author: JUSTICE WARD

text:
    (No. 54575.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DAN W. SMITH, Appellant.

      Opinion filed September 17, 1982.
    Rehearing denied November 24, 1982.

      Mary Robinson, Deputy Defender, and Josette Skelnik, Assistant Defender, of the Office of the State Appellate Defender, of Elgin, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield, and Dennis Schumacher, State’s Attorney, of Oregon (Phyllis J. Perko and William L. Browers, of the State’s Attorneys Appellate Service Commission, of Elgin, of counsel), for the People.
   JUSTICE WARD

delivered the opinion of the court:

Dan W. Smith, the defendant, was convicted of murder and armed robbery after a jury trial in the circuit court of Ogle County. He was sentenced to life imprisonment for the murder and to 50 years for the armed robbery. Before trial, the defendant had unsuccessfully attempted to have two incriminating statements, which he had given while in police custody, suppressed. The statements were admitted into evidence and read to the jury. The appellate court, holding that the trial court did not err in admitting the statements, affirmed. (91 Ill. App. 3d 438.) We granted the defendant leave to appeal to this court under Rules 315 and 612 (73 Ill. 2d Rules 315, 612).

Pursuant to an arrest warrant issued in Ogle County, the defendant was arrested in Winnebago County shortly before midnight on Friday, September 1, 1978. Mary Smith, who was living with the defendant at the time, was also arrested. The pair was taken to the Winnebago County sheriff’s office. There, at about 5:30 a.m. on September 2, they met with attorney Joseph Spiezer, who, Mary Smith testified, agreed to represent them. Later that morning they were advised by a circuit court judge in Winnebago County of the charges against them and that in view of the murder charge bond would not be set. The defendant and Mary Smith were then transported to the Ogle County jail.

The first incriminating statement was taken in the afternoon of Sunday, September 3, during an interrogation of the defendant by an Ogle County sheriffs deputy. Police had attempted to question the defendant in the early morning hours of September 2, but he was incoherent. At the September 3 interrogation, however, he related that Mary Smith and he had driven to The Other Place Tavern in Mary Smith’s automobile. Mary waited while he robbed the proprietor, Mrs. Clifty Davis. He took Mrs. Davis with him at gunpoint and drove off with her in her automobile. Mary Smith followed in her car. He said that he shot and killed the proprietor when she attempted to grab his gun. The defendant signed a transcription of the statement on Monday, September 4, while being questioned by the sheriff of Ogle County. He also made a handwritten statement, in which he told a history of heroin use and of being "high on heroin” at the time of the robbery and killing.

An information was filed on September 5. It charged the defendant and Mary Smith with murder and armed robbery.

The defendant raises several issues here, all of which were decided against him in the appellate court. First, he contends that the statements should have been suppressed as being violative of his right to counsel, on the ground that on September 2 the police had prevented his attorney and him from consulting. Too, he claims that the jury was biased in favor of the prosecution because pursuant to Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770, jurors who stated that they could not impose the death penalty under any circumstances were excused for cause. He argues that his life sentence was an abuse of discretion, and he says that the trial court violated the Constitution of Illinois by disregarding evidence of his rehabilitative potential in sentencing him. Our decision as to the statements given is dispositive of the appeal.

At the hearing on the motion to suppress, attorney Carol Ellerby testified that she was a partner of Spiezer. She said that on September 2, the day before the defendant gave the first incriminating statement, Spiezer called her from Rockford, in Winnebago County, and asked her to visit the defendant and Mary Smith. She arrived at the Ogle County jail at approximately 3 p.m. on September 2. The jailer, whom she thought was John Willard, told her that she could not see the defendant because he was going through heroin withdrawal and was “shaking so hard” that he could not stay on his bed. Ellerby then wrote upon one of her business cards that she was Spiezer’s partner and that he should not make a statement without one of his lawyers being present. The jailer agreed to give the defendant the card, and allowed her to see Mary Smith. There was no evidence of any consultation by the defendant with a lawyer until after he had given the incriminating statements.

Willard testified that he was a jailer when Ellerby came to the jail on September 2, but he could not recall her asking to see the defendant. He said that he had never refused an attorney access to a prisoner, and he denied that he told her that the defendant was going through heroin withdrawal. He further testified, as did other officers, that the defendant was not going through withdrawal at the time in question. In fact, no reason was presented at the hearing that would have warranted preventing one from visiting the defendant.

The defendant testified too. He said that he did receive Ellerby’s card sometime on September 2. There is no evidence in the record, though, that he was told that Ellerby had requested to see him.

The trial court, in its findings, accepted Ellerby’s version of the conversation with Willard and found that at the time of her visit the defendant was represented by Spiezer’s firm. Nevertheless, the court admitted the statements into evidence.

The court said that in the period from sometime in the afternoon of September 2 through September 3 and 4, the defendant was no longer represented by an attorney and found that law-enforcement personnel at the jail were aware of that fact. The findings were based upon testimony that at about 4 p.m. on September 2, Robert Thorsen, another partner of Spiezer, appearing before a different judge, told him that Spiezer had decided not to represent the defendant because he was without funds. At about 4:30 p.m., Thorsen also told Mary Smith that their firm was not going to represent the defendant. There is nothing in the record to show that the defendant was ever advised that Spiezer was not going to represent him. Spiezer did in fact enter an appearance as defendant’s counsel on September 5. Spiezer represented the defendant at the hearing of the motion to suppress the confessions and at the defendant’s trial.

In addition, the trial court concluded that at the time the defendant gave the statements he knowingly waived his right to have counsel present. The court found that he was given Miranda warnings and had freely decided to waive them. At no time, the court found, did he request counsel. Further, the court found that his decision to speak was voluntary, the court noting that the defendant was not without experience with the criminal justice system. The court found, too, that at no time immediately before or during the giving of the statements was the defendant under the influence of any drug or suffering heroin withdrawal such as to affect his free will.

The appellate court agreed with the trial court that the defendant waived his right to counsel at the interrogations. It did hold, though, that the defendant’s sixth amendment right to counsel was violated by the jailer’s refusal to allow Ellerby to visit the defendant, but the court considered that this did not taint the statements obtained on September 3 and 4 so as to require their suppression. 91 Ill. App. 3d 438, 442-47.

We consider, however, that the statements should have been suppressed. We rest that conclusion upon the defendant’s right to counsel during custodial interrogation. That right stems from the fifth amendment protection against self-incrimination. We need not consider the correctness of the appellate court’s analysis in terms of the general sixth amendment right to counsel, which arises upon the commencement of adversary judicial criminal proceedings. 91 Ill. App. 3d 438, 442-45.

In Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, the Supreme Court held, that prior to custodial interrogation, the subject must be informed that he has the right to remain silent and to have an attorney present. The holding was designed to protect an accused’s right against compulsory self-incrimination. In effect, the court recognized a right to counsel under the fifth and fourteenth amendments as to custodial interrogation that is distinct from the right to counsel assured by the sixth amendment. See Edwards v. Arizona (1981), 451 U.S. 477, 480-82 n.7, 68 L. Ed. 2d 378, 383-84 n.7, 101 S. Ct. 1880, 1882-83 n.7.

The right to counsel under Miranda’s holding can, of course, be waived, if the waiver is made knowingly and intelligently. (Miranda v. Arizona (1966), 384 U.S. 436, 475, 16 L. Ed. 2d 694, 724, 86 S. Ct. 1602, 1628.) But the giving of prescribed warnings and a clear waiver by the one interrogated are “prerequisites to the admissibility of any statement made by a defendant.” (384 U.S. 436, 476, 16 L. Ed. 2d 694, 725, 86 S. Ct. 1602, 1629.) Such a waiver must be demonstrated by the prosecution, though it may be inferred from the actions and words of the one interrogated. North Carolina v. Butler (1979), 441 U.S. 369, 373, 60 L. Ed. 2d 286, 292, 99 S. Ct. 1755, 1757.

Here, we consider that there was not a knowing and intelligent waiver of the right to counsel during the interrogation in view of the interference with Ellerby’s effort to consult with the defendant. In this regard, we deem that the decision in State v. Haynes (1979), 288 Or. 59, 602 P.2d 272, cert. denied (1980), 446 U.S. 945, 64 L. Ed. 2d 802, 100 S. Ct. 2175, is persuasively relevant.

In Haynes, the defendant was arrested on a Saturday evening as a suspect in a murder. He was questioned that night and made some admissions. Meanwhile, his wife retained an attorney to represent him. The lawyer telephoned the police at about 8 a.m. on Sunday morning and informed them that he was coming to confer with the defendant at the jail. At 8:30 a.m., about the time the attorney arrived, the police removed the defendant to another location to question him. There, the defendant gave details of the murder. On Sunday evening he reenacted the murder on video tape. He gave another statement on the following day.

The trial court found that the police, who had taken the defendant from the jail, were aware that the attorney was coming to visit the defendant and knew that moving him would frustrate the attorney’s intention to confer with the defendant. The trial court did not suppress any statements, however, because it found that the defendant was repeatedly advised of his rights and understood them. He was convicted of murder and sentenced to life imprisonment.

The Supreme Court of Oregon reversed the conviction, on the ground that the trial court should have suppressed the statements obtained after the police had interfered with the attorney’s attempt to consult with the defendant. The court acknowledged that a person in custody, after being advised of his relevant rights, could voluntarily waive consulting with a lawyer and give statements which would be admissible at trial. The court, however, held:

“[W]hen unknown to the person in this situation an identified attorney is actually available and seeking an opportunity to consult with him, and the police do not inform him of that fact, any statement or the fruits of any statement obtained after the police themselves know of the attorney’s efforts to reach the arrested person cannot be rendered admissible on the theory that the person knowingly and intelligently waived counsel.” 288 Or. 59, 70, 602 P.2d 272, 277.

The court reasoned:

“It is not disputed that an arrested person has a right to have access to counsel when taken into custody and thereafter, subject only to the practical necessities of custody that may temporarily prevent immediate communication with counsel. We know nothing in Oregon law, nor did counsel for the state when asked, that would authorize the police to prevent or delay communication between an arrested person and a lawyer who is, or who is asked to become, that person’s attorney. Certainly nothing of the kind follows from the simple fact of an arrest.” 288 Or. 59, 70-71, 602 P.2d 272, 277.
“To pass up an abstract offer to call some unknown lawyer is very different from refusing to talk with an identified attorney actually available to provide at least initial assistance and advice, whatever might be arranged in the long run. A suspect indifferent to the first offer may well react quite differently to the second. *** We do not hold *** that this decision can be made only in the attorney’s presence, although in practice this would obviate the recurring problems of proof that have been mentioned. But we agree *** that when law enforcement officers have failed to admit counsel to a person in custody or to inform the person of the attorney’s efforts to reach him, they cannot thereafter rely on defendant’s ‘waiver’ for the use of his subsequent uncounseled statements or resulting evidence against him. We believe this rule protects the suspect’s right under [the State constitution] and the federal fifth and 14th amendments not to testify against himself ***.” 288 Or. 59, 72-74, 602 P.2d 272, 278-79.

There have been other holdings in which courts have suppressed statements obtained after police have foiled an attorney’s efforts to consult with a client. See State v. Matthews (La. 1982), 408 So. 2d 1274 (because police refused to tell defendants their attorney was available and seeking to assist, subsequent interrogation was made without informed waiver of rights under State constitution incorporating the Miranda rules); Commonwealth v. McKenna (1969), 355 Mass. 313, 244 N.E.2d 560 (suspect’s waiver of right to counsel at interrogation is ineffective where police have refused to admit counsel and to inform suspect of attorney’s presence); see also Commonwealth v. Hilliard (1977), 471 Pa. 318, 370 A.2d 322 (plurality opinion) (when the attorney has been denied access to the suspect, and the suspect has not been told of the availability of the attorney, failure by the suspect to request counsel cannot support a finding of waiver of counsel); State v. Jones (1978), 19 Wash. App. 850, 578 P.2d 71 (when the attorney requested that interrogation not be conducted in his absence, and police do not inform the defendant of the lawyer’s availability and desire to be present, there was no knowing and intelligent waiver of the right to counsel).

The Supreme Court in Miranda also condemned a police refusal to admit counsel. In Escobedo v. Illinois (1964), 378 U.S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758, police refused a suspect’s request to speak with his attorney during a preindictment interrogation. The police also failed to advise him that he had the right to remain silent. The court in Escobedo judged that the police conduct violated the suspect’s right to the assistance of counsel under the sixth amendment. In Miranda, the court discussed the Escobedo decision. It noted that Escobedo’s lawyer had visited the jail during the interrogation and asked to speak with the suspect. The Miranda court stated: “The police also prevented the attorney from consulting with his client. Independent of any other constitutional proscription, this action constitutes a violation of the Sixth Amendment right to the assistance of counsel and excludes any statement obtained in its wake.” (Miranda v. Arizona (1966), 384 U.S. 436, 465-66 n.35, 16 L. Ed. 2d 694, 718-19 n.35, 86 S. Ct. 1602, 1623 n.35.) We would observe, though, that in looking back to Escobedo the Supreme Court has viewed it as a decision designed to protect the fifth amendment privilege against compelled self-incrimination rather than to insure the sixth amendment right to counsel. Kirby v. Illinois (1972), 406 U.S. 682, 689, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877, 1882.

We hold that when police, prior to or during custodial interrogation, refuse an attorney appointed or retained to assist a suspect access to the suspect, there can be no knowing waiver of the right to counsel if the suspect has not been informed that the attorney was present and seeking to consult with him.

Here the defendant was not informed that his attorney was available to confer with him during the weekend and that the attorney had personally requested to see him. We would note, too, that the reason given the attorney for denying access to the defendant, which Ellerby testified that she believed, was one which would indicate that no early interrogation of the defendant was to be expected.

The State points out that the defendant at some time did receive Ellerby’s business card. But without his being informed that Ellerby had also requested to confer with him, the card and message were of little value. Simply receiving the card easily could have led the defendant to believe his lawyers were too busy that weekend to consult with him in person or were disinterested in his case or welfare. Receiving the card and no more would have chagrined and disappointed the defendant in the character of representation he was receiving from those who he believed were his attorneys. Accepting the State’s argument would, as the defendant observes, permit police to isolate a suspect from his counsel and regulate or determine what information or advice a suspect is to receive.

Finally, the State argues that even if the statements should not have been admitted, admitting them was harmless error. Considering the record we cannot agree. The statements were the basis for the State’s lengthy, detailed and apparently effective cross-examination of the defendant, who testified that he was nowhere near the tavern at the time of the crimes. Moreover, as the defendant points out, the only other evidence directly linking the defendant to the crimes was the testimony of Mary Smith, who pleaded guilty to armed robbery, and whose murder charges were dropped in exchange for her testimony.

For the reasons given, the judgment of the appellate court is reversed. The judgments of the circuit court convicting the defendant of armed robbery and murder are reversed and the cause is remanded to the circuit court for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: JUSTICE MORAN

license: Public Domain

text:
    (No. 54978.

      In re MARRIAGE OF RUTH M. COHN, Appellee, and STUART A. COHN, Appellant.

      Opinion filed October 22, 1982.

      Stephen H. Katz, Peter F. LoMonaco, Gregg I. Minkow, and Rawles, Katz & McKeown, Ltd., of Waukegan, for appellant.
    Gomberg, Schaps & Goldberg, Ltd., of Chicago (Vincent F. Vitullo, of counsel), for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

The circuit court of Lake County denied a motion by petitioner, Ruth Cohn, to vacate a judgment of dissolution of her marriage to respondent, Stuart Cohn. The appellate court reversed, vacating the judgment and remanding the cause for further proceedings. (94 Ill. App. 3d 732.) We granted respondent’s petition for leave to appeal.

The issues raised by respondent on appeal can be condensed to two essential questions: (1) Did the trial court err in this case by entering a dissolution order while reserving property disposition, child custody, and maintenance issues for future consideration? (2) If so, did a legislative amendment, effective August 14, 1981, retroactively validate the trial court’s action?

The following is a summary of facts. On May 1, 1979, Ruth Cohn filed a petition to dissolve her marriage to respondent. On May 14, after an uncontested hearing on grounds for dissolution, the trial judge made the following oral pronouncement, as indicated by the report of proceedings:

“The Court will find sufficient evidence to establish the grounds of extreme and repeated mental cruelty without cause or provocation by the Petitioner and enters Judgment of Dissolution instanter.
The Court orders that the transcript be made a part of the file. This matter will be continued for disposition of property and custody to be determined by hearing or agreement to be brought up on notice for the same.”

On the same day, the judge signed an order, which appears to be a standard form that included blank spaces for filling in specifics. The order (with the italicized words indicating the written-in portions) stated:

“This cause coming on to be heard in open Court on Petition and Reply heretofore filed herein and the Court having heard evidence and being now fully advised in the premises, finds sufficient evidence to establish extreme and repeated mental cruelty without cause or provocation in behalf of the Petitioner.
It is thereupon ordered by the Court that said cause be and the same is hereby continued to prop. disp. custody & maint. either by hearing or agreement to be brought up on notice for entry of judgment.”

The docket sheet entry for May 14 provides:

“Hearing on Petition and Response — Court finds sufficient evidence to establish extreme and repeated mental cruelty without provocation of Petitioner — Cause continued to property disposition, child custody & support, maintenance etc. upon hearing or agreement to be brought up on notice for entry of Judgment (See Order).”

On December 12, 1979, respondent filed a motion requesting the court “to enter the attached Judgment for Dissolution of Marriage in accordance with the proceedings which were held on May 14, 1979.” The proposed judgment included the notation “ENTERED Nunc Pro Tunc May 14, 1979.” On the same date, petitioner filed a response to the motion, alleging that following the May 14 hearing she and respondent resumed cohabitation as husband and wife, that as a result she became pregnant, and that she was then six months pregnant. She also alleged that she resumed cohabitation with respondent in reliance upon his representations. She moved the court to vacate, hold for naught, and expunge the proceedings and testimony held on May 14,1979.

After the hearing on the motion, the trial court entered the following order:

“ON MOTION *** for respondent to enter judgment herein and the Court having considered the transcript of proceedings of May 14, 1979 and having heard the arguments of counsel and being fully advised in the premises,
It is hereby ordered that the Motion to enter the Judgment of Dissolution of Marriage is allowed.
Petitioner is allowed thirty (30) days from this date to file Petition to Vacate and supporting Memorandum of Law.”

The court also signed the judgment of dissolution which had been submitted by respondent which provided “ENTERED NUNC PRO TUNC May 14,1979.”

On January 4, 1980, within the 30-day period, petitioner filed a motion to vacate the judgment, alleging that the court had no authority to enter a judgment of dissolution before the maintenance, child support, and other property rights were determined; that the court had no authority to enter the judgment nunc pro tunc May 14, 1979; and that the court erred in not making an express written finding that there was no just reason for delaying enforcement or appeal. A hearing on the motion was held on January 25, and on January 31, 1980, the trial court denied the motion and expressly found there was no just reason for delaying enforcement or appeal.

The appellate court first determined that denial of the motion to vacate the judgment dissolving the marriage, but reserving property disposition, maintenance and child custody issues for future consideration, was appealable under Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)). It then held that section 401(3) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1977, ch. 40, par. 401(3)) allows reservation of child custody, support, maintenance or property disposition only under “appropriate circumstances.” (94 Ill. App. 3d 732, 739.) The court opined that appropriate circumstances included, but were not limited to, where the court does not have in personam jurisdiction over the respondent, where a party is unable to pay child support or maintenance if so ordered, where the court has set aside an adequate fund for child support pursuant to section 503(d) of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 503(d)), or where the children do not reside with either parent. The court concluded that because the circumstances of this case do not provide “appropriate circumstances” for dissolving the marriage before adjudication of the other issues, the court was without authority to enter the dissolution judgment. The court also stated that the statutory prerequisites set forth in section 401(3) are not jurisdictional in the sense they cannot be waived. Finding that, in this case, petitioner had not waived the mandatory requirements of section 401(3), it granted her motion to vacate the judgment. (94 Ill. App. 3d 732, 740.) Following a legislative amendment to section 401(3), respondent filed a motion to discharge the appeal to this court and return the mandate to the appellate court. The motion was taken with the case.

Respondent argues that the original 1977 act places no “appropriate circumstances” limitation on the circuit court’s power to enter bifurcated judgments for dissolution of marriage, a limitation imposed by the appellate court. We disagree. At the time of the proceedings herein, section 401(3) of the Act provided:

“Such judgment [of dissolution] shall not be entered unless, to the extent it has jurisdiction to do so, the court has considered, approved, reserved or made provision for child custody, the support of any child of the marriage entitled to support, the maintenance of either spouse and the disposition of property.” (Ill. Rev. Stat. 1977, ch. 40, par. 401(3).)

Section 401(3) is based upon section 302(a)(4) of the Uniform Marriage and Divorce Act (Uniform Act), which provides that a court shall enter a decree of dissolution of marriage if, “to the extent it has jurisdiction to do so, the court has considered, approved, or provided for child custody, the support of any child entitled to support, the maintenance of either spouse, and the disposition of property; or has provided for a separate, later hearing to complete these matters.” 9A Unif. Laws Ann. sec. 302(a)(4) (1979).

As pointed out in the historical and practice notes to section 401(3) of the Act, use of the word “reserved” is consistent with the language in the Uniform Act that permits a judgment for dissolution if the court “has provided for a separate, later hearing to complete these matters.” (Ill. Ann. Stat., ch. 40, par. 401(3), Historical and Practice Notes, at 105 (Smith-Hurd 1980).) (This language was added to the 1970 draft of the Uniform Act.) In this respect, the intent of the Uniform Act was not to give the trial court unlimited discretion to enter a judgment and hold a later hearing for disposition of the other named factors. The commissioner’s comment to section 302(a)(4) of the Uniform Act states:

“The phrase, ‘considered, approved, or provided for,’ in subsection (a)(4) is intended to confer upon the court the authority to refuse to make any award, if the evidence justifies an outright denial, as well as the authority to make such allotment as the facts require. To avoid any doubt, the court is authorized expressly to provide for a later hearing to complete action on these matters, if necessary.” (Emphasis added.) (9A Unif. Laws Ann. sec. 302(a)(4), Commissioners’ Comment, at 123 (1979).)

Thus, the provision providing for a later hearing is inserted to make clear that the court has authority to resolve matters relating to child custody, support, maintenance, and disposition of property, and, if necessary, a hearing after a dissolution order may be held to complete action on these matters. The historical and practice notes to section 401(3) of the Illinois act comport with this interpretation of the Uniform Act by providing that the court may reserve determination of these issues “in appropriate circumstances.” Ill. Ann. Stat., ch. 40, par. 401(3), Historical and Practice Notes, at 105 (Smith-Hurd 1980).

The historical and practice notes also provide that section 401(3) “encourages the court to decide all matters incident to the dissolution in a single judgment, to the fullest extent of its authority, in order to achieve finality, promote judicial economy, and avoid multiple litigations and complications which can result from the entry of partial judgments, particularly judgments which dissolve the marriage but ‘reserve’ remaining issues for later determination.” (Ill. Ann. Stat., ch. 40, par. 401(3), Historical and Practice Notes, at 105 (Smith-Hurd 1980).) Respondent recognizes that the purpose of section 401(3) is, in part, to promote judicial economy. He argues, however, that judicial economy can best be served by an “interim order” that grounds for divorce exist. He asserts that, where grounds will not be contested, such an order would save an enormous amount of costly preparation and would permit both parties to concentrate on the remaining issues. Where grounds do exist, respondent asserts that the ability to bifurcate permits the court to terminate automatic spousal inheritance or pension claims which might conflict with a subsequent property division.

In response to these contentions, we believe that where grounds will not be contested, the parties will be equally able to concentrate on the remaining issues of custody, support and property division whether the grounds are disposed of in an interim proceeding followed by a “judgment” of dissolution or are disposed of in the first stage of a trial followed immediately by the orderly disposition of the other issues at the second stage. Nor does section 403(e) of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 403(e)) encourage, expressly or by implication, the entry of a judgment of dissolution of marriage that reserves the remaining issues for later trial. (See Ill. Ann. Stat., ch. 40, par. 403(e), Historical and Practice Notes, at 254-55 (SmithHurd 1980).) Although the section provides for a finding that grounds exist, it does not provide for multiple judgments.

Further, irrespective of whether the grounds are contested, entry of a bifurcated judgment of dissolution presents many potential complications. For example, as discussed by the historical and practice notes, where adjudication of property rights under section 503 of the Act has been reserved following a dissolution of marriage judgment, the court could likely be required to adjudicate marital-property rights that have become entangled with the supervening rights of third parties, including subsequent spouses. Additionally, entering a judgment of dissolution prior to property disposition would complicate, rather than simplify, matters with respect to the rights of a surviving spouse in the event of an intervening death. Other complications that can ensue if a judgment of dissolution is not deferred until disposition of the other matters include the loss of ability to file joint income tax returns, the loss of medical insurance coverage, and the loss of marital-property treatment for property accumulated during the intervening period between the entry of the judgment of dissolution and the final disposition of property rights. See Ill. Ann. Stat., ch. 40, par. 401(3), Historical and Practice Notes, at 105-06 (Smith-Hurd 1980). See generally Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 572-73.

We therefore believe that sound policy reasons militate against an interpretation of section 401(3) that gives a trial judge unfettered discretion to bifurcate a judgment of dissolution. We do, however, recognize that certain circumstances will justify bifurcating a judgment. We conclude, as did the appellate court based upon the historical and practice notes, that appropriate circumstances for entering a judgment of dissolution, while reserving questions of child custody, support, maintenance or property disposition, include, but are not limited to, the following: Where the court does not have in personam jurisdiction over the respondent; where a party is unable to pay child support or maintenance if so ordered; where the court has set aside an adequate fund for child support pursuant to section 503(d) of the Act; or where the parties’-child or children do not reside with either parent. We do not attempt to envision all the possible appropriate circumstances. In this case, however, the record fails to disclose any justification at all for entering a judgment of dissolution and continuing the matter for disposition of issues of property disposition, custody and maintenance. There is nothing in the record to reveal that the trial court gave any consideration to the question of whether there was a need to reserve disposition of these matters.

We note parenthetically that Bremer v. Bremer (1954), 4 Ill. 2d 190, cited by respondent, involved the issue of whether a circuit court had jurisdiction to enter a supplemental decree fixing attorney fees following a divorce decree. This court held only that entering a divorce decree under the former Divorce Act did not divest the circuit court of jurisdiction to dispose of attorney fees, alimony, and property matters. (4 Ill. 2d 190, 192.) The issue of “appropriate circumstances” was not before the court. In addition, as noted by the historical and practice notes to section 401(3), this subsection has no counterpart in the repealed Divorce Act.

Based upon the Uniform Marriage and Divorce Act, the historical and practice notes to the Illinois act, and sound policy considerations, we believe the appellate court properly construed section 401(3) as originally contemplating that appropriate circumstances should exist before a trial judge enters a judgment of dissolution and reserves questions of child custody, support, maintenance, or property disposition. Inasmuch as the record is completely devoid of any appropriate circumstances when the trial judge reserved these questions, the trial court’s entry of judgment of dissolution was improper under the 1977 statute.

Respondent next argues that an amendment to section 401(3), Public Act 82—197, effective August 14, 1981 (passed June 12, 1981), retroactively validates the trial court’s action. That amendment added the following provisions to section 401(3):

“The court may bifurcate the judgment for dissolution and reserve questions of child custody, the support of any child of the marriage entitled to support, the maintenance of either spouse and the disposition of property regardless of whether i) the court has in personam jurisdiction over the respondent, or ii) one of the parties would be unable to pay child support or maintenance if so ordered, or iii) the court has set aside an adequate fund for child support pursuant to subsection (d) of Section 503, or iv) the child or children of the parties do not reside with either parent.
All judgments for dissolution of marriage reserving any such questions entered prior to the effective date of this amendatory Act of 1981 are declared to be valid as of the date of entry.
If any provision of this Section or application thereof shall be adjudged unconstitutional or invalid for any reason by any court of competent jurisdiction, such judgment shall not impair, affect or invalidate any other provision or application of this Section, which shall remain in full force and effect.” (Ill. Rev. Stat. 1981, ch. 40, par. 401(3).)

The amendment also changed the first sentence in subparagraph (3), which had read “[s]uch judgment shall not be entered unless ***,” to “[s]uch judgment may not be entered unless ***.” (Emphasis added.)

The language in the amendment gives the trial court discretion to enter a judgment of dissolution while reserving the remaining issues irrespective of the appropriate circumstances specifically delineated in the appellate court’s decision in the instant case. (94 Ill. App. 3d 732, 739.) In addition, the amendment purports to validate any judgment for dissolution that reserved the remaining issues which was entered prior to the effective date of the amendment. It is evident that the amendment was enacted in order to reverse the result reached by the appellate court in this and other like cases. Any possible doubt is dispelled by the readings of the bill in both the Senate and House. On second reading of Senate Bill 377, Senator Marovitz stated:

“Amendment No. 1 deals with a situation that came up in committee. This is regarding the Cohn Case where a lot of bifurcated divorces were ruled invalid. This puts back a paragraph which says that all judgments for dissolution prior to the determination handed down in the Cohn Case are valid.” (Senate Debates, April 30, 1981, at 32.)

On third reading, Senator Marovitz stated:

“Senate Bill 377 is in response to a ... a recent court decision in the Cohn Case, which caused a tremendous amount of consternation, regarding . . . bifurcated divorces. This bill clarifies the . . . validity of bifurcated divorces so that ... a judge . . . could validly . . . dissolve a marriage, issue a judgment for divorce, and reserve the question of child custody and maintenance, child support, disposition of property.” (Senate Debates, May 20, 1981, at 189.)

Similarly, Representative Greiman stated on third reading in the House of Representatives:

“There was a provision [in the Marriage and Dissolution of Marriage Act] for a bifurcation of the issues of property and the issues of grounds. And the question happened, ‘What happens if they do not have the appropriate bifurcation?’ There was apparently a case . . . that indicated that the divorce might well be in question. And so this Bill provides that judgments for dissolution, where they reserve the questions and enter the decree, are valid as of the date of the entry of that decree. *** That’s the significant part of this Bill.” House Debates, June 12, 1981, at 60-61.

The narrow question presented, then, is whether the amendment can be retroactively applied to validate judgments of dissolution that would be invalid, if not waived, under the appellate court decision in the case at bar. This court has held that an amendment may be applied retroactively if its purpose is to clarify an existing law that is ambiguous, rather than to change the law. (Commonwealth Edison Co. v. Department of Local Government Affairs (1981), 85 Ill. 2d 495. See O’Connor v. A & P Enterprises (1980), 81 Ill. 2d 260.) This court has also observed that a material change in a statute made by an amendatory act is presumed to change the original statute. (O’Connor v. A & P Enterprises (1980), 81 Ill. 2d 260, 271; Hoover v. May Department Stores Co. (1979), 77 Ill. 2d 93, 107. See 1A A. Sutherland, Statutory Construction sec. 22.30, at 178-79 (4th ed. 1972).) Although the legislature may change the law as interpreted by the courts prospectively, it cannot retroactively alter a statute to overrule a decision of a reviewing court. Roth v. Yackley (1979), 77 Ill. 2d 423, 428-29; see Commonwealth Edison Co. v. Department of Local Government Affairs (1981), 85 Ill. 2d 495, 505.

In the instant case, it is clear that the amendment (Pub. Act 82—197) was an attempt to change the law as interpreted by the appellate court. This is clear from the specific factors delineated in the amendment, identical to those appropriate circumstances set forth by the appellate court, as well as from the debates in both the Senate and House of Representatives alluded to above.

We believe the legislature’s attempt to retroactively alter a reviewing court’s interpretation of the statute (section 401(3)) is similar to the situation presented in Roth v. Yackley (1979), 77 Ill. 2d 423. In Roth, the legislature deleted language in the original statute that a court was to place “reasonable terms and conditions” on probation and replaced it with language cataloging certain conditions, including the imposition of fines and costs — two conditions which this court found, in People v. DuMontelle (1978), 71 Ill. 2d 157, not to be reasonable. The amendatory act also attempted to apply the amendments to events that occurred before its effective date. In holding that the amendments violated the separation of powers principle embodied in article II, section 1, of the Illinois Constitution, this court stated:

“This court’s explication of the statute had become, in effect, a part of the statute until the General Assembly changed it. City of Decatur v. Curry (1976), 65 Ill. 2d 350, 359; Mitchell v. Mahin (1972), 51 Ill. 2d 452, 456.
* * *
The General Assembly’s declaration that the amendatory act applies to events which occurred before the effective date of the amendatory statute represents a legislative attempt to retroactively apply new statutory language and to thereby annul a prior decision of this court. This is an assumption by the General Assembly of the role of a court of last resort in contravention of the principle of separation of powers embodied in article II, section 1, of the Illinois Constitution of 1970, which provides: ‘The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.’ (See Federal Express Corp. v. Skelton (1979), 265 Ark. 187, 199, 578 S.W.2d 1, 7-8; Johnson v. Morris (1976), 87 Wash. 2d 922, 926, 557 P.2d 1299, 1303; 1A Sutherland, Statutes and Statutory Construction sec. 27.04 (4th ed. 1972).) While the General Assembly has the power to draft legislation and to amend statutes prospectively if it believes that a judicial interpretation was at odds with its intent (see Bruni v. Department of Registration and Education (1974), 59 Ill. 2d 6, 12; Mitchell v. Mahin (1972), 51 Ill. 2d 452, 456), it is the function of the judiciary to determine what the law is and to apply statutes to cases. (See People v. Nicholls (1978), 71 Ill. 2d 166, 179; Belfield v. Coop (1956), 8 Ill. 2d 293, 307.) The cases cited by the State do not recognize that the General Assembly may retroactively overrule a decision of a reviewing court. Instead they recognize only the power of the legislature to establish laws prospectively and to alter for future cases interpretations of statutes by reviewing courts. See Modern Dairy Co. v. Department of Revenue (1952), 413 Ill. 55, 66; State v. Bowman (1962), 116 Ohio App. 285, 286-87, 187 N.E.2d 627, 629; cf. People ex rel. Spitzer v. County of La Salle (1960), 20 Ill. 2d 18, 28.” 77 Ill. 2d 423, 428-29.

In this case, as in Roth, the legislature invaded the province of the judiciary by retroactively overruling a decision of a reviewing court. This constitutes a violation of article II, section 1, of the Illinois Constitution, which embodies the principle of separation of powers.

Respondent argues that this case should be compared to Schlenz v. Castle (1981), 84 Ill. 2d 196, rather than to Roth v. Yackley. In Schlenz, this court rejected a separation of powers challenge to section 318.1 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 799.1), which validated property assessments published after the existing statutory time limits had expired. Prior to the amendment, this court, in Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 23-24, held that publication dates in section 103 of the Revenue Act were mandatory and that failure of timely publication is not an “informality or clerical error.” Contrary to respondent’s argument, however, the basis of this court’s decision in upholding section 318.1 in Schlenz reveals that the instant case is far more similar to Roth than to Schlenz. After the court in Schlenz pointed out that section 318.1 was enacted before the circuit court judgments in the case, the court stated:

“The statute *** in Roth is clearly distinguishable from that here involved. The General Assembly did not amend section 103 of the Revenue Act, and section 318.1 does not attempt to attribute to section 103, at the time of our opinion in Andrews, a meaning different from that declared in that opinion.” (84 Ill. 2d 196, 206-07.)

In Schlenz, then, the legislature did not attempt to retroactively interpret the statute. In the instant case, like Roth and unlike Schlenz, the legislature by amendment attempted to attribute to the original statute, at the time of the reviewing court’s opinion, a meaning different than that declared in the opinion.

Petitioner also cites Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, for the proposition that the legislature may enact legislation for prospective application in pending cases so long as it does not attempt to tell a court how to apply the new law to the facts of a particular case. Although this proposition is correct, the amendment in the instant case, unlike the legislation in Kujawinski, does attempt to specify a particular result to this court, not only in this case, but in any case where a judgment of dissolution was entered while reserving disposition of property, custody, support, and maintenance. In contrast, the statute in Kujawinski provided that the Act “applies to all pending actions and proceedings commenced prior to its effective date with respect to issues on which a judgment has not been entered.” (Ill. Rev. Stat. 1977, ch. 40, par. 801(b).) This court, in rejecting a separation of powers challenge, properly found that this section “does not dictate the resolution of facts in pending actions; it merely mandates which law the court is to apply to the facts in pending cases.” (71 Ill. 2d 563, 570.) As stated above, the amendment here, like the amendment in Roth, but unlike the above statute in Kujawinski, attempts to attribute to a statute, at the time of the reviewing court’s opinion, a meaning different than that declared in the opinion and attempts to validate all judgments reserving such questions that were entered prior to the effective date of the amendment.

We also note that dissolution of marriage is entirely statutory in origin and nature, and that the court’s authority is limited thereby. (Strukoff v. Strukoff (1979), 76 Ill. 2d 53, 60.) However, we are not ruling on the legislature’s authority to pass legislation relating to the Illinois Marriage and Dissolution of Marriage Act. Rather, we hold only that portion of the amendment that purports to retroactively validate all judgments of dissolution reserving questions of custody, support, maintenance, and property disposition entered prior to the effective date of the amendment unconstitutional.

Due to our disposition of the issues concerning the requirements of the original statute and the effect of the amendment, it is unnecessary to address the questions raised by petitioner.

We are cognizant of the potential complications that could arise as a result of this opinion. The appellate court held that the provisions of section 401(3) requiring appropriate circumstances are mandatory, yet they do not present a jurisdictional requirement in the sense that they cannot be waived. Here, petitioner did not waive the mandatory requirements because she made timely objections at the trial court level. Today’s decision, however, does not affect the validity of bifurcated judgments that were entered under the statute prior to its amendment by Public Act 82—197, where no objection on this basis was made and where no appeal was taken. In such cases, the mandatory provisions of section 401(3) (Ill. Rev. Stat. 1977, ch. 40, par. 401(3)) are deemed to have been waived. See Little v. Little (1981), 96 Wash. 2d 183, 197-98, 634 P.2d 498, 506.

To summarize, we hold that under the circumstances of this case, the trial court could not, under section 401(3) of the Act, as originally enacted, enter a judgment of dissolution while reserving questions involving property distribution, maintenance, and custody. In addition, the portion of Public Act 82—197 attempting to validate prior judgments of dissolution was an unconstitutional attempt to retroactively invalidate the action of a reviewing court. Finally, the trial court’s error in entering judgment was not waived inasmuch as petitioner timely objected and appealed.

For the above-stated reasons, petitioner’s motion to vacate the judgment of dissolution should have been granted. Respondent’s motion to discharge the appeal and return the mandate to the appellate court is denied. The judgment of the appellate court is affirmed and the cause is remanded to the circuit court of Lake County for proceedings consistent with this opinion.

Motion denied; judgment affirmed; cause remanded.


author: JUSTICE UNDERWOOD JUSTICE GOLDENHERSH,

text:
    (No. 56000.
    JOHN SCHUTZENHOFER, Appellee, v. GRANITE CITY STEEL COMPANY, Appellant.

      Opinion filed December 17, 1982.

      GOLDENHERSH and SIMON, JJ., dissenting.
    James R Parham and Robert Broderick, of Pope & Driemeyer, of Belleville, for appellant.
    William W. Schooley and William S. Beatty, of Granite City, for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Plaintiff, John Schutzenhofer, obtained a $75,000 judgment in a Federal Employers’ Liability Act (FELA) action against defendant, Granite City Steel Company, following a jury trial in the circuit court of Madison County for injuries resulting from a work-related accident. Defendant argued upon appeal that a pretrial summary judgment declaring defendant to be a common carrier by rail engaged in interstate commerce constituted error. The appellate court, in a split decision, affirmed on the grounds that defendant had not preserved that issue for review. (101 Ill. App. 3d 683.) We granted defendant’s petition for leave to appeal.

Plaintiff, a switchman, was injured in September of 1976 while working on defendant’s wholly owned railroad and brought an action for damages under the Federal Safety Appliance Act and the FELA. At the time of his injury, plaintiff was one of 251 trainmen employed by defendant. As part of its steel-producing operation, defendant maintained about 55 miles of track within its industrial complex and over 500 railway cars; this railway system was used principally to transport both raw material and partially processed iron within the complex. Prior to 1975, defendant also acted as an agent for several commercial railroad companies. In that capacity, defendant performed switching operations at the junction of its tracks and those of the other railroads and delivered, by rail, materials destined for several other industrial concerns which had spur lines connected only to defendant’s tracks. In 1975, defendant terminated its agency contracts but continued to provide railway services for three other companies. Two of these concerns were located on property leased from defendant, and the third had its plant immediately adjacent to defendant’s complex.

Prior to trial, plaintiff successfully moved for a partial summary judgment that defendant was a common carrier by rail engaged in interstate commerce. Although defendant did not move for a summary judgment in its favor on that issue, it repeatedly denied its interstate status, arguing that the FELA was inapplicable and that plaintiff’s sole remedy lay under the Illinois Workmen’s Compensation Act. Defendant presented this assertion in its answer, in a pretrial motion to dismiss, in a motion to dismiss following the presentation of plaintiff’s evidence at trial, and in a motion for a directed verdict. After the trial judge denied all of these motions, defendant unsuccessfully moved for a reconsideration of the summary judgment and for judgment notwithstanding the verdict.

Although defendant complains only that the result of the summary judgment was incorrect, and not that summary judgment was itself inappropriate, the scope of our review is not confined merely to the issues preserved for appeal. (See Inolex Corp. v. Rosewell (1978), 72 Ill. 2d 198, 201. See also People ex rel. Peoria Civic Center Authority v. Vonachen (1975), 62 Ill. 2d 179.) This court has interpreted our own Rule 341(e)(7) (73 Ill. 2d R. 341(e)(7)), which expresses the waiver doctrine, as “an admonition to the parties, not a limitation upon the jurisdiction of the reviewing court.” (Hux v. Raben (1967), 38 Ill. 2d 223, 224.) Moreover, Rule 366, which has been held analogous to the plain error doctrine in criminal review (38 Ill. 2d 223, 224), provides: “(a) Powers. In all appeals the reviewing court may, in its discretion, and on such terms as it deems just *** (5) give any judgment and make any order *** and further orders and grant any relief *** that the case may require.” (73 Ill. 2d R. 366.) While this court has recognized that this power of review is limited by the need to ensure an adequate opportunity for litigants to present argument (38 Ill. 2d 223, 225), the matter which we address involves only a question of law which presents no evidentiary problem.

We find that the trial court’s entry of summary judgment on the sole issue of defendant’s status as a common carrier by rail in interstate commerce was erroneous under the Illinois statute governing summary judgments. The relevant portion of section 57 of the Civil Practice Act provides:

“Summary judgments.
(1) For plaintiff. Any time after the opposite party has appeared or after the time within which he is required to appear has expired, a plaintiff may move with or without supporting affidavits for a summary judgment in his favor for all or any part of the relief sought.
(2) For defendant. A defendant may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part of the relief sought against him.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 110, par. 57.)

This court has consistently held that examining the statutory language provides the best means of ascertaining the legislature’s intent and that this language must be given its plain and ordinary meaning. (Town of the City of Peoria v. O’Connor (1981), 85 Ill. 2d 195; Illinois Power Co. v. Mahin (1978), 72 Ill. 2d 189; Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342.) The language of section 57 clearly lacks any provision for summary judgments which would serve only to resolve issues of fact without granting or denying part or all of the relief sought.

Our conclusion that it is improper to issue summary judgments which fail to grant or deny relief is consistent with both the joint committee comment and the historical and practice notes to section 57; this court has often found that commentary helpful when ascertaining the legislative intent. (See, e.g., In re Marriage of Cohn (1982), 93 Ill. 2d 190, 198-203; People v. Holt (1981), 91 Ill. 2d 480, 488-90; People ex rel. Scott v. College Hills Corp. (1982), 91 Ill. 2d 138, 150; Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 426; In re Marriage of Smith (1981), 86 Ill. 2d 518, 529; People v. Fritz (1981), 84 Ill. 2d 72, 77; People v. Manning (1979), 76 Ill. 2d 235, 240; People ex rel. Morrison v. Sielaff (1974), 58 Ill. 2d 91, 93; People ex rel. Suddeth v. Rednour (1965), 33 Ill. 2d 278, 283.) The joint committee comment states that “unlike subparagraph (d) of Federal Rule 56, revised section 57 does not provide for the finding by the court of uncontroverted facts in the event that a judgment under this section is not rendered upon the whole case or for all of the relief asked.” (Emphasis added.) (Ill. Ann. Stat., ch. 110, par. 57, Joint Committee Comments, at 60 (Smith-Hurd 1968).) According to the historical and practice notes, a provision in an early draft of the 1955 revision of section 57 permitting trial judges to enter judgment on uncontroverted facts without decreeing relief was eliminated because the joint committee believed that such a rule would “invite encroachment upon the right to trial by jury or court on evidence adduced in open court.” Ill. Ann. Stat., ch. 110, par. 57, Historical and Practice Notes, at 62 (Smith-Hurd 1968).

The only rehef sought by the plaintiff in this cause was money damages, and the partial summary judgment which plaintiff requested did not involve a determination of liability for a part or all of that relief; rather, the summary judgment related only to the issue of whether the defendant was a common carrier by rail engaged in interstate commerce. Consequently, granting the motion for summary judgment constituted error.

Defendant has urged both in the appellate court and here that it is entitled to judgment as a matter of law because it was not engaged in interstate commerce, a prerequisite to an FELA action. Our examination of the evidence on this issue persuades us that it presents a question for the jury. In light of the fact that the summary judgment removed a potentially critical factual issue from the consideration of the jury, a new trial is necessary.

Accordingly, we reverse the judgments of the appellate and circuit courts and remand the cause for a new trial.

Reversed and remanded.

JUSTICE GOLDENHERSH,

dissenting:

I dissent and would affirm the judgments of the appellate and circuit courts. Defendant, in its post-trial motion, sought only the entry of judgment notwithstanding the verdict. In the appellate court it conceded that it had waived any right to remandment and a new trial. In this court defendant asked only “that the judgment of the appellate court may be reversed and defendant’s appeal considered on its merits.” Despite these protestations that defendant sought no new trial, the majority reverses and remands for a new trial.

As authority for considering the merits and reversing for a new trial, the majority cites Hux v. Raben (1967), 38 Ill. 2d 223, and Inolex Corp. v. Rosewell (1978), 72 Ill. 2d 198. In Hux the appellate court reversed a decree for specific performance (74 Ill. App. 2d 214), and it was contended in the supreme court that the appellate court had reversed on grounds not raised by the parties. The supreme court stated: “Our examination of the briefs in the appellate court satisfies us that the adequacy of the contract to support a decree of specific performance was challenged in that court.” (38 Ill. 2d 223, 224.) In Inolex, involving the validity of a tax assessment, the court considered that it was essential that it consider the effect of an alleged failure to give the notice required by the statute. How these opinions can be distorted to support a grant of relief clearly waived in the circuit court and not requested on appeal either in the appellate court or in this court is not readily apparent.

In Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, the court discussed at great length the need for specificity in designating errors in a post-trial motion and refused to consider allegedly erroneous instructions. It is difficult to reconcile a decision refusing to grant relief for want of specificity in the post-trial motion with the decision here which forces upon defendant relief which it has repeatedly asserted it does not want.

The appellate court was correct in dismissing the appeal. The effect of the majority opinion is to completely emasculate the established rules which limit the scope of the issues which may properly be considered on appeal and the nature of the relief which may appropriately be granted.

JUSTICE SIMON joins in this dissent.


author: JUSTICE UNDERWOOD

text:
    (No. 56120.

      In re PAUL A. McLENNON, Sr., Attorney, Respondent.

      Opinion filed December 17, 1982.

      "WARD, J., took no part.
    Jerome Larkin, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    William J. Harte, Ltd., of Chicago (William J. Harte and Mary Ellen Rosen, of counsel), for respondent.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Respondent, Paul A. McLennon, Sr., was charged in a complaint filed December 9, 1980, by the Administrator of the Attorney Registration and Disciplinary Commission (73 Ill. 2d Rules 751 through 771) with unethical and unprofessional conduct tending to bring the courts and legal profession into disrepute. The conduct charged included conversion and commingling client funds, and the failure to maintain a complete record of such funds, as well as the failure to promptly disburse funds due a client. The Hearing Board found respondent guilty of commingling, conversion and failure to maintain complete records of client funds, but concluded that he was not guilty of overreaching or failure to promptly pay funds due a client. It also found that respondent was not dishonestly motivated and recommended that he be reprimanded. The Administrator filed exceptions, and the Review Board concluded that, regardless of motive, respondent’s conduct tended to bring the courts and legal profession into disrepute and that a three-month suspension constituted a more appropriate sanction. Respondent filed exceptions, and we permitted the Administrator to do likewise. 73 Ill. 2d R. 753(e).

The evidence before the Hearing Board established that respondent, a sole practitioner, had settled a personal injury action on behalf of his client, Arthur Rittenhouse, in January 1971. After obtaining the client’s endorsement, respondent deposited the $10,000 settlement draft in his general office account. Several months later, respondent received an additional $200 settlement draft which he deposited in his escrow account. At that time, respondent’s fees amounted to $3,300 and costs due him were $189.30. Aetna Life Insurance Company had a subrogation lien on the recovery up to the amount advanced by Aetna for medical expenses, which respondent testified had reached approximately $6,000. Respondent also testified that Arthur Rittenhouse believed the lien might be cancelled, and he had orally requested respondent to hold the settlement money pending a resolution of that question.

Although respondent represented Arthur on subsequent matters and periodically discussed the settlement fund with him, respondent testified that Arthur continued in his desire that respondent hold the money because the lien had not been compromised. Consequently, respondent had not disbursed the money at the time of Arthur’s death in December 1975.

Respondent also testified that he destroyed his old records, including bank statements, when he moved from the home in which they were stored. Bank records were not available for this period either. Respondent testified, however, that he must have used some of the settlement money in the office account for his own purposes. He further related that he had earmarked for payment to Arthur a $10,000 certificate of deposit which he had purchased in 1970. This certificate, which was issued in his name and that of his mother, was later redeemed with part of the proceeds being paid to the mother. He used the balance of the proceeds, which amounted to just over $10,000, to make an unsecured loan to a fellow attorney in 1977.

Respondent first learned of his client’s death in July 1976, when he received a letter from Wayne Hough, a Baltimore attorney, in which the latter stated he represented Patricia Levitt, the executrix of Arthur’s estate. Although the letter requested information concerning the proceeds of the 1971 settlement, respondent testified that he did not know Mrs. Levitt and was unwilling to disclose any information without first being furnished with evidence of her authority. He stated that he had requested that evidence by telephone, but never received it. In addition, respondent more than once examined the probate records in Du Page County, where Arthur had resided and owned property, but found no evidence that an estate had been opened. He further testified that he had also received telephone calls from an attorney in Pittsburgh and a woman in Florida inquiring about the Rittenhouse settlement.

Upon receiving a subsequent letter, dated December 28, 1976, from a Chicago attorney stating he represented Mrs. Levitt, respondent again requested proof and refused to disclose any information. On August 16, 1978, Mrs. Levitt complained to the Attorney Registration and Disciplinary Commission and sent a copy of her letter to respondent. Shortly thereafter, respondent sent a check for $6,610.70, representing the net principal of the settlement, to Wayne Hough in Baltimore. Respondent testified that he and attorney Hough had orally agreed to discuss at a later date the amount of interest due, and that the latter had promised that the check would not be cashed until evidence of Mrs. Levitt’s authority had been sent to respondent. A “hold harmless” agreement prepared by respondent was also enclosed with the check for execution by Mrs. Levitt. Charles Fisher, who had begun representing Mrs. Levitt in place of Wayne Hough, responded with a letter demanding 36% interest on an amount of $6,800. Although respondent initially wrote attorney Fisher reiterating his request for evidence of Mrs. Levitt’s authority, he later sent an interest check for $3,924.64 on December 18, 1978, without having received that proof. Mrs. Levitt then executed a release in favor of respondent.

Respondent’s evidence indicated that he had practiced law for nearly 30 years with no other disciplinary complaints. Two circuit court judges appeared at the hearing on his behalf, as did an associate circuit court judge, and two other circuit court judges submitted affidavits reflecting their high regard for respondent. Affidavits and letters from several of respondent’s fellow attorneys also reflect their opinion of respondent as a sincere individual of integrity. There was persuasive testimony by both a Catholic priest and a lay brother indicating that respondent frequently donated legal services and personal counseling in an effort to help misguided youths. Their opinions and information were bolstered by testimony, the sincerity of which is evident even from this cold record, given by several of the individuals whom respondent had assisted during the past decade. There was testimony, too, of recreational events organized by respondent for groups of retarded persons. Moreover, respondent’s own testimony appears to have been candid and indicated a repentful awareness of his error. Also, when contacted by the Commission, it is uncontradicted that respondent turned over his entire file.

It is, of course, clear that respondent commingled and then converted the settlement funds. (In re Cleveland (1981), 85 Ill. 2d 520; In re Clayter (1980), 78 Ill. 2d 276; In re Smith (1976), 63 Ill. 2d 250; In re Sherman (1975), 60 Ill. 2d 590.) Nor can there be any dispute that he failed to maintain complete records of client funds. Respondent urges, however, that he always had funds with which to remit to the client or the estate the amounts due. We note, however, that his explanation that he viewed the $10,000 certificate of deposit in his and his mother’s names as a source of such funds does not square with his actions in cashing the certificate, paying his mother the accrued interest and then making an unsecured loan of the balance to another attorney. In any event, the availability of other funds from which repayment might be made is relevant only on the question of punishment. (See In re Brody (1976), 65 Ill. 2d 152, 157.) Too, it seems somewhat peculiar that after repeatedly requesting proof of Mrs. Levitt’s authority to receive payment of Arthur’s money, respondent, after the disciplinary complaint was filed, paid without receiving such proof. His explanation that he had not thought it prudent to pay earlier because Aetna might assert its lien is somewhat diminished by the fact that he could have ascertained Aetna’s intention at any time by contacting the company. Indeed, respondent admits that, once he learned of Arthur’s death, he should have, at the minimum, deposited the funds with the Du Page County circuit court.

In view of the conversion, which this court has consistently condemned, the Administrator urges that respondent be disbarred. When determining the appropriate discipline, however, we note that “each disciplinary case is unique” (In re Hopper (1981), 85 Ill. 2d 318, 324), and that we are required to give “an independent evaluation of the circumstances in each case” (In re O’Hallaren (1976), 64 Ill. 2d 426, 433).

Conversion of a client’s funds, with or without a “dishonest motive,” simply cannot be countenanced. (In re Feldman (1982), 89 Ill. 2d 7, 11; In re Grant (1982), 89 Ill. 2d 247.) This court pointed out in In re Clayter (1980), 78 Ill. 2d 276, 281, the potential problems which even a negligent failure by a solvent lawyer to properly identify and segregate client’s funds can pose for the client if the lawyer dies. (See, too, Grant; In re Kesler (1982), 89 Ill. 2d 151, 161-62.) Of course, whether the commingling and conversion involved the “dishonest motive” focused on by the Review Board is highly significant, as are all of the circumstances surrounding the misconduct, in determining the sanction to be imposed. (In re Feldman (1982), 89 Ill. 2d 7, 11.) And, while absolute uniformity in the imposition of discipline, realistically viewed, may not be achievable, similar cases ought to receive similar treatment. In re Feldman (1982), 89 Ill. 2d 7, 11; In re Clayter (1980), 78 Ill. 2d 276, 283.

The discipline imposed in conversion cases has ranged from disbarment to censure. (See cases cited in In re Kesler (1982), 89 Ill. 2d 151, 162.) As was noted in In re Clayter (1980), 78 Ill. 2d 276, 283, where the sanction imposed was censure: “While this court has held that it is not necessary that there be evidence of dishonest motives to justify the imposition of discipline [citations], we find it appropriate to consider this factor in determining the nature and severity of the sanction to be imposed.” Here, in addition to a Hearing Board finding that respondent was not dishonestly motivated, there is persuasive evidence of substantial contributions by respondent over the years of his time and talents in assisting both troubled individuals and handicapped groups. There is no record of other disciplinary involvement. Too, there seems no reason to doubt that had proof of Mrs. Levitt’s authority as executrix been forwarded as respondent testified he requested when first contacted by her, the money due the estate would then have been paid.

Considering all of the evidence, we believe this case calls for no more than the censure ordered in Clayter, In re Sherman (1975), 60 Ill. 2d 590, and In re Freel (1982), 89 Ill. 2d 263. It is so ordered.

Respondent censured.

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


author: JUSTICE SIMON JUSTICE UNDERWOOD,

text:
    (No. 56121.

      In re ANTHONY BYRON LAMBERIS, Attorney, Respondent.

      Opinion filed December 17, 1982.

      UNDERWOOD and MORAN, JJ., dissenting.
    James J. Grogan, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    William J. Harte, of William J. Harte, Ltd., of Chicago, for respondent.
   JUSTICE SIMON

delivered the opinion of the court:

In writing a thesis which he submitted to Northwestern University in satisfaction of a requirement for a master’s degree in law, the respondent, Anthony Byron Lamberis, plagiarized two published works. In an attorney disciplinary proceeding based on this conduct the Hearing Board found that the respondent had “knowingly plagiarized” two published works and that this plagiarism constituted “conduct involving dishonesty, fraud, deceit, or misrepresentation” violating the Illinois Code of Professional Responsibility DR 1—102(A)(4) (Illinois State Bar Association 1977). The Hearing Board recommended that the respondent be censured. The Review Board adopted the Hearing Board’s findings of fact, but recommended in a closely divided vote that the respondent receive a suspension of six months.

The principal facts in this case are essentially undisputed. The respondent was admitted to practice law in Illinois on November 16, 1970, after receiving his law degree earlier in that year. In September 1970 he enrolled in an LL.M. degree program at the Northwestern University School of Law. In addition to course work the Northwestern degree program required that the candidate submit a thesis, although there was no time limit on when the candidate had to complete it. After successfully completing the required course work during the 1970-71 academic year, the respondent briefly served as an assistant Attorney General of Illinois and then entered private practice in Palatine.

While practicing law the respondent continued to work on his thesis. In 1977 he submitted a thesis that was rejected by the faculty as unsatisfactory. In June 1978, the respondent submitted a new thesis which he titled, “The Law of Privacy and its Effects on Law Enforcement: Title III Problems.” In preparing pages 13 through 59 of his 93-page thesis the respondent incorporated, substantially verbatim and without crediting the source, excerpts from two published works: J. Carr, The Law of Electronic Surveillance (1977) and M. Paulsen, The Problems of Electronic Eavesdropping (1977). Thus, a substantial portion of his thesis, which the respondent misrepresented as his own work, was the work of other authors.

In June 1979, Northwestern notified the respondent that there were possible honor code violations concerning the thesis. The respondent attempted to resign from the degree program, but the university refused to accept this resignation. Instead, the law school initiated student disciplinary proceedings, and on January 22, 1980, the faculty of the Northwestern University School of Law voted to expel him for plagiarism. Thereafter, the law school complained to the Attorney Registration and Disciplinary Commission, a complaint which caused the Administrator to initiate this disciplinary proceeding.

The only factual finding that the respondent disputes is the Hearing Board’s conclusion that he “knowingly plagiarized” the two published works. In reaching this finding the Board regarded as unworthy of belief respondent’s explanation that his plagiarism was the result of academic laziness and did not reflect an intentional effort to deceive his thesis examiners. The Hearing Board found:

“Respondent engaged in conduct which clearly constituted plagiarism. Objectively considered, the facts demonstrate nothing else. Subjectively, it is inconceivable to us that a person who has completed undergraduate school and law school would not know that representing extensively copied material as one’s own work constitutes plagiarism. Respondent’s deception is compounded by his lack of candor in claiming that his efforts were not an intentional effort to deceive. We cannot accept an assertion that would require that we find such a naivete or a lack of intelligence on his part.”

We agree with the Board's conclusions; given respondent’s extensive academic background and the extent of the verbatim copying, any other finding would be untenable.

Respondent also argues that this court should not impose discipline on an attorney for plagiarism that occurred in an academic forum which is removed from the practice of law. The Administrator has not cited and we have not found any case in which an attorney was professionally disciplined for such conduct. Respondent argues that there is no modem authority in this State which would support this court in disciplining attorneys for conduct arising outside the practice of law when that conduct is considered deceitful and immoral but not criminal.

This court has often disciplined attorneys for conduct arising outside the practice of law. Most of these cases, however, have involved illegal conduct, fraud on the court, or situations closely analogous to those which an attorney confronts in the practice of law. See, e.g., In re Gold (1979), 77 Ill. 2d 224 (failure to file Federal tax returns); In re Mitan (1979), 75 Ill. 2d 118 (nondisclosure of information on bar application), cert. denied (1979), 444 U.S. 916, 62 L. Ed. 2d 171, 100 S. Ct. 231; In re Cook (1977), 67 Ill. 2d 26 (false testimony before grand jury and United States Senate subcommittee); In re Melin (1951), 410 Ill. 332 (commingling of funds by executor of estate).

Although no violation of law or fraud on the court is alleged here, and although the academic forum may appear to be fairly distant from the practice of law, we believe that the respondent’s conduct warrants discipline. In imposing discipline in this case we do not intend to imply that attorneys must conform to conventional notions of morality in all questions of conscience and personal life. “We are charged with the responsibility of supervising the professional conduct of attorneys practicing in this State, and we are interested in their private conduct only in so far as such relates to their professional competence or affects the dignity of the legal profession.” In re Serritella (1955), 5 Ill. 2d 392, 398.

In cases of this type, fairness and justice require that discipline be imposed only “to protect members of the public, to maintain the integrity of the legal profession and to safeguard the administration of justice from reproach.” (In re Nowak (1976), 62 Ill. 2d 279, 283.) In this case, sanctions are appropriate and required because both the extent of the appropriated material and the purpose for which it was used evidence the respondent’s complete disregard for values that are most fundamental in the legal profession.

The extent of the respondent’s plagiarism displays an extreme cynicism towards the property rights of others. He incorporated verbatim the work of other authors as a substantial portion of his thesis and obtained no permission for this use. Moreover, this conduct amounted to at least a technical infringement of the publishers’ federally protected copyrights. This fraudulent conversion of other people’s property is similar to conduct that Illinois and other States have held warrants discipline. E.g., In re Abbamonto (1960), 19 Ill. 2d 93, 97 (wrongful conversion of down payment on real estate); Stratmore v. State Bar (1975), 14 Cal. 3d 887, 538 P.2d 229, 123 Cal. Rptr. 101 (filing of false expense claims with law firm recruiters); In re Gunderson (1980), 75 A.D.2d 706, 427 N.Y.S.2d 307 (attempted theft of a museum piece).

The purpose for which respondent used the appropriated material also displays a lack of honesty which cannot go undisciplined, especially because honesty is so fundamental to the functioning of the legal profession. (In re March (1978), 71 Ill. 2d 382, 391 (attorney disciplined for fraud in sale of stock); cf. In re Lavery (1978), 90 Wash. 2d 463, 587 P.2d 157 (attorney disciplined for falsifying law school transcripts and letters of recommendation).) “The public as well as *** the courts have an interest in [an attorney’s] integrity and are entitled to require that he shun even the appearance of any fraudulent design or purpose.” In re Abbamonto (1960), 19 Ill. 2d 93, 98.

At the time of respondent’s conduct, this court considered the Illinois Code of Professional Responsibility adopted by the Illinois State Bar Association in 1977 as a safe guide for attorneys in their professional conduct. (Cf. In re Krasner (1965), 32 Ill. 2d 121, 129.) DR 1-102(A)(4) of the ISBA code reflects the commitment to honesty that each lawyer must make when it states that “[a] lawyer shall not *** engage in conduct involving dishonesty, fraud, deceit, or misrepresentation” (Illinois State Bar Association 1977). This provision is identical to the comparable provision in the Code of Professional Responsibility subsequently adopted by this court (79 Ill. 2d R. 1—102(a)(4)). The respondent violated this provision when he plagiarized the two sources. The essence of plagiarism is deceit. In this case, the deceit is aggravated by the level on which it occurred. Academic forums have a long and well-known tradition of evaluating each individual on his own performance. The respondent attempted to exploit this tradition to his own benefit; the purpose of his deceitful conduct was to obtain a valuable consideration, an advanced law degree, that would have undoubtedly improved his prospects for employment, reputation and advancement in the legal profession.

Having decided that the respondent’s conduct warrants some discipline, we must decide whether to impose disbarment, suspension or censure. The Hearing Board recommended censure; the Review Board recommended suspension for six months; and the Administrator argues here for disbarment. In support of his position, the Administrator cites many cases for the proposition that intentional fraud warrants disbarment. We do not find these cases conclusive in the novel context of this case. “While uniformity in attorney discipline is desirable, every case must be considered on its own merits.” In re Driscoll (1981), 85 Ill. 2d 312, 317.

The respondent’s law partner, Steve Delanty, testified that the respondent has an impeccable reputation in the community and has had a good record in a private practice servicing thousands of clients. Moreover, in the 10 years since he entered private practice, no client has ever complained about his conduct, professional or otherwise.

The respondent’s plagiarism displayed only a defect in character; it did not directly cause harm to any person. The respondent’s fraudulent appropriation of the two works did not diminish the value of the works to the authors, nor did it expose the authors to any risk of loss. Moreover, in appropriating their property, the respondent did not violate any trust which the authors had reposed in him.

All honest scholars are the real victims in this case. The respondent’s plagiarism showed disrespect for their legitimate pursuits. Moreover, the respondent’s conduct undermined the honor system that is maintained in all institutions of learning. These harms, however, are rather diffuse, and in any event, Northwestern University has already rectified them by expelling the respondent, an act which will also undoubtedly ensure that the respondent will be hereafter excluded from the academic world.

In view of the respondent’s apparently unblemished record in the practice of law and the disciplinary sanctions wMch have already been imposed by Northwestern University, we choose censure as the most appropriate discipline for the respondent.

Respondent censured.

JUSTICE UNDERWOOD,

dissenting:

Although I agree with the majority’s conclusion that respondent’s conduct warrants discipline, the censure imposed seems to me an inadequate response to the deliberate and deceitful nature of respondent’s conduct.

While no two disciplinary cases are completely alike, “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. See In re Feldman (1982), 89 Ill. 2d 7.) Respondent’s action constituted a purposeful violation of the bar’s fundamental obligation of honesty, and cannot, in my judgment, be equated with the negligent commingling and conversion for which we censured the respondent in In re McLennon (1982), 93 Ill. 2d 215. Rather, the character of respondent’s misconduct more closely resembles a fraudulent misrepresentation which has customarily received a more severe sanction. See In re Nowak (1976), 62 Ill. 2d 279; In re March (1978), 71 Ill. 2d 382; In re Sherre (1977), 68 Ill. 2d 56.

As noted by the majority, the reasons for which we impose discipline are “to maintain the integrity of the legal profession, to protect the administration of justice from reproach, and to safeguard the public.” (In re LaPinska (1978), 72 Ill. 2d 461, 473.) I think it clear that respondent’s intentional deceitfulness tends to bring the legal profession into disrepute and, although not perpetrated in the context of an attorney-client relationship, indirectly threatens the administration of justice by undermining public confidence in the integrity of officers of the court. In re March (1978), 71 Ill. 2d 382, 391; In re Abbamonto (1960), 19 Ill. 2d 93, 98.

Because of the calculated nature of respondent’s misconduct some suspension seems to me necessary. Since the length of a suspension should bear a close relationship to the harm or risk of harm caused (In re Saladino (1978), 71 Ill. 2d 263, 276), and since respondent’s misconduct did not directly affect any other person, I would think a three-month suspension appropriate.

JUSTICE MORAN joins in this dissent.