author: MR. JUSTICE WARD MR. JUSTICE UNDERWOOD, MR. JUSTICE CLARK,

text:
    (No. 51805.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DANNY GABBARD, Appellee.

      Opinion filed December 3, 1979.

      UNDERWOOD, CLARK and RYAN, JJ., concurring in part and dissenting in part.
    William J. Scott, Attorney General, and C. Joseph Cavanagh, State’s Attorney, both of Springfield (Donald B. Mackay and Melbourne Noel, Assistant Attorneys General, of Chicago, and Marc D. Towler and Gary J. Anderson, of the State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Richard J. Wilson, Deputy Defender, and Karen Munoz, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

After a trial by jury in the circuit court of Sangamon County, the defendant, Danny Ray Gabbard, was convicted of burglary and armed robbery, and was sentenced to serve from 20 to 40 years’ imprisonment. The appellate court, one judge dissenting, reversed and remanded for a new trial (67 Ill. App. 3d 945), and we granted the State’s petition for leave to appeal.

The issues before us grow out of the denial by the trial court of the defendant’s pretrial motion to suppress articles seized from him at the time of his arrest and of inculpatory statements made thereafter while in police custody on the ground that his arrest was unlawful. The articles of evidence and the statements were admitted into evidence at his trial. The trial court ruled that the arrest had been valid. The appellate court reached the opposite conclusion. It went on to hold that the articles seized from the defendant should have been suppressed, but that the illegality of the arrest did not render the inculpatory statements inadmissible.

The burglary and armed robbery of which the defendant was convicted took place at the home of Mr. and Mrs. Leroy Cummings in Springfield, on the evening of March 4, 1977. The defendant gained entrance by a subterfuge, and then admitted two confederates. Mr. and Mrs. Cummings, and the latter’s son, John Prill am an, who was staying with them, were held at gunpoint and were robbed of various articles. During the robbery each of the defendant’s accomplices wore a mask. The defendant, however, did not, and at his trial each of the three victims identified him as one of the robbers. The defendant did not testify and presented no evidence at his trial. The record does not show what disposition was made of the two accomplices.

The testimony given at the pretrial hearing was that the defendant was arrested at about 7 a.m. on April 29, 1977, on a highway near Lincoln, which is some 30 miles north of Springfield. The arrest was made by Earl Acup, a State Police officer. Acup testified that when driving his police car south on U.S. 66 in the outskirts of Lincoln, he observed the defendant walking south on the shoulder of the southbound lane. Acup pulled his car onto the shoulder and drew up behind the defendant. The latter turned and saw the police car, walked back to it, opened the door on the passenger side, and got in. Acup testified that he had not called to the defendant or motioned him to approach the car, although the defendant testified that Acup had beckoned to him.

Acup inquired where the defendant was going, to which the reply was “Springfield.” Acup then asked where the defendant was coming from, and the same answer was given. After asking the defendant his name, which the defendant supplied, Acup asked if the defendant had any identification. The defendant stated that the only identification he had was a checkbook, which he produced from a bag he was carrying and displayed to Acup. The checkbook contained blank checks on which the defendant’s name was imprinted. Acup noticed a piece of paper stuck in the checkbook which appeared to be an Illinois driver’s license, and he asked if the defendant had any further identification. The defendant said no, and started to replace the checkbook in his bag. At that point, Acup testified, “I ordered him to put his head forward on the dash, his hands behind him. I drew a weapon and handcuffed him.”

Acup took possession of the checkbook and searched it. He extracted the Illinois driver’s license which he had previously noticed and also a Missouri driver’s license. Neither of these bore the defendant’s name. It was stipulated that the Illinois license bore the name of one Roosevelt Irvin, whose identity is not disclosed by the record. The Missouri license belonged to John Prillaman, one of the victims of the robbery. It was brought out at the trial that the license had been in a wallet which was taken from Prillaman in the robbery. There is no suggestion that Acup was aware of the Springfield robbery at this time.

Acup drove the defendant to the Logan County jail in Lincoln. While on the way Acup inquired over his radio for information about the defendant and the two persons whose names appeared on the licenses, and received a radio report that the defendant was wanted for parole violation and for escape from a State mental institution. After Acup and the defendant arrived at the county jail, a search was made of the defendant’s bag, in which a loaded pistol was found. The defendant was then booked on a charge of carrying a concealed weapon.

When asked why he pulled his car over and stopped by the defendant, Acup testified on direct examination in the hearing on the motion to suppress that his reason was a police department policy “to check out everybody you find walking on the road no matter what the reason may be, whether there is a stranded motorist or somebody that’s wanted for something or somebody that just happens to be there. You pull over and find out what they’re doing.” In response to the question whether there was any other reason, Acup answered no.

On cross-examination by the State Acup nevertheless offered as an additional reason that six days earlier, among the reports distributed of persons wanted by the police, he had seen one of an escaped Federal prisoner who was then believed to be on a road some 30 miles away from the point where Acup encountered the defendant. The report, a copy of which was introduced in evidence, did not contain a detailed description of the escapee. It did give his height and weight and the clothing he was wearing, each of which differed from those of the defendant, as Acup admitted. Acup was not asked whether he believed from the defendant’s appearance that the latter was the escapee.

The defendant contends that Acup’s questioning of him was itself a restraint which, under the doctrine of Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, and its progeny, must meet a test of reasonableness, and that it failed to do so. We find it unnecessary to consider that contention, for the articles in question were not seized from the defendant until after he had been handcuffed. Although Acup did not then tell the defendant that he was under arrest, the State admits that his handcuffing constituted an arrest, and we agree. See Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248.

Section 107 — 2(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 107 — 2(c)) authorizes an officer to arrest a person without a warrant when the officer “has reasonable grounds to believe that the person is committing or has committed an offense.” The State does not maintain that any of the criteria contained in the departmental policy testified to by Acup would justify the arrest, but asserts that Acup had reasonable grounds to believe that the defendant was the escapee referred to in the police report. For several reasons that argument must be rejected.

The description contained in the police report was so general and lacking in distinctiveness as to furnish no more basis for the arrest of the defendant than of many other persons who might be walking along the highway. (In re Woods (1974), 20 Ill. App. 3d 641, 646-48; United States ex rel. Wright v. Cuyler (3d Cir. 1977), 563 F.2d 627, 630.) Acup himself admitted, moreover, that the defendant did not match the description as to those few particulars which the description provided. Acup did not testify that his stop of the defendant was motivated by a belief that the latter was the escapee, and his permitting the defendant to enter and sit down in the police car is not consistent with such a belief.

The State argues that when the defendant, after being asked for identification, failed to produce the Illinois driver’s license which Acup saw in his checkbook, Acup could reasonably infer that the license belonged to the defendant, and that inspection of it would reveal that “Gabbard” was not his real name. When encountered by Acup, however, the defendant was not operating a motor vehicle.

Whether at this point Acup could have detained the defendant temporarily and required him to answer further questions about his identity is not relevant. (See Brown v. Texas (1979), 443 U.S. 47, 61 L. Ed. 2d 357, 99 S. Ct. 2637.) What took place here was an arrest, and the question is whether there were reasonable grounds to believe that the defendant was the person who had committed the offense, i.e., that he was the escapee. We agree with the appellate court that there were not, and that the documents seized from the defendant at that time should have been suppressed.

We therefore affirm the judgment of the appellate court reversing the judgment below and remanding the cause for a new trial. Since the case must be retried, we proceed, as did the appellate court, to consider whether the statements which the defendant made to police about the robbery should also have been suppressed under the decision of the Supreme Court in Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.

Prior to Brown v. Illinois the applicability of the fourth amendment to incriminating statements made by a defendant after an unlawful arrest had already been established by the Supreme Court in Wong Sun v. United States (1963), 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407. That case was decided before Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, however. Brown was thus significant in its holding that statements which might otherwise have been barred because of an unlawful arrest were not rendered admissible simply because the defendant had been given the warnings which Miranda held were required under the fifth amendment. It was on this basis that the Supreme Court reversed People v. Brown (1974), 56 Ill. 2d 312, in which this court had reached a contrary conclusion. See 56 Ill. 2d 312, 317.

In Brown police officers investigating a recent murder broke into the defendant’s apartment without a warrant, searched it, and, when the defendant returned, arrested him at gunpoint. He was taken to a police station, where, less than two hours after his arrest, he gave the first of two confessions. The purpose of the police action was concededly to question the defendant about the murder, and the grounds for his arrest consisted of no more than that he was an acquaintance of the victim and had been seen in the victim’s apartment building on the day of the murder. This court had held that those grounds fell short of probable cause. (56 Ill. 2d 312, 315.) Brown was followed by Dunaway v. New York (1979), 442 U.S. 200, 216, 60 L. Ed. 2d 824, 838, 99 S. Ct. 2248, 2258, which, like Brown, was a case where the defendant had been unlawfully taken into custody for the purpose of investigating the identical crime to which his incriminating statements related.

It is important to note that the Supreme Court has rejected a simple “but for” test under which any statement by a defendant following his unlawful arrest must be suppressed on the ground that the statement would not have been made had he not been taken into custody. The evidence in the cases considered by the court showed a causal connection between the illegal arrest and the statement such that the statement could be said to have been obtained by exploitation of the illegality. (Wong Sun v. United States (1963), 371 U.S. 471, 487-88, 9 L. Ed. 2d 441, 455, 83 S. Ct. 407, 417; Brown v. Illinois (1975), 422 U.S. 590, 598-99, 604, 45 L. Ed. 2d 416, 424, 427, 95 S. Ct. 2254, 2259, 2262; Dunaway v. New York (1979), 442 U.S. 200, 217-18, 60 L. Ed. 2d 824, 839-40, 99 S. Ct. 2248, 2259.) The opinions mention as significant factors in ascertaining whether such causality exists the “temporal proximity” of the arrest and the confession, the presence or absence of intervening circumstances, and the purpose of the official misconduct. Brown v. Illinois (1975), 422 U.S. 590, 603-04, 45 L. Ed. 2d 416, 427, 95 S. Ct. 2254, 2261-62.

The circumstances of the arrest and the incriminating statement here are markedly different from those in the cases described above.

As already noted, after being taken to the Logan County jail, the defendant, who by then was known to be wanted on charges of parole violation and escape from a State institution, was searched, and when a loaded pistol was found in his bag, he was booked on a charge of carrying a concealed weapon.

At about 9 a.m. a conversation took place between the defendant and Robert Carnduff, a detective with the State Police, regarding the Cummings robbery, word of which had reached Carnduff as the result of Acup’s radio report that the defendant was carrying a driver’s license issued to Prillaman. Carnduff testified at the pretrial hearing that he first informed the defendant of his Miranda rights, and that the defendant waived them. Thereafter Carnduff asked the defendant a few questions, the specific nature of' which does not appear in the report of proceedings, to which the defendant made no response.

Carnduff then drove the defendant to the office of the sheriff of Sangamon County in Springfield, arriving there about 2:30 or 3 p.m. Shortly after arrival the defendant was interrogated by Dennis Sedlak, a deputy sheriff, who also testified at the pretrial hearing. Sedlak told the defendant that he and a partner were investigating a robbery of the Cummings home which had taken place in Springfield on March 4, and then read the defendant his Miranda rights. The defendant again stated that he was willing to talk without having an attorney present.

At the time when this interview took place, Sedlak testified, he was aware that the defendant was being held in custody as an escapee from Menard Mental Institute. He was also aware that items reportedly taken in the Cummings robbery had been found in the defendant’s possession. It does not appear from Sedlak’s testimony or that of any other witness, however, that Sedlak was acquainted with the circumstances leading to the defendant’s arrest.

Sedlak showed the defendant a composite sketch which had been prepared by the sheriff’s police a few days after the robbery from descriptions, supplied to the police by each of the victims, of the unmasked robber who had entered the Cummings home. Sedlak inquired whether the defendant thought the sketch resembled him, and the reply was that the sketch showed many similar characteristics.

Sedlak told the defendant that there was to be a lineup at which the defendant would be viewed by victims of the robbery. The defendant then said, “I can clear this matter up, but some consideration must be given to my testimony.” When asked what he meant, the defendant explained that there was another armed robbery charge pending against him in Kankakee, and that he had additional time to serve on a term of imprisonment to which he had been sentenced in Kentucky and from which he had been released on parole. The defendant said that he was willing to cooperate in the robbery prosecution, provided that any sentence which he might receive would be made concurrent with a sentence under the Kankakee charge and with the balance of his term of imprisonment in Kentucky.

It is a fair inference that at this stage in the investigation of the Cummings robbery the police would have been interested in securing information from the defendant which would aid in the prosecution of the accomplices as well as testimony for the State at their trial. Sedlak told the defendant that he had no power to enter into such an agreement. He did undertake to transmit the defendant’s proposal to the Kankakee authorities to ascertain their reaction, and he subsequently did so, but no claim is made by the defendant that the statements given by him to the police were induced by any promise of leniency or special consideration.

At the lineup the defendant was viewed by two of the victims, and each identified him. The third victim was unable to be present because of an out-of-town trip. At about 6:30, following the lineup, a further conversation between Sedlak and the defendant took place in which Sedlak informed the defendant that the latter had been identified by the victims, and the defendant responded that he had expected that to happen, given the circumstances of the robbery. He was then asked to supply information about the details of the robbery, and gave a very circumstantial account which, according to Sedlak’s testimony, corresponded closely with the reports previously given to the police by the victims.

The unlawful arrest of the defendant was thus not made in the course of an investigation into the robbery or for the purpose of interrogating the defendant on that subject. Neither the arresting officer nor the governmental entity by which he was employed was investigating that crime or was responsible for doing so, and the arresting officer was not even aware that it had occurred. The interrogating officer, on the other hand, knew that the defendant was in custody as the result of having escaped from an institution, and while also aware that the defendant had been found in possession of articles stolen in the robbery, he did not know the circumstances leading to the defendant’s arrest. We are not presented here with an attempt by police to avoid responsibility by dividing it among different individuals. (Cf. People v. White (1975), 61 Ill. 2d 288, 294; People v. Blanchard (1967), 37 Ill. 2d 69, 73.) In the present case the purpose of the exclusionary rule, i.e., to deter improper police conduct (Dunaway v. New York (1979), 442 U.S. 200, 217-18, 60 L. Ed. 2d 824, 839, 99 S. Ct. 2248, 2259) would be served minimally, if at all, by exclusion of the defendant’s statements.

The evidence also shows that the defendant’s statements were prompted by intervening events. Early in the interrogation the defendant was shown the sketch which had been prepared prior to his arrest, and he acknowledged that it resembled him. Prior to the lineup he also impliedly admitted his involvement in the robbery by volunteering to cooperate in the prosecution if a favorable arrangement for serving his sentence could be reached. In addition, when the defendant, immediately preceding his inculpatory account of the robbery, was told that he had been identified by each of the viewers at the lineup, he responded to that information by stating that he was not surprised.

Whether the identification of the defendant in the lineup may be included as an intervening event presents some difficulty. The defendant’s pretrial motion sought suppression of the lineup identification on the ground that the lineup itself was a consequence of his unlawful arrest, and the appellate court states in its opinion that the State has conceded that the lineup evidence should be suppressed. (67 Ill. App. 3d 945, 950.) The question whether lineup testimony is to be treated by the same standards applicable to confessions is not clear (see, e.g., Davis v. Mississippi (1969), 394 U.S. 721, 727, 22 L. Ed. 2d 676, 681, 89 S. Ct. 1394, 1397-98; Wise v. Murphy (D.C. App. 1971), 275 A.2d 205), and neither party discusses this issue in its brief. Rather than decide that question, we believe it is appropriate under the circumstances to hold only that the State has waived any objection to suppressing the lineup evidence. As the appellate court points out, such a conclusion, of course, does not preclude the use of in-court testimony having a proper independent basis.

The defendant has not called our attention to any cases involving facts similar to those presented here, but we find two decisions of the Supreme Court of Pennsylvania which are pertinent. In Commonwealth v. Wright (1975), 460 Pa. 247, 332 A.2d 809, the defendant was arrested immediately after a street-corner robbery and murder on the basis of a radio description. Upon first being interrogated the defendant denied any participation in the crime. Subsequently an accomplice was arrested for the same crime and made a statement to police implicating both himself and the defendant, which he later repeated in the presence of the defendant and police officers. At that point the defendant confessed. An issue in the case was whether the defendant’s arrest had been illegal. The supreme court, assuming arguendo that it was, went on to hold, citing Wong Sun v. United States, (1963), 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407, that the confession was nonetheless admissible, since it was not causally related to the invasion of the defendant’s rights. See also United States ex rel. Wright v. Cuyler (3d Cir. 1977), 563 F.2d 627.

The Wright decision was followed in Commonwealth v. Bogan (1978), 482 Pa. 151, 393 A.2d 424. The Supreme Court of Pennsylvania, although reversing the defendant’s conviction of murder on other grounds, held admissible a confession made to police while he was in custody after what the court, for purposes of decision, assumed to be an illegal arrest. The court noted that upon being interrogated the defendant had at first denied any knowledge of the murder, and only confessed after he had been advised that he matched a description of the assailant already given the police by an eyewitness.

For the reasons given, the judgment of the appellate court is accordingly affirmed.

Judgment affirmed.

MR. JUSTICE UNDERWOOD,

concurring in part and dissenting in part:

I disagree with the majority opinion insofar as it holds that the documents seized from the defendant after his arrest should have been suppressed. In my judgment, sufficient evidence was presented during the hearing on defendant’s motion to suppress to support the trial court’s finding that there was probable cause for the arrest. (See Ill. Rev. Stat. 1977, ch. 38, par. 107 — 2(c), as defined in People v. Wright (1974), 56 Ill. 2d 523, 528.) A trial court’s determination as to probable cause should not be disturbed unless manifestly erroneous, which it seems to me it is not. People v. Clay (1973), 55 Ill. 2d 501, 505, citing People v. Dailey (1972), 51 Ill. 2d 239; People v. Brooks (1972), 51 Ill. 2d 156.

It is elementary, of course, that an arrest is supported by probable cause when the facts and circumstances within the officer’s knowledge would lead a man of reasonable caution to believe that an offense has been committed and that the person apprehended has commited the offense. (Gerstein v. Pugh (1975), 420 U.S. 103, 111, 43 L. Ed. 2d 54, 64, 95 S. Ct. 854, 862; Adams v. Williams (1972), 407 U.S. 143, 148, 32 L. Ed. 2d 612, 618, 92 S. Ct. 1921, 1924; Beck v. Ohio (1964), 379 U.S. 89, 91, 13 L. Ed. 2d 142, 145, 85 S. Ct. 223, 225; People v. Robinson (1976), 62 Ill. 2d 273, 276.) In determining whether probable cause existed, this court has emphasized that the totality of facts and circumstances known to the officer when the arrest was made must be considered. (People v. Robinson (1976), 62 Ill. 2d 273, 276; People v. Clay (1973), 55 Ill. 2d 501, 504.) Moreover, in deciding questions of probable cause courts deal with probabilities which are not technical but which are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Adams v. Williams (1972), 407 U.S. 143, 149, 32 L. Ed. 2d 612, 618, 92 S. Ct. 1921, 1925; Draper v. United States (1959), 358 U.S. 307, 313, 3 L. Ed. 2d 327, 332, 79 S. Ct. 329, 333; Brinegar v. United States (1949), 338 U.S. 160, 175, 93 L. Ed. 1879, 1891, 69 S. Ct. 1302, 1310; People v. Robinson (1976), 62 Ill. 2d 273, 277;People v. Clay (1973), 55 Ill. 2d 501, 505.

The testimony at the hearing indicated that six days prior to the incident the arresting officer had received a report describing a Federal prisoner who had escaped and was believed to be approximately 30 miles from the location of the arrest. Although the description of the escapee varied somewhat from the defendant’s appearance, the police officer testified that the report was on his mind when he drove his car onto the highway shoulder where the defendant had been walking. Moreover, one of the reasons the State troopers stopped persons walking along main highways was to ascertain whether the persons were in need of assistance. For these reasons, the officer stopped the defendant and inquired regarding his destination. When the defendant gave the anomalous answer that he was both going to and coming from Springfield, the officer asked for identification, and the defendant produced only personalized checks. Having seen a driver’s license tucked among the personal checks, the officer asked whether the defendant had any additional identification. When defendant denied that he did and started to place the checks and license in the bag he was carrying, he was arrested.

The officer had testified that the defendant voluntarily approached the squad car after it stopped. While defendant testified the officer beckoned him to the car, the trial court apparently accepted the officer’s statements and found that the defendant acquiesced in the temporary questioning that transpired prior to his arrest. Accordingly, any characterization of that incident as a stop or seizure in the absence of any attempt to detain or restrain the defendant against his will is unsupp or table. (See, e.g., People v. Tilden (1979), 70 Ill. App. 3d 859, 862; People v. Kennedy (1978), 66 Ill. App. 3d 267, 273; People v. Jordan (1976), 43 Ill. App. 3d 660, 662-63; People v. Oritz (1973), 18 Ill. App. 3d 431, 433; People v. Hines (1973), 12 Ill. App. 3d 582, 588.) Even if regarded as a “stop,” however, the facts supporting it are “based on more substantial facts and circumstances than *** a mere hunch.” (People v. McGowan (1977), 69 Ill. 2d 73, 77-78, citing Terry v. Ohio (1968), 392 U.S. 1, 27, 20 L. Ed. 2d 889, 909, 88 S. Ct. 1868, 1883.) Once the defendant had denied the possession of any identification other than the checks, it seems to me the officer, who had seen a driver’s license, acted quite reasonably in arresting defendant in the belief that an offense had been committed by him.

In my opinion the trial court properly denied the motion to suppress the evidence seized subsequent to the arrest.

MR. JUSTICE RYAN joins in this partial concurrence and partial dissent.

MR. JUSTICE CLARK,

also concurring in part and dissenting in part:

The facts are not in dispute. The appropriate law is not in dispute. Application of the law to the facts is in dispute. I believe the majority opinions here and in the appellate court (67 Ill. App. 3d 945) have usurped the trial court’s responsibility. It is the function of that court to determine whether probable cause, or reasonable grounds (Ill. Rev. Stat. 1977, ch. 38, par. 107 — 2(c); People v. Wright (1974), 56 Ill. 2d 523, 528-29), existed for the arrest; and that court’s finding should not be disturbed unless manifestly erroneous (People v. Clay (1973), 55 Ill. 2d 501, 505).

I agree with the majority here that the case does not involve a Terry stop (Terry v. Ohio (1968), 392 U.S. 1, 19 n.16, 20 L. Ed. 2d 889, 905 n.16, 88 S. Ct. 1868, 1879 n.16), since, prior to the arrest (at the point of handcuffing), there was apparently no display of physical force by which Trooper Acup restrained the liberty of the defendant.

The dissent in the appellate court (67 Ill. App. 3d 945, 951-52) cited the appropriate law: People v. Robinson (1976), 62 Ill. 2d 273, 276-77. There this court stated:

“In considering whether probable cause existed, we stated in People v. Clay, 55 Ill. 2d 501, 504-05, ‘Whether or not probable cause for an arrest exists in a particular case depends upon the totality of the facts and circumstances known to the officers when the arrest was made. [Citations.] In deciding the question of probable cause in a particular case the courts deal with probabilities and are not disposed to be unduly technical. These probabilities are the factual and practical considerations of everyday life on which reasonable men, not legal technicians, act. Draper v. United States, 358 U.S. 307, 3 L. Ed. 2d 327, 79 S. Ct. 329; People v. Fiorito, 19 Ill. 2d 246.’ Also it is proper to recognize in judging whether there was probable cause that ‘[p] olice officers often must act upon a quick appraisal of the data before them, and the reasonableness of their conduct must be judged on the basis of their responsibility to prevent crime and to catch criminals.’ People v. Watkins, 19 Ill. 2d 11, 19.”

Applying this to the factual situation here, the trial court was not manifestly in error, even though I might have viewed the totality of circumstances differently.

The Illinois State Police, for example, in order to help motorists in distress or to facilitate public safety, has the policy of investigating pedestrians on a public highway. The defendant, a white male about 6 feet tall and carrying a gas-mask bag, was walking south on U.S. 66, towards Springfield, when he was spotted by Acup. At the time, there was a police bulletin, circulating in Acup’s area, which described an escaped Federal prisoner: white male, 5 feet 9 inches tall, 150 pounds, wearing jeans and army fatigue jacket, and carrying a backpack. That description is not so vague as the majority states. The defendant, walking along the highway and seen from a passing car, would not unreasonably fit that description: 5 feet 9 inches tall and a backpack, in the abstract, is not far removed from 6 feet and a gas-mask bag, in the concrete. According to Acup’s testimony, the defendant answered he was coming from and going to Springfield; the defendant identified himself with a checkbook; the defendant said he had no further identification although Acup noticed an Illinois driver’s license. The defendant was then arrested. I agree with the appellate court dissent (67 Ill. App. 3d 945, 951) that similarity between the dispatch’s description and the defendant’s appearance existed, and that the majority opinions here and in the appellate court have “become bogged down in a morass of details.” 67 Ill. App. 3d 945, 951.

The totality of the facts and circumstances, known to Acup, justified the arrest. Accordingly, the evidence seized by authorities was also properly admitted by the trial court. I agree that the subsequent confession by — and the lineup identification of — the defendant were admissible. In determining that the arrest was invalid, however, the majority has utilized somewhat tortuous reasoning to uphold the admissibility of the defendant’s inculpatory statements. For these reasons, I would affirm the circuit court of Sangamon County; and I dissent in part and concur in part.

MR. JUSTICE RYAN joins in this partial concurrence and partial dissent.


source: Caselaw Access Project

author: MR. JUSTICE KLUCZYNSKI

license: Public Domain

text:
    (No. 51101.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DARLENE LINZY, Appellee.

      Opinion filed December 3, 1979.

      William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Lee T. Hettinger, Michael E. Shabat, and J. Jonathan Regunberg, Assistant State’s Attorneys, of counsel), for the People.
    Marshall Weinberg, of Reilley, Bell 8c Weinberg, of Chicago, for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Defendant, Darlene Linzy, was indicted in the circuit court of Cook County for the murders of Linda Goodrom and Sharon Donaldson. Defendant filed a motion to quash the indictment because of alleged improper and prejudicial conduct of the prosecutor during the grand jury proceedings. The circuit court examined a transcript of the grand jury proceedings and dismissed the indictment. The appellate court affirmed (62 Ill. App. 3d 97), and we allowed the State’s petition for leave to appeal (65 Ill. 2d R. 315).

Two issues are presented for review. First, whether the circuit court had authority to examine the transcript of the grand jury proceedings to determine the propriety of the prosecutor’s conduct. Second, whether the circuit court properly dismissed defendant’s indictment on the basis of the prosecutor’s conduct evidenced in the grand jury transcript.

One of the two police officers who arrested defendant testified before the grand jury. The officer recounted that he examined the bodies of the victims, spoke to a pathologist concerning the causes of death, and arrested defendant. He also summarized a statement given by defendant in which defendant related the circumstances leading to the shooting deaths of the victims. Defendant had gone to a tavern with a girl friend. One of the victims had thrown a lighted cigarette onto defendant’s table while that victim was dancing. When the dance was over, defendant asked the victim why she had thrown the cigarette on the table, and the victim replied that since she did not bum defendant’s clothing or get the cigarette into defendant’s drink, defendant should “back off.” Several words were exchanged. Approximately an hour after the first contact, defendant got up to leave. One of the victims approached her and offered to fight. The victim “slapped at” defendant. Defendant shot and killed that victim and the woman who was standing behind her.

The transcript of the grand jury proceedings shows that the following occurred after the police officer completed his testimony:

“MR. O’MALLEY [the prosecutor] : Thank you. I have no further questions. (Witness excused)
* * *
THE FOREMAN:' True bill.
THE FOREMAN: On that case I am not sure if I clarified on the record, I am proceeding on a true bill on two counts of murder.
A JUROR: There are no degrees for murder?
MR. O’MALLEY: No, they have reduced it to voluntary and involuntary, as you know.
A JUROR: Did the two women have records?
MR. O’MALLEY: No, they did not.
A JUROR: It could have been considered voluntary manslaughter?
MR. O’MALLEY: Not under those facts. While there might have been some hot word exchanged—
A JUROR: Slapping.
MR. O’MALLEY: Voluntary manslaughter you have to have sudden, intense pattern \sic ] which is caused by serious provocation and under the facts of that case just a slap or hot words would not be considered serious provocation to justify shooting.
A JUROR: Thank you.”

No further proceedings were held before the grand jury. Thereafter, a two-count indictment charging defendant with murder was returned.

Defendant claims that the quoted colloquy between the prosecutor and the grand juror constitutes prosecutorial misconduct. Before reaching that question, however, we address the State’s assertion that the trial court did not have authority to examine the transcript of the grand jury proceedings in order to assess the merit of defendant’s contention. We cannot accept the State’s argument.

This court has held that the grand jury is an integral part of the trial court and that the court, in its inherent supervisory power over the grand jury, has jurisdiction to order and examine transcripts of grand jury proceedings to determine if there has been prosecutorial misconduct (People v. Sears (1971), 49 Ill. 2d 14, 35-36; accord Hughes v. Kiley (1977), 67 Ill. 2d 261, 267). Under that analysis, the trial court here properly considered the record in evaluating defendant’s claim of prosecutorial misconduct. Although it has been held that the trial court may not go beyond the record and conduct a hearing to receive testimony of grand jurors concerning charges of prosecutorial misconduct (People ex rel. Sears v. Romiti (1971), 50 Ill. 2d 51, 59), that principle does not bar the examination of the transcript of the grand jury proceedings.

We turn now to the question of whether the grand jury transcript revealed prosecutorial misconduct which requires the dismissal of defendant’s indictment. The prosecutor presented evidence to the grand jury which showed that defendant and one of the victims exchanged angry words because that victim had thrown a lighted cigarette onto the table where defendant was sitting and that an hour later a victim offered to fight and “slapped at” defendant. Defendant then shot and killed both victims. In response to a grand juror’s questions, the prosecutor stated that the facts before the grand jury would not support a charge of voluntary manslaughter since a slap and hot words are insufficient provocation to arouse a sudden and intense passion.

The prosecutor’s conduct does not require a dismissal of defendant’s indictment. His response to the grand juror’s questions was made in the exercise of the prosecutor’s function as advisor to the grand jury (People v. Sears (1971), 49 Ill. 2d 14, 29; Gitchell v. People (1893), 146 Ill. 175, 187; ABA Standards, The Prosecution Function sec. 3.5 (1971)), and finds support in the cases. See People v. Simpson (1978), 74 Ill. 2d 497, 502-03 (verbal fight and scratches inflicted by shooting victim insufficient to require a voluntary manslaughter instruction since provocation not serious enough to incite a sudden and intense passion in a reasonable person People v. Pursley (1922), 302 Ill. 62, 73 (attempt by victim to strike defendant with his fist not sufficient provocation to reduce homicide with a deadly weapon to manslaughter).

The prosecutor merely advised the grand jury as to the law applicable to the facts presented to the grand jury and in so doing was guilty of no misconduct which would require a dismissal of defendant’s indictment. If sufficient evidence is presented at defendant’s trial to support a voluntary manslaughter instruction, defendant will be entitled to such an instruction. People v. Joyner (1972), 50 Ill. 2d 302, 306.

Because the transcript reveals no prosecutorial misconduct, the appellate court erred in affirming the dismissal of defendant’s indictment. The judgments of the appellate and circuit courts are reversed, and the cause is remanded to the circuit court for further proceedings.

Reversed and remanded.


author: MR. JUSTICE MORAN MR. JUSTICE WARD,

text:
    (No. 51711.
    THE CITY OF CARBONDALE, Appellant, v. JOHN BREWSTER, Appellee.

      Opinion filed December 20, 1979.

      WARD and CLARK, JJ., dissenting.
    John Womick, of Carbondale, for appellant.
    Edward J. Kionka, of Columbia, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

An ordinance enacted by the city of Carbondale (plaintiff) requires, under threat of fine, that persons in control of property fronting or abutting on paved sidewalks remove snow and ice from such sidewalks or, if the snow and ice are too hard for removal, to cover them with abrasive materials within 24 hours after a snowfall or freezing precipitation. An Illinois statute allows municipalities to require the owner or occupant of any premises to keep the sidewalks abutting the premises free from snow and other obstructions. (Ill. Rev. Stat. 1977, ch. 24, par. 11 — 80—13.) In dismissing a complaint against defendant for violation of the Carbondale ordinance, the circuit court of Jackson County held the statute and ordinance invalid. Plaintiff has appealed directly to this court pursuant to Rule 302(a). 58 Ill. 2d R. 302(a).

Plaintiff contends initially that the circuit court erred because the basis for its holding had not been raised and, in fact, had been waived by defendant. The circuit court, in its written order, expressly based its decision on Gridley v. City of Bloomington (1878), 88 Ill. 554, wherein the court struck down a similar municipal ordinance, and held that the ordinance could not be upheld either under the principle according to which assessments are made or under the police power. (88 Ill. 554, 557.) We note that, in his motion to dismiss, defendant contended inter alia that the ordinance is an unreasonable exercise of the police power. It is evident, therefore, that this contention of the plaintiff is without merit.

Plaintiff next contends that the statute and ordinance are valid exercises of the police power. As stated, the Gridley court held the enactment of such an ordinance to be an invalid exercise of police power. This holding was adhered to shortly thereafter by a divided court in City of Chicago v. O’Brien (1884), 111 Ill. 532, which had before it precisely the same issue. Recently, the concept of police power in Illinois has been more thoroughly considered.

“The police power is an attribute of sovereignty inherent in every government. It has been reserved to all the States by the constitution of the United States. [Citations.] While it is not without limitation and may not be exercised arbitrarily, the legislatures of the States have broad discretion in the passage of statutes in its exercise. [Citation.] When the legislature has considered a problem and enacted legislation thereon, the act is presumptively a valid exercise of the power and the burden rests upon the one assailing the statute to show that it is without reasonable basis and entirely arbitrary. [Citations.] ” (Memorial Gardens Association, Inc. v. Smith (1959), 16 Ill. 2d 116, 123.)

The police power may be exercised to protect the public health, safety, morals, and general welfare or convenience. (Sherman-Reynolds, Inc. v. Mahin (1970), 47 Ill. 2d 323, 326; Clarke v. Storchak (1943), 384 Ill. 564, 577.) To be a valid exercise of police power, the legislation must bear a reasonable relationship to one of the foregoing interests which is sought to be protected, and the means adopted must constitute a reasonable method to accomplish such objective. (Sherman-Reynolds, Inc. v. Mahin (1970), 47 Ill. 2d 323, 327; Schuringa v. City of Chicago (1964), 30 Ill. 2d 504, 509.) Although the determination of reasonableness is a matter for the court, the legislature has broad discretion to determine not only what the interests of the public welfare require but what measures are necessary to secure such interest. (Memorial Gardens Association, Inc. v. Smith (1959), 16 Ill. 2d 116, 127; Clarke v. Storchak (1943), 384 Ill. 564, 577.) The court will not disturb a police regulation merely where there is room for a difference of opinion as to its wisdom, necessity and expediency. (Schuringa v. City of Chicago (1964), 30 Ill. 2d 504, 515.) The reasonableness requirement also applies to ordinances passed pursuant to legislative authority. Petterson v. City of Naperville (1956), 9 Ill. 2d 233, 244.

As it relates to real property, the police power is the vehicle by which the free and unencumbered use thereof may be adversely affected. Thus, a zoning ordinance will be upheld as a proper exercise of the police power if it bears any substantial relationship to the public health, safety, comfort or welfare. (E.g., La Grange State Bank v. County of Cook (1979), 75 Ill. 2d 301, 307.) Similarly, a residential land sub divider may properly be required, as a condition to approval of the plat, to provide curb and gutter and suitable storm-water-drainage facilities (Petterson v. City of Naperville (1956), 9 Ill. 2d 233), or to make contributions of land, or money in lieu of land, to be used for school and park sites (Krughoff v. City of Naperville (1977), 68 Ill. 2d 352). As the court in Petterson stated.

“The privilege of the individual to use his property as he pleases is subject always to a legitimate exercise of the police power under which new burdens may be imposed upon property and new restrictions placed upon its use when the public welfare demands. ” Petterson v. City of Naperville (1956), 9 Ill. 2d 233, 247.

The Gridley decision was based largely upon the court’s observation that a lot owner has no greater interest in the street or sidewalk abutting his property than any other member of the municipality. This court has since reiterated that the sidewalk is considered a part of the street which has been set aside for pedestrian use. (Lansing v. County of McLean (1978), 69 Ill. 2d 562, 572; City of Elmhurst v. Buettgen (1946), 394 Ill. 248, 252.) Continuing with this notion, the court, in O’Brien, denounced a snow-removal ordinance as laying a purely public burden upon a private individual, without providing for an exercise of the right of eminent domain or proper proceedings to enforce special assessments or special taxation. City of Chicago v. O’Brien (1884), 111 Ill. 532, 537.

We do not think that the ordinance here can properly be said to constitute a taxation scheme. Rather, what is involved is the imposition of regulatory provisions by way of the police power through an ordinance which requires persons in control of property abutting upon sidewalks to keep them clear of snow and ice. (See Petterson v. City of Naperville (1956), 9 Ill. 2d 233, 249.) Furthermore, when police power regulations are reasonable and adapted to the objects sought to be accomplished, they are not unconstitutional even though private property may be injured, interfered with, or damaged without the payment of compensation. (Sherman-Reynolds, Inc. v. Mahin (1970), 47 Ill. 2d 323, 328.) The court in Sherman-Reynolds upheld provisions of the Illinois Income Tax" Act which require employers to withhold tax from compensation paid to their employees. The withholding provisions were upheld even though an employer’s compliance required it to advance, out of its own property, substantial sums for necessary equipment, supplies, personnel and professional advice and assistance.

From the foregoing discussion, it becomes evident that Gridley and O’Brien should not be blindly adhered to. More recent developments have witnessed a general increase in the scope of the police power, as well as considerable erosion of the direct underpinnings of those two cases. Moreover, our research discloses only two other reported decisions in accord with Gridley and O’Brien. (State v. Jackman (1898), 69 N.H. 318, 41 A. 347; McGuire v. District of Columbia (1904), 24 App. D.C. 22.) The great majority of jurisdictions have instead upheld ordinances similar to that involved here, many of them expressly declining to follow the two Illinois decisions. (In re Appeal of Goddard (1835), 33 Mass. (16 Pick.) 504; Village of Carthage v. Frederick (1890), 122 N.Y. 268, 25 N.E. 480; Town of Clinton v. Welch (1896), 166 Mass. 133, 43 N.E. 1116; City of Lincoln v. Janesch (1902), 63 Neb. 707, 89 N.W. 280 (repair of sidewalks); State v. McMahon (1903), 76 Conn. 97, 55 A. 591; City of Helena v. Kent (1905), 32 Mont. 279, 80 P. 258; State ex rel. Egan v. McCrillis (1907), 28 R.I. 165, 66 A. 301; Kansas City v. Holmes (1918), 274 Mo. 159, 202 S.W. 392; State v. Small (1927), 126 Me. 235, 137 A. 398; Rich v. Rosenshine (1947), 131 W. Va. 30, 45 S.E.2d 499; State v. Giacchetto (1979), 166 N.J. Super. 351, 399 A.2d 1031.) Based upon the development of the police power in Illinois and upon what we consider to be the better reasoning of cases from other jurisdictions that have upheld similar legislation, Gridley and O’Brien are hereby overruled.

It cannot be disputed that keeping sidewalks free from snow and ice is closely related to and in furtherance of the public’s welfare. The fact that this court has not seen fit to impose a common law duty on municipalities to keep their streets and sidewalks clear of snow and ice (Lansing v. County of McLean (1978), 69 Ill. 2d 562) does not mean that those same municipalities cannot undertake by ordinance to require that sidewalks be kept clear of snow and ice in the interest of the public safety and welfare. Neither can it be said that the means chosen to accomplish the object of the legislation — requiring individuals to keep clear the portion of the sidewalk abutting the property under their control — is so arbitrary or unreasonable as to constitute an invalid exercise of the police power. The burden is not so manifestly disproportional or unrelated to a legitimate classification as to amount to unjust discrimination. The expenditure of time and effort, and perhaps expense, which the ordinance exacts is incidental to the enjoyment of property, just as are many other burdens, such as those mentioned earlier, imposed by the legislative branch. Furthermore, the law does not demand absolute equality. By making the requirement proportional to the length of property frontage, the legislation, in our opinion, is in compliance with constitutional requirements.

Defendant’s final objection to the legislation is that it unconstitutionally imposes absolute liability for its violation. Defendant cites no constitutional provision in support, and we find that his argument is without merit.

For the foregoing reasons, the judgment of the circuit court of Jackson County is reversed, and the cause is remanded for further proceedings.

Judgment reversed; cause remanded.

MR. JUSTICE WARD,

dissenting:

I dissent. Although the language of the majority’s opinion is couched in terms of the police power, I find it more appropriate in considering this question of compulsion to identify the problem as one of due process, as it was in City of Chicago v. O’Brien (1884), 111 Ill. 532, 537. The majority’s opinion, by speaking only in terms of police power, tends to mute the issue of due process, which is stated very strongly and explicitly in O’Brien. With regard to a snow-removal ordinance of the city of Chicago, the court in O’Brien made this observation:

“The lot owner is held responsible solely and simply for the accident of. owning property near the nuisance. He may have no more actual control of the street, or necessity to use it, than if his property were miles away; still, he is held responsible for a result he could not control, and to the production of which he did not even theoretically contribute. The gist of the whole argument is merely that it is convenient to hold him responsible. It is not perceived why it would not be equally convenient to hold him responsible for the entire police government of so much of the street.” 111 Ill. 532, 537.

The majority refers to Petterson v. City of Naperville (1956), 9 Ill. 2d 233, and Krughoff v. City of Naperville (1977), 68 Ill. 2d 352, as supporting its position. In those cases a developer was required to construct facilities or to contribute land or money to alleviate conditions created by his proposed development. The abutting owner is not in that position. In some cases, though by no means all, the owner may use the sidewalk in front of his property more frequently than do members of the general public, but he has, of course, no right to its exclusive use, and unlike the subdivider he has not created the situation which he is called upon to correct.

In Lansing v. County of McLean (1978), 69 Ill. 2d 562, this court recently reaffirmed the doctrine of Strappelli v. City of Chicago (1939), 371 Ill. 72, that a municipality is not liable in tort for injuries arising out of the failure of the municipality to remove a natural accumulation of snow from the street or sidewalk. We noted in McLean that a landowner enjoys the same freedom from liability with respect to his own property. (69 Ill. 2d 562, 569-72.) The majority decision here results in an anomalous situation in that it approves the imposition of a duty upon the abutting owner with respect to the municipality’s property, that is, the sidewalk, to which the municipality itself is not subject. Further, and oddly, it imposes upon the owner a twofold liability: if, on the one hand, he fails to remove the snow, then in addition to suffering a fine, he may be exposed to a suit for civil damages, since violation of an ordinance may be regarded as creating a cause of action in tort. If, on the other hand, the owner does attempt to comply with the ordinance, he is exposed to the possibility of an action charging him with having negligently created a condition, such as ice on a cleared walk or a pile of snow, which injured the plaintiff. Cf. Riccitelli v. Sternfeld (1953), 1 Ill. 2d 133.

To be valid, a regulation made under the police power must be “reasonable and adapted to the scope and object sought to be accomplished.” (Sherman-Reynolds, Inc. v. Mahin (1970), 47 Ill. 2d 323, 328.) If, as the majority now holds, an ordinance requiring an owner to remove snow from the sidewalk is not invalid per se, it will still be necessary, of course, that the provisions of such an ordinance be reasonable.

The majority’s opinion does no more than to state simply and generally the conclusion that the ordinance here is not an unconstitutional exercise of the police power. I consider the provision requiring the owner or other person to clear a 30-inch path within 24 hours “after the cessation of any fall of snow, sleet or freezing rain” to be, in the weather area involved here, uncertain, vague, and not reasonably susceptible to determination by the persons affected. An ordinance or statute of this character must of course be clear and definite in the obligation that it imposes, and reasonably capable of being observed. The ordinance here cannot be said to satisfy that requirement, especially when the consequence of a violation may be the creation of a civil cause of action against the landowner.

MR. JUSTICE CLARK joins in this dissent.


author: MR. CHIEF JUSTICE GOLDENHERSH MR. JUSTICE CLARK, MR. JUSTICE UNDERWOOD, MR. JUSTICE WARD,

text:
    (No. 51895.

      In re PETER WONAIS, Attorney, Respondent.

      Opinion filed December 20, 1979.

    CLARK, J., concurring.
    UNDERWOOD, WARD, and RYAN, JJ., dissenting.

      John C. O’Malley, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    William J. Hart, of Chicago, for respondent.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

On July 28, 1976, this court allowed the motion of respondent, Peter Wonais, licensed to practice law in 1974, to strike his name from the roll of attorneys. On June 6, 1978, pursuant to Supreme Court Rule 767 (65 Ill. 2d R. 767), he filed a petition for reinstatement. A panel of the Hearing Board of the Attorney Registration and Disciplinary Commission recommended that the petition for reinstatement be allowed. The Administrator filed exceptions and the Review Board of the Attorney Registration and Disciplinary Commission, with one member dissenting, affirmed the recommendation. Pursuant to Supreme Court Rule 753(e) (65 Ill. 2d R. 753(e)), we allowed the Administrator’s petition for leave to file exceptions and permitted the filing of briefs, and oral argument.

On October 24, 1974, respondent was admitted to the Illinois Bar, and shortly thereafter was appointed an assistant public defender. In 1976 he was assigned to represent an indigent person who had been charged with three counts of burglary. Respondent negotiated an agreement with the State’s Attorney whereby the defendant would enter a plea of guilty to one count, the remaining two counts would be stricken with leave to reinstate, and a sentence of probation imposed. In response to the defendant’s expressed concern that the charges might be reinstated, respondent represented to the defendant that for $700 in cash, to be passed on to a State’s Attorney, the remaining counts would not be reinstated. The alleged involvement of a State’s Attorney was merely a ruse, since respondent intended to keep the money. The defendant agreed to respondent’s proposal and on June 4, 1976, respondent went to the defendant’s home to receive payment. He was there arrested and charged with solicitation to commit bribery. Shortly thereafter he resigned from his position as a public defender and moved that his name be stricken from the roll of attorneys.

On December 19, 1976, respondent pleaded guilty to the offense of solicitation to commit bribery and was placed on probation for a period of two years. On respondent’s motion, the probation was terminated on June 4, 1978.

It is the Administrator’s contention that in view of the serious nature of the offense upon which respondent’s disbarment was based, insufficient time has passed “to afford the Court a meaningful opportunity to determine that petitioner has become a person fit to practice law.” Respondent contends that he has established by clear and convincing evidence that he is rehabilitated and is a fit person to practice law and that the petition for reinstatement is not premature.

Our amendment of Rule 767 effective July 1, 1978 (73 Ill. 2d R. 767), to provide that a petition for reinstatement shall not be filed within a period of 3 years after the date of an order allowing disbarment on consent was recognition of the fact that the sanction is a serious one, not lightly imposed, and that a period of time must elapse sufficient to demonstrate that the disbarred attorney has been rehabilitated. However, as we pointed out in In re Wigoda (1979), 77 Ill. 2d 154, 158, “the period of time between a disbarment on consent and a petition for reinstatement is not dispositive of the determination of rehabilitation.” We note further that more than 3 years have now elapsed since the disbarment.

The evidence presented to the Hearing Board was not contradicted by the Administrator. Indeed, in argument before the Hearing Board counsel for the Administrator stated that a thorough investigation had failed to uncover anything “which would preclude or argue against his reinstatement.” Moreover, the Hearing Board in its findings and recommendation characterized the testimony adduced by respondent as impressive and noted that it was elicited from persons whose experience made them good judges of moral rehabilitation. A priest who had known respondent since boyhood testified that since disbarment he had undergone a drastic change for the better, having deepened his religious experience and become emotionally more mature. The director of a treatment and training center for developmentally disadvantaged children testified that members of the staff looked to respondent for guidance. As a volunteer, respondent had performed well in a very difficult, stressful job, and had been with the center for nearly twice the average “turnover” time. The director testified that he felt respondent had a very good moral character. A circuit court judge and respondent’s superior in the public defender’s office also testified in his behalf. The supervisor testified that respondent was probably more remorseful than any person the supervisor had ever seen. The president of the manufacturing company by whom defendant was employed testified that he regularly entrusted respondent with large sums of money, and that, if reinstated, respondent would be asked to become the company’s corporate attorney. Finally, respondent testified as to the shame and remorse which had stemmed from the incident. He testified that he had become active in his church and several worthy volunteer endeavors, and that his commitment to these activities would not end on reinstatement.

Disciplinary proceedings are designed to safeguard the public, maintain the integrity of the profession and protect the administration of justice from reproach. (In re Saladino (1978), 71 Ill. 2d 263, 275; In re Nowak (1976), 62 Ill. 2d 279, 283.) To further delay the reinstatement of an attorney shown to have been rehabilitated would serve no useful purpose. In view of the clear and convincing evidence of defendant’s rehabilitation and fitness to practice law, the recommendation to reinstate him was proper and we adopt it.

It is the order of this court that the respondent is reinstated to the roll of attorneys admitted to practice law in this State.

Respondent reinstated.

MR. JUSTICE CLARK,

concurring:

I concur in the majority opinion.

We have permitted reinstatement where less than two years have elapsed between disbarment and the filing of the reinstatement petition, yet there was no dissent relating to the petition being premature. In re Wigoda (1979), 77 Ill. 2d 154.

In addition, prior to the adoption of Rule 767 on July 1, 1978 (73 Ill. 2d R. 767), we have allowed reinstatement where an attorney filed the petition within five years of disbarment, and my collegues did not see fit to register their disagreement. (In re Thomas (1979), 76 Ill. 2d 185.) (The instant petitioner voluntarily moved to have his name stricken from the master roll of attorneys, and that motion was allowed on July 28, 1976. His reinstatement occurs well over three years later.)

We have permitted reinstatement where the infraction was as serious as in this case, if not more so, and nothing was said in dissent about the seriousness of the offense. In re Wigoda (1979), 77 Ill. 2d 154.

Moreover, we have reinstated attorneys where the Review Board has recommended that the petition be denied, again, without any dissent being recorded. (In re Nesselson (1979), 76 Ill. 2d 135.) In the instant case, both the Hearing Board, and the Review Board (with one member dissenting), recommended that the petitioner be reinstated.

The rule has been quoted to the point where it is axiomatic that disciplinary proceedings are not designed to impose punishment, but are intended, as my learned colleague states, “to safeguard the public, maintain the integrity of the legal profession and protect the administration of justice. ” (78 Ill. 2d at 124.) That is not to say that all disbarred attorneys are to be reinstated'. In certain situations, the offenses will be so grievous and wilful, and the likelihood that the offender will err again may be so great, that the attorney should not, and will not, be reinstated. But where, as here, the petitioner has carried the substantial burden of showing by clear and convincing evidence that he is rehabilitated (In re Starr (1976), 64 Ill. 2d 407, 415), I am at a loss to understand why my collegues chose this case in which to dissent, especially since the dissenting opinions provide no clue as to why this case is distinguishable from other recent cases decided by this court.

MR. JUSTICE UNDERWOOD,

dissenting:

Respondent was disbarred on consent (58 Ill. 2d R. 762) by the July 28, 1976, order of this court. Disbarment resulted from his conduct while employed as an assistant public defender in Cook County. While assigned to represent a supposedly indigent defendant, respondent solicited $700 from his client on the false representation that payment of that amount to an assistant State’s Attorney would guarantee favorable treatment for the client. Respondent intended, of course, to convert the money to his own use. Respondent’s petition for reinstatement to the practice of law was filed on June 6, 1978, after his discharge from the probation upon which he had been placed following his conviction of solicitation to commit bribery.

Were respondent subject to our amended Rule 767 (73 Ill. 2d R. 767), he could not even file a petition for reinstatement sooner than 3 years from the date of disbarment. Considering the serious nature of the offense and the disregard manifested by respondent for the criminal laws of this State, the ethics of our profession, and the reputation of fellow lawyers, I believe his reinstatement to be premature.

MR. JUSTICE RYAN joins in this dissent.

MR. JUSTICE WARD,

also dissenting:

Less than two years after his admission to the bar the respondent was disbarred for having committed the grevous offense of attempted bribery while serving as assistant public defender. Less than two years after his disbarment he petitioned for reinstatement of the privilege to practice law. The majority states that to delay further respondent’s reinstatement would serve no useful purpose in view of the clear and convincing evidence of his rehabilitation and fitness to practice law. I cannot agree. The first purpose of disciplinary proceedings is to safeguard the public, maintain the integrity of the legal profession and protect the administration of justice. I am not persuaded on the record before us that these ends will be met if the respondent at this time is reinstated. The question is, of course, not whether there should be compassion, but whether there can be confidence that the public interest will be safeguarded and the profession assured that the disciplined attorney has now a full understanding of important responsibilities. Lenity may be as great a disservice as a severity that is unwarranted. I join with Mr. Justice Underwood in his belief that reinstatement at this time is premature. I would add that if reinstatement were to be deferred it could deepen the respondent’s understanding of the obligations of the bar and of the sensitive and vital role of the lawyer in society.

MR. JUSTICE RYAN joins in this dissent.


author: MR. JUSTICE RYAN

text:
    (No. 51607.
    BETTE WINKS et al., Appellees, v. THE BOARD OF EDUCATION OF NORMAL COMMUNITY UNIT SCHOOL DISTRICT NO. 5 OF McLEAN COUNTY, Appellant.

      Opinion filed December 20, 1979.

      UNDERWOOD and WARD, JJ., took no part.
    Fleming, Messman & O’Connor, of Bloomington (Martin L. O’Connor and Thomas A. Eckols, of counsel), for appellant.
    Drach, Terrell & Deffenbaugh, P.C., of Springfield, for appellees.
    R. Garrett Phillips, of Springfield, for amicus curiae Illinois Association of School Boards.
   MR. JUSTICE RYAN

delivered the opinion of the court:

Plaintiffs, Bette Winks, Jill Keller, Brenda Melcher, and Cheryl Myhra, are female teachers in Normal Community Unit School District No. 5 of McLean County. They filed this action under section 24 — 6 of the School Code (Ill. Rev. Stat. 1973, ch. 122, par. 24 — 6) and the rules of the defendant school district to recover sick leave benefits for time plaintiffs lost from their employment during the later stages of their pregnancies and subsequent to the birth of their children. The circuit court of McLean County entered judgment in favor of the plaintiffs. The appellate court, with one justice dissenting, affirmed, holding that each plaintiff had suffered a “personal illness” within the meaning of that term as used in section 24 — 6 of the School Code and that the plaintiffs were entitled to sick leave pay up to the number of days which had accumulated under the provisions of that section. (65 Ill. App. 3d 956.) We granted the school district leave to appeal.

Section 24 — 6 of the School Code provides:

“The school boards of all school districts, including special charter districts, shall grant their full-time teachers and other employees sick leave provisions not less in amount than 10 days at full pay in each school year. If any such teacher or employee does not use the full amount of annual leave thus allowed, the unused amount shall accumulate to a minimum available leave of 90 days at full pay, including the leave of the current year. Sick leave shall be interpreted to mean personal illness, quarantine at home, or serious illness or death in the immediate family or household. The school board may require a physician’s certificate, or if the treatment is by prayer or spiritual means, that of a spiritual advisor or practitioner of such person’s faith, as a basis for pay during leave after an absence of 3 days for personal illness, or as it may deem necessary in other cases.
For purposes of this Section, ‘immediate family’ shall include parents, spouse, brothers, sisters, children, grandparents, grandchildren, parents-in-law, brothers-in-law, sisters-in-law, and legal guardians.” (Emphasis added.) (Ill. Rev. Stat. 1973, ch. 122, par. 24 — 6.)

This section was enacted in 1961 and has been amended several times since then, the last amendment being in 1972. The defendant school district, in 1968, adopted a sick leave policy implementing this section of the Code. Another sick leave policy was adopted by the school district in 1974 and in 1976. These policies used the language of the statute in defining those persons entitled to sick leave pay.

In 1968 the school district adopted a maternity leave policy, in addition to the sick leave policy, which provided that a pregnant teacher could continue to work as long as her health permitted and she was able to satisfactorily perform her duties. The maternity leave policy also provided that she could return to work following childbirth upon certification by her physician and upon the fulfillment of other requirements. In 1974 the maternity leave policy was revised and provided:

“Once an employee commences Maternity Leave, then no Sick Leave shall be granted until the employee has returned to work. Sick Leave shall be available until Maternity Leave without regard to a pregnancy condition.”

The maternity leave policy contained no provision for the payment of monetary benefits.

Plaintiff Winks was granted nonpaid maternity leave under the maternity leave policy of the school district as it existed in December 1973. The other plaintiffs gave birth to children subsequent to the 1974 revision of the maternity policy. Each of the plaintiffs had informed the defendant of her pregnancy, and each had, at some time, requested compensation for sick leave. These requests were denied by the defendant. Each had requested and received nonpaid maternity leave. Each plaintiff, with the exception of Winks, had a normal pregnancy, gave birth to a normal child by a normal delivery, and had a normal postpartum recovery. The record indicates that there were some abnormal occurrences or complications in plaintiff Winks’ pregnancy and recovery.

This case deals solely with the interpretation of section 24 — 6 of the School Code in reference to the sick leave policy of the defendant school district. It does not involve an equal protection issue. That issue was resolved by the Supreme Court in Geduldig v. Aiello (1974), 417 U.S. 484, 41 L. Ed. 2d 256, 94 S. Ct. 2485. This case does not involve a question under title VII of the Civil Rights Act of 1964 (42 U.S.C. sec. 2000e et seq. (1976)). General Electric Co. v. Gilbert (1976), 429 U.S. 125, 50 L. Ed. 2d 343, 97 S. Ct. 401, held that the exclusion of normal pregnancies from sick leave benefits would not violate title VII. Also, it should be noted that the amendment to title VII contained in Public Law 95 — 555, approved October 31, 1978, which prohibits discrimination on the basis of pregnancy, does not apply to plaintiffs’ claims, which arose before the effective date of that amendment. As the amendment was adopted subsequent to Gilbert, it nullifies the effects of that decision insofar as Gilbert held that exclusion of normal pregnancies from sick leave benefits did not constitute a title VII violation.

Under section 24 — 6 of the School Code and the defendant’s sick leave policy, an employee of the defendant school district is entitled to compensated sick leave if the absence is occasioned by personal illness, if the employee is quarantined at home, or if there is a serious illness or death in the immediate family or household. This controversy involves the meaning of “personal illness” as that term is used in section 24 — 6 and in the defendant’s sick leave policy. It is plaintiffs’ position that this phrase encompasses medical incapacity due to pregnancy and childbirth which prevents the employee from performing the duties of her position.

Plaintiffs call our attention to the opinions that have been rendered by the Illinois Office of Education. In a letter opinion dated May 11, 1976, issued by that office, it is stated: “The school district is required to pay a teacher who has requested sick leave for maternity purposes all her available sick leave during the time in which she is temporarily disabled.” Another letter opinion dated May 25, 1977, stated: “Ordinarily, a teacher may use sick leave days for maternity purposes when she is actually physically disabled. In this context, pregnancy is to be treated in the same manner as any other physical disability.” Another opinion dated March 1, 1978, is to the same effect. While these opinions would uphold the use of sick leave days for maternity-related disability, this has not always been the interpretation given to the statute by that office. A letter opinion dated August 8, 1973, contains this statement:

“In the matter of sick days being used for the purposes of pregnancy, this office under both Mr. Hutson’s and Mr. Schwartz’s tenure held that such use of sick leave was impermissable since there existed no statutory authority allowing such use of sick leave. This position was *** reversed in part as a result of a federal ruling in Cook County, Bravo v. Chicago Board of Education and in part as the result of Federal rules and regulations issued by the Equal Employment Opportunity Commission.”

It should be noted that Bravo v. Board of Education (N.D. Ill. 1972), 345 F. Supp. 155, referred to in the above-quoted letter opinion as a reason for the changes in the policy of that office, was reversed without published opinion on October 10, 1975 (Bravo v. Board of Education (7th Cir. 1975), 525 F.2d 695.) The date of reversal was subsequent to the Supreme Court’s decision in Geduldig v. Aiello (1974), 417 U.S. 484, 41 L. Ed. 2d 256, 94 S. Ct. 2485. That case upheld the constitutionality of a pregnancy exclusion from coverage of the California disability insurance system against an equal protection challenge. The letter of opinion also states that the change in policy of the office was made in part as a result of Federal rules and regulations issued by the Equal Employment Opportunity Commission. These rules and regulations, issued in 1972 as guidelines for the interpretation of title VII, stated that disabilities caused by pregnancy and childbirth are, for all job-related purposes, temporary disabilities and should be treated as such under any sick leave plan available in connection with the employment. The Supreme Court, however, in General Electric Co. v. Gilbert, held to the contrary. Therefore, the basis for the change in the policy of the Illinois Office of Education has been severely undermined.

The plaintiffs suggest that the interpretation given to section 24 — 6 of the School Code by the Illinois Office of Education, while not controlling on the court, nevertheless should be given substantial weight by the court when construing this section of the statute. The Supreme Court, in General Electric Co. v. Gilbert, acknowledged that interpretation given to a legislative act by the administrative body vested with authority to administer the statute is entitled to consideration in determining legislative intent. However, the Supreme Court noted that the guidelines of the Equal Employment Opportunity Commission, upon which the plaintiff in that case relied, were contrary to previous guidelines which had been promulgated by that administrative body pertaining to the same act. The court therefore declined to defer to the administrative guidelines that were in conflict with earlier pronouncements of the same agency. General Electric Co. v. Gilbert (1976), 429 U.S. 125, 140-43, 50 L. Ed. 2d 343, 357-58, 97 S. Ct. 401, 410-11.

We, likewise, conclude that the letters of opinion issued from the Illinois Office of Education stating that maternity benefits must be paid under the provisions of section 24 — 6 are entitled to little weight in view of the fact that they directly contradict prior interpretations of that section of the statute by the same administrative office. We must also consider that the prior interpretation implemented the Act following its original enactment.

Provisions of a statute should be construed in light of the statute as a whole. (People ex rel. Castle v. Taylor (1955), 7 Ill. 2d 501, 504; Sternberg Dredging Co. v. Estate of Sternberg (1957), 10 Ill. 2d 328, 334.) We note that the term “personal illness” in section 24 — 6 of the School Code provides that benefits under that section are limited to a more narrow group than are benefits under other sections of the School Code. For example, prior to 1974út was permissible to discharge a teacher who became unable to perform her duties due to pregnancy. (See, e.g., In re Appeal of School District (1943), 347 Pa. 418, 32 A.2d 565.) However, in Cleveland Board of Education v. La Fleur (1974), 414 U.S. 632, 39 L. Ed. 2d 52, 94 S. Ct. 791, the Supreme Court held that the mandatory termination of employment due to pregnancy violated the due process clause of the fourteenth amendment. In 1975, following that decision, section 10 — 22.4 of the School Code (Ill. Rev. Stat. 1975, ch. 122, par. 10 — 22.4) was amended. It provided, in pertinent part:

“Temporary mental or physical incapacity to perform teaching duties, as found by a medical examination, is not cause for dismissal.” (Emphasis added.)

The use of the term temporary physical incapacity is broader than the term “personal illness” and is broad enough to encompass temporary incapacity to teach because of pregnancy and childbirth. Thus, in keeping with the holding in Cleveland Board of Education v. La Fleur, the School Code specifically provided that such a condition is not grounds for dismissal.

Also, section 24 — 13 of the School Code provides that a teacher’s tenure is not affected by an absence caused by “temporary illness or temporary incapacity.” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 122, par. 24 — 13.) Here again the term “temporary incapacity” is broader than the term “temporary illness” used in the same section and, further, is broad enough to include incapacity to teach due to pregnancy and childbirth. Thus this provision of the School Code conforms the law in this State to the holding of the Supreme Court in Nashville Gas Co. v. Satty (1977), 434 U.S. 136, 54 L. Ed. 2d 356, 98 S. Ct. 347, where it was held that an employer’s policy of depriving employees returning from a pregnancy leave of accumulated job seniority violated title VII of the Civil Rights Act of 1964.

Both of these sections of the School Code, in extending protection to those who are unable to perform the function of their positions because of pregnancy and childbirth, use the broader term “temporary incapacity.” Section 24 — 6 of the School Code providing for sick leave, however, has used the narrower term “personal illness” in defining those benefited by that section. Although the difference in the language used indicates an intention on the part of the General Assembly to extend the benefits of section 24 — 6 to a more narrowly defined group than those covered under section 24 — 13 and section 10 — 22.4, this difference is not dispositive if it can be said that the term “personal illness” also encompasses pregnancy and childbirth.

In the absence of statutory definitions indicating a different legislative intent, it is assumed that words used in the statute were intended to have their ordinary and popularly understood meaning. (Farrand Coal Co. v. Halpin (1957), 10 Ill. 2d 507, 510; Bowman v. Armour & Co. (1959), 17 Ill. 2d 43, 52.) In ascertaining the ordinary and popularly understood meaning of words used in the statutes, this court has found the dictionary definitions helpful, as indicated in the two cases last cited. In Webster’s Third New International Dictionary 1127 (1971), the word “illness” is defined as “an unhealthy condition of the body or mind: malady.” It appears that this court has not considered whether pregnancy and childbirth is an illness or constitutes an unhealthy condition of the body. Other jurisdictions, however, have considered this question and related ones in similar situations.

In In re Appeal of School District (1943), 347 Pa. 418, 32 A.2d 565, cited above, the Pennsylvania Supreme Court held that an employee of a school district who was absent from work because of pregnancy was not prevented by sickness or some other unavoidable circumstances from performing her duties. In Tawney v. Board of Education (S.D. W. Va. 1977), 426 F. Supp. 528, the court held that pregnancy and childbirth were not sicknesses within the meaning of the West Virginia statute. In Gilbert v. General Electric Co. (E.D. Va. 1974), 375 F. Supp. 367, rev’d (1976), 429 U.S. 125, 50 L. Ed. 2d 343, 97 S. Ct. 401, the district court found that pregnancy is not a disease as that term is commonly understood. Thus, the employee was excluded from sickness and accident benefits because of a pregnancy disability. Although the Supreme Court decision in that case reversed the district court, it, nonetheless, acknowledged the finding of the lower court that pregnancy is not a disease. In Southern Bell Telephone & Telegraph Co. v. Administrator, Division of Employment Security (La. App. 1967), 197 So. 2d 169, 171, the court stated: “Neither do we consider pregnancy to be an ‘illness’.” (Emphasis added.) The Florida Supreme Court in National Council of the Knights & Ladies of Security v. Glenn (1918), 76 Fla. 592, 594, 80 So. 516, held that the following jury instruction correctly stated the law: “ ‘*** [P] regnancy is not a personal ailment or condition of bad or unsound health so as to violate an agreement *** that a member of a beneficiary society shall not be reinstated after suspension for non-payment of dues, unless such member is in good health at the time of the reinstatement. ’ ” (Emphasis added.) In Mutual Benefit Health & Accident Ass’n v. United Casualty Co. (1st Cir. 1944), 142 F.2d 390, 394, the court stated: “The word ‘sickness’ certainly does not necessarily include pregnancy.” (Emphasis added.) The court was construing an insuring clause of an insurance policy which insured against loss due to expenses of hospital residence necessitated by sickness. In Lee v. Metropolitan Life Ins. Co. (1936), 180 S.C. 475, 483, 186 S.E. 376, 380, the court held that pregnancy was not a disease so as to be covered by a group disability policy which provided that the disability be as a “result of bodily injury or disease.” In Merriman v. Grand Lodge Degree of Honor (1906), 77 Neb. 544, 110 N.W. 302, the court held that it was not a false representation for a female applicant for insurance to sign a certificate when she was pregnant stating that she was of sound bodily health. In Rasicot v. Royal Neighbors of America (1910), 18 Idaho 85, 100, 108 P. 1048, 1053, the Supreme Court of Idaho stated:

“Pregnancy is not per se a condition of ‘unsound’ health, nor is it a ‘disease’ or ‘ailment’ within the meaning of those terms used in this application and policy. *** So far as we are informed, this term [unsound health] of itself and standing alone has never been held to cover or include a case of pregnancy.”

In Sullivan v. National Casualty Co. (1954), 283 App. Div. 516, 517, 128 N.Y.S.2d 717, 719, the court stated that pregnancy is a normal biological function and is not an illness. In 10 Couch on Insurance, section 41:806 (1962), it is stated:

“The word ‘sickness’ does not necessarily include pregnancy, for pregnancy is not bodily injury or disease within the meaning of a policy providing for payment of disability benefits ***.”

Webster’s Seventh New Collegiate Dictionary gives as a second definition of “illness,” “sickness.” Webster’s Third New International Dictionary 1127, 1365 (1971), lists “malady” as a second definition of “illness” and defines “malady” as a disease of the body resulting from impaired or defective functions. Thus, “illness,” “sickness” and “disease” are all descriptive of similar or related conditions as defined in the dictionary, and the cases above cited hold that pregnancy and childbirth are not necessarily included within these definitions. The views expressed by the doctors who testified in this case agree with this conclusion.

Several of the above authorities, however, distinguish either directly or inferentially between a normal pregnancy and childbirth and a pregnancy and childbirth involving complications, indicating that while the former does not constitute a disease, sickness or illness, the latter may. (See Sullivan v. National Casualty Co. (1954), 283 App. Div. 516, 517-18, 128 N.Y.S.2d 717, 719; Rasicot v. Royal Neighbors of America (1910), 18 Idaho 85, 99-100, 108 P. 1048, 1053; Lee v. Metropolitan Life Ins. Co. (1936), 180 S.C. 475, 490, 186 S.E. 376, 383; National Council of the Knights & Ladies of Security v. Glenn (1918), 76 Fla. 592, 594, 80 So. 516; Gilbert v. General Electric Co. (E.D. Va. 1974), 375 F. Supp. 367, 375-76.) In 10 Couch on Insurance, section 41:806 (1962), it is stated:

“The circumstances of the case are material and it has been held that even though an uneventful pregnancy would not be regarded as a ‘sickness,’ a complicated pregnancy, carrying unusual and disabling consequences, or accompanied by variations from normal limits as such limits might be viewed in a well-advised medical opinion, could be treated as a ‘sickness’ ***.”

We thus conclude that the General Assembly did not intend to include normal pregnancy and childbirth within the sick pay coverage of section 24 — 6 of the School Code. The more narrow term “personal illness” was therefore used in that section, thereby distinguishing the recipients of benefits thereunder from those covered by the broader term “temporary incapacity” as used in sections 10 — 24.4 and 24 — 13 of the School Code. The latter sections were obviously intended to cover incapacities due to pregnancies in order to conform to the decisions of the Supreme Court as above indicated. However, we hold that certain complications which are variations from normal limits, as medically established, may fall within the sick leave provisions of section 24 — 6.

The plaintiffs rely on two 1978 Maine cases which held that teachers were entitled to use sick leave for temporary medical disabilities associated with pregnancy and childbirth. (Murray v. Waterville Board of Education (Me. 1978), 390 A.2d 516; Millinocket School Committee v. Millinocket Teachers Association (Me. 1978), 390 A.2d 1106.) The court in Murray noted that the Maine statutory scheme does not define the types of disabilities for which sick leave may be granted. “With no statutory definition to guide us, we therefore turn to an analysis of the apparent purpose of providing sick leave.” (Murray v. Waterville Board of Education (Me. 1978), 390 A.2d 516, 519.) The plaintiffs urge this court to consider the purpose of section 24 — 6 of the School Code and to find that reimbursement for the economic loss due to inability to teach because of pregnancy and childbirth falls within the purpose of that section. Our statute, unlike the Maine statute, however, contains a definition of who is entitled to the benefits of the sick leave provisions. As set out above, that definition does not encompass normal pregnancy and childbirth disability.

The trial court found that the district had applied its sick leave policy unevenly, and one of the justices of the appellate court cites this uneven application as a reason for allowing sick leave to the plaintiffs in this case. The other justices of the appellate court did not consider this issue to be significant. The other pregnancy cases referred to in the evidence show that sick leave was paid by the defendant school district to a teacher who had a Caesarean section, and to a teacher who was hospitalized when she started to hemorrhage during pregnancy. These cases do not demonstrate an inconsistent application of section 24 — 6. Payment in these cases may demonstrate the district’s policy in making sick leave payments for abnormal pregnancy and childbirth situations consistent with the above authorities. In another case involving childbirth, the evidence shows that the district granted two days’ leave to a husband when his wife gave birth. Whatever the reason may have been for granting sick leave in this case, it was not for personal illness of the teacher. If the granting of sick leave in this case does not conform to the statute it does not justify the granting of sick leave to the plaintiffs and all other pregnant teachers who do not come within the requirements of section 24 — 6. Other alleged inconsistencies in the 'application of the statute involve leaves for medical reasons that did not involve pregnancy or childbirth which the district may have considered to come within the term “personal illness.”

As indicated above, plaintiff Bette Winks had some complications primarily involving varicose veins. However, there is nothing in the record that shows that any of her time absent from teaching duties was attributable to this condition. She performed her normal teaching functions through December 7, 1973. She was admitted to the hospital and gave birth to her baby the next day, December 8, 1973. She was released from the hospital on December 11, 1973, and resumed her teaching duties as authorized by her doctor on January 3, 1974. She lost no time from work due to her pregnancy, and the period of time that she did not work following delivery was substantially the same as that of the other plaintiffs in this case, whose conditions were described as normal. She has not established that she has lost any working days due to her “personal illness” and therefore may not recover sick leave benefits under section 24 — 6 of the School Code.

For these reasons the judgments of the appellate and circuit courts are reversed.

Judgments reversed.

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