant case, settlement checks were deposited in accounts which were utilized for personal and business purposes as well as for clients’ funds. In addition these accounts were either overdrawn or below the amount due clients on numerous occasions during the relevant periods. The respondent failed to promptly pay clients the money to which they were entitled. In two instances NSF checks were issued to clients. The respondent in Grant was involved in four counts of conversion, as opposed to the 29 acts of conversion involved in the instant case. Notwithstanding the less aggravated circumstances and substantial evidence of good character, the court imposed a two-year suspension in Grant.

In In re Smith (1976), 63 Ill. 2d 250, a $69,999 settlement check had been deposited in a lawyer’s personal bank account, with the consent of his client. After forwarding $9,000 of the proceeds to the client, the lawyer made unauthorized personal use of the balance of the funds. Only after the commencement of disciplinary proceedings was the client fully reimbursed. Although the respondent in Smith had converted the funds of only one client, the court found disbarment an appropriate sanction.

The pattern of misconduct involved in In re Snitoff (1972), 53 Ill. 2d 50, closely resembles the facts and circumstances of the instant case. The respondent in Snitoff was disbarred for repeated acts of conversion. He was found to have issued NSF checks to clients as the proceeds of personal injury settlements, failed to promptly forward one client’s share of a settlement, and failed to remit the entire amount due another client. As in the instant case, the respondent in Snitoff was found to have converted funds which he had withheld from personal injury settlements to satisfy medical expenses of the client. The court held that the sanction of disbarment was appropriate in spite of the respondent’s plea of fiscal ineptness rather than dishonest motive. Respondent’s conduct, in the case at bar, is at least as aggravated as that displayed in Snitoff

Although significant evidence of good character has been offered in mitigation in the instant case, such evidence cannot overcome the clear and convincing evidence of misconduct. (In re Melin (1951), 410 Ill. 332, 335.) Respondent’s misconduct reflects a pattern of conversion involving dishonest motive and a “continuing and consistent disregard for the property rights of his clients.” (In re Snitoff (1972), 53 Ill. 2d 50, 53.) After reviewing the cases discussed above and the particular facts of this case, I believe that an order of disbarment is a more appropriate sanction than the suspension ordered by the majority.

JUSTICE UNDERWOOD joins in this dissent.


source: Caselaw Access Project

author: JUSTICE MORAN JUSTICE GOLDENHERSH,

license: Public Domain

text:
    No. 57401.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. LAURA EXLINE, Appellee.

      Opinion filed October 21, 1983.

      GOLDENHERSH and SIMON, JJ., dissenting.
    Neil E Hartigan and Tyrone C. Fahner, Attorneys General, of Springfield, and Edward F. Petka, State’s Attorney, of Joliet (Ellen M. Flaum and Kenneth A. Fedinets, Assistant Attorneys General, of Chicago, and John X. Breslin and Gerry R Arnold, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Gray, Kleczek & Kielian, P.C., of Joliet (Gerald G. Kielian, of counsel), for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

Defendant, Laura Exline, was charged by information with the offenses of possession of a controlled substance, possession of cannabis with the intent to deliver, and the unlawful use of weapons (Ill. Rev. Stat. 1979, ch. 56½, pars. 1402(b), 705(d); ch. 38, par. 24 — 1(a)(7)). Following her pretrial motion, the circuit court of Will County quashed a search warrant and suppressed evidence recovered by narcotics agents pursuant to the warrant. A divided appellate court affirmed, holding that the State failed to establish the credibility of the informant whose information provided the basis for the warrant. (108 Ill. App. 3d 926.) We granted the State leave to appeal.

The sole issue raised for review is whether the affidavit in support of a search warrant contained sufficient information to sustain a determination of probable cause.

On October 10, 1980, a search warrant was issued authorizing police to search the apartment of Jeff Smith for the purpose of recovering cannabis and drug-related paraphernalia. Defendant resided in the apartment with Smith. The affidavit in support of the warrant stated that the affiant, an agent with the Metropolitan Area Narcotics Squad (MANS), met with a confidential informant within the previous 10 days. The informant advised him that he could purchase cannabis from Smith, who, he said, resided in apartment No. 110 at 1860 B, Aycliff Court in Joliet. He further stated that Smith sold him “quantities of cannabis” in the past.

Three controlled purchases were subsequently conducted. On the first two occasions, the informant was searched for contraband or money, and none was found. He was then furnished with prerecorded funds, for the purpose of purchasing cannabis, and was driven by a MANS agent to 1860 B, Aycliff Court, a three-story multi-family apartment complex. The informant entered the building through the main entrance, and returned shortly thereafter to the agent’s vehicle. He advised the agent that he could purchase cannabis and was told to do so. He then reentered the building, again through the main entrance, and was next seen when he exited the doorway and returned to the vehicle. Upon returning to a pre-arranged location, the informant produced a tinfoil packet containing a substance which field tests revealed to be cannabis. The informant was then searched and no contraband, or money, was found.

A third controlled purchase was conducted five days prior to the issuance of the search warrant. On this occasion, the informant made but a single visit to the building and purchased cannabis. Otherwise, the circumstances of the three purchases were substantially similar. The complaint for a search warrant further related that the Joliet telephone directory listed Jeff Smith as residing at 1860 Aycliff Court, Apartment No. 110.

When the police subsequently executed the warrant, defendant was present. After establishing that she resided in the apartment with Smith, she was arrested and charged with the prior-related offenses.

Since this case was taken under advisement, the Supreme Court rendered a decision in Illinois v. Gates (1983), 462 U.S. _, 76 L. Ed. 2d 527, 103 S. Ct. 2317, abandoning the frequently cited Aguilar-Spinelli test. In its stead, the court adopted a “totality of the circumstances” approach for determining when there is probable cause for issuance of a search warrant. The opinion does not indicate whether this new rule should be given retroactive or prospective application. We need not resolve this question here since, under either approach, the affidavit contained sufficient information to sustain a determination of probable cause. Because the parties’ arguments are based upon Aguilar-Spinelli, we first address the issue in accordance with that test.

Under 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, a warrant may issue based upon information supplied by a confidential informant if the magistrate is “informed of [1] some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and [2] some of the underlying circumstances from which the officer concluded that the informant *** was ‘credible’ or his information ‘reliable.’ ” (Aguilar v. Texas (1964), 378 U.S. 108, 114, 12 L. Ed. 2d 723, 729, 84 S. Ct. 1509, 1514.) No question is raised as to the basis of the informant’s knowledge that the narcotics were where he claimed they were. Rather, defendant contends that the affidavit failed to set forth sufficient facts establishing the reliability of the informant or the credibility of his information. She points out that, since the police officers did not actually observe the informant enter Smith’s apartment, it is conceivable that he obtained the cannabis from another resident of the building.

Defendant’s argument ignores the well-settled distinction between the quantum of proof necessary to obtain a criminal conviction, and that which is required to show probable cause for an arrest or search. Only the probability of criminal activity, and not proof beyond a reasonable doubt, is the standard for assessing probable cause. (Spinelli v. United States (1969), 393 U.S. 410, 419, 21 L. Ed. 2d 637, 645, 89 S. Ct. 584, 590, citing Beck v. Ohio (1964), 379 U.S. 89, 13 L. Ed. 2d 142, 85 S. Ct. 223.) The question, therefore, is one of probabilities which “are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States (1949), 338 U.S. 160, 175, 93 L. Ed. 1879,1890, 69 S. Ct. 1302,1310.

The facts set forth in the instant affidavit were sufficient to indicate that, more probably than not, narcotics would be found on the premises in question. The affiant had first-hand knowledge of all the facts to which he attested except that Smith was the actual perpetrator of the offense. Police investigation verified Smith’s residence and corroborated the informant’s statement that he could purchase cannabis there. That certain details of the informant’s information proved true lends credence to those details which were not confirmed. Draper v. United States (1959), 358 U.S. 307, 3 L. Ed. 2d 327, 79 S. Ct. 329. See Jaben v. United States (1965), 381 U.S. 214, 14 L. Ed. 2d 345, 85 S. Ct. 1365 (it is not necessary that every factual allegation be independently confirmed).

More importantly, it has been recognized that “corroboration will suffice to show veracity [where] the informant has not been working independently, but rather has cooperated • closely with the police, as is true when the informant makes a controlled purchase of narcotics.” (1 W. LaFave, Search and Seizure sec. 3.3, at 559 (1978); see also State v. Gamage (Me. 1975), 340 A.2d 1; State v. Barrett (1974), 132 Vt. 369, 320 A.2d 621.) This close police surveillance in controlled purchases of drugs serves to minimize the risk of falsehood and reduce reliance on the informant’s credibility.

In the instant case, the entry into defendant’s apartment was the only unobserved activity on the part of the informant. To require police officers, in cases involving multiple-dwelling units, to be present and witness the informant enter a defendant’s apartment would obviate the need for a search warrant. Where a police officer “has reasonable grounds to believe that the person is committing or has committed an offense” no warrant is required. Ill. Rev. Stat. 1979, ch. 38, par. 107 — 2(c).

For these reasons, we hold that the informant’s credibility was sufficiently established, and the warrant was therefore not obtained in violation of Aguilar and Spinelli. It follows that the affidavit complied with the less rigid standard for determining probable cause set forth in Illinois v. Gates (1983), 462 U.S. _, 76 L. Ed. 2d 527, 103 S. Ct. 2317.

As previously related, Gates abandoned the so-called “two-prong” test, wherein both the informant’s basis of knowledge and his credibility must be independently established. Under the new “totality of the circumstances” analysis, “[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” 462 U.S. _, _, 76 L. Ed. 2d 527, 548, 103 S. Ct. 2317, 2332.

Here, there was at least a “fair probability,” based upon the corroborated informant’s tip, that narcotics would be discovered in Smith’s apartment. The three controlled purchases so decreased the opportunity for falsehood as to provide the requisite indicia of reliability. Cf. Illinois v. Gates (1983), 462 U.S. _, _, 76 L. Ed. 2d 527, 552-53, 103 S. Ct. 2317, 2335-36 (police corroboration of innocent details provided a sufficient basis to credit the informant’s statement that defendants were engaged in illegal activity).

In view of the deference accorded the decision of the issuing magistrate (Illinois v. Gates (1983), 462 U.S. _, 76 L. Ed. 2d 527, 103 S. Ct. 2317; see Jones v. United States (1960), 362 U.S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725), and recognizing that, in doubtful cases, the warrant should be upheld (United States v. Ventresca (1965), 380 U.S. 102, 13 L. Ed. 2d 684, 85 S. Ct. 741), it cannot be said that the magistrate erred in his assessment of probable cause. Accordingly, the judgments of the appellate and circuit courts are reversed, and the cause is remanded to the circuit court of Will County for further proceedings consistent with this opinion.

Judgments reversed; cause remanded.

JUSTICE GOLDENHERSH,

dissenting:

I dissent and would affirm the judgment of the circuit and appellate courts. Assuming, arguendo, that the majority has correctly construed the opinion in Gates, the Supreme Court did not obviate the requirement that there appear in “the totality of the circumstances” a basis for attributing some degree of reliability to the unnamed informant. The Supreme Court said:

“We agree with the Illinois Supreme Court that an informant’s ‘veracity,’ ‘reliability’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report.” (Illinois v. Gates (1983), 462 U.S._,_, 76 L. Ed. 2d 527, 543, 103 S. Ct. 2317, 2327.)

The problem here is that there is no evidence of the informant’s reliability which can support the issuance of a warrant to search a particular apartment. Admittedly, the entrance through which the informant entered the building after leaving the police officer led to a number of apartments. During the time that the informant was inside the building he was not within sight of the police officer, who had no knowledge as to which apartment, if any, he entered.

The fact that the police officer verified that a tenant with the name given him by the informant occupied one of the apartments did not indicate that the informant had entered that apartment or contacted the defendant. The after-the-fact corroboration by the discovery of contraband is of no value in determining the validity of the information which was presented to the magistrate at the time of the issuance of the warrant. To quote from Justice Stevens’ dissent in Gates, “I must surmise that the Court’s evaiuation of the warrant’s validity has been colored by subsequent events.” 462 U.S. _, _, 76 L. Ed. 2d 527, 584, 103 S. Ct. 2317, 2361.

I agree with the appellate court that the affidavit did not contain sufficient information to support the issuance of a search warrant.

There is another aspect of the case which the majority did not consider. This court decided Gates on the basis of the fourth amendment to the Constitution of the United States and article I, section 6, of the Constitution of Illinois. As was pointed out in both the majority opinion and Justice White’s concurrence in Gates, we are not required to blindly follow the action taken by the Supreme Court in determining the standards applicable under our own constitution. In his eloquent dissent in Gates, Justice Brennan has stated far better than can I the reasons for rejecting the holding in Gates and retaining the tests and standards enunciated in Aguilar and Spinelli. I would retain those tests and standards as constitutional requirements in Illinois.

JUSTICE SIMON joins in this dissent.


author: JUSTICE UNDERWOOD

text:
    (Nos. 57472, 57473 cons.
    DEBORAH CURTIS et al., Appellees, v. THE COUNTY OF COOK et al. (The County of Cook et al., Appellants).

      Opinion filed October 21, 1983.

      WARD and CLARK, JJ., took no part.

      Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey, Deputy State’s Attorney, and Myra J. Brown, Assistant State’s Attorney, of counsel), for appellant County of Cook.
    William G. Clark, Jr. & Associates, Ltd., and Ronald A. Parizek & Associates, Ltd., of Chicago (Cornelius F. Dore, William G. Clark, Jr., and llene Davidson Johnson, of counsel), for appellant Village of Hillside.
    Wildman, Harrold, Allen & Dixon, of Chicago (Kevin T. Martin and Kay L. Schichtel, of counsel), for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

In these consolidated personal injury lawsuits brought in the circuit court of Cook County, plaintiffs Deborah Curtis, a minor bringing suit by Donald Curtis, her father and next friend, Donald Curtis, individually, and Lynn Carol Curtis, Deborah’s mother, seek damages from defendants, the County of Cook, the village of Westchester, and the village of Hillside. Plaintiffs dismissed counts I, III, and V of their second amended complaint, and the circuit court, pursuant to section 45 motions filed by the village of Westchester and the village of Hillside (see Ill. Rev. Stat. 1977, ch. 110, par. 45), dismissed in a final order the remaining counts insofar as they related to those defendants. The circuit court subsequently entered a judgment on the pleadings in favor of Cook County, and plaintiffs appealed. Our appellate court, in a divided opinion, affirmed the circuit court’s judgment in part and reversed in part, and remanded the cause for trial against all defendants. (109 Ill. App. 3d 400.) We granted the petitions for leave to appeal filed by defendants Cook County and the village of Hillside; the village of Westchester did not seek leave to appeal.

Damages were sought against all defendants in those counts of the second amended complaint not voluntarily dismissed by plaintiffs. In count II, plaintiff Deborah Curtis alleged that defendants had placed a speed limit sign on the north side of Twenty-second Street approximately one-half mile west of Wolf Road and that defendants were aware that the signpost was “constantly and repeatedly” used as a quarter-mile marker by young drivers engaged in “speed-clocking,” which we understand to be a form of drag racing in which a motorist attempts to reach the greatest possible speed in the space of a quarter mile. In its decision, our appellate court noted that plaintiffs’ counsel sought during oral argument to amend the allegations so as to describe the signpost’s location as one-quarter of a mile west of Wolf Road. (109 Ill. App. 3d 400, 404.) It is also alleged that Deborah Curtis, age 16, was “in the exercise of that degree of care required having regard for age, experience, intelligence and understanding,” and that she was severely injured when the car in which she was a passenger went out of control and struck the signpost while speed-clocking. Count II charges that each defendant owed Deborah Curtis a duty to “keep safe the area in which the accident occurred” and that this duty was breached by defendants’ negligence in placing the sign where they knew or should have known it would be used for speed-clocking, failing to remove or replace the sign after becoming aware of its use for speed-clocking, failing to adequately patrol the area, and failing to install speed-control equipment at the location of the accident. In addition, it is alleged that defendants’ acts or omissions proximately caused Deborah Curtis’ personal injuries.

Count IV¡ which incorporated the charges of negligence described in count II, set forth an individual cause of action brought by Donald Curtis to recover the medical and hospital expenses which he was obligated to pay on behalf of Deborah Curtis. In count VI, also founded on the allegations of negligence in count II, Donald Curtis and Lynn Carol Curtis sought to recover damages for the loss of their minor daughter’s “aid, comfort, society, and companionship.”

Although the record reveals that plaintiffs voluntarily dismissed counts I, III and V, the appellate court examined those counts and purported to affirm their dismissal by the circuit court. Because neither party seeks review of that portion of the appellate court’s opinion, it is unnecessary for us to address the propriety of that action. Defendants appeal only from the appellate court’s decision that the allegations of counts II, IV and VI, which charged the defendants with proximately causing plaintiffs’ injuries by breaching a statutory property-related duty, sufficiently stated a cause of action. Plaintiffs, citing Rule 318 (87 Ill. 2d R. 318), seek a reversal of the appellate court’s holding that the allegations of counts II, IV and VI charging the defendants with negligently failing to adequately patrol or otherwise prevent speeding did not state a cause of action. In addition, plaintiffs Donald Curtis and Lynn Carol Curtis urge this court to overturn that portion of the appellate court’s decision which held that count VI, seeking recovery for loss of their daughter’s “aid, comfort, society, and companionship,” did not state a legally cognizable claim.

In order to adequately state a cause of action for negligence, the allegations must establish the existence of a duty of care owed by the defendant to the .plaintiffs, a breach of that duty, and an injury proximately resulting from that breach. (Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 18; Cunis v. Brennan (1974), 56 Ill. 2d 372, 374; Mieher v. Brown (1973), 54 Ill. 2d 539, 541.) Although the questions of whether a duty has been breached and whether the breach proximately caused an injury are factual matters (First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, 12), the existence of a duty must be determined by the courts as a matter of law. (Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 18-19; First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, 12; Cunis v. Brennan (1974), 56 Ill. 2d 372, 374; Mieher v. Brown (1973), 54 Ill. 2d 539, 541.) The appellate court, noting that section 3 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1977, ch. 85, par. 3 — 102) requires local governmental entities to maintain their property in a reasonably safe condition, found that defendants owed plaintiffs a duty of care on the basis of its interpretation of section 3— 103 of that act (Ill. Rev. Stat. 1977, ch. 85, par. 3 — 103). The relevant portion of section 3 — 103 provides:

“(a) A local public entity is not liable under this Article for an injury caused by the adoption of a plan or design of a construction of, or an improvement to public property where the plan or design has been approved in advance of the construction or improvement by the legislative body of such entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved. The local public entity is liable, however, if after the execution of such plan or design it appears from its use that it has created a condition that is not reasonably safe.” Ill. Rev. Stat. 1977, ch. 85, par. 3 — 103(a).

Recent decisions by this court have reinforced the traditional rule that local governments have an obligation to maintain public property in a reasonably safe condition. (See Bentley v. Saunemin Township (1980), 83 Ill. 2d 10, 13; Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 450; Hennigs v. Centreville Township (1973), 56 Ill. 2d 151, 154.) We cannot agree, however, that the precise location of a signpost constitutes a “plan or design” within the intendment of section 3 — 103 and thus cannot approve the appellate court’s interpretation of that provision. Moreover, even if the signpost’s location could be considered part of a plan or design, our examination of article III of the Act, which defines the scope of immunity for injuries arising out of the use of public property, leads us to conclude that the appellate court erred when it found that defendants owed a statutory property-related duty to plaintiffs.

The Local Governmental and Governmental Employees Tort Immunity Act, which was enacted at least in part as a result of this court’s rejection of the principles underlying the sovereign immunity doctrine in Molitor v. Kaneland Community Unit District No. S02 (1959), 18 Ill. 2d 11, is in derogation of the common law action against governmental entities and specifies certain limitations on the liability of such bodies. (See Helle v. Brush (1973), 53 Ill. 2d 405, 407; Reynolds v. City of Tuscola (1971), 48 Ill. 2d 339, 342; Warchol v. City of Chicago (1979), 75 Ill. App. 3d 289, 294; Mounce v. City of Lincoln (1978), 64 Ill. App. 3d 461, 463.) One of those limitations appears in section 3 — 102(a), which provides in relevant part:

“(a) Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in sufficient time prior to an injury to have taken measures to remedy or protect against such condition.” (Ill. Rev. Stat. 1977, ch. 85, par. 3— 102(a).)

That language evinces a legislative intent to extend a duty of care only to those persons by whom the local government intended the property to be used. As a passenger in a speed-clocking automobile, Deborah Curtis cannot be said to fall within the class of motorists by whom defendant’s highways were intended to be used. Cf. Repinski v. Jubilee Oil Co. (1980), 85 Ill. App. 3d 15, 19; Thorsen v. City of Chicago (1979), 74 Ill. App. 3d 98, 107; Deren v. City of Carbondale (1973), 13 Ill. App. 3d 473, 477. See also Storen v. City of Chicago (1940), 373 Ill. 530, 534-35; VanCleef v. City of Chicago (1909), 240 Ill. 318, 327; Boylan v. Martindale (1982), 103 Ill. App. 3d 335, 341; Harding v. Chicago Park District (1975), 34 Ill. App. 3d 425, 428-29.

When construing a statute, each section is to be considered in relation to all of the other provisions of the statute in order to ascertain the legislature’s intent. (See, e.g., Totten v. State Board of Elections (1980), 79 Ill. 2d 288, 292; Chastek v. Anderson (1981), 83 Ill. 2d 502, 511.) Application of that fundamental principle leads us to conclude that the defendant County of Cook is correct in its assertion that the duty of care described in section 3 — 103 derives from the more basic delineation of governmental duty found in section 3 — 102. In light of the absence of any duty owing to Deborah Curtis under the latter section, no duty existed under the former.

In their brief, plaintiffs urge this court to reverse the appellate court’s determination that defendants did not owe plaintiffs individually a duty to patrol or otherwise take additional steps to deter speeding at the scene of the accident. We consider the appellate court’s treatment of that issue to be both adequate and correct. Because defendants did not owe a duty of care to plaintiffs, one of the elements noted above to be necessary to state a cause of action, it is unnecessary to consider either defendant’s argument that installing and maintaining the signpost did not constitute a proximate cause of plaintiffs’ injuries or the contention of plaintiffs Donald Curtis and Lynn Carol Curtis that this court should recognize a cause of action for loss of a minor child’s society.

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

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

'WARD and CLARK, JJ., took no part in the consideration or decision of this case.


author: CHIEF JUSTICE RYAN JUSTICE SIMON,

text:
    (No. 57676.
    NIBCO, INC., Appellant, v. PATRICIA A. JOHNSON, Appellee.—PATRICIA A. JOHNSON, Appellee, v. FLOYD O. McCULLER et al., Appellants.

      Opinion filed October 21, 1983.

      SIMON and GOLDENHERSH, JJ., dissenting.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, George Lopuszynski, and Paul B. O’Flaherty, Jr., of counsel), for appellants Floyd O. McCuller and Nibco, Inc.
    John M. Cutrone, of Chicago, for appellee.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

These consolidated cases arose out of a motor vehicle collision. In March of 1977 Nibco v. Johnson was filed in the circuit court of Cook County seeking to recover for damage to Nibco’s truck. In June of 1977, Johnson v. Nibco was filed by Patricia Johnson to recover for personal injuries. The sole issue presented for our review is whether or not the substitute service of summons in Nibco v. Johnson was valid.

A default judgment based on substitute service of summons was entered against Patricia Johnson in Nibco v. Johnson in April 1978. Based on this judgment, Nibco moved for a summary judgment in the personal injury suit, Johnson v. Nibco. Patricia Johnson then moved to quash service of summons in Nibco v. Johnson. The trial judge treated her motion to quash as a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, sec. 72), now a petition under section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401), and denied it. Nibco’s motion for summary judgment in Johnson v. Nibco was granted.

Patricia Johnson filed a notice of appeal in connection with both of these matters. The appellate court, in a Rule 23 order (87 Ill. 2d R. 23), reversed the decision of the circuit court, ordered service quashed, ordered the default judgment against Johnson vacated in Nibco v. Johnson, and ordered the summary judgment entered against Johnson in Johnson v. Nibco vacated. (109 Ill. App. 3d 1209.) We granted Nibco’s petition for leave to appeal.

Section 13.2(1) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 13.2(1)), which is now section 2 — 203(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 203(a)), provides for substitute service of summons on individuals “by leaving a copy at his usual place of abode, with some person of the family, of the age of 13 years or upwards, and informing that person of the contents thereof, provided the officer or other person making service shall also send a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the defendant at his usual place of abode. The certificate of the officer or affidavit of the person that he has sent the copy in pursuance of this Section is evidence that he has done so.” The sheriff’s return of service reflects that Deputy Arthur Nawls effected service upon defendant Patricia Johnson by delivery of a copy of the writ to a person of her family over the age of 13 years named Moh Joe Johnson and that Deputy Nawls mailed a copy of the writ, postage paid, to defendant at her abode.

Patricia Johnson filed a motion to quash service of summons, supported by her affidavit stating that no Joe Johnson or other male lived with her on the date of the alleged service, and that she had no knowledge of the suit entitled “Nibco v. Johnson” prior to December 10, 1980, or of the judgment entered against her.

Deputy Nawls testified at the hearing on the motion to quash service, stating that his daily report sheet indicated he had attempted to effect service on Patricia Johnson and had in fact served Joe Johnson, who identified himself as a member of defendant’s household. Nawls also explained that Moh before the name Joe Johnson on the return stands for member of household. During cross-examination, Nawls testified that he assumed Joe Johnson was living at the service address and was a member of the household. However, on redirect examination, Nawls stated that Joe Johnson had admitted knowing Patricia Johnson. It is not questioned that the service on Joe Johnson took place at Patricia Johnson’s usual place of abode.

Patricia Johnson did not testify and offered no evidence in support of her motion other than the affidavit she had filed. The trial judge held for Nibco and denied Patricia Johnson’s motion. The trial judge found that based upon Nawls’ testimony, Joe Johnson had identified himself as a member of the household and that the deputy’s testimony was “in effect a counteraffidavit.” The judge went on to state: “We now have a situation of credibility. One [Patricia Johnson] is just making this self-serving statement that he is not a member of the household; and the other [Deputy Nawls] is saying that he was informed that he was a member of the household by the individual himself.” As to Deputy Nawls’ statement on cross-examination that he had assumed Joe Johnson lived at the abode of Patricia Johnson, the court had this to say:

“THE COURT: Well, I think that context in which the cross-examination takes place is not inconsistent with the statement that the individual was a member of the household.
It says, ‘Do you know whether or not he was living there?’ And he says, ‘Right, he was there. And he said ‘he was living there at the time.’ And later he said, ‘At the time, I assumed that he was living there.’
How does he know? A man is identified as a member of the household. Now you are asking, ‘Is he living in the house?’ There is no way he can tell whether he’s living there.
* * *
THE COURT: *** He said the man identified himself as a member of the household. I’m trying to look at it fairly. I am not saying this is not a close question, but if we have to take it in the context in which we have it, if a man says, T am a member of the household’ — Now you are asking him was he living there? He said T assumed so.’ That’s part of being a member of the household. He doesn’t know. So I agree with him, he is a member of the household.”

The judge went on to find that there was no reason for Deputy Nawls to lie and that he was believable.

In Marnik v. Cusack (1925), 317 Ill. 362, 364, this court spoke of a similar dispute which involved a question of personal service and stated:

“The stability of judicial proceedings, however, requires that the return of an officer made in the due course of his official duty and under the sanction of his official oath should not be set aside merely upon the uncorroborated testimony of the person on whom the process has been served but only upon clear and satisfactory evidence. [Citations.]”

Johnson does not dispute the rule as pronounced in Marnik v. Cusack but contends that rule applies only in cases of personal service and does not apply where there has been substitute service, as in the case now before us. In support of this position, Johnson cites Harris v. American Legion John T. Shelton Post No. 838 (1973), 12 Ill. App. 3d 235. In Harris, the court stated:

> “[W]here such a return is challenged by affidavit and there are no counteraffidavits, the return itself is not even evidence, and, absent testimony by the deputy, the affidavits must be taken as true and the purported service of summons quashed.” (Harris v. American Legion John T. Shelton Post No. 838 (1973), 12 Ill. App. 3d 235, 237.)

Although both Marnik and Harris correctly state rules of law concerning the effect of recitations in the sheriff’s return, neither case is completely controlling under the facts of the case now before us. In Ingram v. MFA Insurance Co. (1974), 18 Ill. App. 3d 560, the appellate court properly stated the effect of the sheriff’s return where the service is had upon an agent of a corporation or when there is substitute personal service. The officer’s return is prima facie evidence of service which cannot be set aside upon the uncorroborated affidavit of the person served. It can only be set aside by clear and satisfactory evidence. (Marnik v. Cusack (1925), 317 Ill. 362.) This rule applies, however, only to matters within the knowledge of the officer making the return, such as the facts that service was made, that it was made upon a person who gave his name as Joe Johnson in this case, and that service was made at a particular place. When service is had upon a corporation by serving an agent, the fact of agency of the person served may not be within the personal knowledge of the officer. The recital in the return that service was made upon a person who was an agent of the corporate defendant is not, therefore, conclusive and can be denied and placed in issue by the affidavit of the defendant. If the affidavit stands unrebutted or uncontradicted, it is a proper basis for quashing the service. (See Harris v. American Legion John T. Shelton Post No. 838 (1973), 12 Ill. App. 3d 235.) The same rule applies where there is substitute personal service, as in our case. The fact that service was made upon a person who said his name was Joe Johnson and the place where it was made are within the personal knowledge of the officer and cannot be contradicted by the uncorroborated affidavit of the defendant. However, the recital in the return that Joe Johnson was a member of defendant’s household was presumptively not within the personal knowledge of the officer. This recital could be denied by the affidavit of the defendant, as it was. If the affidavit were not contradicted, or if it were unrebutted, that part of the affidavit attacking those recitals in the return which are beyond the personal knowledge of the officer would be taken as true.

Here, however, Nibco did not rely solely on the return of the summons. When the question of the validity of the recitals in the return was raised, evidence of the deputy who made the service was presented in support of those recitals. The question of fact was thus presented to the trial court as to whether the person whom the deputy served was a member of the defendant’s household on the date that service was made. The deputy gave evidence in support of his conclusion that Joe Johnson was a proper person upon whom substitute service could be made. We have set out much of that testimony above. Defendant Johnson offered no evidence to contradict or rebut the deputy’s testimony. The trial court had, in support of her position, only the bare assertion contained in her affidavit, which, of course, is not subject to cross-examination. The weight to be given to the assertions in the affidavit and to the testimony of the deputy must be peculiarly within the province of the trial court.

In Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, this court discussed the proper review of findings of the trial court in a bench trial and stated:

“Although a trial court’s holding is always subject to review, this court will not disturb a trial court’s finding and substitute its own opinion unless the holding of the trial court is manifestly against the weight of the evidence. [Citations.] Underlying this rule is the recognition that, especially where the testimony is contradictory, the trial judge as the trier of fact is in a position superior to a court of review to observe the conduct of the witnesses while testifying, to determine their credibility, and to weigh the evidence and determine the preponderance thereof. We may not overturn a judgment merely because we might disagree with it or might, had we been the trier of facts, have come to a different conclusion.” Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356.

The trial court, when it resolved the dispute as to service, made a determination of a question of fact, and we cannot say that the court’s determination was contrary to the manifest weight of the evidence. We will, therefore, not reverse its holding.

Johnson also complains in her brief that Nibco appeared ex parte in Nibco v. Johnson and obtained a default judgment without giving notice to her attorneys. This default judgment was based upon the above substitute service which we have found to be valid. Our examination of the record shows that Johnson failed to file an appearance in Nibco v. Johnson or have her attorney file one on her behalf and was, therefore, in default for failure to plead in connection with this matter.

Rule 2.1 of the circuit court of Cook County provides that “written notice of the hearing of all motions shall be given to all parties who have appeared and have not theretofore been found by the court to be in default for failure to plead ***.” Patricia Johnson was not entitled to notice of the ex parte motion for a default judgment. Furthermore, the record indicates that the default judgment was entered on April 27, 1978, at which time the record reflects a “notice of judgment card” was mailed to Patricia Johnson, thus giving her notice of the default judgment and an opportunity to move to vacate the judgment. The issue raised by her motion in the trial court concerned the validity of the substitute service on Joe Johnson and not irregularities in the service or whether it was proper to enter an ex parte default judgment.

Patricia Johnson and the appellate court both cite Clinton Co. v. Eggleston (1979), 78 Ill. App. 3d 552, as holding that strict compliance with all statutory requirements must be shown when personal jurisdiction is based upon substitute service of summons. Johnson’s motion and affidavit created only one question of fact, which we have heretofore addressed, and which the trial court found contrary to Johnson’s contention. The other recitals in the deputy’s return, not having been challenged, are presumed correct. Also, the service stamp indicatés that a copy of the summons was mailed to Patricia Johnson at her abode, and pursuant to the statute, this is to be taken as evidence that it has been done. (Ill. Rev. Stat. 1981, ch. 110, par. 2— 203(a).) As the record stands, it reflects strict compliance, which Clinton held is required.

For the reasons set forth herein, the judgment of the appellate court is reversed and the circuit court of Cook County is affirmed.

Appellate court reversed; circuit court affirmed.

JUSTICE SIMON,

dissenting:

The testimony of Deputy Sheriff Arthur Nawls does not satisfactorily rebut Patricia Johnson’s sworn statement that no Joe Johnson resided with her on the date of the alleged service and that there were no males living at her home on that date. A careful reading of Nawls’ testimony reveals that he had no knowledge whether the person he claimed to have served (Joe Johnson) was a member of the household of Patricia Johnson; Nawls never testified that Johnson told him he lived at the place where service was made on him or that he had knowledge that Joe Johnson lived there or was a member of the household. The following questions and answers put to Nawls by George Lopuszynski, attorney for Nibco, who called Nawls as a witness to testify regarding the service he made, and by Daniel Olofsson, attorney for Patricia Johnson, establish this.

The direct examination of Nawls by Mr. Lopuszynski included the following exchange:

“Q. And you attempted to serve in this case, and who did you serve?
A. J. Johnson.
Q. Did that person identify himself as a member of the household?
.A. Yes, sir.”
Deputy Nawls acknowledged when questioned by Mr. Olofsson and when further questioned by Mr. Lopuszynski that this testimony was based only on an assumption.
The examination by Mr. Olofsson went as follows:
“Q. Did you have any knowledge prior to service that Mr. Johnson was at home?
A. I didn’t understand the question.
Q. Did you have any prior knowledge if Mr. Johnson was living in the home?
A. Whether he was living there or not?
Q. Right, he.
A. He was there. He was living there at that time?
Q. At that time?
A. I assumed that he was living there. He was there.
Q. He was just present at the household?
A. He was at the household.
Q. What time was your service?
A. One-ten p.m.
Q. So, based on your assumption, you assumed he was a member of the household?
A. Yes.”

On redirect examination by Mr. Lopuszynski, Nawls testified:

“Q. Officer Nawls, when you attempt substitute service on a person other than one named in the summons, do you ask the person whether they know the person named in the summons?
A. Yes, sir.
Q. Do you recall whether you asked Mr. Johnson that?
A. Yes, sir.
Q. Did he say he knew Mrs. Johnson?
A. He said he did.
Q. Did he say what his relationship was, or do you recall?
A. No.
Q. Did you ask him whether he lived there?
A. No, sir, I didn’t.
Q. Okay. Do you recall how we was dressed?
A. No, I don’t.”

Although I agree with the majority’s observation in reliance upon Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, that the finding of the trial judge who has observed the demeanor of a witness should not be lightly disregarded, Nawls’ testimony quoted above shows that he answered in the affirmative the following question put to him on direct examination: “Did that person [J. Johnson] identify himself as a member of the household?” Yet this response was contradicted by the substitute- service stamp which Deputy Nawls affixed to the reverse side of the summons; it stated that the person served “refused to identify self.” Then on cross-examination Nawls acknowledged that he had no knowledge that Johnson was living there, but “assumed” he was living there and assumed he was a member of the household because he was there. On redirect examination Nawls conceded he did not ask Johnson whether he lived there.

I do not agree with the trial court’s determination that Nawls’ testimony leads to the conclusion that Johnson was a member of the household. The testimony was ambiguous and self-contradictory. Nawls started out saying Johnson identified himself as a member of the household and ended up testifying that he never asked him if he lived there. Nowhere in Nawls’ testimony can I find the statement relied on by the trial judge that Johnson said he was living there at the time. Moreover, Nawls’ assumption that Johnson was a member of the household does not support the trial judge’s conclusion which appears in the record as follows and which the majority quotes: “That’s part of being a member of the household. He doesn’t know. So I agree with him, he is a member of the household.”

I believe that Patricia Johnson was entitled to a closer reading of the record than this court has given it. Such a reading affords no basis for the deputy’s statement on his substitute-service stamp that Joe Johnson was a member of Patricia Johnson’s household or for disregarding Patricia Johnson’s sworn statement that he was not. Absent proof of such a relationship the service was invalid.

This case does not involve a question of credibility, that is whether the deputy sheriff was lying or, as the circuit court judge put it, whether he had any reason to lie. All that Nawls’ testimony established is that Joe Johnson never told him that he lived at the place of service or that he was a member of the household, but that Nawls assumed this was the case because Johnson was there. In view of Patricia Johnson’s sworn denial that a Joe Johnson resided with her, I do not believe Nawls has provided sufficient support for valid substitute service or that his testimony adequately supports the deputy’s return of service in which he stated he served a member of the household of Patricia Johnson. The state of the record is that, assuming Nawls did hand the summons to a person named Joe Johnson, Nibco has failed, in the face of Patricia Johnson’s denial, to establish that the person who received the summons was one our substitute-service statute made eligible to receive it.

This case does not involve a question of the stability of judicial proceedings and the service of judicial process. Rather it involves adherence to the principle that strict compliance with the provisions of section 2 — 203(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 203(a)) is required whenever personal jurisdiction is based on constructive or abode service, so that the law can insure that defendants will receive adequate notice of actions filed against them and can have their day in court (Clinton Co. v. Eggleston (1979), 78 Ill. App. 3d 552, 555). Clinton also teaches that where a constructive service is challenged by affidavit, as Patricia Johnson has done here, the return of service itself is not evidence, and absent testimony to the contrary by the deputy, the affidavit must be taken as trae. I would hold that Nawls’ testimony was not sufficient to overcome Patricia Johnson’s affidavit and that the trial court, in ruling that it was sufficient, misunderstood his testimony. No matter how impressive his demeanor was when he appeared as a witness, his plain words are not sufficient to establish proper service.

I would affirm the appellate court in order to give Patricia Johnson her day in court.

JUSTICE GOLDENHERSH joins in this dissent.


author: JUSTICE GOLDENHERSH JUSTICE UNDERWOOD,

text:
    (No. 57899.

      In re HENRY A. TOWLES, Attorney, Respondent.

      Opinion filed October 21, 1983.

      UNDERWOOD and MORAN, JJ., dissenting.
    Daniel Drake and Charles S. Morgan, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    William A. Barnett, of Chicago, for respondent.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

On May 11, 1982, the Administrator of the Attorney Registration and Disciplinary Commission filed a one-count complaint against respondent, Henry A. Towles, who was admitted to the practice of law on January 9, 1950. A panel of the Hearing Board recommended that respondent be censured, and the Administrator filed exceptions. Four members of the Review Board found that censure was “a reasonable and appropriate discipline,” and four found that respondent should be suspended for a period of six months. We allowed the Administrator’s petition for leave to file exceptions. 87 Ill. 2d R. 753(e).

The record shows that on August 4, 1980, the United States Attorney for the Northern District of Illinois filed a three-count complaint charging respondent with wilful failure to file income tax returns for calendar years 1974, 1975 and 1976 in violation of Title 26 U.S.C. section 7203 (1976). The cause was tried before a jury, and a verdict of guilty was returned on all three counts. The district court found that, aside from these convictions, respondent was a “stellar citizen” and had not, through his actions, intended to defraud the United States, but had intended to eventually file his returns and pay his taxes along with interest and penalties. The court entered judgment on the verdict and sentenced respondent to five years’ probation with the condition that the first 45 days be spent in a jail-type institution. The judgment was modified to permit respondent to serve the sentence on weekends so that he could continue his practice of law while on probation.

In his evidence deposition respondent testified that during the years 1974, 1975 and 1976 he was engaged in an embittered dispute with his ex-wife concerning visitation rights with his son and that in order to see each other his son and he had to meet surreptitiously. Respondent stated that he first became aware that his failure to file returns constituted criminal misconduct on March 22, 1978, when Internal Revenue Service agents visited him at his office. He testified that he had paid all taxes, penalties, and interest owed to the Federal Government.

Due to failing health respondent was not able to attend the proceedings before the Hearing Board but authorized his attorney to proceed in his absence. It was stipulated that respondent was born on March 4, 1914, in Texarkana, Arkansas. Respondent’s attorney explained that respondent was 68 years old at the time of the hearing and introduced into evidence numerous letters from respondent’s clients which had been sent to the district judge who sentenced respondent. These letters explained that respondent had performed a significant amount of pro bono work for the people in his community and asked the judge to “show him every consideration possible.” A letter from a Chicago attorney stated that he knew respondent well through working with and against him on various matters. This attorney stated that respondent “has contributed immeasurably to his community by his associations in various social clubs as well as his contributions to various community activities, especially during the trying times of the 1960’s.”

The panel of the Hearing Board made the following findings:

“1. That on March 12, 1981, Respondent was convicted of willful failure to file income tax returns for the years 1974, 1975 and 1976 in violation of Title 26 United States code section 7203. He was sentenced to five years of probation with the first 45 days to be spent in jail. The conviction was upheld by the Seventh Circuit Court of Appeals on December 8,1981.
2. That the sentence of 45 days was modified, upon Respondent’s request, to 22½ weekends. The purpose of this was to permit Respondent to continue his practice of law. At that time, Judge Grady found no intention on the part of the Respondent to commit fraud.
3. That Respondent filed his 1970 return in April of 1973; his 1971 and 1972 returns in January of 1975 and his 1973 return in February of 1977.
4. That in March of 1978, Respondent was visited by Special Agents inquiring as to the returns for the years 1974,1975 and 1976.
5. That the Respondent filed the returns for 1974 and 1975 in April of 1978 and the return for 1976 in August of 1978.
6. That all taxes, penalties and interest due and owing from 1971 through 1976 were paid.
7. That Respondent does not practice in the field of taxation and has not represented clients in tax matters.
8. That until September of 1979, the Respondent was not aware that he could be held criminally liable for his conduct and believed that the penalties and interest he paid was the sole sanction.
9. That the Respondent had no intention of not eventually filing the tax returns.
10. That the Respondent’s net income for the years of 1974 through 1976 ranged from $14,000.00 to $20,000.00.
11. That Respondent was admitted to practice law in 1950 and to this date has an unblemished record.
12. That Respondent is 68 years old and suffering from hypertension and prostatitis.
13. That the Respondent was divorced in 1966 and from that time through 1976 he was involved in a bitter battle over visitation with his son.
14. That eight letters, written to Judge Grady at the time of sentencing, were introduced into evidence; six of these letters were from clients who hold the Respondent in highest esteem and speak of much pro bono work performed by Respondent; one is from a fellow attorney who has known Respondent and his reputation for 25 years and who regards Respondent highly as well as speaking highly of his reputation in the community and the final letter is from a Deputy Sheriff who speaks highly of Respondent and affirms the pro bono work performed by Respondent as well as his activities with the Lions Club.
15. That the Court found that Respondent’s conduct was not fraudulent.”

The hearing panel concluded that respondent’s conviction constituted grounds for discipline. Citing In re O’Hallaren (1976), 64 Ill. 2d 426, the panel noted that “although conviction of wilful failure to file tax returns does not necessarily establish moral turpitude, it does establish misconduct constituting grounds for discipline in the absence of mitigating circumstance of an extraordinary nature.” The hearing panel reviewed a number of disciplinary cases involving tax convictions and concluded that “although mitigating circumstances did exist they were insufficient to warrant no discipline.” Despite the convictions for wilfully failing to file tax returns, the hearing panel concluded that “respondent was under the honest misconception that interest and penalties were the sole sanctions for late filing.” Two of the members of the hearing panel recommended that respondent be censured. One member concurred in the findings and conclusions of the hearing panel but recommended that respondent be suspended from the practice of law for one year. This member reasoned:

“Respondent displayed a commendably high sense of responsibility to the public in the area in which he conducted his practice. However, that high sense of responsibility does not excuse his shocking lack of responsibility to the larger community of which he was a part and of which he took advantage by his cavalier approach to his duty of promptly paying his taxes. His commendable practice habits are not mitigating circumstances.”

The Review Board incorporated the findings of the hearing panel. After reviewing the facts of the case, the Review Board stated:

“We recognize that an attorney cannot disregard valid laws of the land without diminishing public confidence in and bringing some measure of disrepute to the profession. We further recognize that such conduct warrants discipline. We must keep in mind, however, that a respondent is disciplined not because of his conviction but because of his underlying conduct.”

Four members of the Review Board recommended that respondent be censured, and four members recommended that respondent be suspended for a period of six months.

The Administrator of the Attorney Registration and Disciplinary Commission filed exceptions to the recommendations of the Review Board. The Administrator argues that respondent should be suspended for one year, that the suspension should be stayed, and that respondent should be placed on disciplinary probation subject to the following conditions: that respondent report twice each year to the Administrator and state under oath that he has complied with the conditions of his Federal probation; that respondent comply with Federal and State income tax laws “and provide the Commission with a waiver permitting verification of tax returns”; that respondent pass the multistate professional responsibility examination; that respondent pay the costs incurred in court-reporting fees and transcripts of the hearing before the Hearing Board prior to the expiration of probation; and that if respondent violates a condition of his probation the stay of suspension would be vacated. Citing In re Driscoll (1981), 85 Ill. 2d 312, the Administrator argues that this court has the inherent power to place respondent on disciplinary probation and that this disposition would best serve the interests of the public and of respondent’s clients.

We are of the opinion that probation is not necessary in this case. Driscoll involved an attorney whose misconduct was the result of alcoholism. Noting the possibility that Driscoll could possibly once again succumb to alcohol, this court, in addition to a six-month suspension, required that Driscoll periodically report to the Disciplinary Commission. Unlike Driscoll, respondent’s misconduct was not caused by a chronic problem, but rather by either negligence or ignorance, and is unlikely to recur. We are of the opinion that probation would impose a needless administrative burden on both respondent and the Commission and decline to impose it in this case.

We conclude that censure is appropriate to the circumstances of this case. “Our primary consideration in determining the nature and extent of discipline to be imposed in any particular case is the protection of the public and the integrity of the profession.” (In re Kramer (1982), 92 Ill. 2d 305, 311.) The “public” which is to be protected through disciplinary measures is comprised of the public at large, but primarily consists of those who are directly affected by the attorney’s professional conduct. It has not been suggested that respondent’s professional conduct has adversely affected those with whom respondent has had professional dealings, and it is undisputed that respondent’s clients will suffer if he is suspended from the practice of law. As one member of the hearing panel pointed out, failure to timely file tax returns is indicative of a lack of responsibility as a citizen of the United States. Protecting the interests of Federal taxpayers is primarily the responsibility of the Federal courts through their implementation of the criminal penalties imposed by law. Here, the district court which sentenced respondent recognized that preventing respondent from continuing to represent his clients was not necessary to protect the Federal taxpayers’ interests and modified respondent’s jail sentence from 45 consecutive days to 22Vz weekends in order to enable him to continue his practice. Thus, the remaining consideration for determining the extent of discipline to be imposed in this case is the protection of the integrity of the profession. Here, where violation of the Federal tax laws is accompanied by extenuating circumstances and the attorney’s professional reputation is otherwise unblemished, that objective is accomplished by censuring respondent. In re Crane (1961), 23 Ill. 2d 398, 401-02.

Respondent censured.

JUSTICE UNDERWOOD,

dissenting:

In a disciplinary proceeding in which neither the hearing panel nor the Review Board is unanimous, it is not surprising that the members of this court are in disagreement as to the appropriate sanction. Two members of the hearing panel believed censure sufficient, while the third member urged one year’s suspension; the Review Board was evenly divided between censure and six months’ suspension. Justice Moran and I believe that the circumstances here require something more than censure, and that six months’ suspension is appropriate.

In addition to failing to file income tax returns for 1974, 1975 and 1976, it is undisputed that respondent did not file his return for 1970 until April 1973, his returns for 1971 and 1972 until January 1975, and his 1973 return in February 1977. He asserts that he was unaware until 1979 that failure to file was a criminal offense despite the fact that Federal agents investigating his case had contacted him approximately one year earlier. But, even if true, it seems rather strange to treat unawareness of the criminal penalty as a mitigating circumstance when respondent clearly knew the law required him to file. A lawyer’s obligation to obey the law is certainly no less than that of the nonlawyer, and in neither situation is that obligation dependent upon or proportionate to the severity of the sanctions imposed for disobedience.

While absolute uniformity in disciplinary sanctions is impossible of achievement, the gross disparity between the censure imposed here and the 18-month and one-year suspensions imposed in the similar cases of In re O’Hallaren (1976), 64 Ill. 2d 426, and In re Gold (1979), 77 Ill. 2d 224, ought not to exist. At least a six-month suspension should be imposed here.

JUSTICE MORAN joins in this dissent.


author: CHIEF JUSTICE RYAN

text:
    (No. 56964.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MARK J. CARLTON, Appellee.

      Opinion filed October 21, 1983.

      Neil E Hartigan and Tyrone C. Fahner, Attorneys General, of Springfield, and J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and Marshall Stevens, of the State’s Attorneys Appellate Service Commission, of Elgin, of counsel), for the People.
    Frank Wesolowski, Jr., Public Defender, of Wheaton (Eugene A. Wojcik, Jr., Deputy Public Defender, of counsel), for appellee.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

Pursuant to Rule 604(a)(1) (87 Ill. 2d R. 604(a)(1)), the State appealed from an order of the circuit court of Du Page County suppressing evidence seized by the police from the trunk of a car in which the defendant, Mark J. Carlton, was a passenger. However, the prosecutor failed to certify that suppression of the evidence substantially impaired the State’s ability to prosecute the case. The appellate court held that by virtue of our opinion in People v. Young (1980), 82 Ill. 2d 234, the State may not seek an interlocutory appeal of a pretrial suppression order unless it certifies to the trial court that the suppression of evidence substantially impairs its ability to prosecute the case. (106 Ill. App. 3d 780.) After the appellate court remanded for the filing of a certificate of impairment, we allowed the People’s petition for leave to appeal.

The sole issue on review is whether the People must file a certificate of impairment in every interlocutory appeal of a pretrial order suppressing evidence under Rule 604(a)(1).

Article VI, section 6, of the Illinois Constitution of 1970 provides that there shall be no appeal from a judgment of acquittal after a trial on the merits in a criminal case and further states:

“The Supreme Court may provide by rule for appeals to the Appellate Court from other than final judgments of Circuit Courts.” Ill. Const. 1970, art. VI, sec. 6.

Exercising this constitutional authority, this court adopted Rule 604(a)(Xl), which provides for appeal by the State in criminal cases:

“(1) When State May Appeal. In criminal cases the State may appeal only from an order or judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114 — 1 of the Code of Criminal Procedure of 1963; arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence.” (Emphasis added.) 87 Ill. 2d R. 604(a)(1).

We are here concerned only with that part of Rule 604(a)(1) relating to the suppression of evidence. That provision of the rule has been the source of a considerable amount of litigation. The language of the rule is broad and appears on its face to grant to the State a broad right of appeal from orders precluding the admission of evidence. However, the courts of this State have not accorded a broad construction to this provision of the rule and have devised various interpretations for limiting its application. After this court’s decision in People v. Van De Rostyne (1976), 63 Ill. 2d 364, several appellate court decisions in this State refused to permit appeals by the State under this provision of the rule, unless the evidence had been suppressed because of an illegal search and seizure, or because of an involuntary confession. These two grounds for suppression assumed a role of importance in the application of Rule 604(a)(1) and, as discussed later, are urged by the State in this case as a reason why it is unnecessary to certify that the suppression order substantially impairs the State’s ability to prosecute its case.

In People v. Young this court examined the history of the State’s right to an interlocutory appeal under both the 1870 Constitution and the present constitution. We also discussed the various constructions of Rule 604(a)(1) and the VanDe Rostyne holding referred to above. We noted that the State’s right to appeal under the “suppressing evidence” provision of the rule is not limited to cases involving illegally seized evidence or involuntary confessions, but extends to all pretrial suppression orders which substantially impair the State’s ability to prosecute a case. We stated:

“We hold, therefore, that Rule 604(a)(1) allows an interlocutory appeal by the State of a pretrial suppression order whenever the prosecutor certifies to the trial court that the suppression substantially impairs the State’s ability to prosecute the case.” People v. Young (1980), 82 Ill. 2d 234, 247.

The State argues that People v. Young created new areas wherein the State may appeal from suppression orders and that it is only in these new areas that the prosecutor must file the required certification. It is the State’s position that in cases where the suppression orders are based on illegally seized evidence or involuntary statements, the prosecutor need not file such a certification. The State argues that since suppression orders based on these grounds were appealable by the State prior to People v. Young, such suppression orders are therefore exempted from the holding of that decision. In the case before us, since the suppression order was based on the fact that the evidence was illegally seized, the State contends that it was not necessary to file the certification.

Both People v. Young and People v. Flatt (1980), 82 Ill. 2d 250 (an opinion filed the same day as People v. Young), construed the suppression-of-evidence provisions of our Rule 604(a)(1). Both cases rejected the construction of the “suppressing evidence” clause which would permit appeals by the State only where the suppression order was based on illegally seized evidence or an involuntary confessions. While recognizing that every evidentiary ruling denying the admission of prosecution evidence is not appealable under the rule, these cases, nonetheless, rejected the arbitrary application of the rule to the two categories of evidence referred to in Van De Rostyne. The holding of Young establishes a procedural device for the application of the rule. The focus of the holding in Young is on the effect of the suppression order and not on the nature of the evidence suppressed. The purpose of the requirement of a certification is to establish that the effect of the suppression order impairs the State’s ability to prosecute the case.

We accordingly reject the People’s contention that filing a certificate of impairment is unnecessary because the circumstances involve an illegal search or seizure, and because this category of cases was appealable prior to our holding in People v. Young. We hold that a certification of impairment must be filed in every case in which the People seek to appeal from a pretrial order suppressing evidence.

The People recognizé that the first and fourth districts of our appellate court, as did the appellate court for the second district in this case, have held that certification is a necessary prerequisite to appeals by the State in all suppression-of-evidence cases. (People v. Norris (4th Dist. 1981), 101 Ill. App. 3d 664; People v. Neziroski (1st Dist. 1981), 102 Ill. App. 3d 720.) The People, however, rely on the holding of the appellate court in the third district in People v. Hoffner (1981), 99 Ill. App. 3d 516, in support of its argument that certification is not necessary in a traditional case involving illegally seized evidence or involuntary confessions. However, the third district, in People v. Meyers (1982), 109 Ill. App. 3d 862, in an opinion authored by the same justice who authored the opinion in People v. Hoffner, noted the holding of the appellate court in the fourth district in People v. Norris and in People v. Jones (1981), 102 Ill. App. 3d 238, and People v. Keath (1981), 101 Ill. App. 3d 652, and held that certification was necessary in an appeal from an order suppressing the statement taken from a defendant in violation of his sixth amendment rights. The court overruled People v. Hoffner in that respect.

In People v. Norris the fourth district appellate court, in construing our opinion in Young, stated:

“We find nothing in Young indicating an intention to limit its certification requirement to orders not previously deemed appealable. Every expression of the court’s holding is stated in terms indicating its applicability to all pretrial orders of suppression entered against the State. Its rationale is to limit such appeals to orders substantially impairing the prosecution. An order suppressing evidence because its procurement resulted from an illegal search or seizure does not necessarily do so. We hold the order on appeal to be subject to the certification requirement even though it was based on a determination the evidence was obtained by an illegal search and seizure.” People v. Norris (1981), 101 Ill. App. 3d 664, 667.

The court in Norris correctly construed our holding in Young. As noted earlier, the focus of Young is on the effect of the suppression order and not on the nature of the evidence involved. Appeals are permitted and certification is required when the suppression order substantially impairs the ability to prosecute the case. The holding in Young did not intend to limit the certification requirement to orders which were not previously considered appealable. Its rationale was to limit interlocutory appeals to orders substantially impairing prosecution. As noted in the language of Norris quoted above, a suppression order based on illegal searches and seizures does not necessarily result in a substantial impairment. Therefore, even in the areas previously recognized as being appealable suppression orders, the prosecution must file the necessary certificate of impairment. We have, however, noted in People v. Kantowski (1983), 98 Ill. 2d 75, an opinion filed today, that the filing of a certificate is not a jurisdictional requisite and that the State may file a certificate as a supplement to the record.

This construction of our holding in Young will deter frivolous interlocutory appeals from orders based on illegally seized evidence or involuntary confessions. However, it will permit the State to take interlocutory appeals from all orders which substantially impair the prosecution of a case without fitting those orders into neatly compartmentalized classifications.

The appellate court in this case remanded the cause to the circuit court for the filing of a certificate of impairment. In People v. Kantowski we did not remand the case to the circuit court but allowed the State to file a certificate of impairment in this court as a supplement to the record. In the interest of judicial economy, and because there were apparently other issues raised but not decided in the appellate court, we judge it appropriate to remand the cause to the appellate court.

Accordingly, the judgment of the appellate court remanding the cause to the circuit court is vacated. The cause is remanded to the appellate court with directions to permit the State to file a certificate of impairment within 14 days of the receipt by the appellate court of the mandate of this court. If such certificate is not timely filed, the appellate court shall dismiss the appeal. If such certificate is timely filed, the appellate court shall consider the issues properly raised.

Vacated and remanded, with directions.