author: JUSTICE TRAPP

text:
    CHARLOTTE MOORE, Plaintiff-Appellee, v. CARL MANKOWITZ, Acting Director, Department of Public Aid, et al., Defendants-Appellants.
    Fourth District
    No. 4—83—0771
    Opinion filed October 3, 1984.

      Neil F. Hartigan, Attorney General, of Springfield (Karen Konieczny, Assistant Attorney General, of counsel), for appellants.
    George Bell, of Land of Lincoln Legal Assistance Foundation, Inc., of Champaign, for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

The Department of Public Aid, and its director, Carl Mankowitz, appeal from an order of the circuit court of Macon County staying the reduction of plaintiff’s AFDC benefits from $236 per month to $71 per month for a period of three months for plaintiffs failure to attend a WIN demonstration program meeting without good cause. We affirm.

Plaintiff, Charlotte Moore, resides in Macon County and receives AFDC benefits of $236 per month. Under provisions of the Illinois Public Aid Code, the Department is required to “initiate, promote and develop job search, training and work programs which will provide employment for and contribute to the training and experience of persons” receiving AFDC benefits. (Ill. Rev. Stat. 1981, ch. 23, par. 9—6.) Section 11 — 20 of the Illinois Public Aid Code requires that each applicant or recipient of AFDC who is able to engage in employment and who is unemployed or working less than full time shall register for additional employment with the system of free public employment offices and shall utilize job placement services and other facilities. (Ill. Rev. Stat. 1981, ch. 23, par. 11—20.) The Illinois Public Aid Code provisions and regulations thereunder (see 89 Illinois Administrative Code sec. 112.70 (1983)) were adopted to meet the requirements for Federal participation in Illinois’ AFDC program. Section 602(a)(19)(A) of the Social Security Act requires as a condition of Federal financial participation that State plans shall provide for manpower services, training, employment, and other related activities. (42 U.S.C. sec. 602(a)(19)(A) (1976); 45 C.F.R. sec. 224.0 (1983).) The program required by the Social Security Act and administered by the State is called the work incentive demonstration program, whose purpose is to “decrease dependency on the public welfare system by promoting employment opportunities for AFDC recipients.” 89 Illinois Administrative Code sec. 112.70(a) (1983).

On May 17, 1983, the local WIN worker sent plaintiff a notice requiring her to appear at the WIN office on May 24, 1983, for the purpose of verifying that she had made 10 contacts for employment. Plaintiff failed to attend the meeting but called one week later to inform the local WIN worker that she was attending cosmetology school. A second notice was sent to plaintiff for an appointment on June 8, 1983, but plaintiff again failed to show up for the meeting. The WIN worker then submitted a report to the Macon County Department of Public Aid recommending a three-month sanction for plaintiff’s failure to keep the appointments. Plaintiff was notified of the reduction on July 14, 1983; she then requested a hearing, and on August 29, 1983, a hearing was held at the Macon County Department of Public Aid.

This case is presented in the unusual posture that, at the time the order for stay was issued by the trial court, the report of administrative proceedings had not been filed. Moreover, it has not been filed and is not available upon review. It is presented that the hearing officer swore the witnesses and heard evidence by telephone while that officer was in Chicago, and the plaintiff, her counsel and testimony were presented in Decatur. The proceedings included cross-examination of witnesses by plaintiff and the submission of documentary evidence.

The only apparent dispute at the hearing was whether the plaintiff called the WIN worker a day after the second meeting. The WIN worker disagreed that plaintiff called her, and the Department’s findings and order indicate that the Department believed the WIN representative. The director of the Department of Public Aid affirmed the Department’s decision to reduce plaintiff’s welfare benefits for three months as a sanction for violating Department regulations. Department regulations provide that “sanctions will be imposed against those nonexempt individuals who refuse or fail to participate without good cause with [WIN].” 89 Illinois Administrative Code sec. 112.73(a) (1983).

Plaintiff then sought administrative review of the Department’s ruling, contending that the telephone hearing procedure violated due process and applicable provisions of the Public Aid Code and Department regulations. The complaint also charged that the Department’s WIN rules were not properly promulgated, the WIN demonstration program was not operated as required by Federal law, and the Department’s decision that plaintiff failed to cooperate without good cause was against the manifest weight of the evidence.

On October 28, 1983, the circuit court stayed the Department’s decision, finding that irreparable harm to the plaintiff had been demonstrated and that plaintiff had demonstrated a likelihood of success on the merits. At the time the trial court entered its stay order, the Department had not yet filed its answer. The trial court went on to certify two questions of law as to which the court found there was a substantial ground for a difference of opinion and the resolution of which would materially advance the termination of the litigation. These two questions certified by the trial court under Supreme Court Rule 308(a) (87 Ill. 2d R. 308(a)) were whether the Department had the authority to conduct telephone hearings and whether such hearings violated due process of law. Defendant’s notice of appeal, however, specifies that an appeal was taken under Supreme Court Rule 307(a) allowing an appeal from an interlocutory order granting an injunction. 87 Ill. 2d R. 307(a).

Upon such background presented only in the briefs, counsel project their respective arguments upon constitutional and statutory validity. It appears clear that the granting of a stay by the court does not supply a ruling on the matters argued here and are not presented to this court for review with any record of the actual proceedings upon administrative review by the trial court.

To take an appeal under Supreme Court Rule 308 it is necessary not only for the trial court to make the findings that the order involves a question of law as to which there is substantial ground for a difference of opinion and that an immediate appeal would advance the termination of the litigation, but there must also be an order from this court allowing this type of discretionary appeal. Thus, aside from the fact that defendants’ notice of appeal specifies that an appeal is taken under Rule 307(a), this court has never entered an order allowing an appeal under Rule 308(a). We are also not aware of an appropriate instance for the certification of a question under Supreme Court Rule 308, where a trial court sitting in administrative review certifies a question without having a record of the administrative hearings before it. The certified questions are not properly before us, and we express no opinion on these questions, except to the extent that they support the trial court’s stay order.

Section 3—111 of the Administrative Review Law provides that the circuit court may stay a decision of an administrative agency upon a showing of good cause. (Ill. Rev. Stat. 1981, ch. 110, par. 3—111.) At the outset, plaintiff argues that our review of the trial court’s stay order should be determined solely by reference to whether good cause has been demonstrated, rather than by considering whether the traditional equitable standards which govern the issuance of injunctions have been met. (See People ex rel. Edgar v. Miller (1982), 110 Ill. App. 3d 264, 441 N.E.2d 1328; People ex rel. Fahner v. Steel Container Corp. (1981), 102 Ill. App. 3d 369, 430 N.E.2d 68.) In Miller, this court held that where an injunction is sought pursuant to a statute, the traditional equitable requirements are dispensed with and the requirements of the statute, in this case “good cause,” are controlling. There, the Secretary of State sought to enjoin the defendants from selling securities without a license in violation of the Illinois Securities Law of 1953 (Ill. Rev. Stat. 1981, ch. 1211/2, pars. 137.11(E), 137.13(F)). The statute allowed the Secretary of State to apply for an injunction upon a “proper showing.” In holding that the Secretary need not demonstrate the traditional equitable requirements, we reasoned that since the legislature had seen fit to enact the legislation, it would be presumed that there was a need for the injunctive remedy and that if the phrase, “proper showing,” was a recognition of the judicial requirements for an injunction, it was mere surplusage, since courts can issue injunctions without any directions from the legislature. The same can be said here with reference to the standard of good cause, and though in Miller the statute authorizing the injunction was part of a broader regulatory scheme unlike here, we conclude that good cause as used in section 3 — 111 does not require a showing of the traditional equitable requirements. We do not regard Coordinating Committee of Mechanical Specialty Contractors Association v. O’Connor (1981), 92 Ill. App. 3d 318, 416 N.E.2d 42, and Cahokia Sportservice, Inc. v. Illinois Liquor Control Com. (1975), 32 Ill. App. 3d 801, 336 N.E.2d 276, as controlling. In both cases, the appellate court applied the traditional equitable factors in reviewing a stay order under the Administrative Review Law, but in each case the court merely assumed'that such standards would apply.

Plaintiff argues that good cause requires only a showing that irreparable harm would occur unless the agency action is stayed pending judicial review of the claim. We disagree. Without some limitation on the right to a stay, the requirement of good cause would allow any administrative action to be suspended even though the plaintiff had no possibility of ultimately prevailing on the merits. We believe that the requirement of good cause requires a showing that an immediate stay is required in order to preserve the status quo and that the plaintiff has raised at least a fair question as to the likelihood of success on the merits. In this case we believe that both have been demonstrated.

The necessity to preserve the status quo is demonstrated, since the plaintiff’s AFDC benefits constitute her only source of income, and without the stay any later award of retroactive benefits to plaintiff if she succeeds on the merits would not adequately compensate her for the three-month loss of income.

Plaintiff’s brief raises issues concerning the nature and constitutionality of the administrative procedure. The Department has filed a motion for leave to cite as additional authority Sleeth v. Department of Public Aid (1984), 125 Ill. App. 3d 847, 466 N.E.2d 703. We hereby grant that motion. The Sleeth court concluded that procedures utilized by the Department for telephone conference hearings failed to meet statutory requirements of the Public Aid Code. In this case, however, we conclude that issues of the construction of the statutes and administrative rules are premature until such time as the administrative answer to the complaint has been reviewed by the circuit court. We are presently concerned only with whether the circuit court abused its discretion in issuing the stay. It is either apparent or very likely that the full effect of the proposed sanction would have been suffered before a full review in the trial court can be completed. Issues of law and issues of facts have been raised, and the necessity of maintaining the status quo has been sufficiently established to support a conclusion that the granting of a stay was not an abuse of discretion.

For the foregoing reasons, the order of the circuit court of Macon County staying the Department’s decision to reduce plaintiff’s AFDC benefits is affirmed.

Affirmed.

GREEN and WEBBER, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE MILLS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL RAY LEAMONS, Defendant-Appellant.
    Fourth District
    No. 4—83—0828
    Opinion filed October 3, 1984.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman and Rebecca L. White, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

Aggravated indecent liberties with a child.

Oral intercourse with an eight-year-old boy.

Sentence: eight years’ imprisonment.

On appeal, defendant argues variously that:

(1) the trial court erred in refusing to suppress a statement he made to the police;

(2) the trial court erred in refusing to order a psychiatric examination of the complaining witness;

(3) the trial court erred in the manner in which voir dire was conducted;

(4) the trial court erred in two evidentiary rulings which require reversal;

(5) he was not proved guilty beyond a reasonable doubt;

(6) prosecutorial misconduct in cross-examination of the defendant and in closing argument requires a new trial; and

(7) the sentence of eight years was excessive.

We affirm in toto.

I. The Facts

Since Leamons has raised reasonable doubt as an issue which he feels requires reversal, an extensive recitation of the prolix facts is necessary.

The scene of the crime was a trailer park in Springfield. The victim (J.L.) lived in one of the trailers with his mother and two brothers. His grandmother lived in another trailer, as did two of his uncles. Leamons lived in yet another trailer in the court. All of the parties were acquainted with each other through previous interaction at the trailer court.

On March 28, 1983, the victim’s mother and his two brothers drove one of his uncles to work in Springfield. The group left around 7:20 p.m. after first dropping the victim off at a neighbor’s house. Upon their return, the three went to their grandmother’s house, where the victim’s mother helped out with some housework. One of her sons left around 9 p.m. and returned shortly thereafter. The three then left in search of J.L. They drove to Leamons’ trailer, where the mother honked the car horn. Getting no response, she exited the car and pounded on the side of the trailer. Again, no response was forthcoming. The trio then went to their trailer. After they arrived at the trailer, both sons left in search of their brother around 10 p.m. J.L. returned home shortly after his brothers left. He took off his coat, at which time his mother noticed a bruise on the side of his neck. She also noted that his lips were swollen, his chin red, and that “little bumps [were] coming off of his mouth.”

When she asked him where he had been, he replied that he had been in several neighbors’ trailers. Suspecting that something was amiss, she threatened to call the police if he did not tell her what had happened to him. She went to another room, ostensibly to call the police, at which time the victim came in and told her that Leamons had committed a sexual assault upon him. At this point the victim’s mother called the police.

Officers Robert Palmer and Ralph Caldwell met Officer Greg Shaffer at the victim’s trailer at approximately 10:30 p.m. Shaffer was the first on the scene and was generally in charge of the investigation which followed. After relating the details of the attack to the police, the victim’s mother led them to Leamons’ trailer and then returned to hers. Upon their approach, the interior lights were on, but as they neared the trailer they were turned off. The officers knocked on Leamons’ trailer door and saw someone briefly look out a window. The officers yelled out that they were the police and wanted to talk to the person inside. Leamons eventually came to the door. Upon questioning, he told the police his name and admitted knowing the victim. The police asked him if the victim had been at his trailer earlier in the evening, to which he answered yes. At this point, Leamons was placed under arrest and given his Miranda warnings.

Prior to the trial in this cause, Leamons moved to suppress his statements given prior to Miranda warnings but the motion was denied. During the hearing on his motion, Leamons testified that he was handcuffed immediately upon his telling the officers his name. He further testified that at no time did he say that the victim had been at his trailer and that he at no time felt that he was free to break off the questioning once he had exited his premises. The testimony of the police officers was as related above. However, Officer Shaffer testified that he did not think the officers were going to let Leamons go, although he was not exactly sure what they were going to do upon their first confrontation. Similarly, Officer Palmer testified that if Leamons had tried to run he would have been apprehended, because he was a suspect in an ongoing criminal investigation.

The trial of the cause was had on October 25, 1983. The People’s case consisted basically of the facts as we have set forth, plus scientific evidence which confirmed the fact that the victim had indeed engaged in an act of oral intercourse. Further, the scientific evidence indicated that Leamons could not be excluded from the population of possible attackers.

Of additional importance to this appeal are these two matters. During the trial, one of the victim’s brothers testified that he had gone back to Leamons’ trailer after he, his brother, and mother had returned home from their grandmother’s house. Upon his approach to Leamons’ trailer, he knocked on a rear window but got no response. He testified that he could hear his brother and Leamons inside. He heard Leamons ask, “Does it hurt?” He then returned to his mother’s trailer, at which time they went to Leamons’ trailer, where his mother stopped, honked the horn, and knocked on the trailer. The victim corroborated his brother by testifying that during the attack Leamons continually asked him if it hurt until he finally said yes. He also testified that Leamons had threatened to kill him if he ever told anyone about the attack. He further testified that during the attack he heard a car horn honking outside and someone pounding on the side of the trailer.

During cross-examination of the victim and his mother, it was established that Leamons had previously ordered the victim to stay away from his trailer due to the fact that the victim was generally troublesome and often fought with other children in the neighborhood.

Leamons’ case-in-chief consisted of the character testimony of four witnesses, his own recounting of the events of the evening, and testimony by investigators of the public defender’s office to the effect that the victim’s mother had given them statements which were inconsistent with her testimony at trial.

Leamons testified that on the date of the occurrence he was employed as a mechanic at Ed’s Garage in Springfield. During the course of the day, one of the customers of the garage asked him to help set up a trailer at 2021 Clearlake Avenue in Springfield. Leamons did so, the two completing their efforts sometime after 6 p.m. They went to the Hitch’n Post Lounge, arriving around 6:20 and leaving around 7 p.m. They went to Wanda’s Corner, another tavern, where they stayed approximately 20 minutes. They left Wanda’s Corner and went to Ed Nutaut’s house and stayed until 8:20 p.m. At this time Leamons was driven to his trailer and dropped off.

Leamons testified that he had just gotten to bed when the police arrived and knocked on his door. He went to the door and was asked if he was Michael Leamons, to which he replied, “Yes.” One of the officers told him to step outside and then told Leamons that he was being charged of the sex offense. One of the other officers handcuffed him and led him to a police car. Leamons denied telling the police officers that the victim had been in his trailer that evening. He also denied ever having sexually abused or threatened the victim. Leamons reiterated that the victim had previously been ordered to stay away from his trailer because he was a troublemaker.

On cross-examination Leamons was asked on several occasions whether the police and the complaining witnesses were lying. He replied that in his opinion they were. During closing arguments, the prosecuting attorney made repeated references to the fact that Leamons had called various State’s witnesses liars throughout the trial.

A jury found defendant guilty of aggravated indecent liberties with a child. The trial court sentenced Leamons to eight years’ imprisonment based upon the enormity of the crime and the devastating psychological impact of the crime on the victim. This appeal followed.

We turn now to the various matters raised by Leamons upon which he relies in urging us to reverse his conviction or reduce his sentence.

II. Pretrial Motions

A

Leamons argues that the trial court erred in not suppressing the statement given to the police before his arrest, relating that the victim had been at his trailer on the evening of the attack. The statement was given prior to Miranda warnings. In Leamons’ view, the statement was a result of custodial interrogations, required Miranda warnings, and absent the warnings should have been suppressed. His main point is that the officer in charge of the investigation testified at the hearing on the motion to suppress that Leamons was suspected of a crime at the time of his questioning and the officer would not have let him free if he had tried to leave.

In our view the particular mind-set of a police officer is not dis-positive of the issue whether a criminal suspect is undergoing custodial interrogation at the time he gives an incriminating statement. In fact, no single circumstance controls. As stated in People v. Savory (1982), 105 Ill. App. 3d 1023, 1028, 435 N.E.2d 226, 230:

“Custodial interrogation, which the Miranda decision governs, means ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ [Citations.] In determining whether a statement was made in a custodial setting, the court must look to all of the circumstances surrounding the questioning, with no single factor deemed controlling, and then objectively evaluate whether a reasonable, innocent person would have believed he was free to leave or was expressly or impliedly bound to remain in the presence of police. [Citations.] Numerous factors are to be considered in this inquiry: the location [citation], time [citation], length [citation], mood and mode [citation] of the interrogation; the number of police officers present [citations] and the presence or absence of friends or family of the accused [citation]; any indicia of formal arrest of the subject including physical restraint, show of weapons or force, booking, fingerprinting or informing the person he is under arrest [citation]; the manner in which the person questioned got to the place of interrogation, i.e., voluntarily on his own, in response to a police request, or on a verbal command indicating compulsion [citation]; whether he voluntarily assists police in their investigation [citation]; whether the subject is allowed to walk within and from the location of the interrogation unaccompanied by police [citation]; and the age, intelligence and mental makeup of the accused [citation].” (Emphasis added.)

Applying this test to the facts here first requires us to determine what the facts really were, since the testimony was widely divergent. According to the police officers, they approached Leamons’ trailer after being told by the victim’s mother that he had sexually attacked her son. As they approached, they noticed that the interior lights of the trailer were on, but the lights were soon extinguished after they announced themselves. They noticed someone look out a window, but no one answered their original call. Leamons eventually emerged and told police his name, that he knew the victim, and that the victim had been at his trailer earlier in the evening. At this point, according to the police, he was arrested.

According to Leamons, the police knocked on his trailer and immediately upon his emerging accused him of the attack, handcuffed him and took him to the police station. In Leamons’ version, he at no time told police that the victim had been at his trailer earlier in the evening.

Two questions confront us. What the facts were and whether — under the facts accepted — a custodial interrogation took place. The trial court was free to believe or disbelieve either version of the facts. Based on its ruling, it is apparent that the trial court chose to accept the police officers’ version of the events of the evening. Since the facts are not so contrary to human experience as to defy belief, the trial court’s acceptance of the police officers’ version of the events of that evening was not an abuse of discretion. Since the trial court chose to adopt the police officers’ version of the facts against which to weigh the question of the custodial interrogation of Leamons, we also accept them as the appropriate backdrop for our inquiry.

This brings us to the second question: Under the totality of the circumstances as set forth in the police officers’ version of the events of the evening, was Michael Leamons responding to custodial interrogation when he admitted that the victim had been at his trailer earlier on the evening of the attack? Simply put, he was not.

Referring to the previous enumeration of factors as set forth in Savory, we note that Leamons was being questioned at his home, for a very short period of time, with no indicia of formal arrest, at a time when he was speaking to them voluntarily. Further, Leamons, as indicated in the record before this court, is a young adult of apparently stable mental makeup and average intelligence. Applying the objective test to Leamons’ interview, we hold that his responses were not given during or as a result of custodial interrogation and that Miranda warnings were not required. Since Miranda warnings were not required, Leamons’ motion to suppress was baseless, and the ruling of the trial court was correct.

B

In a secondary matter also pertaining to pretrial motions, Leamons argues that the trial court erred in refusing to order a psychiatric examination of the victim in order to determine whether the child had a proclivity for lying.

The decision to order a psychiatric examination in a case involving a sex violation is vested in the sound discretion of the trial court (People v. Rossi (1972), 52 Ill. 2d 13, 284 N.E.2d 275) and may be ordered only when the defendant offers a compelling reason for it. People v. Glover (1971), 49 Ill. 2d 78, 273 N.E.2d 367.

At the hearing on the motion, defense counsel represented to the court that he would produce a witness who would testify that the complaining witness had named several persons as his assailant on the evening of the attack. Additionally, there was some evidence that the victim had a past history of “nervous tension seizures,” had had a prior confrontation with Leamons, and did not have a good reputation for honesty in the community.

Based on these scant facts, we cannot say that the trial court abused its discretion in refusing to order a psychiatric examination of the victim. The situation here is vastly different than that found in People v. Porcaro (1959), 6 N.Y.2d 248, 189 N.Y.S.2d 194, 160 N.E.2d 488 (cited in Glover as circumstances requiring a psychiatric examination), wherein a defendant proffered medical testimony that the complaining witness’ .hymen was intact despite her allegations that he had engaged in intercourse with her on numerous occasions. Here, on the other hand, there was no evidence adduced contrary to the allegations of the complaining witness and no indication that the complaining witness’ prior history of “nervous tension seizures” (the nature of which are nowhere apparent in the record) had any bearing on the witness’ alleged proclivity to lie. Since there was no matter of record revealing a compelling reason to order a psychiatric examination of the complaining witness, it was not error for the trial court to refuse to do so.

III. Voir Dire

Prior to trial, Leamons submitted a list of 48 questions he proposed to have asked during voir dire. He contends that the trial court committed reversible error in not asking all the potential jurors if they believed the defendant would have to present evidence or testify on his own behalf and also in not asking all the potential witnesses the same question. Leamons also argues that the trial court erred in not asking all the jurors whether they would give more weight to the testimony of a police officer than to a civilian. As authority for Leamons’ arguments, he relies upon the case of People v. Zehr (1984), 103 Ill. 2d 472, which affirmed the appellate court decision in People v. Zehr (1982), 110 Ill. App. 3d 458, 442 N.E.2d 581.

Upon an independent examination of the voir dire proceedings conducted in this case, it is our opinion that the concerns expressed by the court in Zehr were adequately dealt with here. We first note that the entire venire was in the courtroom during the voir dire of the various panels. Secondly, the trial judge addressed the entire venire extensively, before any questions were presented to any of them. He indicated that there was no presumption of guilt from the fact that defendant was charged with a crime. He told the prospective venire that the defendant was presumed innocent and that the presumption remained with him throughout the trial. The entire venire was instructed that the defendant need not prove anything and was not required to present evidence but rather might rely simply upon the presumption of innocence. The venire was told that as jurors they were the judges of the facts of this case. They were told that if they became convinced that the defendant was guilty as charged beyond a reasonable doubt, they must find him guilty, but that if after hearing all the evidence the venire was not convinced beyond a reasonable doubt of defendant’s guilt, that they must find him not guilty.

On 12 different occasions in examination of the various panels, the court specifically asked the jurors, “You’ve heard the court’s statement as to the general principles of law that govern all criminal cases, and this case. Do you have any disagreement with any of those principles of law?” The various jurors were also asked, “And in the event that the court instructs you further as to what the law is that governs this case after having heard all the evidence, there would be no reason for you to disregard the law, would there?”

In Zehr, the supreme court found as error the fact that three questions from among a list of 50 which were submitted by the defense prior to voir dire were not asked. The first question was if at the close of all the evidence and after the jury had heard the arguments of counsel they believed the State had failed to sustain the burden of proof and had failed to prove the defendant guilty beyond a reasonable doubt, would they have any hesitation whatsoever in returning a verdict of not guilty? Here, the trial court, prior to any questioning, instructed the jurors that if the State failed to prove the case beyond a reasonable doubt, they should return a verdict of not guilty. Further, the court specifically asked whether or not the jurors had any disagreement with any of the general principles of law in which he had previously instructed them and whether or not they would follow the law of the case as given to them in the instructions.

Secondly, in Zehr, the supreme court held as error the refusal of the trial court to ask a prospective panel of jurors whether or not they would hold it against the defendant if he decided not to testify in his own behalf. Here, the entire venire was instructed that the defendant need not prove anything and was not required to present any evidence but might simply rely on his presumption of innocence. Again, the panels were asked whether or not they disagreed with any of the court’s statements of the general principles of law and this to us seems to have broached the problem of the defendant not testifying.

Finally, in Zehr, the supreme court held that the trial court should have asked the prospective venire whether or not they understood that the defendant was presumed innocent and did not have to offer any evidence in his own behalf but rather must be proved guilty by the State. Here, again, the trial court specifically told the jury that the defendant need not testify and asked them if they had any disagreement with any of these principles of law. Under these circumstances, the third concern of Zehr has been satisfied.

In conclusion, the three concerns expressed by our supreme court in Zehr were sufficiently broached in this case to alleviate any possible error. Further, Zehr specifically indicated that the exact questions which were at issue in that case need not be asked, but rather the subject matter should be probed during voir dire. Here, the subject matter was sufficiently probed, and there was no error in the manner in which this voir dire was conducted.

IV. Reasonable Doubt

Leamons argues that he was not proved guilty beyond a reasonable doubt because his conviction was based solely on the testimony of the Lockwood family which did not substantially corroborate the complaints of the complaining witness. The State responds that the testimony in an indecent liberties case need not be crystal clear and perfect as far as memory is concerned in order for such testimony to support a conviction.

People v. Pazell (1948), 399 Ill. 462, 78 N.E.2d 212, presents a factual scenario virtually identical to that in this case. In Pazell, the defendant was a 58-year-old employee of a large packing company in Chicago who, along with his wife and two sons, resided in a residential community populated by many children. Pazell was accused by a complaining witness of seven years of age who testified that at 4 p.m. on the afternoon of June 5, 1946, she was taken into the defendant’s house and sexually assaulted. According to her trial testimony, she had suffered similar conduct by defendant in his house on five occasions earlier in the same year. Her testimony was corroborated to the extent that a playmate stated that she played with the complaining ■witness in defendant’s backyard until the defendant told her to go home and took the complaining witness into his house.

An examining physician testified that he could not conclude whether the complaining witness had been the subject of a sexual assault or not. The complaining witness’ mother stated her daughter’s age and said that she knew her children and many others played in defendant’s yard. The complaining witness’ father testified that on June 9, 1946, he had accused the defendant of accosting his daughters but the defendant had denied the accusation.

The defendant’s wife testified that her husband often chased the complaining witness’ brothers and sisters out of the yard because they stepped on the vegetables, broke the swings, and were generally destructive. Several character witnesses testified to defendant’s reputation in the community for good moral character.

Turning to the issue of whether the defendant in Pazell was proved guilty beyond a reasonable doubt, the court recognized that where a conviction for taking indecent liberties with a child depends upon the testimony of the prosecuting witness, and the defendant denies the charge, there must be substantial corroboration of the prosecuting witness by some other evidence, fact, or circumstance in the case. The court noted several evidentiary matters which might be adduced in order to raise the corroboration to the clear and convincing standard. Included among these was the account of an eyewitness (see People v. Sharp (1943), 384 Ill. 503, 51 N.E.2d 554), and admissions or confessions of the defendant (see People v. Crowe (1945), 390 Ill. 294, 61 N.E.2d 348). The court recognized that each may be a source of substantial corroboration. However, in Pazell, the court was of the opinion that the record in the case failed to disclose any substantial evidence tending to corroborate the story of the seven-year-old prosecuting witness.

Turning to the case before this court, we find that the two previously mentioned matters of corroboration are present. While there was no eyewitness to the alleged act here, the complaining witness’ brother testified that upon one of his returns to Leamons’ trailer he heard Leamons and his brother (both of whose voices he had had prior opportunities to hear) in the rear of the trailer. He testified he heard Leamons ask his brother, “Does it hurt?” to which his brother first replied, “No,” and then, “Yes.” This provides substantial corroboration to the victim’s story of what happened to him on the evening in question. Further, since we have previously decided that the statement given by Leamons to the police was properly admitted, this may be deemed as an admission of the defendant that the victim had been to his home earlier in the evening. This was another factor cited by the court in Pazell as indicative of corroborative testimony. Also, in the case at bench, there was testimony that the victim had been subjected to sexual activity earlier in the evening. This was a matter missing in Pazell.

Since in our opinion the evidence when taken as a whole substantially corroborates the victim’s story of what happened to him on the evening in question, the jury verdict of guilty in this case must stand against defendant’s claim of failure of proof beyond a reasonable doubt.

V. Evidentiary Rulings

Leamons claims as error the fact that the victim’s mother was allowed to recite all the facts of the statement given to her by her son concerning the details and name of the person who had allegedly committed a sexual attack on him. Leamons agrees that the mother should have been allowed to testify to the fact that a complaint was made, but argues that the introduction of the details of the complaint and name of the attacker was error. The State responds that by virtue of newly enacted legislation, specifically section 115—10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., 1982 Supp., ch. 38, par. 115—10), testimony concerning the details of an attack of a sexual nature are now clearly admissible. The State argues in the alternative that even if the admission of the details was error, the error was harmless, since the complaining witness testified about the attack and defense counsel cross-examined him.

Prior to the passage of article 115 of the Code of Civil Procedure of 1963, Illinois law largely limited testimony concerning corroborative complaints to rape cases and to the fact that a corroborative complaint was made. The law forbade recitation of the details of the complaint. See People v. Damen (1963), 28 Ill. 2d 464, 193 N.E.2d 25; People v. McKee (1977), 52 Ill. App. 3d 689, 367 N.E.2d 1000.

Since the evidence which was admitted at Leamons’ trial was clearly not admissible under prior case law, it becomes a question of whether or not the previously alluded to statute changed that law. The two parties to this appeal take their natural stands. Leamons argues that the statute simply codifies prior case law, while the State argues that the statute would have no purpose if it were to do nothing to change prior law. Examining the legislative history of the Act reveals that on March 25, 1982, in the House of Representatives the sponsor of the bill stated:

“It provides that, in a prosecution for a sexual act on a child under the age of 18, the child may testify that he or she complained of such act, and the person who heard the complaint may testify that it was made, in order to corroborate the child’s testimony. In other words, the person who corroborates a testimony does not talk about the act itself. All he talks about is the fact that the child, in fact, did make the complaint, and that would be using corroboration of the child’s testimony.”

In light of this, it seems that Leamons’ position is well taken that the admission of the details of the complaint by the mother was error.

Despite the fact that it was error, our opinion is that the error was harmless. In People v. Robinson (1978), 73 Ill. 2d 192, 383 N.E.2d 164, the supreme court held that the introduction of hearsay testimony concerning a corroborative complaint could be rendered harmless if all the facts involved in the complaint were later established through the complainant’s testimony. The court noted that the most objectionable feature of hearsay evidence, and the main reason underlying its exclusion, is that opposing parties are unable to test the real value of the testimony by exposing the source of the assertion to cross-examination. In cases where defense counsel has the opportunity to, and in fact does, cross-examine the out-of-court declarant, the admissions of the detail of the hearsay complaint are error but harmless. Here, the complaining witness testified and was subject to cross-examination, rendering harmless any error which occurred when his mother related the details of the complaint made to her by her son.

The final evidentiary ruling complained of by Leamons is that the trial court precluded him from attempting to question the complaining witness’ mother concerning the time she and her children were living in Texas. This period was from 1971 until the end of 1973 and before the complaining witness here was even born. According to his counsel’s representation, Leamons was seeking to question the mother about a prior complaint she had made on behalf of one of her children. The substance of the claim was that the child had been sexually assaulted but the claim had later proved to be false. The State’s Attorney objected to this line of questioning and the following colloquy occurred:

“THE COURT: What is the relevance?
DEFENSE COUNSEL: Prior false complaints.
THE PROSECUTOR: How are you going to prove that up?
DEFENSE COUNSEL: She told a person.
THE PROSECUTOR: What person?
THE COURT: Complaints about — excuse me just a moment. Complaints to who, of what?
DEFENSE COUNSEL: Sexual assault on one of the boys.
THE PROSECUTOR: What is the relevance of that?
THE COURT: A false report, you say?
DEFENSE COUNSEL: Yeah.
THE COURT: Okay. What are you saying — .
THE PROSECUTOR: What is the relevance?
THE COURT: This is proper cross-examination in that it bears upon the credibility or the truth of her statement here today concerning what, whether or not [the victim] was victimized.
DEFENSE COUNSEL: Whether this witness is telling the truth.
THE COURT: About what?
DEFENSE COUNSEL: About what she said she was told by her son.
THE PROSECUTOR: Judge, it’s-.
THE COURT: I think that is so remote that — and I think that is going to lead into such — lead us into all sorts of paths which would be difficult to establish whether or not a prior complaint to police — whether it was based upon — .
THE PROSECUTOR: You need the police officer.
THE COURT: The police officer, whether indeed it was a false report. I think that is so remote, and that would lead us to so many different areas of proof that I think I am going to sustain the objection on that. So you will have the record on that.”

In our opinion, the issue was waived by virtue of not being in the post-trial motion and may only be considered if it is plain error. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) We note additionally that Leamons at no time made an offer of proof concerning the manner in which he would prove the prior false complaint, and, as such, we are in no position to determine whether the matter was subject to proper proof or not. Under these circumstances, we cannot find that the refusal to allow the defendant to go off into these realms of tenuous relevance was plain error and that therefore it was waived.

VI. Prosecutorial Error

Leamons argues that it was reversible error for the prosecutor to ask him whether certain other witnesses who had testified before him were lying and that the error was compounded by the fact that the prosecutor then argued to the jury that Leamons had called the State’s witnesses liars.

Once again, the error — if any — was clearly waived. The questions were asked without objection and were not raised as issues in defendant’s post-trial motion. Under these circumstances, he is precluded from urging them on appeal. People v. Koss (1977), 52 Ill. App. 3d 605, 367 N.E.2d 1040.

VII. Sentencing

Following a sentencing hearing, Leamons was sentenced to eight years’ imprisonment, which is two years in excess of the mandatory minimum. Aggravated indecent liberties with a child is a Class X felony, the sentence ranges being between 6 years and 30 years with no possibility for probation. (Ill. Rev. Stat. 1981, ch. 38, par. 1005—8—1.) In this appeal, Leamons argues that since the Unified Code of Corrections provides that before a sentence greater than the minimum may be imposed, certain factors in aggravation must be proved, and that since none of the factors in aggravation were proved here, this court must reduce its sentence to the minimum.

Although not cited by the State in their brief, People v. Burton (1981), 102 Ill. App. 3d 148, 429 N.E.2d 543, disposes of this issue. Burton was an aggravated-incest case where the defendant was sentenced to six years’ imprisonment. This court noted that the list of aggravating factors given in section 5—5—3.2(a)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005—5—3.2(a)(1)) includes the factor that defendant’s conduct caused or threatened serious harm. We were of the view that harm to a victim is properly considered under this provision and that psychological trauma is a type of harm.

Consequently, the trial judge here properly relied upon the fact that this crime was of “great enormity in that the effect upon this child of tender years is incalculable about the psychiatric trauma, the shame and the effect of being called upon to testify in a trial of this case, the nature of the assault upon him by the defendant are all such to lead the court to believe that a minimum sentence is not an appropriate sentence ***.” Under these circumstances, there was no abuse of discretion in sentencing the defendant to a period longer than the minimum provided by statute.

The decision of the trial court is affirmed in all aspects.

Affirmed.

TRAPP and GREEN, JJ., concur.


author: JUSTICE McGILLICUDDY

text:
    NATIONAL HOCKEY LEAGUE, Plaintiff-Appellee, v. INTERMART, INC., et al., Defendant-Appellant.
    First District (3rd Division)
    Nos. 84—1595, 84—1899 cons.
    Opinion filed August 31, 1984.
    Rehearing denied November 2, 1984.

      Jenner & Block, of Chicago, and Shearman & Sterling, of New York, New York (Jerold S. Solovy, Howard R. Barron, Robert F. Dobbin, and Robert J. Hausen, of counsel), for appellant.
    Schiff, Hardin & Waite, of Chicago (W. Donald McSweeney, Barry S. Alberts, and William M. Hannay, of counsel), for appellee.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

On April 13, 1984, the plaintiff, the National Hockey League (NHL) filed a complaint for declaratory judgment in the circuit court of Cook County against the defendant, Intermart, Inc. (Intermart), an Ontario corporation carrying on business as Canadian Sports Network (CSN), concerning the rights of the parties under an agreement. According to the complaint, the NHL is a voluntary unincorporated association which promotes professional hockey for the mutual benefit of its member hockey clubs, consisting of 14 clubs in the United States and seven clubs in Canada. CSN is a division of Intermart. On June 25, 1984, six of the seven NHL Canadian member clubs and CSN filed a statement of claim based on the alleged breach of the agreement in the supreme court of Ontario, Canada, against Carling O’Keefe Breweries of Canada, Ltd. (Carling O’Keefe), the principal officers of the NHL, the 14 NHL United States member clubs and Le Club de Hockey Les Nordiques 1979 (Quebec Nordiques), one of the Canadian member clubs. The action sought injunctive, declaratory and monetary relief. In the trial court and in its brief on this appeal, CSN stated that the NHL was not made a party to the Ontario lawsuit because a voluntary association may not sue or be sued under Canada law.

On June 26, 1984, the NHL filed in the circuit court of Cook County a motion for a temporary restraining order (TRO) and preliminary injunction prohibiting CSN from maintaining the prosecution of the Ontario action and from filing or prosecuting any other action arising out of the agreement. No evidentiary hearing on the motion was held. Following oral argument, on June 27, 1984, the trial court granted the motion and entered a TRO for a period of 10 days enjoining CSN from maintaining the prosecution of the Ontario action and from filing or prosecuting any other action arising out of the agreement in any court other than the circuit court of Cook County. The trial court has extended the TRO several times, and it has now been extended to September 17, 1984, the date currently set for trial on this matter. CSN’s motion to vacate or dissolve the TRO was denied on July 6, 1984. CSN filed these interlocutory appeals pursuant to Supreme Court Rule 307(a) (87 Ill. 2d R. 307(a)). The issues presented for review are: (1) whether the trial court abused its discretion in entering the temporary restraining order; (2) whether the trial court abused its discretion in extending the temporary restraining order for more than 82 days without an evidentiary hearing; and (3) whether the trial court abused its discretion in refusing to require the NHL to give bond.

The contract in dispute, called the “Trans-Border Agreement” (TEA), was executed on July 1, 1982, by CSN, a division of Intermart, and by the NHL on behalf of its member clubs. It provided, in pertinent part, that the NHL Canadian member clubs granted to CSN the exclusive right to televise the NHL United States member clubs’ home hockey games throughout Canada during the 1982-1983 and 1983-1984 seasons, subject to limited border protection and certain previously-granted local broadcast rights. In exchange, CSN would grant certain reciprocal broadcast rights on behalf of the Canadian clubs and pay to the NHL, as agent for, and for distribution to, the NHL United States member clubs, $2,178,000 for 1982-1983 and an increase in accordance with the larger of two agreed-upon formulas for 1983-1984. Regarding negotiation of a new TEA for the 1984-1985 season, the contract provided as follows:

“5. (a) Commencing no later than April 1, 1984, CSN and NHL will negotiate diligently in good faith with respect to terms and conditions on which CSN and NHL may enter into a new Trans-Border Agreement. Provided that on or before April 1, 1984, CSN has made an irrevocable ‘Minimum Offer’ (as defined herein) to NHL for the 1984-85 season, NHL will not enter into an agreement with any third party in the 1984-85 season, for the same rights granted to CSN for the 1983-84 season, without giving CSN a right of first refusal to match the offer made by such third party whose offer shall be on the same terms and conditions as the ‘Minimum Offer,’ except for the monetary amount. Such right of first refusal shall be exercised or lost by CSN ten business days from the date CSN receives written notice thereof from NHL, which notice must be given no later than thirty days after CSN has made such ‘Minimum Offer’ to NHL. The ‘Minimum Offer’ to be made by CSN for the 1984-85 season, to qualify for the said right of first refusal, shall be ten percent (10%) higher than the amount CSN has agreed to pay herein, for all of the same rights as granted to CSN in the 1983-84 season (and on the same terms and conditions except as provided in 5(b) below), and will terminate by July 1,1984.
(b) CSN will use its best efforts to continue in the future to acquire and control the rights referenced in paragraph 1(b) hereof. Should it fail to do so, however, and should all Canadian Member Clubs fail to agree to the Agreement as set forth in Exhibit A hereof, then, to the extent necessitated by such circumstances, CSN shall be relieved of the responsibility of providing broadcast rights to games played in certain Canadian cities, and CSN’s exclusive broadcast rights shall be waived to the extent necessary for the NHL and/or any U.S. Member Club to grant broadcast rights in exchange for the acquiring of such rights to games played in such Canadian cities.”

The complaint alleged that on December 19, 1983, CSN made a minimum offer to the NHL for exclusive 1984-1985 broadcast rights, even though it knew that one of the Canadian clubs had not agreed to grant reciprocal broadcast rights for the 1984-1985 season. That club was Le Club de Hockey Les Nordiques 1979 (Quebec Nordiques), owned by Carling O’Keefe Breweries of Canada, Ltd. (Carling O’Keefe). On or about January 23, 1984, the NHL United States member clubs decided to negotiate new agreements with CSN and others on a nonexclusive basis, since they were aware that CSN would be unable to provide United States broadcast rights to all Canadian member clubs’ home games for the 1984-1985 season. By telephone on the same date, the NHL so advised CSN, and invited CSN to submit a proposal for such a nonexclusive agreement. On or about January 30, 1984, a committee representing the NHL’s United States member clubs entered into an agreement with Carling O’Keefe which granted Carling O’Keefe the nonexclusive right to broadcast United States home hockey games throughout Canada. On the same date, the NHL committee advised CSN and the principal sponsor of CSN’s broadcasts, Molson Breweries of Canada, Ltd. (Molson), that the committee desired to negotiate a similar nonexclusive agreement with CSN. At CSN’s request, the NHL committee agreed to extend the deadline for a CSN proposal as well as to refrain from negotiating with any party other than Molson or Carling O’Keefe regarding Canadian broadcast rights.

By letter dated March 20, 1984, counsel for CSN, Molson and the Canadian Broadcasting Corporation informed the NHL that they intended to enforce what they considered to be CSN’s exclusive broadcast rights for 1984-1985 under the TEA.

On April 13, 1984, the NHL filed this action for judgment declaring that the TEA did not require the NHL to grant to CSN exclusive Canadian broadcast rights or to enter into any agreement with CSN for the 1984-1985 season; that the TEA did not prohibit the NHL from entering into nonexclusive broadcast agreements with other parties; that the TEA did not grant to CSN any broadcast rights for the 1984-1985 season; that CSN did not make a valid minimum offer; that the NHL’s nonexclusive agreement with Carling O’Keefe would be permissible if CSN were unable to grant to the NHL United States member clubs the broadcast rights to the Quebec Nordiques’ home games; that the TEA required diligent good-faith negotiations by CSN regarding the 1984-1985 season and CSN failed to meet such requirement; and that the NHL met its obligation to negotiate diligently in good faith by inviting CSN to propose a nonexclusive agreement.

On May 3, 1984, CSN filed a special and limited appearance and objection to summons and personal jurisdiction. The trial court overruled the objection. On May 31, 1984, CSN filed a motion to dismiss the action based on forum non conveniens. The trial court denied the motion on June 29, 1984. CSN’s subsequent petition in this court for leave to appeal the denial of its motion was denied.

On June 27, 1984, the trial court granted NHL’s motion for a TRO and stated the following reasons for granting the motion:

“6. The Canadian suit asserts, inter alia, claims for injunctive and other relief based upon the aforesaid Trans-Border Agreement. As the Canadian suit relates to defendant, the issues are substantially the same as those in the instant cause of action, and resolution of the issues before this Court would resolve the issues regarding the interpretation of the Trans-Border Agreement pending in Canada.
7. Counsel for defendant in the instant case does not represent defendant in the Canadian action.
8. It appears that further prosecution of the Canadian action would unduly interfere with the progress of the prior-instituted action now before this Court.
9. While no harm to defendant’s interests would appear to result, and no costs or damages will be suffered by defendant, from the issuance of a temporary restraining order, plaintiff may be harmed by actions taken by defendant in Canada if no such other is issued, and no bond is therefore needed.”

On June 29, 1984, CSN filed an answer to the complaint for declaratory judgment. In addition, CSN filed a counterclaim alleging that it was granted the right under the TBA to extend the agreement for the 1984-1985 season; that the TBA gave CSN a right of first refusal with respect to the 1984-1985 season; that the NHL did not give Intermart notice within 30 days of its minimum offer that a third-party offer had been received; that after the minimum offer, the NHL informed Inter-mart that $9 million would be required to renew the TBA, even though no third party had offered $9 million for the broadcast rights; and that the NHL had breached the TBA by refusing to negotiate diligently and in good faith with CSN regarding a renewal of the TBA. The counterclaim sought judgment dismissing the complaint; ordering the NHL to specifically perform the TBA by renewing the TBA with CSN for the 1984-1985 season; enjoining the NHL from performing the purported agreement among the NHL United States member clubs and Carling O’Keefe and from granting the 1984-1985 Canadian broadcast rights to anyone other than CSN; and awarding damages.

On this interlocutory appeal, CSN contends that the trial court abused its discretion in entering the TRO. CSN argues that the TRO was entered without any legal basis and should be reversed. The bare fact of prior jurisdiction is not sufficient, absent equitable considerations, to provide a basis to enjoin a suit in a foreign jurisdiction. (Illinois Life Insurance Co. v. Prentiss (1917), 277 Ill. 383, 115 N.E. 554; Lowe v. Norfolk & Western Ry. Co. (1981), 96 Ill. App. 3d 637, 421 N.E.2d 971.) It is only where it clearly appears that the prosecution of an action in a foreign jurisdiction will result in fraud, gross wrong or oppression that a court of equity will interfere with the general right of a party to press his action in any jurisdiction which he may see fit and in as many of them as he chooses and restrain him from the prosecution of such a suit. (Illinois Life Insurance Co. v. Prentiss (1917), 277 Ill. 383, 115 N.E. 554; Tabor & Co. v. McNall (1975), 30 Ill. App. 3d 593, 333 N.E.2d 562.) A subsequently instituted action will be enjoined if further prosecution appears to be oppressive, vexatious, annoying, or harassing, or appears to cause undue interference with the progress of a prior-instituted local action. (Block & Co. v. Storm, Printing Co. (1976), 40 Ill. App. 3d 92, 351 N.E.2d 271.) Mere inconvenience and expense of defending a foreign action does not constitute a manifest wrong or injustice adequate to justify an injunction; however, where complete relief can be had where litigation is pending, the institution of foreign proceedings will be regarded as vexatious harassing of the opposite party. Lowe v. Norfolk & Western Ry. Co. (1981), 96 Ill. App. 3d 637, 421 N.E.2d 971; Wells v. Wells (1976), 36 Ill. App. 3d 91, 343 N.E.2d 215.

In Tabor & Co. v. McNall (1975), 30 Ill. App. 3d 593, 333 N.E.2d 562, a dispute arose out of a contract for the sale of grain. The buyer filed a complaint in Illinois; subsequently, the seller filed an action in Wisconsin. The Hlinois trial court issued a TRO restraining the seller from proceeding with the Wisconsin lawsuit. The appellate court ruled that the issuance of the injunction was error and reversed the order. The trial court had specifically found that the Wisconsin action was filed to protect the seller, not to harass the buyer; there was no finding that the Wisconsin proceeding would be likely to result in fraud or oppression, or that equity appeared to require intervention. The only reason suggested for intervention was a fear that Wisconsin law might not afford the buyer the protection he deserved. Neither that reasoning nor the fact that the Illinois suit was instituted first constituted sufficient basis to enjoin prosecution of the Wisconsin action.

In Sperry Rand Corp. v. Sunbeam Corp. (7th Cir. 1961), 285 F.2d 542, while a trademark infringement action was pending in the U.S. district court for the Northern District of Illinois, the plaintiff’s affiliate and exclusive licensee in Germany filed an action for patent and trademark infringement against the defendant’s affiliate in Frankfurt. The district court found such conduct on the part of the plaintiff and its affiliates to be vexatious and harassing to defendant, and entered an injunction enjoining the plaintiff and its affiliates from proceeding with the Frankfurt action or filing any other such action. In reversing the order, the Seventh Circuit ruled that as it did not appear that disposition of the cause pending in the district court would dispose of the Frankfurt case or that the latter suit for trademark infringement would duplicate the former, there was no evidence to support a finding of vexatious or harassing litigation.

In the instant case, the record does not disclose that the Canadian action will be likely to result in fraud, gross wrong or oppression, or that further prosecution thereof appeared to be oppressive, vexatious, annoying, or harassing, or to cause undue interference with the prior-instituted case at bar. Moreover, although the Canadian lawsuit is based on the TEA, it involves some parties who are not parties to the instant action, and each plaintiff seeks different injunctive and monetary relief. Therefore, complete relief cannot be had in the present action.

Without an evidentiary hearing, the trial court determined that it was necessary to enjoin the Canadian proceedings for three main reasons: (1) the issues are substantially the same and their resolution here would resolve the issues regarding the interpretation of the TBA in the Canadian action; (2) counsel for CSN here does not represent CSN in the Canadian action; and (3) it appears that further prosecution of the Canadian action would unduly interfere with the progress of the instant action. The first two reasons do not satisfy the Illinois standards for enjoining foreign proceedings. As to the third reason, the trial judge did not cite, nor does the record disclose, any facts to show that further prosecution of the Canadian action would cause any undue interference with the instant case.

The NHL argues that it needed only to raise a “fair question” that the TRO was appropriate under Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1983), 94 Ill. 2d 535, 447 N.E.2d 288, and that it adequately did so. We disagree. After thoroughly examining the record, we cannot see even a “fair question” regarding the appropriateness of the TRO. As the trial court abused its discretion in granting NHL’s motion for a temporary restraining order, we reverse.

CSN next contends that the trial court abused its discretion in extending the temporary restraining order for more than 82 days without an evidentiary hearing. Since we have reversed the granting of NHL’s motion for a temporary restraining order, we also hold that the trial court abused its discretion in extending the temporary restraining order. Therefore, it is not necessary to address this issue.

CSN further argues that the trial court abused its discretion in refusing to require the NHL to give bond in the amount of $5 million. Since we have reversed the granting of the temporary restraining order and the extensions of the temporary restraining order, it is not necessary to address this issue.

For the foregoing reasons, the order of the circuit court of Cook County is reversed.

Reversed.

RIZZI, RJ., and McNAMARA, J., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER CAUSEY, Defendant-Appellant.
    First District (4th Division)
    No. 83—372
    Opinion filed October 4, 1984.
    James J. Doherty, Public Defender, of Chicago (Donald L. Bertelle and Marc L. Fogelberg, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jeanette Sublett, and William G. Lacy, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Walter Causey, was charged with armed robbery, unlawful restraint, and armed violence. (Ill. Rev. Stat. 1981, ch. 38, pars. 18—2(a), 10—3(a), 33A—2.) Following a joint jury trial with codefendant Willie Hall, defendant Causey was found guilty as charged and sentenced to eight years’ imprisonment. This appeal involves only defendant Causey.

The issues raised for review are (1) whether the trial court’s denial of defendant’s motion for severance was reversible error; (2) whether defendant was denied his right of confrontation under the IIlinois and United States constitutions; and (3) whether prosecutorial misconduct, including the inference that codefendant Hall had implicated defendant Causey, resulted in Causey being denied a fair trial.

We reverse and remand.

According to the facts, as summarized, the victim, a 61-year-old man, testified that he was driving south on Racine Avenue, in Chicago, shortly after midnight on July 15, 1982. While stopped at a traffic light at the intersection of 55th Street and Racine Avenue, a man, later identified as defendant Causey, approached the car. Simultaneously, a second man entered the car on the passenger’s side. A third man appeared and all three men entered the victim’s automobile. The man in the front, whom the victim identified as Willie Hall, held a knife against the victim’s side and ordered him to drive to a secluded area of a public park. The victim testified that he got a good look at defendant Causey as Causey approached the car while it was stopped at the light. He also got a good look at Causey as he drove to the park and later in the park when the three offenders ordered him out of the car.

Once in the park, one of the men put a gun against the victim’s head and took the victim’s wallet, money and jewelry. Willie Hall took money which the victim had hidden between the seats of the car. The victim was told to lie on the ground, and the offenders drove away in his car. On July 29, 1982, the victim picked Willie Hall and defendant Causey out of a police lineup. He also identified them in court.

Chicago Police Officer John T. Campbell testified that on July 29, 1982, at approximately 4:30 a.m., he observed two men in a parked automobile in the 2100 block on North Sedgewick Avenue. A check of the license plate revealed that it was registered to an automobile that had been reported stolen. The occupants of the stolen automobile were taken into custody. One of them was codefendant Hall.

Chicago Police Officer Mark Reiter testified that he arrested Willie Hall and another man on July 29, 1982. A search of the vehicle in which Hall and his companion were sitting revealed a loaded .25-cali-ber automatic pistol. The stolen vehicle was identified as belonging to the July 15 robbery victim.

Detective Peatk of the Chicago police department testified that he conducted the lineup on July 29, in which Willie Hall was identified by the victim of the July 15 robbery. Hall told Detective Peatk that he (Hall) and two others had committed the July 15 robbery. He also said that the individual who was with him in the stolen car when they were arrested on July 29 was not involved in the robbery of July 15. After receiving information from Hall regarding the July 15 robbery, Detective Peatk went to defendant Causey’s place of employment and arrested him for participation in the July 15 robbery. Shortly after his arrest, Causey was identified from a police lineup by the robbery victim.

Willie Hall called Miss Brenda Kelly as a witness. She testified that she and the victim of the July 15 robbery met for a date at 12:30 a.m. on that date. They drove to Washington Park, on Chicago’s South Side, where they met Willie Hall. Hall then borrowed the victim’s car in order to go and purchase marijuana. When Hall failed to return, Brenda left the park by public transportation and the victim sought a ride from a friend.

On cross-examination, Brenda Kelly admitted that Willie Hall was her boyfriend on July 15, 1982. She also admitted that during a telephone conversation with Hall’s attorney on the eve of her testimony she had stated that she would not testify in Hall’s defense, and later asked the attorney whether she would receive anything in return for her testimony. She stated that she had never revealed the information contained in her testimony to the police, Hall’s attorney, or anyone else prior to testifying.

The victim denied knowing Brenda Kelly or ever having a date with her. Neither Willie Hall nor defendant Causey testified.

The jury found defendant Causey guilty of armed violence, unlawful restraint, and armed robbery. He was sentenced to eight years’ imprisonment. Codefendant Hall received a six-year sentence for his conviction.

On appeal, defendant Causey contends that the trial court’s denial of his motion for severance was reversible error. He points out that during a hearing on the motion the trial court was told by the prosecutor that evidence would be offered to show that codefendant Hall’s confession had incriminated defendant Causey. Defendant relies primarily on People v. Buckminster (1916), 274 Ill. 435, 113 N.E. 713, in which the Illinois Supreme Court held that where a defendant makes an admission or confession which implicates a codefendant severance should be allowed unless the prosecutor makes it clear that the admission or confession will not be introduced into evidence.

The general rule is that those indicted jointly for the commission of a crime are to be tried together and the granting of a separate trial is within the sound discretion of the trial court. That discretion is judicial, not arbitrary, and if the circumstances are such that a defendant will be prejudiced by a joint trial, a severance must be ordered. (People v. McVay (1981), 98 Ill. App. 3d 708, 715, 424 N.E.2d 922, 926.) It is the rule that when a motion for a separate trial is based on the fact that a codefendant’s confession implicates the moving defendant a severance should be granted unless the prosecution declares that the admission will not be offered in evidence, or if offered, all reference to the party seeking severance will be eliminated therefrom. People v. Miller (1968), 40 Ill. 2d 154, 158, 238 N.E.2d 407, 409.

In a recent decision, the Illinois Supreme Court noted that in ruling on a motion for severance the trial judge must make a prediction about the likelihood of prejudice at trial, taking into account the papers presented, the arguments of counsel, and any other knowledge developed from the proceedings. (People v. Daugherty (1984), 102 Ill. 2d 533, 541.) In People v. Clark (1959), 17 Ill. 2d 486, 491, 162 N.E.2d 413, 417, our supreme court said that although the trial court could not have foreseen the exact manner in which one defendant’s confession would be connected with his codefendant, the prosecutor put the court on notice that such a course would be followed. That is precisely the situation in this case. The record supports defendant’s contention that during the hearing on the motion for severance the prosecutor told the court that Willie Hall’s inculpatory statement would be introduced through the testimony of Detective Peatk. The statement would say that Hall admitted having an accomplice in the robbery and that Peatk later arrested defendant Causey for the robbery.

The omission of defendant Causey’s name from the statement did not disguise the fact that Hall told Detective Peatk that another man was involved in the robbery, and immediately thereafter the detective went to Causey’s place of employment and arrested him. Defendant argues persuasively that there is no difference between referring to him by name and presenting evidence which fully advises the jury that he was the accomplice named in his codefendant’s confession. People v. Clark (1959), 17 Ill. 2d 486, 491-92, 162 N.E.2d 413, 417.

In spite of the deletion of Causey’s name from Hall’s inculpatory statement, it was clear that Causey had been implicated by Hall. Further, in light of the prosecutor’s statement at the pretrial hearing on the motion for severance that the information would be introduced into evidence through the testimony of Detective Peatk, it was prejudicial error for the trial court to have denied the motion for severance. Because the prejudicial error that the motion for severance was designed to prevent actually occurred in this case (People v. Daugherty (1984), 102 Ill. 2d 533), the judgment of the circuit court of Cook County is reversed and the cause is remanded for a new trial.

In light of our ruling that the cause must be reversed and remanded for a new trial, we need not consider the additional issues raised by defendant Causey. Further, matters such as improper prosecutorial comments are unlikely to arise again in a second trial.

Reversed and remanded.

LINN, P.J., and JIGANTI, J., concur.


author: JUSTICE MILLER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD FULKERSON, Defendant-Appellant.
    Fourth District
    No. 4—83—0698
    Opinion filed September 28, 1984.
    Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald D. Bernardi, State’s Attorney, of Pontiac (Robert J. Biderman and Rebecca L. White, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLER

delivered the opinion of the court:

The defendant, Ronald Fulkerson, was convicted in a jury trial of indecent liberties with a child. The trial court sentenced the defendant to four years’ probation, imposing as a condition of probation three years’ periodic imprisonment, with six months’ confinement to be served at the outset of the period.

The defendant was tried on a total of five counts of indecent liberties, all based on the same occurrence, and the jury found him guilty of two of the counts; judgment was entered on one of the verdicts. On the eve of trial, the State moved to nol-pros the first count, the one on which judgment eventually was entered, and the trial court denied the motion. On appeal the defendant argues that the trial court should have granted the nolle prosequi motion. Because the motion was heard and denied after jeopardy attached, the defendant also argues that the nolle prosequi would have operated as a dismissal with prejudice and would have precluded, on grounds of double jeopardy, his prosecution on the four other counts. The State agrees with the defendant that the motion should have been granted but believes that the nolle prosequi would have had no effect on the remaining counts.

The acts alleged here occurred February 15, 1982; the complainant, who is the niece of the defendant’s girlfriend, was 12 years old at the time. Originally the defendant was charged with only one count of indecent liberties, based on sexual intercourse, and he was convicted' of that in a jury trial in March 1983. Sometime after trial, defense counsel learned of an exculpatory medical report that had been submitted to the Department of Children and Family Services by a gynecologist, Dr. Ashvin Patel. Dr. Patel had examined the child on December 8, 1982, and he did not think that she had ever engaged in sexual intercourse. The State had not known of Dr. Patel’s examination or report, and the trial court, viewing the report as newly discovered evidence, granted the defendant’s motion for a new trial.

Over the defendant’s objection, the State then amended the information by charging the defendant with four additional counts of indecent liberties, and these were based on lewd fondling rather than sexual intercourse. Right before the selection of a jury, the State moved to nol-pros count I of the information, the only count alleging sexual intercourse. The motion was heard and denied after the selection of 12 jurors and before the selection of an alternate juror; counsel’s remarks at the hearing indicate that the jury had been sworn by that point. The court denied the motion to nol-pros, saying that it was untimely.

Trial began two days later. In the meantime, the State secured testimony disputing Dr. Patel’s conclusion that the child could not have engaged in sexual intercourse, and this was introduced in rebuttal. Also, the defendant’s inculpatory statement to the police, in which he admitted having sexual intercourse with the child, was admitted into evidence. The complainant testified that the defendant led her into the bathroom, removed her trousers and underpants, and made her lie on her back on the floor. The defendant then removed his own trousers and underpants and lay on top of the complainant in a prone position. The complainant believed that penetration occurred. She said that the defendant did not touch her with his hands during this time; she noticed a sticky substance on her thighs when the defendant got off her. The defendant testified, and he denied ever engaging in any type of sexual conduct with the complainant. He explained that he made the inculpatory statement to the police because he was afraid and was tired of their questions. The jury returned verdicts finding the defendant guilty of count I and count IV, and the trial court entered judgment on the former.

We agree with the defendant and the State that the trial court should have allowed the motion to nol-pros count I of the information. A motion to nol-pros a charge must be allowed unless it is part of a vexatious or repetitious course of conduct directed against the defendant. (People v. Verstat (1983), 112 Ill. App. 3d 90, 444 N.E.2d 1374.) That was not apparent here. This was the State’s first nolle prosequi motion. It was heard after jeopardy attached (Crist v. Bretz (1978), 437 U.S. 28, 57 L. Ed. 2d 24, 98 S. Ct. 2156; People v. Shields (1979), 76 Ill. 2d 543, 394 N.E.2d 1161), so dismissing the charge would have been with prejudice and constituted an acquittal, precluding the State from refiling the same charge later on. We conclude that the trial court abused its discretion in denying the State’s motion to nol-pros count I.

The defendant argues that granting the nolle prosequi motion after jeopardy attached would have precluded, on grounds of double jeopardy, not only reprosecution on the dismissed charge, count I, but also prosecution on the four remaining counts. Apparently the defendant believes that all five counts charged the identical offense. Indeed, each count stemmed from the same occurrence and bore the same statutory name, indecent liberties with a child. From the evidence presented at trial, it appears that counts II through V were included offenses here of count I. Count I was the only charge alleging an act of sexual intercourse. The four other counts alleged that the defendant “performed an act of lewd fondling and touching” with the intent to arouse his own sexual desires (count II), to arouse the child’s sexual desires (count III), to satisfy his own sexual desires (count IV), and, finally, to satisfy the child’s sexual desires (count V).

Despite the close relationship among all five charges, dismissal of count I would not have barred prosecuting the defendant on the four remaining counts. In Ohio v. Johnson (1984), _U.S._, 81 L. Ed. 2d 425, 104 S. Ct. 2536, a defendant allegedly killed a person and stole property from the person’s apartment, and was charged with two pairs of offenses, murder and manslaughter, and aggravated robbery and grand theft. He pleaded not guilty to the charges of murder and aggravated robbery and offered to plead guilty to the less serious offenses, manslaughter and grand theft. The trial court accepted the guilty pleas, over the State’s objection, and imposed sentence. The defendant then moved to dismiss the two remaining charges, arguing that prosecution on those counts would put him in jeopardy twice for the same offense. The trial court granted the motion, and that decision was affirmed on review in Ohio. The United States Supreme Court reversed. The court rejected the defendant’s argument that conviction and sentence on the less serious offenses barred prosecution on the greater offenses.

“The answer to this contention seems obvious to us. Respondent was indicted on four related charges growing out of a murder and robbery. The grand jury returned a single indictment, and all four charges were embraced within a single prosecution. Respondent’s argument is apparently based on the assumption that trial proceedings, like amoebae, are capable of being infinitely subdivided, so that a determination of guilt and punishment on one count of a multi-count indictment immediately raises a double jeopardy bar to continued prosecution on any remaining counts that are greater or lesser included offenses of the charge just concluded. We have never held that, and decline to hold it now.” _U.S._, _, 81 L. Ed. 2d 425, 434, 104 S. Ct. 2536, 2542.

We conclude that the trial court should have allowed the motion of the State to nol-pros count I but that prosecution on the remaining counts would not have been precluded on grounds of double jeopardy. Therefore, we vacate the defendant’s conviction on count I of the information. We remand the cause to the circuit court to enter judgment on the jury’s verdict finding the defendant guilty of count IV and to impose sentence on that conviction. People v. Allen (1983), 116 Ill. App. 3d 996, 452 N.E.2d 636, appeal allowed (1983), 96 Ill. 2d 561 (remanding for entry of judgment and imposition of sentence); see People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180 (remanding for imposition of sentence), and People v. Vaughn (1981), 92 Ill. App. 3d 913, 416 N.E.2d 681 (remanding for entry of judgment).

Vacated and remanded.

TRAPP and WEBBER, JJ., concur.


text:
    ANNIE DUCKWORTH, Plaintiff-Appellant, v. JEFFREY C. MILLER, Director, The Department of Public Aid et al., Defendants-Appellees.
    Fourth District
    No. 4—84—0246
    Opinion filed October 3, 1984.
    George Bell and Valerie McWilliams, both of Land of Lincoln Legal Assistance Foundaion, Inc., of Champaign, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Vincenzo Chimera, Assistant Attorney General, of counsel), for appellees.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

Suspension of ADC payments.

We affirm.

The facts are few: In May of 1982 Duckworth’s son was killed in an automobile accident. A wrongful death action was filed, resulting in a settlement of $8,500. This sum equaled 35 months’ worth of Duck-worth’s payments under the State Aid to Families with Dependent Children program (AFDC). Upon learning of the settlement, the Illinois Department of Public Aid (IDEA) suspended payments based on her receipt of the $8,500 settlement. She continued to receive payments based on the need of a brother who was living with her.

Duckworth appealed the suspension of payments by IDEA, arguing that the Illinois provisions which were applied to her were contrary to the controlling Federal statute (42 U.S.C. sec. 601 et seq. (1982)) in that the provisions could only be applied to persons having earned income, whereas there was no question that Duckworth had never earned anything during the pertinent time period.

A final administrative decision upheld the original decision of IDEA. Plaintiff then filed the complaint from which this appeal stems, seeking judicial review of the final administrative decision. Her complaint raised numerous matters not raised before this court but again alleged that IDEA’S actions did not come within the purview of the Federal statute because she had no earned income during the requisite period or — in fact — at all.

The trial court then entered a memorandum opinion and judgment which found the Illinois regulation consistent with the Federal statute and affirmed the final administrative order. A motion for rehearing was heard and denied, and this appeal followed.

Our disposition of this cause rests upon statutory interpretation. The United States Congress, seeking to aid and strengthen the familial relationships of the poor, enacted the AFDC program. Since then it has burgeoned into a sprawling morass of bureaucracy funneling money to the States for distribution in accordance with programs established by the various State legislatures. In response to the problem of the largess which the program had assumed, Congress has modified it through various amendatory acts. The modification of concern to us was added by the Omnibus Budget Reconciliation Act of 1981 (OBRA) (Pub. L. 97— 35 (1981)), the main thrust of which patently was to reduce the outlay of Federal dollars targeted for social programs.

One specific aspect of OBRA concerns us, that being the way in which States are to treat nonrecurring lump-sum cash influxes accruing to persons receiving Federal support payments. Prior to the enactment of OBRA, such influxes affected payments for the month in which they were received, but upon being spent the influx was forgotten. Under the new program, the influx was to be compared to the support payments and then to take the place of the concomitant number of payments which the influx equaled. The only issue in this appeal is whether the new provisions are meant to apply only to persons who have some (but definitionally not much) earned income, or to all recipients regardless of the existence of earned income.

To decide the matter, as in all cases of statutory interpretation, we turn first to the words of the statute itself. Three sections are relevant to our discussion. Section 2302 of OBRA (42 U.S.C. sec. 602(a)(7) (1982) sets forth the basic elements to be used in determining a recipient’s need. It reads in pertinent part:

“[EJxcept as may be otherwise provided in paragraph (8) or (31) and section 615 of this title, [the State plan shall] provide that the State agency—
(A) shall, in determining need, take into consideration any other income and resources of any child or relative claiming aid to families with dependent children, or of any other individual (living in the same home as such child and relative) whose needs the State determines should be considered in determining the need of the child or relative claiming such aid.”

Section 2304 of OBRA (42 U.S.C. sec. 602(a)(17)(1982)) deals with the receipt of a lump-sum influx of cash and reads in pertinent part as follows:

“[The State plan shall] provide that if a person specified in paragraph (8)(A)(i) or (ii) receives in any month an amount of income which, together with all the other income for that month not excluded under paragraph (8), exceeds the State’s standard of need applicable to the family of which he is a member—
(A) such amount of income shall be considered income to such individual in the month received, and the family of which such person is a member shall be ineligible for aid under the plan for the whole number of months that equals (i) the sum of such amount and all other income received in such month, not excluded under paragraph (8), divided by (ii) the standard of need applicable to such family, and
(B) any income remaining (which amount is less than the applicable monthly standard) shall be treated as income received in the first month following the period of ineligibility specified in subparagraph (A).”

The question we are called upon to decide is whether Congress intended section 17 of OBRA (the lump-sum sections) to apply to persons without earned income.

We note initially that section 17 refers specifically to “a person specified in paragraph (8)(A)(i) or (ii).” Paragraph (a)(8)(A)(i) compels the State agency, in assessing need, to disregard all the earned income of each dependent child who is a full-time student or a part-time student who is not a full-time employee. Paragraph (8)(A)(ii) compels the State agency to disregard the first $75 of any earned income of any child or relative applying for or receiving welfare, or of any other individual (living in the home) whose needs are taken into account in determining the AFDC units’ need.

Duckworth’s argument is that by specifically referring to earned income exclusions in establishing the requisite persons to whom the lump-sum procedure is to be applied, Congress implicitly restricted the application of the lump-sum provisions to those recipients of AFDC having some earned income. From this, the argument flows that since she, Duckworth, at no time had earned income, the lump-sum provisions were improperly applied to her by the State. It is well established that where State provisions mandated by a Federal statute are without the purview of the Federal statute, the application of such provisions are invalid. See King v. Smith (1968), 392 U.S. 309, 20 L. Ed. 2d 1118, 88 S. Ct. 2128.

The State responds that the legislative scheme is manifestly ambiguous and that therefore recourse to the legislative history accompanying the Federal legislation is appropriate. The argument goes on that the legislative history amply demonstrates Congress’ intent to save money through this legislation. The argument concludes that adopting Duckworth’s suggested interpretation would be contrary to Congressional intent and that therefore we must reject it. The argument pends on the undisputed postulate that in matters of statutory interpretation our posture as a reviewing court is to assure that the intent of the legislature is carried out no matter how difficult the particular legislative body makes the task.

With this in mind, we turn to our appointed duty. First, we reluctantly accept the State’s invitation to turn to the legislative history of the Act, since the words of the statute have little independent meaning and even less internal consistency or cohesion.

In 1981, Congress adopted House Concurrent Resolution 115, which mandated a dramatic change in the spending policies that had dominated the Federal budget for the past 25 years. New spending targets for the fiscal years 1981 through 1984 contained proposals which would result in a cut of more than one-half in the average annual growth in Federal spending of the past five years. In order to achieve the fiscal policies set forth in the concurrent resolution, Congress included in that resolution instructions to 15 House committees and 14 Senate committees to recommend changes in laws which would reduce budgetary authority by 189 billion dollars, and cut spending by 141.6 billion dollars in the fiscal years 1981 through 1984. See 1981 U.S. Code Cong. & Ad. News, vol. 2, at 396-97.

Turning again to the U.S. Code Congressional and Administrative News, we see that the Senate Committee on Finance, which oversees Title IV-A of the Social Security Act, explained:

“The Committee believes that lump-sum payments should be considered available to meet the ongoing needs of an AFDC family. The present treatment of such payments has the perverse effect of encouraging the family to spend such income as quickly as possible in order to retain AFDC eligibility. The committee amendment would require that such income received in a month be considered available as income in the month it is received and also in future months. Thus, if such income exceeded the standard of need in the month of receipt, the family would be ineligible in that month. In addition, any amount of the income that exceeds the initial month’s needs standard would be divided by the monthly needs standard, and the family would be. ineligible for aid for the number of months resulting from that calculation.” (Senate Report No. 97—139, 97 Cong., 1st Sess., June 17, 1981, reprinted in (1981) U.S. Code Cong. & Ad. News vol. 2, at 771.)

The Federal regulations enacted by the Secretary of Health and Human Services parallel this statement of legislative intent. Found at 45 CFR 233.20(a)(3)(ii)(D)(1982), the final regulation provides:

“Net income, except as provided in paragraph (a)(3)(xiii) of this section, and resources available for current use shall be considered; income and resources are considered available both when actually available and when the applicant or recipient has a legal interest in a liquidated sum and has the legal ability to make such sum available for support and maintenance. When the AFDC assistance unit’s income, after applying applicable disregards, exceeds the State need standard for the family because of receipt of nonrecurring lump sum income, the family will be ineligible for aid for the full number of months derived by dividing the sum of the lump sum income and other income by the monthly need standard for a family of that size. Any income remaining from this calculation is income in the first month following the period of ineligibility. The period of ineligibility shall begin with the month of receipt of the nonrecurring income or, at State option as late as the corresponding payment month. For purposes of applying the lump sum provision, family includes the AFDC assistance unit and any other individual whose lump sum income is counted in determining the period of ineligibility.” 47 Fed. Reg. 5678, codified at 45 CFR sec. 233.20(a)(3)(ii)(D) (1982).

The IDEA adopted IDEA Rule 3.387, which is a virtual carbon copy of the Federal regulation just mentioned.

To date, three Federal courts of review have considered the question now before us. All three have come to the conclusion that the lump-sum rule is properly applied to all AFDC recipients, not just those with earned income. See Sweeney v. Murray (1st Cir. 1984), 732 F.2d 1022; Faught v. Heckler (8th Cir. 1984), 736 F.2d 1235; Walker v. Adams (6th Cir. 1984), No. 83—5527, slip op. Aug. 23, 1984.

Additionally, Congress has now acted to clarify the application of the Act. Through the amendment process, Congress struck out the portion of section 602(A)(17) which previously referred to “a person specified in paragraph 8(A)(i) or (ii)” and substituted “a child or relative applying for or receiving aid to families with dependent children, or any other person whose need the State considers when determining the income of a family.” (Emphasis added.) (Deficit Reduction Act of 1984, Pub. L. No. 98 — 369, sec. 2632(b)(1), reported in 1984 U.S. Code Cong. & Ad. News, 98 Stat. 1141.) Plaintiff here is clearly a person whose need is considered by the State in determining the income of a family. Congress also amended the language of the first clause of section 602(A)(17) by including both earned and unearned income within the concept of the lump sum influxes of money.

When these points were presented in oral argument before this court, plaintiff urged the court to disregard the clarifications as after-the-fact statements made by members of Congress and therefore precluded from consideration under the case of Bread Political Action Committee v. Federal Election Committee (1982), 455 U.S. 577, 71 L. Ed. 2d 432, 102 S. Ct. 1235. However, the action of amendment is much more than an after-the-fact statement made by a legislator which was at issue in the Bread case. In fact, the United States Supreme Court has specifically sanctioned the consideration of amendatory actions of Congress which are intended to clarify prior statutes. See Red Lion Broadcasting Co. v. Federal Communications Com. (1969), 395 U.S. 367, 23 L. Ed. 2d 371, 89 S. Ct. 1794.

Accordingly, we now join those Federal courts of review which have come down on the cost-cutting side of this issue. In our view, the paramount concern in this area of legislation was the conservation of all too scarce resources. To allow recipients to rapidly dissipate funds acquired from other sources, only to fall back upon the government as a source of income, would be counterproductive to a self-sufficient economy.

Affirmed.

GREEN and WEBBER, JJ., concur.