author: JUSTICE SCOTT

text:
    WILLIAM E. MAYFIELD, Adm’r of the Estate of Mary Denise Mayfield, Deceased, Plaintiff-Appellant, v. THE CITY OF SPRINGFIELD, Defendant-Appellee.—ANNETTE NAPIER, Guardian of the Estate of Florence Moreth, a Physically Infirm Person, Plaintiff-Appellant, v. DANIEL R. HUGHES, Defendant.—(THE CITY OF SPRINGFIELD, Defendant-Appellee.)
    Fourth District
    Nos. 17096,17142 cons.
    Opinion filed January 22, 1982.
    Modified on denial of rehearing March 29, 1982.

      Londrigan & Potter, P. C., of Springfield (James C. Craven, of counsel), for appellant William E. Mayfield.
    Jefferson Lewis and Nolan Lipsky, both of Petersburg, for appellant Annette Hapier.
    D. Bradley Blodgett, of Gillespie, Cadigan & Gillespie, of Springfield, for appellee,
   JUSTICE SCOTT

delivered the opinion of the court:

A tragic auto collision in Springfield, Illinois, on July 2,1978, resulted in two lawsuits filed on behalf of different plaintiffs against the same defendant. A Sangamon County Circuit Court jury concluded that the defendant was not negligent under the circumstances and denied recovery to both plaintiffs following a consolidated trial. Both plaintiffs appealed the verdict of the jury, and because of the near identity of the issues raised by the briefs of the parties, we determine the outcome of both appeals with this consolidated opinion. A factual background follows.

On July 2, 1978, just minutes before 7 p.m., Mary Denise Mayfield was driving her 1978 Oldsmobile Cutlass in a southerly direction on Eleventh Street in Springfield, Illinois. She was en route to Sunday night mass at Sacred Heart Church and approached the intersection of Eleventh Street and North Grand Avenue with her left turn signal operating, indicating an easterly turn on to North Grand. The traffic light which controlled the intersection at Eleventh and North Grand was green, indicating Ms. Mayfield had the right-of-way, and she proceeded into the intersection.

North Grand is an east-west street having two through lanes of traffic in each direction. In addition, North Grand has a supplemental lane in each direction commencing 90 feet from either side of the Eleventh Avenue intersection; these lanes are marked for use as left turn lanes onto Eleventh. The corners of the intersection are identified by the buildings thereon standing. On the southwest corner is a brick and block building owned by Florence Moreth. It houses the Trio Lounge. On the northwest corner is a multistory building which shades the intersection as the sun sets in the early evening. Finally, on the northeast corner is the Lanphier High School gymnasium. It blocks the view of southbound motorists on Eleventh looking east toward North Grand and of westbound motorists on North Grand looking North toward Eleventh.

On the date and at the time previously stated, Springfield city policeman Daniel Hughes was driving his squad car in a westerly direction on North Grand, approaching the intersection of North Grand and Eleventh. Approximately two blocks away from the subject intersection, the police dispatcher advised Hughes by radio of a “disturbance at Duncan Farms.” Another officer, hearing the same call, acknowledged by radio that he was proceeding to the scene of the disturbance. Officer Hughes, intending to provide backup assistance at the disturbance, continued westerly on .North Grand, but now utilizing emergency procedures, having activated his squad car’s flashing lights and siren. As Hughes came upon the intersection with Eleventh Street the traffic light governing the right-of-way for westbound traffic was red and cars were stopped in both westbound lanes. Officer Hughes, in a hurry to respond to a situation he deemed urgent, swerved into the left turn lane to pass by the traffic stopped for the red light. He entered the intersection and struck the vehicle driven by Ms. Mayfield.

The impact spun the Mayfield auto completely around and propelled it backwards in a southwesterly direction, striking the curb on the southwest corner of the intersection. Upon hitting the curb, the Oldsmobile became airborne and crashed through the front end of the Trio Lounge, about three or four feet above the ground and came to rest. The front wall of the building was knocked down, causing damage in the amount of $14,803.

Although shaken up by the force of the impact, Officer Hughes recovered his wits and radioed for assistance. Help arrived soon thereafter, but the efforts of paramedics and others were ineffective in saving the life of Ms. Mayfield. Subsequently, her father and the administrator of her estate, William E. Mayfield, brought suit against the City of Springfield and Officer Hughes alleging a cause of action under the Illinois Wrongful Death Act (Ill. Rev. Stat. 1977, ch. 70, par. 2). Sometime later, Annette Napier, on behalf of her ward, Florence Moreth, brought an action against the same two defendants seeking redress for property damage to the Trio Lounge structure. Before trial, the two actions were consolidated and defendant Hughes was dismissed from both suits.

After a trial at which the Sangamon County jury heard extensive evidence and examined numerous photographs of the tragic scene, the 12 returned verdicts for the defendant City. The jury was unable to reach a unanimous verdict on a special interrogatory regarding the contributory negligence of the decedent, Ms. Mayfield. Both plaintiffs filed post-trial motions urging the circuit judge to enter judgments non obstante veredicto. Those post-trial motions were denied, and by notice of appeal, both plaintiffs ask us to review that decision.

At the outset, we should note that under typical circumstances, violations of traffic control laws constitute prima facie evidence of negligence in resultant civil actions. (Csalany v. Senesac (1968), 91 Ill. App. 2d 241, 234 N.E.2d 72; Gauchas v. Chicago Transit Authority (1965), 57 Ill. App. 2d 396, 206 N.E.2d 752.) Were these typical circumstances, the admitted conduct of Officer Hughes in proceeding against a red light through the intersection at Eleventh Street and North Grand would be actionable negligence. However, the law provides an exemption for emergency circumstances. “The driver of an authorized emergency vehicle-may * * w [pjroceed past a red or stop signal or stop sign, but only after slowing down as may be required and necessary for safe operation.” (Ill. Rev. Stat. 1979, ch. 951/2, par. 11—205(c)(2).) This suspension of the rules of the road is available only “when responding to an emergency call” (Ill. Rev. Stat. 1979, ch. 951/2, par. 11—205(b)) and only when “due regard for the safety of all persons” is exhibited (Ill. Rev. Stat. 1979, ch. 95?£, par. 11—205(e)). This special rule governing drivers of emergency vehicles permits them to cautiously circumvent strict application of the traffic laws in the interest of hastening their mission, thus promoting the public safety and welfare. It does not permit them carte blanche authority to charge into heavily traveled urban intersections in defiance of all reason as if bearing the colors for General Pickett. To so construe the authority of section 11—205 would undermine the very purposes of public safety and welfare that the statute was intended to serve. What would otherwise be prima facie evidence of negligent conduct on the part of Officer Hughes may be excused from creating legal liability sounding in tort if the conduct is within the legal safe harbor created by section 11—205.

In refusing to direct a verdict for the plaintiffs, the trial court apparently believed that the evidence could be construed to support a finding that Officer Hughes was proceeding in a manner consistent with the safe operation of his squad car, or alternatively, in the case of plaintiff May-field, that the decedent’s own negligence barred recovery. We cannot agree.

In reviewing the trial court’s denial of a judgment non obstante vere dicto, we can reverse only if we determine that from all the evidence, when viewed in its aspect most favorable to defendant, the conclusions to be drawn so overwhelmingly favored the plaintiffs that no contrary verdict could ever stand. (L. D. Brinkman & Company-Midwest v. National Sponge Cushion Co. (1979), 76 Ill. App. 3d 683, 394 N.E.2d 1221; Hanson v. Cresco Lines, Inc. (1978), 57 Ill. App. 3d 168, 372 N.E.2d 936.) The uncontroverted evidence below was that as Officer Hughes approached the intersection in question, his view of traffic on Eleventh was blocked by the school gymnasium, his observation of the intersection was obstructed by vehicles stopped in both westbound lanes of North Grand, his vision was impaired by the setting sun glaring in his eyes, and his perception of the intersection was diminished by the long shadows cast by the multistory building on the intersection’s northwest corner. Despite being so blinded, Officer Hughes swerved into the 90-foot long turn lane and entered the intersection with sufficient speed to impel the decedent’s full-size automobile across the intersection at right angles to its previous direction of travel, to launch decedent’s vehicle airborne gyrating like a top, and to send decedent’s vehicle crashing through the brick and block wall of the Trio Lounge where it came to rest. None of this evidence was controverted.

There was substantial evidence presented as to the speed Officer Hughes’ squad car was traveling as it entered the intersection. Although the testimony was controverted, the officer testified that he was traveling at 20 miles per hour, and two eyewitnesses established the speed as “20 to 25” and “maybe 20 miles per hour,” respectively. In addition, prior to the accident, the City of Springfield had equipped its squad car with a speed measuring device known as a tachograph in an effort to maintain a check on police officers with regard to their speed, downtime, etc. Three experts read the printed record registered by the tachograph device and established the squad car’s speed at the time of impact at “55,” “between 50 and 55,” and “22 miles per hour,” respectively. Whichever estimate of the squad car’s speed was correct, it was uncontradicted that Officer Hughes drove into the intersection with his vision substantially hindered, was unable to stop his vehicle when his direction of travel was impeded, and struck the Mayfield auto with the results as previously recited. To have entered such a crowded intersection at any speed without the vehicle being in sufficient control to permit an abrupt stop, particularly with so many obstacles present preventing a clear view of the dangers which might lie ahead, belies all representations of caution and is certainly inconsistent with safe operation.

Officer Hughes first saw the intersection without the obstructions to vision represented by standing vehicles or the school gymnasium when he turned his squad car into the left turn lane. Assuming a speed of just 20 miles per hour, it would have required the squad car only 3.07 seconds to traverse the 90-foot length of the left turn lane, only 3.07 seconds to react to the presence of the Mayfield vehicle and come to a stop. Under no circumstances can it be construed as safe operation to place just 3.07 seconds between security and calamity.

Even if a speed of 20 miles per hour could, under these circumstances, be said to exhibit a due regard for the safety of all persons, we hold that no jury could be permitted to conclude that the City’s squad car was traveling at such speed. The trier of fact must, as a matter of law, reject testimony which is physically impossible, or so inherently improbable as to be contrary to the common experience of mankind. (Old Second National Bank v. Gould (1979), 75 Ill. App. 3d 839, 393 N.E.2d 1356.) To suggest that the squad car could have impacted the Mayfield vehicle at 20 miles per hour with the force necessary to bring about the chain of events which followed defies comprehension. Thus, we conclude that viewing all the evidence in its aspect most favorable to the defendant City, the only conclusion to be drawn is that Officer Hughes negligently drove his squad car into the intersection of Eleventh and North Grand on July 2, 1978.

We further conclude that the decedent’s conduct in the operation of her auto was blameless. The evidence was unimpeached that decedent had stopped or slowed to almost a stop while waiting to make a left turn onto North Grand. While the law required drivers to yield to emergency vehicles by driving “to a position parallel to, and as close as possible to, the right-hand edge or curb of the highway” (Ill. Rev. Stat. 1977, ch. 95/2, par. 11—907), for the decedent to have so proceeded under these circumstances would have caused her to be further in jeopardy. Stopped or almost stopped as she was, her position was at least in part protected from the approach of the westbound emergency vehicle by the standing traffic on North Grand. Her conduct represented a prudent attempt to yield passage through the intersection to the rapidly approaching emergency vehicle. Ms. Mayfield entered the intersection with a green light authorizing her to proceed, and the same obstructions which blocked Officer Hughes’ view of her approach obscured her view of his flashing lights. With this evidence, the only conclusion which can be drawn overwhelmingly condones the reasonableness of the decedent’s conduct.

For the reasons we have set forth, we hold that the trial court should have granted the post-trial request of both plaintiffs for judgmerit non obstante veredicto. Inasmuch as the damages incurred by plaintiff Napier were stipulated to be $14,803, we enter judgment in said amount for that plaintiff pursuant to Supreme Court Rule 366 (Ill. Rev. Stat. 1979, ch. 110A, par. 366(a)(5)). With regard to the plaintiff Mayfield, we enter a judgment finding the defendant negligent, finding that negligence the proximate cause of decedent’s death, and finding plaintiff’s decedent free from contributory negligence. Since the damages sought by plaintiff were contested, we remand the cause for a hearing on the issue of damages only. Finally, motions by plaintiffs to strike portions of defendant’s briefs on appeal are hereby denied.

Reversed and remanded.

ALLOY, J., concurs.

HEIPLE, J., dissents.


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CHARLES RICHARDS, Defendant-Appellee.
    Third District
    No. 80-511
    Opinion filed December 31, 1981.
    Modified opinion filed March 25, 1982.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Theresa J. Rahe, of Peoria, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The State appeals from the order of the Circuit Court of Peoria County suppressing the evidence gathered pursuant to a second examination of the defendant’s, Charles Richards’, possessions. The items, including a necklace which was found within the defendant’s clothing, had been previously seized from the defendant’s person and placed in a manila envelope following a lawful inventory search incident to the defendant’s incarceration for violation of work-release rules, an offense unrelated to the instant burglary offense. The issue is whether the defendant retained a legitimate expectation of privacy in items taken from his person and held by the police pursuant to a lawful inventory search so as to render a subsequent warrantless inspection a violation of his fourth and fourteenth amendment rights.

The defendant was indicted for the January 12, 1980, burglary of a Peoria County residence. Prior to trial, he moved to suppress evidence of the necklace that had been in his possession and evidence of a subsequent incriminating statement. The testimony adduced at the suppression hearing established the following facts.

Detective Robert Lucas of the Peoria Heights Police Department had been investigating a January 12,1980, burglary of the residence owned by Mr. and Mrs. Mullen. Included as one of the several stolen items was Mrs. Mullen’s necklace, made from a silver dollar. In the course of his investigation, Lucas discovered that the defendant, who had applied for employment at Mullen’s Gasoline Service Station, and Harold J. Ramsey, who had visited Mullen’s house previously, both lived at the Peoria County Work Release Center. Lucas contacted the Center on January 16, and learned that both men had been observed leaving together the morning of the burglary. Lucas also learned that the defendant had violated the rules of the work-release center and had been placed in the custody of the Tazewell County jail because of an overflow at the Peoria County jail. The record does not reveal on what date the defendant entered the jail.

During the defendant’s prelockup processing for violation of the work-release rules, the police at the Tazewell County jail searched and inventoried all of the defendant’s personal effects, pursuant to their standard procedure. These items were placed in a manila envelope and remained secured outside of the presence of the defendant. On January 17,1980, prior to going to the Tazewell County jail to inspect the personal effects of the defendant, Lucas telephoned the jail and learned that a necklace found among the defendant’s effects matched the description of the necklace taken in the burglary. Lucas, accompanied by Mrs. Mullen, went to the jail. The necklace was removed from the closed envelope, and Lucas showed it to Mrs. Mullen. Mrs. Mullen identified the uniquely crafted necklace as a piece of jewelry taken from her home.

After Mrs. Mullen identified the necklace, Lucas spoke alone with the defendant in an interrogation room. Lucas then advised the defendant of his Miranda rights and showed the necklace to him. The defendant initially denied any knowledge of the burglary; but after Lucas informed him thát the necklace had been found among his personal effects, the defendant made an oral, then a written, statement- confessing to the January 12 burglary of the Mullen residence.

The circuit court upheld the lawfulness of the original inventory, but ruled that the second examination constituted a search governed by the fourth amendment. Because the search was conducted without a warrant and no exception to the warrant requirement applied, it was found unlawful. Accordingly, the court suppressed both the necklace and the defendant’s confession, observing that:

“The right of privacy as to one’s personal effects is not to be taken lightly whether an ordinary citizen or one charged with an offense. An open house, as to such items, for police officers of any and every agency as to any and all charges is violative of Fourth Amendment rights.”

Before proceeding to the issue raised on appeal, we emphasize that neither party has challenged the legality of the inventory search performed pursuant to standard police practices. “[LJittle doubt has ever been expressed about the validity or reasonableness of such searches incident to incarceration.” (United States v. Edwards (1974), 415 U.S. 800, 805 n.6, 39 L. Ed. 2d 771, 776 n.6, 94 S. Ct. 1234, 1238 n.6.) Today we examine solely the propriety of the “second look” of the fruits of the lawful inventory search by officers from a law enforcement agency other than that involved in the inventory, and which search was made for the purpose of determining whether the fruits included probative evidence pertaining to an offense other than that for which the defendant was incarcerated.

Our fundamental inquiry in fourth amendment controversies is whether the search or seizure was reasonable under all circumstances. (People v. Rayles (1980), 82 Ill. 2d 128, 411 N.E.2d 1346.) In order to invoke this protection, however, the aggrieved person must demonstrate an unreasonable governmental intrusion into his legitimate expectations of privacy. (United States v. Chadwick (1977), 433 U.S. 1, 53 L. Ed. 2d 538, 97 S. Ct. 2476.) For the defendant in this case to prevail on appeal, we must first conclude that he retained a legitimate expectation of privacy in the necklace after he had surrendered it to the police for safekeeping and after they had secured it in the jailhouse. The defendant argues that when the defendant’s personal effects are sorted by the jailer and those items, not then considered contraband or evidence of the offense for which the accused was incarcerated, are secured, the defendant retains a legitimate expectation of privacy in those effects which is constitutionally protected from warrantless “second looks” by police from another agency who are investigating a different offense. For the reasons hereinafter stated, we agree with the defendant’s position.

Because the precise issue that we decide today has not previously been addressed by reviewing courts in Illinois, we initially review related precedent from this court and other jurisdictions.

In United States v. Edwards (1974), 415 U.S. 800, 39 L. Ed. 2d 771, 94 S. Ct. 1234, the defendant was arrested late at night and charged with attempted breaking and entering. He was taken to the local jail, his possessions other than the clothes he wore were inventoried, and he was placed in a cell. Shortly thereafter, an investigation at the scene of the crime revealed that the attempted breakin caused several paint chips from the window sill to scatter. The defendant, who still wore his own clothing, was ordered to remove his clothing, which was then examined. Police found paint chips identical to those discovered on the window sill. The defendant objected to the admission of such evidence on the ground that the seizure of his clothes was without a warrant. The district court denied the motion to suppress, but the court of appeals reversed, saying that a warrantless seizure of the clothing carried out “after the administrative process and the mechanics of the arrest have come to a halt” was nonetheless a violation of the defendant’s fourth amendment rights. (United States v. Edwards (6th Cir. 1973), 474 F.2d 1206, 1211.) The Supreme Court, in a 5-4 decision, reversed. The majority agreed that the initial arrest and incarceration were valid, but found that the warrant clause of the fourth amendment was inapplicable in those circumstances. According to the majority opinion, a defendant’s clothing may be searched even where a significant period of time has elapsed since the incarceration, or where the clothing or personal effects are immediately seized upon arrival at the jail and are later searched and used at a subsequent criminal trial. The majority reasoned that the legal arrest substantially diminished the accused’s legitimate expectations of privacy in his person and clothing. These expectations were thus overriden by countervailing police interest in weapons, means of escape and evidence of crime. (United States v. DeLeo (1st Cir. 1970), 422 F.2d 487.) The majority cautioned, however, that merely because the warrant requirement was inapplicable does not leave police subject to no constitutional constraints, for the second look “ ‘must [still] be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures.’ ” (United States v. Edwards (1974), 415 U.S. 800, 808 n.9, 39 L. Ed. 2d 771, 778 n.9, 94 S. Ct. 1234, 1239 n.9, citing Terry v. Ohio (1968), 392 U.S. 1, 20, 20 L. Ed. 2d 889, 905, 88 S. Ct. 1868, 1879.) Because the defendant conceded on appeal that the police had probable cause to take a second look at the defendant’s clothing that morning, the Edwards majority chose not to discuss the sufficiency of the reasonableness needed to sustain a second look where no probable cause existed.

Subsequently, Edwards has been used to justify “second looks” in situations similar to the case at bar. For example, in United States v. Jenkins (2d Cir. 1974), 496 F.2d 57, the accused’s money was inventoried for safekeeping following his arrest for a traffic violation. Less than one week later, a second inspection of the money by a Federal agent revealed that the serial numbers of those bills coincided with marked bills stolen in a recent robbery. The court rejected the defendant’s argument that Edwards was inapplicable because the second look was for the purpose of obtaining evidence of a different crime than that for which the arrest was made. The court concluded that a second look fails to violate the fourth amendment because no intrusion into an area where the owner could any longer reasonably expect privacy occurs. In fact, the holding of Edwards has been interpreted to mean:

“[Tjhat at least when (i) an object lawfully came into plain view at the time of a search upon the arrestee’s arrival at the place of detention, (ii) later investigation establishes that this item is of evidentiary value, and (iii) the item remains in police custody as part of the arrestee’s inventoried property, then it is permissible for the police, without a warrant, to retrieve that object and thereafter deal with it as an item of evidence.” (2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment §5.3(b), at 315 (1978).)

United States v. Phillips (8th Cir. 1979), 607 F.2d 808; United States v. Oaxaca (9th Cir. 1978), 569 F.2d 518; United States v. Grill (5th Cir. 1973), 484 F.2d 990; State v. Nesmith (1979), 40 N.C. App. 748, 253 S.E.2d 594; People v. Rivard (1975), 59 Mich. App. 530, 230 N.W.2d 6.

The State urges us to extend the reasoning of Edwards, and those cases wherein Edwards has been used to justify "second look” searches, to the facts of this case. Review of related precedent from Illinois, however, convinces us otherwise. This court has recently held that the contents of an arrestee’s closed purse may not be searched and its contents seized as a search incident to an arrest for an unrelated offense or as a permissible extension of the inventory exception unless exigent circumstances have been shown or a warrant issued. People v. LaFayette (1981), 99 Ill. App. 3d 830, 425 N.E.2d 1383, appeal denied (1982),_Ill. 2d__

The rationale upon which our opinion in LaFayette was based applies equally to the facts in the instant case. We are unconvinced by the argument presented by the State that the warrantless search in this case is not affected by the fourth amendment because of the fact that here, unlike in LaFayette, the container (a manila envelope) was provided by the inventorying officer, rather than by the defendant himself, for the purpose of securing items removed from the defendant’s immediate possession at the prelockup processing.

In LaFayette we stated that while a prisoner suffers a substantial diminution in his person once he is placed under arrest, he retains a reasonable expectation of privacy in the possessions which were within his immediate control upon his arrest. Whether those possessions are removed from the prisoner’s purse for “inventory” purposes or removed from an envelope containing previously inventoried items for viewing by an officer investigating an unrelated offense and a member of the general public, as in this case, is inconsequential for purposes of the fourth amendment protection against unreasonable searches and seizures.

The fact that, in the instant case, the defendant’s personal effects were shown not only to a law enforcement officer, but to a member of the general public as well, makes this case factually distinguishable from Jenkins. If, as the State suggests on the authority of Jenkins, an officer from a different law enforcement agency—Lucas in this case—may take a warrantless second look because the defendant has no reasonable expectation of privacy in inventoried personal effects, then we foresee no reason why those personal effects may not be exposed to view by the general public—Mrs. Mullen in this case. Obviously, were we to adopt the State’s argument, we would be setting dangerous precedent dissipating fourth amendment, protections with respect to police as well as private investigations of offenses unrelated to those for which a prisoner stands accused. We, therefore, reject the State’s reasoning, based on the opinion of the Second Circuit Court of Appeals in Jenkins, that a prisoner retains no reasonable expectation of privacy in personal effects exposed to police view during routine inventory searches.

In a case factually similar to the one we consider today, the Fifth Circuit Court of Appeals observed as follows:

“The fact that the police have custody of a prisoner’s property for the purpose of protecting it while he is incarcerated does not alone constitute a basis for an exception to the requirement of a search warrant. Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964); Barnett v. United States, supra; Williams v. United States, supra. Of course, property in police custody may be subject to warrantless searches under exceptions springing from reasons other than custody alone. The focus in Fourth Amendment cases today is on privacy rather than on property rights. E.g. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). Warden, Maryland Penitentiary v. Hayden, supra.
We are not prepared to say that an accused whose effects are held by the police for safekeeping has, by the single fact alone of the police custody of the property, surrendered his expectations of the privacy of those effects.” Brett v. United States (5th Cir. 1969), 412 F.2d 401, 406.

Here, as in Brett, the State has not borne its burden of showing that the search fell within any of the exceptions to the warrant requirement of the fourth amendment.

Lucas’ search of the contents of the manila envelope on January 17 was not incident to an arrest, because it was not even close to being contemporaneous with Richards’ arrest. Nor was the necklace—apparently extracted from a pocket in the defendant’s clothes—in “plain view,” since the officer taking the second look for an unrelated offense was from a law agency other than that which had custody of the defendant and his effects. Furthermore, the necklace had to be removed from a closed envelope for viewing. The State argues that the second look is permissible without a warrant because the defendant has no legitimate expectation of privacy in goods seized as a result of an inventory conducted according to standard police procedure. We refuse to extend the limited inventory exception or adopt the State’s theory that such second looks are not searches for purposes of the fourth amendment.

The purposes for which inventories are permissible are:

“1. to safeguard the property of a prisoner from loss by theft during his incarceration.
2. to protect the police from unfounded charges of theft from prisoners.
3. to protect the lives of prisoners and guards from assaults by prisoners with the use of weapons carried in.” Farrie v. State (1971), 255 Ind. 681, 685, 266 N.E.2d 212, 215 (DeBruler, J., dissenting).

Once the prisoner’s effects are placed in storage, it is obvious that none of the above purposes would be served by allowing warrantless second looks at them.

Further, here, Lucas did not attempt to obtain the defendant’s consent prior to showing the necklace to Mrs. Mullen. Thus, the State may not contend that the defendant, by his own affirmative act, permitted Lucas to proceed without a warrant.

Finally, the State does not attempt to bring the present case within the “exigent circumstances” exception. There was unquestionably ample opportunity for Lucas to apply for a search warrant, and to submit to a neutral magistrate the evidence which Lucas believed sufficient to justify his search of the defendant’s stored possessions. On these facts, we refuse to expose an accused’s possessions to public view without first requiring that a warrant be obtained. In a case such as this, “the need for effective law enforcement is not satisfied as against the right of privacy by any necessity for the officer to take the decision into his own hands. Rent v. United States (5th Cir. 1954), 209 F.2d 893, 899; see also United States v. Edwards (1974), 415 U.S. 800, 811, 39 L. Ed. 2d 771, 780, 94 S. Ct. 1234, 1241 (Stewart, J., dissenting).

Accordingly, we hold that the trial court’s order of suppression, based on the fact that a law enforcement agency other than that which had custody of the defendant conducted a warrantless search of the defendant’s possessions in the investigation of an offense other than that for which the defendant was arrested, was proper.

Affirmed.

SCOTT, P. J., and STOUDER, J., concur.


author: JUSTICE REINHARD

text:
    BOARD OF EDUCATION OF HAWTHORNE SCHOOL DISTRICT NO. 17, MARENGO, Plaintiff-Appellee, v. JEANNE ECKMANN et al., Defendants-Appellants.
    Second District
    No. 81-860
    Opinion filed February 19, 1982.
    Rehearing denied March 25, 1982.

      Tyrone C. Fahner, Attorney General, of Chicago (Patricia Rosen and Kathryn Spalding, Assistant Attorneys General, of counsel), for appellants.
    Wayne F. Weiler, of Reid, Ochsenschlager, Murphy and Hupp, of Aurora, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court;

Plaintiff, Board of Education of Hawthorne School District No. 17, Marengo, Illinois (Board), filed its complaint for declaratory and injunctive relief against the defendants, Illinois Department of Human Rights (Department), several of the Department’s employees, and Jeanne Eckmann, a tenured school teacher employed by the plaintiff. On plaintiff’s motion the trial court granted a preliminary injunction enjoining defendants from conducting a scheduled fact-finding conference in the matter of Jeanne Eckmann “in such fashion as to prohibit plaintiff from making a report of proceedings at said conference through a court reporter at plaintiff’s own expense.” The Department has taken this interlocutory appeal pursuant to Supreme Court Rule 307(a) (Ill. Rev. Stat. 1979, ch. 110A, par. 307(a)).

The complaint and exhibits attached thereto reveal the following. Jeanne Eckmann, a tenured teacher within Hawthorne School District No. 17, received a resolution from the Board dated July 20, 1981, which stated that her performance as a teacher had been unsatisfactory and that unless she remedied these deficiencies there would be cause which may result in charges against her and her dismissal. A letter accompanying the resolution stated that these deficiencies had been discussed with her in the past and that she should remove and remedy the causes behind the defects. Generally, the Board charged Ms. Eckmann with failure to establish the proper rapport with her students; failure to create an atmosphere conducive to learning; failure to cooperate with other members of the school staff and parents; and becoming pregnant outside the state of marriage, which diminished her ability to teach and the ability of her students to learn from her.

On August 13, 1981, Ms. Eckmann filed a charge of unfair employment practice with the Department based on sex discrimination. In her written charge she stated that she has been employed by Hawthorne School District No. 17 for four years; never once was she notified of any deficiencies in her teaching performance; in November 1980, as the result of a rape, she became pregnant; on June 12,1981, the Board asked her for her resignation on the basis of immorality; on June 15,1981, she attended a Board meeting accompanied by 17 parents who were in support of her actions; she had the support of Edward O’Brien, the superintendent of schools, Hawthorne District No. 17; at the June 15 meeting, she requested that Dr. John Mack, National Education Association Area Director, explain to the Board the legal ramifications of a morality charge; and that she subsequently received the Board resolution of July 20,1981.

Pursuant to its regular procedures, the Department, on August 25, 1981, sent the Board a notice that a charge had been filed against the Board and requested an answer to the charge. Subsequent correspondence from the Department stated that an investigation would be held beginning with a fact-finding conference which would ascertain whether there was a basis for a negotiated settlement of the charge. The date, time, and place of the conference was stated, as well as a brief summary of the purpose of the conference, the procedures, and the Board’s rights therein. In a subsequent letter to the Board, the Department specifically stated that a court reporter would not be allowed at the fact-finding conference. The Board then filed its complaint seeking declaratory and injunctive relief. Essentially, the Board complains that the Department’s Rule 4.4(b) prohibiting the Board from making a report of the proceedings of the fact-finding conference through a court reporter at its own expense would prejudice it in any subsequent proceedings. Thereafter, before responsive pleadings were filed by the defendants, the plaintiff moved for a preliminary injunction. After hearing legal arguments of both counsel based upon the complaint and exhibits attached thereto, the trial court granted a preliminary injunction enjoining defendants from conducting the scheduled fact-finding conference “in such a fashion as to prohibit plaintiff from making a report of proceedings at said conference through a court reporter at plaintiff’s own expense.”

Initially, we comment briefly on the appropriateness of injunctive relief before exhaustion of the administrative procedures established by statute and the Department’s rules. Generally, when the legislation creating an administrative agency in Illinois expressly adopts the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.) as the mode of review, Illinois courts have consistently held that the remedy under the Act is exclusive and that alternate methods of direct review or collateral attack are not permitted. (People ex rel. Petersen v. Turner Co. (1976), 37 Ill. App. 3d 450, 456, 346 N.E.2d 102.) However, when a party is attacking a statute or an administrative rule on its face, he need not exhaust administrative remedies. (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 548, 370 N.E.2d 223.) Since the Board is attacking the validity of one of the Department’s rules, the present action is within the jurisdiction of the court.

The Department contends on appeal that the issuance of a preliminary injunction was improper since its rule prohibiting the presence of a court reporter at the fact-finding stage does not violate the Board’s due process right and that the legal requisites for injunctive relief were not present. The Board argues that the trial court did not abuse its discretion in granting the preliminary injunction and that due process and common sense require that the Board be allowed the opportunity to have a court reporter present at its own expense.

First, we turn to some well-established principles applicable to injunctive relief. An injunction is an exceptional remedy which is not granted as a matter of course but with great caution and only when the plaintiff’s right to such relief is clearly established. (Parsons v. Walker (1975), 28 Ill. App. 3d 517, 521, 328 N.E.2d 920.) The grant or denial of an injunction is discretionary with the trial court and will not be disturbed unless there is an abuse of discretion. (Plasti-Drum Corp. v. Ferrell (1979), 70 Ill. App. 3d 441, 452, 388 N.E.2d 438.) The requirements for the issuance of a preliminary injunction are well settled. For such an injunction to issue, the plaintiff must establish: (1) that he possesses a certain and clearly ascertained right which needs protection; (2) that he will suffer irreparable injury without the protection of an injunction; (3) that there is no adequate remedy at law for his injuries; and (4) that he is likely to be successful on the merits. (Midwest Micro Media, Inc. v. Machotka (1979), 76 Ill. App. 3d 698, 702, 395 N.E.2d 188; Crest Builders, Inc. v. Willow Falls Improvement Association (1979), 74 Ill. App. 3d 420, 422, 393 N.E.2d 107; Bromberg v. Whitler (1977), 57 Ill. App. 3d 152, 155, 372 N.E.2d 837.) As these rules are applied to the case at bar, we focus primarily on whether the Board has established that it possesses a certain and clearly ascertained right which needs protection by injunctive relief.

The Illinois Human Rights Act (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 1—101 et seq.) replaced the Fair Employment Practices Act (Ill. Rev. Stat. 1979, ch. 48, par. 851 et seq.) effective July 1, 1980. One of its purposes is to secure freedom from discrimination because of sex in connection with employment. (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 1—102(A).) The statute also expresses as public policy the protection of Illinois citizens against “unfounded charges of unlawful discrimination.” (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 1—102(E).) In order to effectuate these goals of equal employment opportunity for the employee and protection for the employer against unwarranted claims, the legislature established procedures to determine the validity of a complainant’s charge. The complaining party must file a charge of discrimination with the Department within 180 days of the alleged discriminatory act by the employer. (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 7—102(A).) After notice to the employer, the Department shall conduct an investigation of the charge and has the power to subpoena witnesses and documents. (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 7—102(C)(1), (C)(2).) Upon reasonable notice to all parties, the Department may conduct a fact-finding conference. While the decision to conduct the conference rests within the Department’s discretion, the statute directs that the conference must be held within 120 days from the date the charge was filed with the Department. (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 7—102(C)(3).) The failure to attend the conference without good cause may result in dismissal of the charge or default against the employer. However, such dismissal or default does not bar a party from seeking review before the Illinois Human Rights Commission (Commission). (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 8—103(E).) A notice of dismissal or default shall be issued by the Director, who shall notify the relevant party that a request for review may be filed in writing with the Commission within 30 days of receipt of such notice. (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 7—102(C)(3).) Each investigated charge shall be subject to a confidential report to the Director. (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 7—102(D).) Further statutory provisions provide for a formal conciliation conference if the Director determines there is substantial evidence of a violation of the Act and, upon a failure to settle or adjust any charge, the authority of the Department to prepare and file a written complaint with the Commission. Ill. Rev. Stat., 1980 Supp., ch. 68, par. 7—102(F).

Once a complaint is filed with the Commission, the statute provides for notice of a hearing before a hearing officer, amendment of and answer to the complaint, hearing procedures, written findings of fact and decision by the hearing officer and review and rehearing by the Commission. (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 8—103 through 8—107.) The Commission’s final order is subject to judicial review under the Administrative Review Act. Ill. Rev. Stat., 1980 Supp., ch. 68, par. 8—111.

The Act empowers the Department “[t]o adopt, promulgate, amend, and rescind rules and regulations not inconsistent with the provisions of this Act pursuant to the Administrative Procedure Act.” (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 7—101(A).) Under that authority the Department has enacted section 4.4(b) (Rules and Regulations of the Department of Human Rights, section 4.4(b)), which provides as follows:

“(b) Attorneys, Witnesses. A party may be accompanied at a fact-finding conference by his/her attorney or another representative, and by a translator if necessary. An attorney for a party not previously having entered an appearance shall do so at the outset of the conference. The parties may bring witnesses to the conference in addition to those whose attendance may be specifically requested by the Department, but the Department employee conducting the conference shall decide which witnesses shall be heard and the order in which they are heard. The Department employee conducting the conference may exclude witnesses and other persons from the conference when they are not giving evidence, except that one representative of each party and counsel shall be permitted to remain throughout. The Department employee shall conduct and control the proceedings. No tape recording, stenographic report or other verbatim record of the conference shall be made.” (Emphasis added.)

As applied to this case, by letter to the Board dated September 16, 1981, Deborah D. Smith, an investigator for the Department and a defendant in this suit, stated that a court reporter would not be allowed to attend the fact-finding conference, to be held on October 9, 1981, investigating the charge filed against the Board. It is the enforcement of this rule which has led to the controversy in question and the issuance of the preliminary injunction.

Uppermost in determining the validity of a regulation is whether it furthers the legislative intent as discerned from the statute. (Owens-Illinois, Inc. v. Bowling (1981), 99 Ill. App. 3d 1117, 1125, 425 N.E.2d 1288.) Most recently, our supreme court in Eastman Kodak Co. v. Fair Employment Practices Com. (1981), 86 Ill. 2d 60, 426 N.E.2d 877, reviewed the legal principles applicable to administrative rules and regulations as follows:

“While an agency may not issue regulations which exceed or alter its statutory power (Ruby Chevrolet, Inc. v. Department of Revenue (1955), 6 Ill. 2d 147, 151) or which are contrary to the legislative purpose and intent of the statute (People ex rel. Illinois Highway Transportation Co. v. Biggs (1949), 402 Ill. 401, 409), an administrative agency has authority to regulate and execute the provisions of the statute and to carry out the powers conferred upon it. (See Hill v. Relyea (1966), 34 Ill. 2d 552, 555; Owens v. Green (1948), 400 Ill. 380, 398.) Further, the promulgated rules and regulations will be presumed to be valid and to have the force and effect of law. Northern Illinois Automobile Wreckers & Rebuilders Association v. Dixon (1979), 75 Ill. 2d 53, 58, citing DeGrazio v. Civil Service Com. (1964), 31 Ill. 2d 482, 485; 2 Am. Jur. 2d Administrative Law sec. 298 (1962); People ex rel. Colletti v. Pate (1964), 31 Ill. 2d 354, 359.” 86 Ill. 2d 60, 70-71, 426 N.E.2d 877.

From our examination of the Illinois Human Rights Act and the specific procedures found therein for investigation, settlement and dismissal of charges of discrimination prior to filing a complaint with the Commission, we believe there is a clear legislative intent to promote the voluntary settlement, conciliation and adjustment of discrimination charges. Prior to the filing of a complaint before the Commission, the statute provides for a fact-finding conference. (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 7—102(C)(3).) This section indicates a legislative intent to obtain both parties’ versions of the discrimination charge at an early stage of the proceedings. The predecessor to the subject section of the Illinois Human Rights Act is section 8(b) of the Fair Employment Practices Act (Ill. Rev. Stat. 1979, ch. 48, par. 858(b)), which made the convening of a fact-finding conference mandatory. Although the mandatory provision was changed to a discretionary one under the new act, the same salutary purpose of such a conference still exists. The importance of the fact-finding conference under the former act was commented on by our supreme court in Zimmerman Brush Co. v. Fair Employment Practices Com. (1980), 82 Ill. 2d 99, 411 N.E.2d 277, as follows:

“Under section 8(b) of the interests of both employee and employer can be served in that each is given an opportunity to discuss and possibly settle the dispute without formal action being taken against the employer by the Commission. Through a conference, unnecessary costs may be avoided and the Commission permitted to devote itself to other matters. Even if a settlement is not reached at this stage, the proceeding can be importantly valuable to the Commission in that the conference not only places the Commission in a better posture to decide whether to dismiss the employee’s charge, it also aids the Commission in setting up a procedural framework for the conciliatory process which follows. (See Ill. Rev. Stat. 1979, ch. 48, par. 858(c).) The public interest in an expeditious resolution of disputes which is made possible through section 8(b) is not less important than the financial considerations discussed in Springfield-Sangamon. Avoiding unnecessary expenditures of time and money by all parties serves to further the stated policy of the Act, which is not only to protect employees from unfair employment practices but also to protect ‘employers, labor organizations and employment agencies from unfounded charges of discrimination.’ 111. Rev. Stat. 1979, ch. 48, par. 851.” (82 111. 2d 99,105-06, 411 N.E.2d 277.)

While the mandatory conference provisions have now been eliminated, we still find the reasoning of our supreme court relevant and compelling.

Several other provisions of the Illinois Human Rights Act reveal a legislative intent to promote the settlement of discrimination charges prior to formal proceedings before the Commission. The provisions for a formal conciliation conference “to endeavor to eliminate the effect of the alleged civil rights violation and to prevent its repetition” is a step to settle disputes without a formal complaint to the Commission. (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 7—102(D)(2)(b).) In addition, explicit settlement provisions are an integral part of the Act. See Ill. Rev. Stat., 1980 Supp., ch. 68, par. 7—103.

Focusing once again on the disputed rule prohibiting a verbatim record of the fact-finding conference, we find that it is not inconsistent with the provisions of the Act. We perceive the fact-finding conference to be an opportunity for the Department to gather facts from both parties and promote settlement or other resolution of the charge whenever possible. Each investigated charge shall be the subject of a confidential report to the Director who shall, upon review, determine whether there is substantial evidence that the alleged civil rights violation has been committed. (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 7—102(D).) Without the free flow of information at the fact-finding conference, it is obvious that the Director may be hampered in making his determination of whether a violation may have occurred. The presence of a court reporter or other device for making a verbatim record can reasonably be said to inhibit the fact-finding nature of this proceeding. As each party may have counsel at this conference, it could easily be transformed into an adverse proceeding with formal objections and offers of proof “for the record.” Thus, we conclude that there is nothing to support any contention that the rules and regulations are in clear contravention of the spirit and letter of the Act. See Ruby Chevrolet, Inc. v. Department of Revenue (1955), 6 Ill. 2d 147, 151, 126 N.E.2d 617.

We must next determine whether any due process right will be denied the Board by the threatened enforcement of Rule 4.4(b) by the Department. The Department characterizes the fact-finding conference as an “investigative stage” to determine whether substantial evidence exists of discrimination against the employee. As such, the Department contends, traditional due process safeguards required at a formal administrative adjudicative proceeding are not required here. The Board contends that the fact-finding conference is a “hearing,” and since a determination to dismiss the charge or default a party for nonattendance may be subject to judicial review under the Administrative Review Act, a party should have a right to preserve its claim for judicial review “by making a record.”

Administrative as well as judicial proceedings are governed by the fundamental principles and requirements of due process of law. (Scott v. Department of Commerce and Community Affairs (1981), 84 Ill. 2d 42, 51, 416 N.E.2d 1082; Brown v. Air Pollution Control Board (1967), 37 Ill. 2d 450, 454, 227 N.E.2d 754.) However, when an agency conducts a nonadjudicative, fact-finding investigation, it is not necessary that the full panoply of judicial procedures be used. (Hannah v. Larche (1960), 363 U.S. 420, 4 L. Ed. 2d 1307, 80 S. Ct. 1502.) In Hannah v. Larche (1960), 363 U.S. 420, 4 L. Ed. 2d 1307, 80 S. Ct. 1502, the Supreme Court gave a detailed analysis of the difference between an investigation and a hearing. The court stated that the requirements of due process vary with the type of proceeding involved. (363 U.S. 420, 440, 4 L. Ed. 2d 1307, 1320, 80 S. Ct. 1502, 1513.) “[W]hen governmental action does not partake of an adjudication, as for example, when a general fact-finding investigation is being conducted, it is not necessary that the full panoply of judicial procedures be used.” (363 U.S. 420, 442, 4 L. Ed. 2d 1307, 1321, 80 S. Ct. 1502, 1514-15.) The court went on to note that the investigative process would be disrupted if each investigation were transformed into a trial-like proceeding. The fact-finding process would be diverted from its legitimate goals by collateral issues. (363 U.S. 420, 443, 4 L. Ed. 2d 1307, 1322, 80 S. Ct. 1502, 1515.) The rights associated with a fact-finding investigation are merely a general notice as to the purpose and scope of the investigation. 363 U.S. 420, 446, 4 L. Ed. 2d 1307, 1323, 80 S. Ct. 1502, 1516-17.

The Illinois Appellate Court also has addressed the question of the procedural protections that must be afforded parties at an investigative stage in administrative proceedings in Klein v. Fair Employment Practices Com. (1975), 31 Ill. App. 3d 473, 334 N.E.2d 370. In Klein, the plaintiff employee appealed the commission’s dismissal of her complaint for lack of substantial evidence. The plaintiff argued that the investigative procedures of the Fair Employment Practices Act (the predecessor of the Illinois Human Rights Act) deprived her of due process of the law because she had no right to participate in the proceedings. The court rejected plaintiff’s argument, stating:

“Rights of discovery, confrontation, cross-examination, and other elements of due process attending judicial and quasi-judicial proceedings do not apply in investigative proceedings. (Hannah v. Larche (1960), 363 U.S. 420.) Investigations conducted by administrative agencies attempt to discover and produce evidence not for the purpose of [adjudicating guilt or proving a pending complaint but rather for the purpose of] determining whether facts exist to justify the institution of a complaint. (Genuine Parts Co. v. Federal Trade Com. (5th Cir. 1971), 445 F.2d 1382.) An efficient investigation obviously could not be achieved if every investigation could be converted into a trial. See Bowles v. Baer (7th Cir. 1944), 142 F.2d 787; Haines v. Askew (M.D. Fla. 1973), 368 F. Supp. 369, aff'd (1974), 417 U.S. 901.
In our view the above cases are authority that plaintiff has no constitutional right of participation in the investigation of her charge. Such participation would entitle every complainant to a hearing regardless of the validity of the allegations of one’s charge. (See Marshall v. Fair Employment Practice Com. (1971), 21 Cal. App. 3d 680, 98 Cal. Rptr. 698.) It would be impossible to conduct an efficient investigation. Such participation is neither required by the Constitution nor by the legislature.” (31 Ill. App. 3d 473, 482-83, 334 N.E.2d 370.)

This decision has been cited for that same proposition of law in Chambers v. Illinois Fair Employment Practices Com. (1981), 96 Ill. App. 3d 884, 888, 422 N.E.2d 130. In Klein, the court also noted that plaintiff could seek judicial review of the Commission’s order since the Commission must supply written reasons justifying the dismissal of a charge. Ill. Rev. Stat., 1980 Supp., ch. 68, par. 8—111.

Under the Illinois Human Rights Act, an elaborate two-step process for investigation of charges by the Department and filing of a formal complaint before the Commission was enacted by the legislature. We are here concerned only with the narrow issue of whether the denial of a court reporter at a fact-finding conference in the investigation stage of a discrimination charge is a denial of due process. Considering the purposes of the Act and the enumerated procedural rights afforded therein at both the investigative and adjudication stage, Rule 4.4(b) is not inconsistent with the provisions of the Act nor does it infringe on any due process right. While cases cited by the Board, NLRB v. Southern Transport, Inc. (8th Cir. 1966), 355 F.2d 978, and Mott v. MacMahon (N.D. Cal. 1963), 214 F. Supp. 20, do generally stand for the proposition that keeping of a record is invaluable in protecting the rights of all parties for review, they are clearly distinguishable as they involve factual situations where the hearing at issue was an integral stage in the determination of the rights and liabilities of the parties. Such is not the situation in the case before us. We are not involved here in the adjudication of the rights of the parties before the Commission. Nor is there a lack of disclosure of the charge or failure to provide notice of the fact-finding conference prior to the conference at this investigation stage. Thus, we do not consider the rule prohibiting a verbatim record at the conference, even with the Board’s willingness to pay for any expense involved, a deprivation of any due process right.

As the Board has failed to show that it possesses a certain and clearly ascertained right which needs protection which is a necessary prerequisite for issuance of a preliminary injunction, we find the trial court abused its discretion and reverse its order and remand for further proceedings consistent with this opinion.

Reversed and remanded.

HOPF and UNVERZAGT, JJ., concur.


author: JUSTICE HOPF

text:
    NORTHWEST SUBURBAN CONGREGATION BETH JUDEA, INC., Plaintiff-Appellee, v. MORDECAI M. ROSEN etal., Defendants-Appellants.
    Second District
    No. 81-734
    Opinion filed February 25, 1982.
    Rehearing denied March 25, 1982.
    Philip S. Aimen and Roger F. Maritote, both of Chicago, for appellants.
    Morton Denlow, of Sachnoff, Weaver & Rubenstein, of Chicago, for appellee.
   JUSTICE HOPF

delivered the opinion of the court:

Defendants appeal the issuance of a temporary restraining order and preliminary injunction by the Lake County circuit court restraining them from using the name Congregation Beth Judea.

Plaintiff Northwest Suburban Congregation Beth Judea, Inc., was formerly incorporated under the name Congregation Beth Judea, Inc. The congregation was formed in 1968 to serve the Jewish community in the northwest suburbs of the Chicago metropolitan area. The congregation was incorporated under the name Congregation Beth Judea, Inc., on December 17, 1968.

In May 1981 the corporation was involuntarily dissolved for its failure to timely file an annual report with the Secretary of State. It continued to use its original name, however.

Earlier, in March 1981 defendant Mordecai Rosen, who had been the rabbi for plaintiff since 1969, organized a new congregation, Congregation Mishpaha (Our Family), with some members of the old congregation, including defendants Max and Adeline Feldman. Most of the area served by this new organization includes the community served by plaintiff.

In July 1981, having learned that plaintiff corporation had been involuntarily dissolved, Congregation Mishpaha sought incorporation under the name Congregation Beth Judea, Inc. It was incorporated under this name on July 10, 1981.

Plaintiff, still using the name Congregation Beth Judea, sought reinstatement as a corporation. Because defendants had incorporated under the name Congregation Beth Judea, Inc., plaintiff congregation was reinstated as a corporation under the name Northwest Suburban Congregation Beth Judea on August 21, 1981. Plaintiff continued to use the name Congregation Beth Judea. It was listed under this name in the listing of area houses of worship in a local newspaper. It advertised for new members in local newspapers under this name.

On Saturday, August 29, 1981, there appeared in a local newspaper an advertisement regarding High Holy Day services on behalf of defendant Congregation Beth Judea and indicating the rabbi as defendant Mordecai Rosen. Monday, August 31, 1981, plaintiff filed a verified complaint for permanent injunction, preliminary injunction, and temporary restraining order to restrain defendants from using the name Congregation Beth Judea. On the same date plaintiff also filed a motion for a temporary restraining order (TRO) and preliminary restraining order. Notice was given by telephone to defendants’ attorney at 12:05 p.m. At 4:03 p.m. the court granted the temporary restraining order. On September 16, 1981, following an extensive hearing, the court also granted a preliminary injunction and defendants appealed.

The issues on appeal are as follows:

1. Whether the trial court abused its discretion in granting a temporary restraining order without notice and hearing to the defendants.
2. Whether a dissolved corporation which is subsequently reinstated under a changed name can maintain an action to enjoin the defendants from using its former name.
3. Whether the plaintiff could maintain this action under the corporate survival provision of the General Not for Profit Corporation Act. Ill. Rev. Stat. 1979, ch. 32, par. 163a etseq.
4. Whether the trial court should have dismissed the individual defendants on their motion for a directed verdict and/or at the close of the hearing.
5. Whether the order granting the preliminary injunction was against the manifest weight of the evidence.

With regard to the first issue defendants argue that the TRO was issued without notice and that therefore the provisions in section 3—1 of the Injunction Act (Ill. Rev. Stat. 1979, ch. 69, par. 3—1) pertaining to TROs issued without notice should be applied. That section provides that . a TRO granted without notice “shall define the injury and shall state why it is irreparable and why the order was granted without notice.” The order, however, states that notice was given at 12:05 p.m. by telephone to defendants’ attorney. This was 3 hours 58 minutes before the TRO was granted. Informal notice has been recognized as sufficient notice. (Bettendorf-Stanford Bakery Equipment Co. v. UAW (1977), 49 Ill. App. 3d 20, 363 N.E.2d 867; Sangamo Electric Co. v. UAW (1976), 42 Ill. App. 3d 563, 356 N.E.2d 389.) The cited cases involved situations where no notice was given and the courts pointed out that “ ‘a telephone call can produce an appearance within minutes. Some notice, however informal, is greatly to be preferred to none at all.’ ” Bettendorf-Stanford Bakery Equipment Co. v. UAW (1977), 49 Ill. App. 3d 20, 24.

Defendants argue, however, that plaintiff knew weeks before it sought the TRO it would seek to stop defendants from using the name. It is true, as defendants assert, that a few weeks earlier plaintiff had resolved to seek a way to recover its former name. The verified complaint of Monday morning, August 31, clearly shows, however, that what determined the need for injunctive relief was defendant’s Saturday, August 29, advertisement. Plaintiff had not procrastinated. The Monday motion for TRO was made in quick response to the advertisement from which it perceived a need for immediate relief. Given that it perceived the advertisement to mislead people and harm its congregation plaintiff sought a TRO quickly and under these circumstances the telephone notice was permissible. Therefore, defendant is incorrect in stating that the TRO order was issued without notice. Defendant had over three hours to appear before the court to contest the matter.

The next two issues defendants raise concern the provisions in the General Not For Profit Corporation Act (Ill. Rev. Stat. 1979, ch. 32, par. 163a et seq.) regarding incorporation and corporate names. Defendants argue that the Act clearly recognizes that a corporation may take as its name any name not in use at the time by any other corporation, and that a dissolved corporation seeking reinstatement must take a new name if another corporation has incorporated under the old name. This is true, and needs no discussion. The question of the correctness of enjoining defendants’ use of the corporate name cannot be answered merely with a resort to the statutes, however.

At common law it has long been recognized that a party may be enjoined from using a name under which it is incorporated if the name creates confusion and deceives the public. The rule was stated in Bender v. Bender Store & Office Supply Fixture Co. (1913), 178 Ill. App. 203, 207:

“It is true, persons seeking to form a corporation may ordinarily choose any name their fancy dictates, subject, however, to the rule that they may not choose the name of a corporation already existing, or one that is to be used to deceive the public, or to be passed off for that of some other person or firm in business. [Citations.] When a corporation violates that rule, it does so at its peril. Neither does the fact that the state issues a charter to a corporation by a certain name give to such corporation a right to use it, if it was deliberately chosen, or is used for the purpose of deceiving the public and thereby appropriating the business of another. [Citations.] When such unfair name is selected by a corporation for the purpose of deceiving the public into the belief that its goods are the goods of another, the use of that name for that means will be enjoined.”

The court in Bender developed the rule further, stating, “We think the rule goes even further in that when the use of the name results in the palming off of one’s goods on the public as the goods of another, the use of such name will be enjoined.” (178 Ill. App. 203, 207.) Thus, the intention of the party using the other’s name has no bearing on the issue.

In Lady Esther, Ltd. v. Lady Esther Corset Shoppe (1943), 317 Ill. App. 451, 459, 46 N.E.2d 165, it was held that injunctive relief would be granted even when the parties do not compete where “the public might be deceived into thinking there was some connection between the defendant and the plaintiff companies. And the good-will of plaintiff, which it had built up at great expense over a period of years, would be whittled away. Courts of equity ought not to be so feeble as to be unable to prevent this.” The court added that the fact defendant was incorporated under the name Lady Esther Corset Shoppe did not protect it from injunction.

Baldassano v. Accettura (1949), 336 Ill. App. 445, 447, 84 N.E.2d 336, stated that equity will give relief “where another has used the former’s name or a name so clearly similar as to almost necessarily lead to complication and confusion in the business of the parties. * * * The trend is to place ° * * emphasis on confusion of the public. 0 0 6 [P]roof of actual confusion is not essential.”

In Edgewater Beach Apartments v. Edgewater Beach Management (1973), 12 Ill. App. 3d 526, 299 N.E.2d 548, the reviewing court relied on the likelihood of confusion, not on statutory authority, to affirm a preliminary injunction of defendant’s use of the name of Edgewater Beach. A prospective tenant may mistake defendant corporation for plaintiff or at least support an affiliation or connection between the two, “and plaintiff’s reputation will thus no longer be in its own hands.” 12 Ill. App. 3d 526, 533.

It has been recognized that the rule applies to non-profit organizations, not just commercial establishments. (Pilgrim Holiness Church v. First Pilgrim Holiness Church (1969), 115 Ill. App. 2d 448, 252 N.E.2d 1.) For this proposition Pilgrim cited American Gold Star Mothers, Inc. v. National Gold Star Mothers, Inc. (D.C. Cir. 1951), 191 F.2d 488, 489, which stated:

“Source, reputation and good will are as important to eleemosynary institutions as they are to business organizations. ‘Anything which tends to divert membership or gifts of members from them injures them with respect to their financial condition in the same way that a business corporation is injured by diversion of trade or custom.’ ‘Distinct identity is just as important to such an organization, oftentimes, as it is to a commercial company. Its financial credit—its ability to raise funds, its general reputation, the reputation of those managing and supporting it, are all at stake if its name is used by some other organization and the two become confused in the minds of the public.’ ”

In the case at bar the name in issue is not plaintiff’s present name but one under which it was formerly incorporated. Pilgrim Holiness Church v. First Pilgrim Holiness Church concerned a defendant’s use of a name that plaintiffs had “abandoned.” The appellate court held that defendant could not be restrained from using that name. Pilgrim differs from the case at bar in that the plaintiff church there merged with the Wesleyan church and after such merger plaintiff “ceased to exist as a viable entity,” and had no longer an “independent existence.” (115 Ill. App. 2d 448, 459.) This led the court to conclude there was “no possibility that the corporate names will tend to confuse the public or mislead them in any way,” and so there was “no reason for protection.” (115 Ill. App. 2d 448, 459.) Here, though, the old organization did not cease to exist as a viable entity; it still has independent existence. Further, it still presents itself to the public as Congregation Beth Judea. All the undesirable results that justify injunctive relief in the previously cited cases are likely to occur here. “[T]he public might be deceived * * * [a]nd the good-will of plaintiff, which it had built up at great expense over a period of years [may] be whittled away.” (Lady Esther, Ltd., v. Lady Esther Corset Shoppe (1943), 317 Ill. App. 451, 459.) “Complication and confusion in the [parties’] business” is likely (Baldassano v. Accettura (1949), 336 Ill. App. 445, 447), defendant may be mistaken for plaintiff, and plaintiff’s reputation may no longer be in its own hands. (Edgewater Beach Apartments v. Edgewater Beach Management (1973), 12 Ill. App. 3d 526, 533.) As in the above cited cases equity supersedes strict application of the statute here.

Defendant argues, however, that the trial court’s findings about the identification of the name with plaintiff congregation is against the manifest weight of the evidence.

The standard of review of the issuance of a preliminary injunction is as follows:

“The issuance of a preliminary injunction is within the sound discretion of the trial court upon a prima facie demonstration of necessity and a court of review will not set aside the injunction order unless there is a manifest abuse of discretion or an error of law.” K. F. K. Corp. v. American Continental Homes, Inc. (1975), 31 Ill. App. 3d 1017, 1020, 335 N.E.2d 156.

We had concluded above that as a matter of law a likelihood of confusion would justify restraining a congregation from using the name another congregation had formerly held as its corporate name. Therefore, the trial court did not make an error of law.

We conclude further that the court did not abuse its discretion in making its findings. The findings of the trial court indicate that confusion is indeed likely, if not certain, given that the new congregation carries plaintiff’s old name and employs the rabbi formerly employed by plaintiff for 12 years. This is a quite obvious occasion for confusing the public. The evidence supports these findings. There was no abuse of discretion in ordering the preliminary injunction.

Defendants argue that the individual defendants should have been dismissed as they should not have been liable for the acts of defendant corporation either as incorporators or as directors.

Plaintiff argues, however, that defendants “made no efforts to select officers or otherwise undertake the operation of the entity as a corporation.” Two of the three directors admitted at the preliminary hearing there had never been a meeting of the board of directors and no officers had been elected.

It is apparent that the defendant corporation has not yet begun to operate as a corporation. A “corporate veil” may be pierced when the persons directing it do not comply with corporate formalities. (Macaluso v. Jenkins (1981), 95 Ill. App. 3d 461, 420 N.E.2d 251.) This is the case here; therefore, the injunction could properly be issued against the individual defendants.

Affirmed.

LINDBERG and NASH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOM D. HENRY, Defendant-Appellant.
    Third District
    No. 81-195
    Opinion filed February 26, 1982.

      Frederick F. Cohn and Julius Lucius Echeles, both of Chicago, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Rita K. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Tom Henry was convicted of murder following a bench trial in the Circuit Court of Peoria County and sentenced to 20 years’ imprisonment. In his appeal he contends that he was not proved guilty of murder beyond a reasonable doubt, that the court erred in denying his request for an evidentiary hearing on his post-trial motion to suppress evidence, and that the court erred in denying his post-trial motion to reopen the evidence to expand upon testimony presented at trial.

A brief recitation of the facts, as revealed by testimony at the defendant’s trial on January 21, 1981, is warranted before addressing the issues raised on appeal. The defendant and the deceased, Lynn Sweeney, lived together in an apartment in Peoria. On Saturday, September 20, 1980, they were observed together attending a karate exhibition. There was no apparent animosity between the two. On Sunday, Sweeney telephoned a friend, John Behrends, and told him that she feared that people from Chicago, with whom Tom had had certain dealings in drugs, were coming down to kill Tom. On Monday, September 22, Mr. Behrends telephoned after work but no one answered at the apartment. That evening, Behrends stopped some policemen and told them of his concern for the well-being of his friend, Lynn Sweeney. Behrends next drove to the apartment where he was met by Officer Mike Flatako of the Peoria Police Department. Behrends and Flatako proceeded through an unlocked security door and into the porchway. From a window, Behrends observed a body lying in the bedroom doorway of the apartment.

Flatako looked in the window when Behrends started crying and observed the body as well. He drew his revolver and checked the door to the apartment. It was unlocked. Upon entering the apartment, Flatako smelled putrefaction. He approached the nude body of Lynn Sweeney, lying in the bedroom doorway, with a gun in her right hand, observed that she was dead and then secured the apartment for the crime investigators.

The Peoria County coroner’s physician, Phillip Immesoete, testified that the cause of Sweeney’s death was a gunshot wound to the head, just over the left eye. Sweeney appeared to have died about three days prior to the autopsy which was conducted on Wednesday, September 24. The trajectory of the bullet was on a horizontal plane from the front to the back of the skull.

Further testimony established that the gun found at the scene belonged to the defendant. His thumbprint was identified on the gun. The bullet found lodged in Sweeney’s skull had been fired from that gun. The fatal shot had been fired at a distance of two to six feet from muzzle to target.

James Swofford, the defendant’s cousin, testified that he had discussed the defendant’s fear of being killed by the Chicago dealers with him several times during the period just prior to the shooting incident. On September 28, Swafford received a phone call from the defendant. The defendant was crying hysterically and said thát Sweeney had died and that he could not go on living without her. He stated that he had tried to commit suicide with an overdose of sleeping pills, but that he had been unsuccessful.

On October 2, 1980, Swofford received another call from the defendant in which they again discussed the defendant’s desire to commit suicide. The defendant refused to reveal his whereabouts but stated that he would recontact Swofford when he could get closer to the Peoria vicinity.

Approximately a week later, Swofford received a third telephone call from the defendant. On this occasion, the defendant seemed less upset and was concerned about returning to explain the circumstances surrounding the day of the shooting incident. The defendant related that his life had been threatened by some men from Chicago to whom he owed money. He explained that on the day in question, the defendant and Sweeney were in the bedroom of their apartment when they heard banging on the front door. The defendant said he thought it was the men from Chicago and proceeded to the door with his gun in hand. Sweeney yelled or stated that that was no way to handle things and that they should just act as if they weren’t in the apartment. At this point, the defendant turned around and. the gun discharged. Apparently the person(s) at the door fled because there was no one there when the defendant opened the door. The defendant next tried to talk to Sweeney and discovered that she had been killed. He tried to shoot himself as well, but was unable to do so.

About a week after this conversation, the defendant telephoned Swofford again and arranged to meet Swofford in Texas. The two men returned to Illinois together, and ultimately the defendant surrendered himself to the Peoria authorities, whereupon he was immediately placed into custody pursuant to an outstanding warrant for his arrest.

At the close of the evidence, the trial court took the matter under advisement. Six days later, on January 27, 1981, the court announced a verdict of guilty of murder as charged. Prior to the defendant’s post-trial hearing, he dismissed his counsel and was thereafter represented by substituted counsel, who continued to represent the defendant on appeal.

We first address the defendant’s contention that the trial court erred in denying his request for an evidentiary hearing on his motion to suppress evidence, which motion was presented for the first time after the trial court had returned its verdict of guilty, as aforesaid. The underlying basis for the motion was that Officer Flatako violated the defendant’s fourth amendment right to be free from unreasonable search and seizure when he made his warrantless entry into the defendant’s apartment. On appeal, the defendant does not deny that he had notice of the grounds for making the motion prior to trial. Rather, he contends, as was argued by present counsel in the trial court, that the decision not to proceed with the motion prior to trial was the result of inadequate investigation and misfeasance on the part of the defendant’s trial attorney.

Failure of counsel to file a motion to suppress evidence is not per se incompetence. (People v. Ruple (1980), 82 Ill. App. 3d 781, 787, 403 N.E.2d 129, 133-34, quoting People v. Mitchell (1979), 78 Ill. App. 3d 851, 853-54, 397 N.E.2d 569, 570-71.) “[T]o successfully establish incompetence of counsel, [the] defendant must demonstrate actual incompetence, as manifested in the performance of his duties as trial attorney, which resulted in substantial prejudice to the defendant without which the outcome would probably have been different.” (People v. Ferguson (1981), 99 Ill. App. 3d 779, 785, 425 N.E.2d 582, citing People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203.) Although not raised in defendant’s post-trial motion, the defendant nonetheless presented testimony at the hearing on the post-trial motion to suppress as an “offer of proof” to support his oral argument that the defendant was deprived of effective assistance of trial counsel.

We have reviewed the record on appeal, including the offer of proof, and find that the record viewed in its entirety fails to disclose that the defendant’s trial counsel was incompetent. Whether the defendant’s motion to suppress, if filed timely, would have been successful or not is not so clear as to admit of only the conclusion that the motion would have been successful. We do not pass judgment on the merits of the defendant’s motion. Nor do we hold that the defendant’s counsel might not have been better advised to pursue a timely notice to suppress based on the facts before us. We hold merely that, based on the totality of defense counsel’s conduct at trial, the defendant was not denied his right to effective assistance of counsel.

We also hold that the trial court did not abuse its discretion when it rejected as untimely the defendant’s post-trial motion to suppress. The timeliness of motions to suppress is determined by statute. (Ill. Rev. Stat. 1979, ch. 38, par. 114—12(c).) Specifically, that section states as follows: “The motion shall be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion.” Having found that the defendant was not deprived of effective assistance of counsel and that there was no problem of notice to the defendant of grounds for suppression prior to trial, we hold that the trial court proceeded properly in enforcing the statutory mandate and rejecting the defendant’s motion, advanced for the first time at post-trial proceedings. See People v. Foster (1979), 76 Ill. 2d 365, 382-83, 392 N.E.2d 6, 13-14.

Another of defendant’s contentions on appeal concerns the sufficiency of the State’s evidence. Specifically, the defendant argues that the evidence fails to establish beyond a reasonable doubt that the defendant acted with the mental state for murder, inasmuch as the State’s evidence fails to establish a motive for the killing, and the physical evidence does not exclude a less culpable mental state.

From the testimony of the defendant’s cousin, James Swofford, it appears that at trial the defendant’s theory of the shooting incident was that he accidentally shot Lynn Sweeney and that, at most, he could stand convicted only of involuntary manslaughter. In closing argument, however, defense counsel chose to disclaim as a defense that a conviction of involuntary manslaughter could obtain, and urged only that the court acquit the defendant on the theory that the State’s evidence had failed to prove beyond a reasonable doubt that the defendant had murdered Sweeney. On appeal, assisted by new counsel, the defendant again suggests that the State’s evidence supports, at most, a conviction of involuntary manslaughter. In any event, the crux of the defendant’s arguments, both in the trial court and on appeal, is that the State failed to meet its burden of proof with respect to the defendant’s mental state. For the reasons hereinafter stated, we disagree.

Initially, we dispose of the defendant’s lack-of-motive argument by noting simply that it is uncontroverted that in Illinois the State is not obliged to prove motive to obtain a conviction of murder. People v. Wilson (1948), 401 Ill. 68, 74, 81 N.E.2d 485, 489.

Furthermore, while it is true that the State’s evidence of the defendant’s mental state at the time of the shooting was entirely circumstantial, this fact standing alone is insufficient to require reversal of the trial court’s judgment. A review of the State’s evidence clearly supports a reasonable inference that the defendant’s act was performed with the knowledge that such act created a strong probability of death or great bodily harm to the victim. (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(a)(2).) Specifically, the State established that the bullet entered the victims’ head just above the eye. The victim’s height, 5'6", placed the level of her forehead approximately at the height of the shoulder of the defendant, who stood 5' 11" tall. The trajectory of the bullet was on a horizontal plane, and it was fired at close range, as evidenced by power burns on the victim’s body. The effect of this evidence supports the State’s theory that the defendant deliberately took aim at the victim before firing the fatal shot. Moreover, this evidence is inconsistent with the defendant’s theory that the gun was discharged accidentally. (Cf. People v. Calhoun (1972), 4 Ill. App. 3d 683, 281 N.E.2d 363.) The State’s evidence further established that after the shooting the murder weapon had been placed in the victim’s hand in an apparent attempt to make it appear that the deceased had committed suicide. The purposeful performance of such an act is probative of the requisite mental state for murder and inconsistent with the defendant’s theory of innocence. Evidence of the defendant’s flight and attempted suicide is also supportive of the State’s theory, in that such evidence suggests that the defendant was conscious of his guilt. (People v. O’Neil (1960), 18 Ill. 2d 461, 165 N.E.2d 319.) We do not hesitate to conclude that the evidence of record amply supports the trial court’s finding of fact that the defendant shot the victim with the requisite mental state for a conviction of murder.

Finally, the defendant asks that this court reverse his conviction on grounds that the trial court erred in denying his post-trial motion to reopen the evidence. Specifically, the defendant offered to introduce a chart demonstrating the size and spatial relationship of the apartment where the shooting took place and additional testimony from two of the witnesses who had been called by the State during the defendant’s trial. The decision whether or not to grant the defendant’s motion to reopen the evidence for further testimony and physical evidence is a matter that rests within the sound discretion of the trial court and will not be disturbed on review absent a clear abuse. (People v. Boyce (1977), 51 Ill. App. 3d 549, 561, 366 N.E.2d 914, 923, citing People v. Siciliano (1954), 4 Ill. 2d 581, 123 N.E.2d 725, cert. denied (1955), 349 U.S. 931, 99 L. Ed. 1261, 75 S. Ct. 774; People v. Kelly (1941), 378 Ill. 273, 38 N.E.2d 9.) The defendant in the instant case had ample opportunity at trial to elicit the additional testimony from the two witnesses during counsel’s cross-examination of them and to introduce a chart to more clearly define the size and spatial relationships of the apartment. The defendant cannot seriously contend that the additional evidence was newly discovered. At best, the offered evidence is merely cumulative in that it would have provided further explanation and detail to testimony already elicited. On these facts, and given our finding that the trial counsel was not incompetent, it was clearly within the trial court’s discretion to deny the defendant’s motion. We conclude that no error was committed. Accordingly, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

SCOTT, P. J., and ALLOY, J., concur.

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