text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY P. GUNNING, Defendant-Appellant.
    Fourth District
    No. 4 — 82—0022
    Opinion filed August 9, 1982.

      Summers, Watson & Kimpel, of Champaign, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and Mona C. Mack, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

Defendant was found guilty by a jury in the circuit court of Champaign County of the offense of driving while under the influence of alcohol in violation of section 11 — 501 of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 951/2, par. 11 — 501). He was sentenced to 150 days’ imprisonment. His sole issue on appeal is whether the trial court erred in denying his motion for substitution of judges pursuant to section 114 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 5(a)). We believe it was error and thus reverse and remand for a new trial.

Some detailing of the events preceding the trial is necessary. Defendant was arrested on September 3, 1981, and was arraigned before Judge Nicol on September 4. On defendant’s motion the case was continued to September 28. On that date defense counsel entered his appearance together with a plea of not guilty and a demand for speedy trial. These proceedings occurred before Judge DeLaMar. A docket entry of that date, viz., September 28, 1981, indicates that the case was set for “docket call” on October 28, 1981, in “Courtroom E.”

A written “docket order” dated October 28, 1981, and signed by Judge DeLaMar, appears in the record and indicates that the cause was set for trial on November 16, 1981, in courtroom “G.” There is no indication in the order what judge was assigned to hear the matter, but it may be inferred that it was Judge DeLaMar because on October 29, 1981, the following day, a motion for substitution from Judge DeLaMar was filed by defendant and referred to Judge Townsend for hearing. The motion hearing was held the same day and the motion was denied by Judge Townsend, who stated in his ruling that he believed that the cause was placed on Judge DeLaMar’s trial call on September 28, and thus the filing of the motion more than 10 days later was too late.

The trial took place on December 10, 1981, before Judge DeLa-Mar. Defense counsel reiterated at its commencement his objection to the denial of the motion for substitution and on that basis declined to cross-examine the State’s witnesses or to present a defense. At the close of the State’s case he moved for mistrial and that motion was denied. The subject was again raised in defendant’s post-trial motion which was likewise denied and defendant was sentenced as above described.

Judge Townsend’s remarks that the motion hearing indicate that he assigned two reasons for his ruling: (1) that Judge DeLaMar was the traffic judge for Champaign County and therefore would automatically hear all traffic cases, and (2) Judge DeLaMar had allotted the matter for “docket call.” Putting these together, Judge Townsend reasoned that defendant was charged with notice of trial before Judge DeLaMar as early as September 28 and therefore the motion of October 29 was too late under the statute.

It must be remembered at the outset that these proceedings were conducted pursuant to section 114 — 5(a) of the Code. No contention has ever been made that section 114 — 5(c) was involved. Under the latter section (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 5(c)) a defendant may move for substitution at any time for cause supported by affidavit. Under section 114 — 5(a) the substitution is automatic if the motion be filed within 10 days after it is placed on a judge’s trial call.

The appellate court has recently had occasion to consider a similar case in People v. Samples (1982) 107 Ill. App. 3d 523. In Samples the defendant appeared first before Judge Lewis; later he appeared before Judge Howerton, who entered up preliminary orders on December 30, 1980, including one for a pre-trial hearing on March 25, 1981, and for jury trial on April 1, 1981. Defendant filed a motion for substitution from Judge Lewis on February 25, 1981. At the hearing on that motion Judge Lewis stated that he was the only judge who heard criminal cases in Williamson County and therefore defendant was charged with knowledge when the trial allotment was made that he, Judge Lewis, would hear the case; therefore, the motion was too late.

The appellate court held that this ruling was error, saying:

“We do not think that the prevailing practice in the circuit court of Williamson County described by Judge Lewis, in which a certain judge hears all the criminal cases unless he is ill or otherwise unable to do so, amounts to a placement of a cause on the trial call of a judge so as to commence the running of the 10-day period in which a defendant may move for automatic substitution of a judge for prejudice.” (People v. Samples (1982), 107 Ill. App. 3d 523, 527.)

The court also stated that any such system would render a defendant’s right to substitution under section 114 — 5(a) “disappointingly hollow.”

We adopt this rationale. As applied to the instant case, it is of no consequence that Judge DeLaMar was the judge assigned to traffic matters. Defendant did not know, and could now know, until October 28 that in fact Judge DeLaMar was assigned to his specific case.

Judge Townsend’s alternative reason, i.e., the “docket call” assignment of September 28 was the equivalent of a trial call, is also without merit.

The sparse record before us does not indicate what the nature of a docket call is in Champaign County. Traditionally, it has been a public calling of pending cases, generally at the beginning of a term of court, for the purpose of disposing of them by setting for trial, by continuing, by defaulting, or by making some other disposition of them. (See Blanchard v. Ferdinand (1882), 132 Mass. 389.) This is apparently what happened here. The docket call was held on October 28 and at that time the cause was set for trial on November 16. Clearly an order to appear at a docket call is not an order to appear for trial, nor can a docket call be a trial call. The docket call is a sifting process and is a valuable tool for good judicial administration. Defendant’s brief suggests that courtroom E, where the docket call was to be held, is usually occupied by Judge Townsend. This is an even further indication that the case had not yet been assigned to Judge DeLaMar.

The motion for substitution was valid and it was reversible error to deny it. The judgment of the circuit court of Champaign County is therefore reversed and the cause is remanded for new trial.

Reversed and remanded.

LONDRIGAN and TRAPP, JJ., concur.


source: Caselaw Access Project

author:
JUSTICE MILLS
      JUSTICE WEBBER,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM L. BURKS, Defendant-Appellant.
    Fourth District
    No. 17557
    Opinion filed August 3, 1982.

      WEBBER, J., dissenting.
    Daniel D. Yuhas and Gary S. Rapaport, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Chris E. Freese, State’s Attorney, of Sullivan (Robert J. Biderman and Denise M. Paul, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

Unlawful delivery of a substance represented to be a controlled substance (methaqualone) — guilty—sentenced to 4 years and fined $2,500.

Burks now contends he was convicted under an unconstitutional statute.

We agree — but only as to that portion of the statute authorizing a maximum fine of $15,000.

STANDING

The State first raises the issue of defendant’s standing to challenge the constitutionality of the statute — pointing out that the $2,500 fine Burks .received was less than the maximum allowable under either section 401(e) or 401(f) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 561/2, par. 1401(e), (f)). This standing argument was raised and rejected in People v. Wagner (1982), 89 Ill. 2d 308, 433 N.E.2d 267, and we reject it here.

In Wagner, our supreme court held section 404 of the Illinois Controlled Substances Act unconstitutional. (Ill. Rev. Stat. 1977, ch. 561/2, par. 1404.) At the time the defendant in Wagner was convicted, delivery or possession with intent to deliver a substance represented to be a controlled substance was a Class 3 felony and subject to a $15,000 maximum fine, while delivery or possession with intent to deliver a schedule IV or V controlled substance was a Class 4 felony, subject to either a $10,000 (schedule IV) or a $5,000 (schedule V) maximum fine. (Ill. Rev. Stat. 1977, ch. 56V2, pars. 1401(e), (f), 1404.) The court struck down section 404 because it was irrational to punish delivery or possession with intent to deliver a harmless substance more severely than delivery/possession with intent to deliver a real schedule IV or V controlled substance. The irrational nature of the statutory scheme violated the due process clause of the Illinois Constitution. Ill. Const. 1970, art. I, sec. 2.

Defendant in Wagner was sentenced to 2 years’ imprisonment for a Class 3 felony. At the time of Wagner’s conviction, the range of possible penalties for a Class 3 felony was not less than two nor more than five years; while the range for a Class 4 felony was not less than one nor more than three years. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(a)(6), (7).) Thus, the sentence Wagner actually received was within the range of possible penalties for a Class 4 felony — a classification which, as discussed below, would have been constitutional. The same can be said of the fine Burks received. Defendants Wagner and Burks are thus similarly situated, and as Wagner had standing, so does Burks. The injury arises from being sentenced under an invalid statutory provision. Had the allowable penalties been different, the sentences might also have been different.

(City of Chicago v. Lawrence (1969), 42 Ill. 2d 461, 248 N.E.2d 71, appeal dismissed, cert, denied (1969), 396 U.S. 39, 24 L. Ed. 2d 208, 90 S. Ct. 263, cited by the State, is inapposite. This is not a case where a defendant to whom a statute clearly applies challenges its constitutionality on vagueness grounds.)

CONSTITUTIONALITY

The statutory scheme held unconstitutional in Wagner is not the same as that in effect at the time Burks was convicted. The legislature amended the Illinois Controlled Substances Act — not changing section 404, but reclassifying delivery or possession with intent to deliver schedule IV or schedule V controlled substances as Class 3 felonies. The amendments were passed before the Wagner decision and were really intended to correct the situation where simple possession of controlled substances was punished more severely under the Act than delivery or possession with intent to deliver the same substances. (See People v. Bradley (1980), 79 Ill. 2d 410, 403 N.E.2d 1029.) The fines for the respective offenses were left unchanged.

The result then is that delivery/possession with intent to deliver a schedule IV or V controlled substance and delivery or possession with intent to deliver a substance represented to be a controlled substance are all Class 3 felonies. This classification scheme suffers no constitutional defect.

In People v. Baker (1980), 82 Ill. App. 3d 590, 403 N.E.2d 46, the defendant was convicted of possession of a schedule III substance — a Class 3 felony. At the time of his conviction, delivery of a schedule III controlled substance was also a Class 3 felony. The defendant contended that the entire Illinois Controlled Substances Act was invalid-relying on prior appellate court decisions holding that possession of a controlled substance could not be punished more severely than delivery' of the same substance. The court in Baker distinguished these earlier cases on the basis that the provision under which Baker was convicted did not punish possession more severely than delivery, but rather, classified both as Class 3 felonies. The court stated, “A statutory scheme punishing possession of phenmetrazine equally as severely as the delivery of that substance is not so irrational, nor such an obvious mistake of the legislature, that we should decline to enforce it.” (82 Ill. App. 3d 590, 591-92, 403 N.E.2d 46, 47.) Similarly, in People v. Craig (1979), 79 Ill. App. 3d 1019, 1023, 398 N.E.2d 1172, 1175, the court stated, “It is not unbelievable that the legislature might wish to punish possession as severely as delivery.” In Craig, the appellate court affirmed the conviction of two defendants for possession of controlled substances.

The analysis of the appellate court in Baker and Craig, with respect to the distinction between possession and delivery of a controlled substance, is also applicable to the distinction between delivery of a controlled substance and delivery of a substance represented to be a controlled substance. Just as the legislature may have punished possession of a controlled substance as severely as delivery of the same, it may punish delivery of a substance represented to be a controlled substance as severely as delivery of the real thing. Therefore, the classification of both delivery of a controlled substance and delivery of a substance represented to be a controlled substance as Class 3 felonies is constitutional.

However, as section 404 still provides for a $15,000 maximum fine while sections 401(e) and (i) provide for $10,000 and $5,000 respectively, it is seemingly still possible for a person to receive a greater fine for delivery or possession with intent to deliver a harmless substance represented to be a controlled substance than a person would receive for delivery/possession with intent to deliver an actual schedule IV or schedule V controlled substance. Hence, it would seem that section 404 is still invalid as a violation of the due process clause of the Illinois Constitution. Ill. Const. 1970, art. I, sec. 2; Wagner.

Some uncertainty over the constitutionality of section 404 arises out of the legislature’s piecemeal approach to amending the Illinois Controlled Substances Act. Wagner held section 404 unconstitutional. Subsequent amendments cured part of the defect. Because that portion of section 404 imposing a $15,000 fine was not amended, it was and is void — a nullity. (People v. Nicholson (1978), 61 Ill. App. 3d 621, 377 N.E.2d 1063.) If section 404 does not provide for a maximum fine of greater than $10,000, then, under section 5 — 9—1(a)(1) of the Unified Code of Corrections, the maximum fine for an offense is $10,000. Ill. Rev. Stat. 1979, ch. 38, par 1005 — 9—1(a)(1).

At first blush, this is still unconstitutional, because section 401(f) provides for only a $5,000 fine. But, this is not the case. As $10,000 is greater than the $5,000 maximum fine specified in section 401(f), section 5 — 9—1(a)(1) takes precedence and makes the maximum $10,000. Thus, although the clear language of section 401(f) provided for a $5,000 maximum fine and although the clear language of section 404 provides for a $15,000 maximum fine, the maximum for both under this interpretation is $10,000. Thus, there is no disparate punishment between sections 401(e), (f), and section 404.

This construction does effectuate the principle of statutory construction that wherever possible, a statute should be construed to uphold its constitutionality. However, in adhering to this principle, we would create an absurdity — statutes which say one thing but mean another.

As Wagner did not deal directly with the fine portion of section 404 and since the legislature has made some attempt to cure the constitutional defects of the Controlled Substances Act, we will take the section 404 in effect at the time of Burks’ conviction at face value. That is, as a Class 3 felony with a $15,000 maximum fine provided in the offense. So interpreted, section 404 is still unconstitutional because it provides for a more severe penalty than is provided in sections 401(e) and (f) which latter sections deal with more serious offenses.

The third district has recently held that “the disparity between the potential fines for section 404 offenses and section 401(e) or (f) offenses does not rise to constitutional dimensions.” (People v. Johnson (1982), 106 Ill. App. 3d 759, 766, 436 N.E.2d 757.) In so holding, the court relied on dicta from Bradley wherein the supreme court placed the stamp of approval on a statutory scheme which allowed a greater fine to be imposed under section 402(b) of the Act for possession of a controlled substance than under section 401(e) or (f) for delivery or possession with intent to deliver a schedule IV or V controlled substance.

We find Johnson unpersuasive and decline to adopt its interpretation of Bradley. The clear import of both Bradley and Wagner is that the legislature may not constitutionally punish a less serious crime more severely than a more serious crime. Wagner held section 404 unconstitutional because it did just that. Dicta in Bradley notwithstanding, due process protects property as well as liberty, and there can be no distinction between a sentence of imprisonment and a sentence of a fine. Thus, section 404 is still unconstitutional — in part.

SEVERABILITY

Although we hold the fine unconstitutional, we need not strike the entirety of section 404. Section 602 of the Illinois Controlled Substances Act provides:

“If any provision of this Act or the application thereof to any person or circumstance is invalid, such invalidation shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are declared to be sever-able.” Ill. Rev. Stat. 1979, ch. 561/2, par. 1602.

Our supreme court has established the following test for severability:

“ ‘If what remains after the invalid portion is stricken is complete in itself and capable of being executed wholly independently of that which is rejected, the invalid portion does not render the entire section unconstitutional unless it can be said that the General Assembly would not have passed the statute with the invalid portion eliminated.’ ” (City of Carbondale v. Van Natta (1975), 61 Ill. 2d 483, 490, 338 N.E.2d 19, 23-24, quoting from Livingston v. Ogilvie (1969), 43 Ill. 2d 9, 23, 250 N.E.2d 138, 146.)

The court has also acknowledged that a valid and invalid provision may even be contained in the same sentence. (Livingston.) The provisions of section 404 in question meet the test of severability under Van Natta and Livingston.

Accordingly, we affirm that portion of the trial court’s judgment imposing a sentence of 4 years, but vacate the $2,500 fine.

TRIVIA

Because of our ruling on the constitutionality of the fine, the other issues raised by the defendant become moot and need not be addressed.

Affirmed as modified.

GREEN, R J., concurs.

JUSTICE WEBBER,

dissenting:

The majority’s solution to the problem presented is not persuasive and is a usurpation of legislative prerogative. It is well established that it is the province of the legislature under the State’s police power to define and classify offenses and to prescribe penalties therefor. (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) The entire scheme of sections 401, 402, 403, and 404 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1981, ch. 561/2, pars. 1401, 1402, 1403, and 1404) is that of defining the offenses in terms of felony or misdemeanor and then providing for a fine in addition thereto. By striking the fine from section 404 the majority punches a large hole in this otherwise seamless web. The ubiquity of the fines throughout the penalty sections, and the size thereof, e.g., $200,000 under section 401(a), indicates a clear intention on the part of the legislature to “take the profit out of drugs.”

The better solution, as exemplified in Bradley and Wagner, is to declare the entire section void and thus give the legislature the opportunity of correcting its own oversight. In both of those opinions the supreme court acknowledged the amendments of 1979, yet felt unable to apply them retroactively to the date of the respective convictions, both of which were prior to the effective date of the 1979 amendments. The result, of course, is to release some patently guilty defendants, but the long-range good in obtaining a consistent series of punishments is a necessary trade-off.

The opinion in Wagner has pointed out the problem. After reviewing the legislative amendments of 1979, Justice Clark said:

“Possession or delivery of a noncontrolled substance under section 404 still subjects one to a greater fine than may be imposed under sections 401(e) or (f) (Ill. Rev. Stat. 1979, ch. 561/2, par. 1401).” (89 Ill. 2d 308, 310, 433 N.E.2d 267, 268.)

A clearer signal for legislative action would be difficult to find.

Moreover, by invalidating the fine, the majority may only invalidate the amount thereof. Under section 5 — 9—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 9—1) a fine is an authorized disposition. The net result of the majority opinion is to leave standing a fine without any specific amount. In such case, section 5 — 9—1(a)(1) (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 9—1(a)(1)) is triggered. Since no fine is specified under the majority opinion, it becomes $10,000 under this section of the Code. This still puts it at odds with the fine specified in section 401(f) which is $5,000.

Although not pertinent to this discussion, it may well be inquired whether any $5,000 fine is authorized. Section 5 — 9—1(a)(1) of the Code provides for a fine of “$10,000 or the amount specified in the offense, whichever is greater” for a felony.

For all the foregoing reasons, I would follow Wagner and reverse the defendant’s conviction in its entirety.


author: PRESIDING JUSTICE BARRY JUSTICE ALLOY,

text:
    MARY ANGELA MYRE, a Minor, by William Myre, her Father and Next Friend, Plaintiff-Appellee and Cross-Appellant, v. THE BOARD OF EDUCATION OF SENECA TOWNSHIP HIGH SCHOOL DISTRICT NO. 160, La Salle and Grundy Counties, Defendant-Appellant and Cross-Appellee.
    Third District
    No. 81 — 405
    Opinion filed August 9, 1982.

      ALLOY, J., dissenting.
    Gerard E. Dempsey, of Klein, Thorpe and Jenkins, Ltd., of Chicago, and Ben A. Goodin, of Aurora, for appellant.
    John F. Vickers, of Brusatte & Vickers, of Ottawa, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The substantive issue in this case is whether the trial court erred in granting injunctive relief to a former high school student for the school board’s violation of her right to substantive due process of law. For the reason explained below, we do not decide that issue.

Mary Angela Myre, the plaintiff, filed a complaint in the circuit court of La Salle County on November 10, 1980, alleging that her rights to substantive due process had been violated when she was improperly subjected to in-school suspension and, as a consequence, missed certain examinations which could adversely affect her opportunity for college admission. The discipline measure resulted from Mary’s having been found in possession of beer at an out-of-town football game on October 31, 1980. Mary, a high school senior at the time, admitted the offense and was given a choice as to which form her discipline would take-in-school or out-of-school suspension. After discussing the matter with her parents, Mary chose in-school suspension for a five-day period, as specified in the student handbook for alcohol/ drug use, and a two-month restriction on attending extra-curricular activities. Following a special meeting of the Seneca Township Board of Education (defendant herein) and Mary’s father, the board approved the disciplinary measures. Mary began to serve her five-day in-school suspension on November 6,1980.

By November 10, Mary had missed a biology II test, and stood to miss examinations in family living and accounting before the completion of the in-school suspension period. However, on that date she sought and obtained temporary injuctive relief from the circuit court. In addition to enjoining the school from preventing her from taking exams for the remainder of the in-school suspension period, the court ordered that Mary be permitted to make up all missed examinations.

The examinations were, in fact, taken by Mary. On December 22, 1980, the suit for permanent injunctive relief (count I of plaintiff’s complaint) proceeded to a trial on the merits. Although she had received grades for the accounting and family living tests, her biology exam remained ungraded pending the court’s ruling. At the conclusion of testimony on January 5, 1981, the court found that the rule under which Mary had been disciplined was a valid one but that, as applied to the circumstances herein, it constituted a deprivation of her rights to substantive due process. On January 16, 1981, the court entered its order granting permanent injunctive relief and ordering the school to credit grades for all examinations given pursuant to the T.R.O. The court further ordered that count III of plaintiff’s complaint, in which she requested attorney fees pursuant to “§1983 of Title 42 of the United States Code, as amended,” would be heard at a later date.

On February 26, 1981, plaintiff’s complaint was amended to add that count I was brought pursuant to “§§1983 and 1988 of Title 42 of the United States Code,” and that count III was being brought pursuant to section 1988. The hearing on attorney fees was held on the same date. Counsel for Mary testified that they had billed her $1,850 for attorney fees, representing “in excess of 51 hours of work *** at about $40 or $45 an hour,” and $101 in court costs. The court took the matter under advisement at the close of all testimony and arguments of counsel, and entered judgment in favor of Mary on June 5, 1981. The court’s order awarded plaintiff $1,918, representing $1,850 for attorney fees and $68 for court costs.

On July 2, 1981, the board filed its notice of appeal. Plaintiff filed a cross-appeal on July 10. On January 27, 1982, plaintiff filed in this court a motion to dismiss the board’s appeal, asserting therefor two bases: lack of appellate jurisdiction over the issue of permanent in-junctive relief which was granted on January 16, 1981, and mootness. We took both the motion to dismiss and the board’s response thereto with the case.

Plaintiff contends that the board’s July 2, 1981, notice of appeal, which made specific reference only to the June 5 order, sought appeal only from the order of attorney fees. Therefore, she argues, this court lacks jurisdiction over the issue of the permanent injunction. The board, on the other hand, takes the position that the July 2 notice of appeal was sufficiently broad to encompass the January order of permanent injunctive relief. In support of this position, the board points to language in the notice which, they contend, sufficiently apprised the plaintiff that the board intended to appeal the rulings entered in January. In essence, the notice of appeal reads as follows: “You are *** notified that the Defendant *** appeals *** from the order of the Circuit Court *** entered *** on the 5th *** of June, 1981. By said order the *** Judge *** found all issues in favor of Plaintiff *** and affirmed the prior oral order *** granting plaintiff’s *** petition for Permanent Injunctive and Other Relief.”

We agree with the board that this language is in substantial compliance with the notice requirement of Supreme Court Rule 303(c) (73 Ill. 2d R. 303(c)) even though it may be technically faulty. Generally, the notice of appeal is to be liberally construed with a view to its purpose. (Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 394 N.E.2d 380.) Errors made in specifying the dates of orders appealed from have been held not to bar an appeal where the substance of the notice of appeal, as a whole, fairly and clearly informs the other party of the judgments over which review is sought. (In re Estate of Malloy (1981), 96 Ill. App. 3d 1020, 422 N.E.2d 76; Hamer v. Board of Education (1978), 66 Ill. App. 3d 7, 383 N.E.2d 231.) In our opinion, the notice of appeal herein satisfies the minimum requirements of the rule as liberally construed in that it clearly mentions the grant of injunctive relief as a basis for the appeal. Whether the reference to June 5 was in error because it should have been January 5 (the date of the court’s oral order on the issue of permanent injunctive relief) or whether the June 5 date was intended to refer only to the court’s award of attorney fees, and the failure to specify January 5 was an error of omission, is not dispositive of the question of adequacy of the notice of appeal. Rather, the purpose of the document — to give fair notice of the issues to be advanced by the appellant-must be met. In this case it was, and the plaintiff has failed in any event to demonstrate any prejudice resulting from the board’s failure to specify the date of the court’s grant of injunctive relief. Accordingly, we will not dismiss this appeal for lack of appellate jurisdiction.

The plaintiff’s second contention for dismissal is based on the doctrine of mootness. The mootness argument requires the recitation of a few additional facts which appear in an affidavit attached to plaintiff’s motion to dismiss. The plaintiff was graduated from high school in June 1981. She was accepted for and did commence attending college in the fall 1981 semester at Western Illinois University, Macomb, Illinois. Since plaintiff has already taken the high school examinations, received her grades, and has been accepted into a college of her choice, the argument continues, any decision of this court contrary to that reached in the circuit court could have no practical effect upon either party. We agree with plaintiff’s argument.

It is significant to this issue that the trial court specifically found the rule itself was not invalid. We agree. It is a harsh rule, but the broad discretion accorded school authorities enables the rule to be tailored to the specific circumstances of the particular student being disciplined under it. We therefore agree with the trial court that the only basis for a grant of relief to this plaintiff was her complaint that the rule as applied to her deprived her of her rights.

There exists, however, no present controversy between the parties concerning the issue of permanent injunctive relief. Certainly we could not order plaintiff to “untake” the exams. An order of this court reversing the court’s order that credit be given for the exams would have, at best, only highly speculative consequences, since plaintiff is already in college. In effect, the issue of this plaintiff’s rights to substantive due process is moot.

We also find that the present case does not qualify as an exception to the mootness doctrine. (See People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 104 N.E.2d 769; Environmental Protection Agency v. Pollution Control Board (1980), 88 Ill. App. 3d 71, 410 N.E.2d 98; August H. Skoglund Co. v. Department of Transportation (1978), 67 Ill. App. 3d 276, 384 N.E.2d 849; Sosna v. Iowa (1975), 419 U.S. 393, 42 L. Ed. 2d 532, 95 S. Ct. 553.) Since the matter is moot any further comment on the merits of the trial court’s order would be improper because such comment would have advisory effect only. (See Madison Park Bank v. Zagel (1982), 91 Ill. 2d 231.) Accordingly, we dismiss the substantive issue of this appeal as moot.

The board has attempted to resist plaintiff’s mootness argument by characterizing the other issue raised on appeal — whether attorney fees were improperly granted by the trial court — as a “collateral legal consequence” requiring our consideration of the entire appeal. (See Chebny v. Stuart (1979), 68 Ill. App. 3d 419, 386 N.E.2d 352.) The plaintiff has responded to this argument by citing Doe v. Marshall (5th Cir. 1980), 622 F.2d 118, as authority for a reviewing court’s consideration of the correctness of awarding attorney fees despite a finding of mootness on the merits.

While we agree generally with the rationale of Marshall that the issue of attorney fees is not a collateral legal consequence that would save the substantive issue on appeal from dismissal under the doctrine of mootness, we are not bound to the ultimate disposition obtained in Marshall, which was to remand the matter to the trial court for a proper determination of attorney fees. Marshall involved, as here, a student who had been granted injunctive relief and had completed high school during the pendency of the appeal. The Fifth Circuit Court of Appeals disposed of the substantive due process issue by finding the matter moot and vacating the order of injunction. The court did not, however, remand for dismissal of the complaint. Therefore, legally and factually, the plaintiff in Marshall was a “prevailing party” for purposes of 42 U.S.C. sec. 1988 (1976) despite the application of the mootness doctrine to the due process issue.

In Illinois, however, it is well settled that a finding of mootness requires, in addition to vacatur of the order appealed from, remandment to the circuit court for dismissal of the complaint. Wheeler v. Aetna Casualty & Surety Co. (1974), 57 Ill. 2d 184, 311 N.E.2d 134.

Once the complaint is dismissed, there can be no “prevailing party” because the parties, in the eyes of the law, are restored to the positions they had occupied prior to commencement of the suit. Application of the Hlinois rule to the instant case means that the plaintiff was not at law a “prevailing party,” even though in fact it must be conceded that she was. Undeniably, the plaintiff was successful in that she obtained the injunctive relief she sought in the circuit court. The tests have been given, grades credited and their purpose served in that the test scores could be considered for college admission.

Since we find that the plaintiff was a “prevailing party” in fact, we are faced ultimately with the question of whether the plaintiff in this case has demonstrated a violation of her civil rights sufficient to state a claim under 42 U.-S.C. sec. 1983 (1976) for which attorney fees could be awarded under 42 U.S.C. sec. 1988 (1976). We find that she has not. (See Wood v. Strickland (1975), 420 U.S. 308, 326, 43 L. Ed. 2d 214, 227, 95 S. Ct. 992, 1003.) In Wood, the Supreme Court stated that section 1983 was not intended to be a vehicle for judicial correction of errors committed by school administrators in the exercise of their discretion respecting matters of student discipline so long as such errors do not rise to the level of violations of specific constitutional guarantees. In this case, it is clear to us that the only violation complained of by the plaintiff was a violation of general rights to substantive due process. As such, the error she complains of does not rise to the level of a violation of specific constitutional guarantees. See Tinker v. Des Moines Independent Community School District (1969), 393 U.S. 503, 21 L. Ed. 2d 731, 89 S. Ct. 733 (violation of first amendment guarantee of free speech and expression); Ep-person v. Arkansas (1968), 393 U.S. 97, 21 L. Ed. 2d 228, 89 S. Ct. 226 (violation of first amendment establishment clause requiring separation of religion and the State).

Accordingly, we vacate the order of permanent injunction and reverse and vacate the order of June 5 awarding attorney fees. This cause is remanded to the circuit court with directions to dismiss the complaint.

Reversed and remanded.

STOUDER, J., concurs.

JUSTICE ALLOY,

dissenting:

I respectfully dissent from the majority opinion in this case.

A case is moot where there is no actual controversy between the parties, and any decision by the court would thereby have no actual effect upon the interests or rights of the parties. The majority reasons that since Miss Myre has graduated from high school and entered college the constitutional question decided below is, “in effect,” moot. It must be noted, however, that there has never been any controversy between the parties concerning whether she could graduate or attend college. Such factual assertions are completely extraneous to the controversy which has existed between the parties. The controversy has been and continues to be the right of the school district to enforce its disciplinary regulations against Miss Myre by preventing her taking the exams and preventing her from receiving credit for those exams on her permanent record. The trial court’s injunction prevented the school from stopping Miss Myre in taking the exams and it mandated that the scores from the exams be entered on her permanent record. The real controversy all along has been centered upon this student’s permanent record and the school’s authority to impose sanctions which effect that record. The trial court’s mandatory injunction continues in effect and continues to prevent the school district from making any alterations in Miss Myre’s record based upon the disciplinary action.

The majority’s conclusory finding of mootness, focusing only upon the taking of the exams, fails to consider the real controversy, that being the effect of the disciplinary action on the permanent records of the student. If, as the majority concludes, the matter is moot, to be reversed and remanded thereby leaving the parties in the positions occupied prior to the suit, then the school district would no longer be under a mandatory injunction. While, practically speaking, they can no longer make Miss Myre “untake” the exams, absent the injunction there is nothing to prevent them from correcting Miss Myre’s permanent records so as to indicate that no credit is to be given for the exams taken during her disciplinary suspension. This speculation is not meant to encourage such action by the board, in the event the majority opinion is upheld, but rather merely to point out that the actual controversy has been, and continues to be, this student’s permanent record and the school board’s authority to impose disciplinary measures which have an effect upon that record. This controversy continues despite graduation and entry into college. The majority opinion dismisses as “highly speculative” any consequence of a reversal on our part. Such a view ignores the fact that a student’s permanent high school record may have a continuing effect, use and pertinence in our society. Such records are utilized not only by colleges and universities, at undergraduate and post-graduate levels, but also by the government, the military, and private sector employers in reviewing an applicant. There is a continuing actual controversy with important implications for both parties stemming from a decision on the merits in this case. Furthermore, the court has the power to grant effectual relief to the school board, for if the trial court’s action is reversed on the merits, as I believe it should be, then the school will be permitted to make the corrections in the permanent record it has sought to make from the start. The other practical effect is that the school board will know the boundaries of its authority in seeking to control and combat drug and alcohol abuse in the schools.

The majority opinion attempts to meet a difficult question by asserting that the controversy no longer exists. At the same time, the opinion seeks to accommodate a fair and correct result by depriving the plaintiff of any recovery of fees for the section 1983 action. The treatment of the section 1983 fees and costs question is seriously flawed. Clearly, as the majority does and must accept, plaintiff Myre was a prevailing party in the trial court. She obtained the preliminary injunction and was permitted to take the exams and have her scores entered on her permanent record. She is the prevailing party, substantially, even if mootness is used to avoid the central issue in the case. As a result, she would be entitled to fees under 42 U.S.C. sec. 1988 (1976). Section 1988 permits an award for fees and costs to a prevailing party in a 1983 action. To sustain a section 1983 claim a plaintiff must show that a defendant, acting under color of State law, deprived him of any right secured by the Constitution or laws of the United States. (42 U.S.C. sec. 1983 (1976).) In the instant case, the trial court determined that the school district, acting under State law and regulation, deprived Miss Myre of her constitutional right to due process, specifically to substantive due process. The right to due process arises by virtue of the fifth and fourteenth amendments to the United States Constitution. Section 1983 speaks to the “deprivation of any rights, privileges or immunities secured by the Constitution and laws.” The majority suggest that section 1983 was not intended to cover this particular constitutional violation. The majority, citing Wood v. Strickland in which the United States Supreme Court indicated that courts should be very circumspect in matters of school disciplinary discretion, makes a novel distinction between constitutional rights under section 1983. The majority finds there are specific constitutional rights and there are general constitutional rights, and that section 1983 was meant to cover the former, but not the latter. Presumably, judging from the majority opinion, the first amendment provides for specific rights, while the due process clauses of the fifth and four-teeneth do not. Rather, due process provides only general rights, which are somehow less deserving of and entitled to protection than the more specific constitutional rights. This general and specific distinction utilized by the majority is without basis. The language of section 1983 is “any right secured by the Constitution,” and the court in Wood v. Strickland, when speaking of “specific constitutional rights,” is indicating those rights specifically protected by the Constitution. Due process rights, both procedural and substantive, are specifically protected by the Constitution. The court in Wood was saying that substantive due process should very rarely be used by courts to interfere with legitimate discretionary authority given schools in disciplinary matters. The court therein makes no statement or suggestion that substantive due process rights are “general rights” under the Constitution and thereby not entitled to relief under section 1983.

Nevertheless, the majority adopts such a distinction for the purpose of reaching a conclusion that plaintiff Myre is not entitled to fees. This result, coupled with the mootness finding on the principal issue, is a compromise. Such a compromise is not available here. Either Miss Myre prevails and is entitled to her fees, for the trial court found a violation of the Constitution which is actionable under section 1983, or Miss Myre does not prevail in her claim and is not entitled to fees. The distinction adopted by the majority to have its middle way is without adequate basis. The dissent’s position is that the trial court’s decision, finding a violation of substantive due process, was wrong and that it was an impermissible infringement by the courts upon the discretionary authority of the school district in disciplinary matters.

The merits of the case should be met. To the merits this dissent now turns.

The record discloses the following undisputed facts. On the night of October 31, 1980, plaintiff Mary Myre and a female friend attended an out-of-town football game between Yorkville and Seneca high schools. Mary Myre, at the time, was a 17-year-old senior at Seneca Township High Shook On the night of the football game in Yorkville, Mary Myre was found in possession of beer in the Yorkville high school parking lot. She was arrested by Yorkville police, on a possession of alcohol charge. The police, also, that night notified Seneca High School principal David Schmink, who was attending the football game. Mr. Schmink went to the parking lot where he was met by plaintiff Myre and several officers. Miss Myre admitted her mistake, and similar previous mistakes, and wondered what would be done about it by Mr. Schmink. He informed her the matter would be decided at another time, after further discussion with her. The following Monday morning, Principal Schmink met with her and the other student who had been caught in possession of beer at the football game. After the meeting, he imposed a five-day suspension from school on Miss Myre and a two-month prohibition against attending extracurricular activities.

The rules and regulations adopted by the School Board, pursuant to section 24 — 24 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 24 — 24), in pertinent part, stated:

“The following are considered serious violations of positive constructive student behavior:
* * *
11. Possession, use or distribution of alcohol or drugs.
ALCOHOL/DRUGS
* * *
4. Following the determination of the use of controlled substances or cannabis and/or alcohol, the following actions will be taken:
First Offense
The student will be suspended from school for five (5) days * ** >>

The rules and regulations also provided for various methods of discipline to be utilized for major offenses, included was the “in-school suspension.” That suspension was stated as follows:

“Students on an in-school suspension will be assigned to a certain room for all class periods. During an in-school suspension, all work is to be done and completed; any tests that are missed cannot be made up, although daily work may be made up. The student forfeits all rights to attend after school activities. Parents will be notified of all in-school suspensions.”

Following imposition of the in-school suspension, Miss Myre’s parents were notified by telephone and by written notice. An appeal of the suspension was taken by Miss Myre’s father, and meetings were held between him and the principal and superintendent. The school board also held a special meeting to meet with Miss Myre’s father to consider the suspension. It was reviewed and approved.

On November 6, 1980, Mary Myre began to serve her in-school suspension. She remained in a designated room during all class periods and did not attend regular classes. She was not allowed to take regularly scheduled tests and exams and would not have been allowed, under the rules, to make them up either. She received a zero for tests and exams which occurred during her suspension. On the third day of her scheduled five-day suspension, Mary Myre, by her father as next friend, filed a petition for injunctive relief, requesting a temporary restraining order and a preliminary injunction to prevent the school board from keeping Mary Myre from taking regularly scheduled tests and exams. The circuit court, acting ex parte, issued a TRO directing the school board to permit Mary Myre to take her tests and exams and to allow her to make up any tests and exams she had missed because of the suspension. The school district complied with the court’s orders.

Shortly before trial on the merits was to begin, plaintiff amended her petition by adding a count III, asserting a cause of action under 42 U.S.C. sec. 1983 (1976), the civil rights statute. The trial proceeded as scheduled, despite the amendment, based upon count I of .the petition, alleging deprivation of plaintiff’s constitutional right to due process, specifically substantive due process. At trial, the superintendent of the high school testified concerning the rules and regulations. He stated that an in-school disciplinary suspension was a common procedure throughout schools in the country, and the purpose behind it was to have students stay in the school environment, to encourage them to use their initiative to pursue classroom studies, even though they were prevented from attending regular classes. He also explained how the board had arrived at the policy regarding alcohol and drugs and the prohibition of those items in school or at school functions. He further stated his personal opinion that the purpose of preventing a student from taking exams and tests was to obtain parental cooperation in addressing the problem causing the suspension. The superintendent testified that the rule regarding possession and use of alcohol or drugs was adopted in March 1979, and the policy of allowing an in-school suspension was instituted in 1980.

Further testimony relative to the suspension, its purposes and effects in the case was received from Principal Schmink. He testified that Miss Myre’s failure to take the tests during her suspension would not have prevented her graduation, nor would it have hindered her admission to Western Illinois University, Eastern Illinois University, or Northern Illinois University. Her high scores on entrance exams would have assured her of admission to these schools, according to him. He also stated that the purpose of an in-school suspension is to punish the student and to motivate him or her.

On January 5, 1981, after trial, the court, in an oral opinion, stated its findings in the case. The court held that the rule in question, disciplining for possession or use of alcohol was valid, in that it sets forth the violations and the punishment for a violation. The court found no constitutional infirmity with the rule on its face. However, the court ruled that as applied to the plaintiff Mary Myre in the circumstances of this case, the rule violated her right to substantive due process under the Constitution. This ruling was based upon the court’s conclusion that the punishment was unduly harsh for the conduct in which Miss Myre engaged. In reaching this conclusion the court construed the rule, requiring a five-day suspension for possession of alcohol, to have been enacted for the purpose of calling the authorities’ attention to drug or alcohol conditions of a more chronic nature. The court felt that the rule was not adopted to cover a situation where a student is found with a beer or two at a school football game. The court concluded that the rule as applied did not fit the problem which the court felt it was designed to address. Noting that the principal effect of the punishment was to prevent the student from taking exams and tests, the court found that such academic sanction was improper when the conduct giving rise to the discipline was not directly related to academic matters. Based upon its finding a disparity between the conduct engaged in by the plaintiff and the discipline meted out by the board, the court found that Miss Myre’s substantive due process rights had been violated. It granted permanent injunctive relief, preventing the school from barring plaintiff from taking the exams scheduled during the suspension and ordering that the grades from those exams be reflected on her permanent school record.

The issue is whether the circuit court erred in its conclusion that the disciplinary action by the school board violated plaintiff Myre’s substantive due process rights. As the court noted in Hamer v. Board of Education (1978), 66 Ill. App. 3d 7, 11:

“It has been established that rights incident to a public education are property rights entitled to both substantive and procedural due process protection. (Knight v. Board of Education (1976), 38 Ill. App. 3d 603, 607, 348 N.E.2d 299, 302.) It is also apparent that further educational and employment opportunities can be impaired by a poor school record or, by the same token, enhanced by a good record. (See Goss v. Lopez (1975), 419 U.S. 565, 42 L. Ed. 2d 725, 95. S. Ct. 729.)” (See also Donaldson v. Board of Education (1981), 98 Ill. App. 3d 438, 424 N.E.2d 737.)

The appropriate standard for reviewing alleged substantive due process violations resulting from disciplinary action by a school board is whether the action of the board is arbitrary and capricious, in that there is lacking a rational relationship between the punitive action taken and legitimate disciplinary objectives behind the sanction. (Ha-mer v. Board of Education (1978), 66 Ill. App. 3d 7, 11; Donaldson v. Board of Education (1981), 98 Ill. App. 3d 438, 439; Knight v. Board of Education (1976), 38 Ill. App. 3d 603, 608.) In Knight, the court analyzed the issue by weighing the severity of the sanction with the severity of the conduct sanctioned, to arrive at a decision. (38 Ill. App. 3d 603, 608.) It has been repeatedly emphasized, however, that in matters of student discipline, local authorities are given a broad discretion within which to function, and where the actions taken arguably serve a legitimate educational purpose, courts will not interfere, despite the fact that they may disagree with the action. The basis for the courts’ reluctance to interfere in such matters was recently stated by the court in Donaldson v. Board of Education (1981), 98 Ill. App. 3d 438, 439:

“School discipline is an area which courts enter with great hesitation and reluctance — and rightly so. School officials are trained and paid to determine what form of punishment best addresses a particular student’s transgression. They are in a far better position than is a black-robed judge to decide what to do with a disobedient child at school. They can best determine, for instance, whether a suspension or an after-school detention will be more effective in correcting a student’s behavior. Because of their expertise and their closeness to the situation— and because we do not want them to fear court challenges to their every act — school officials are given wide discretion in their disciplinary actions.”

The circuit court in the instant case utilized a two-step analysis in reaching its conclusion that the rule against possession or use of alcohol or drugs, as applied to Miss Myre, was arbitrary and capricious and violated her right to substantive due process. It first interpreted the rules against possession and use of alcohol or drugs as a measure designed to bring to the attention of authorities acute drug or alcohol conditions in a student. The court stated that the rules did not seem to be specifically adopted to cover the situation where a student is caught with a beer or two at a football game. The court, on that basis, then concluded that the application of the rule to Miss Myre’s conduct was not within the.intended scope of the purpose for which it was adopted. Having concluded that the rule was being applied to a situation not intended by the board that adopted it, the court then stated its opinion that the punishment imposed (the five-day suspension without being able to take or make up tests and exams) was unduly harsh, in light of the minor nature of the offense. In so concluding, the court apparently placed some emphasis on the fact that the violation occurred at an extracurricular activity while the punishment inherent in the suspension had an effect on academics. I would reverse.

School boards are granted the power to adopt and enforce reasonable rules and regulations in pursuance of their mandated task of maintaining discipline. (Ill. Rev. Stat. 1979, ch. 122, pars. 10 — 20.5, 24 — 24.) The obvious underlying purpose of disciplinary rules respecting the possession and use of drugs or alcohol by students is to control and minimize the presence and effect of such substances among high school students. Such rules are in complete accord with the State and local criminal laws respecting drug and alcohol possession and use by minors. The extent of the problems in this area, throughout the country and State, and their devastating effect upon students and parents alike is readily apparent and need not be documented. We can take judicial notice of this unfortunate fact of life in our schools. Certainly, as the trial court noted, the schools, in their rules and regulations, are concerned about students with acute drug or alcohol problems. However, school administrators are justifiably as concerned about preventing such problems from ever developing in the first place. They are concerned about controlling and eliminating the presence of drugs or alcohol, in whatever quantities, in and around the school and school activities. In short, they are vitally interested in deterring such conduct from taking place at any level and at any time among their students. The rule adopted by the Seneca board in this case, which by its terms applies to any possession or use of alcohol or drugs, serves that deterrent purpose. The rule as applied to Miss Myre also serves that deterrent purpose and furthers the legitimate purpose and goal of controlling and minimizing the presence and use of drugs and alcohol by students. A school board cannot examine a situation in isolation, divorced of its implications for other students and the overall conduct of the school in general. Youthful drug and alcohol use are problems which cut across all socio-economic groupings. As such, a sanction which has an effect upon grades, and thereby academic standing, may be a very useful deterring measure, especially to those students who themselves, or whose parents, place a high premium upon academic success in school. Without the bite of a potential grade reduction accompanying a suspension, such a sanction would be a toothless measure indeed. The deterrent function of such disciplinary rules would be significantly undermined, if not eliminated entirely, as to any number of students if there were no effect upon grading at all. The use of an in-school suspension, complete with loss of test and examination privileges, serves a significant and legitimate purpose in the school’s efforts to control discipline generally, and to control the use of dangerous intoxicants, specifically. The school board’s actions in the instant case served those purposes and goals. We find the court’s narrow approach to interpretation of the purpose of the school’s rule to be unsupported in fact or logic. On its face and by its terms, the rule was adopted and designed to deal with situations wherein a student, in an academic setting or at a school function or activity, was found to be in possession of alcohol or drugs, even a single beer or a single marijuana cigarette. To uphold the circuit court’s construction would be contrary to the plain language of the rule and it would be to strip the schools of the power to effectively deal with drug and alcohol problems until they were out of hand. It would do no service to the schools or, ultimately, to the students and their education.

Possession of drugs or alcohol, however longstanding such custom and however prevalent such may be, is serious, and potentially damaging conduct for a high school student. The in-school five-day suspension herein imposed upon Miss Myre for such conduct on her part was an acceptable and reasonable method for sanctioning her. There exists a rational relationship between the purpose served by the rule and its punitive effect, generally and in this case. Nor is there any impermissible imbalance between the severity of the offense and the severity of the punishment, in light of the purposes and goals behind such punishment. No showing was made that imposition of the sanction would have adversely affected Miss Myre’s graduation or her admission to a university. The only evidence on such matters was to the contrary. The School Board’s disciplinary action was not arbitrary or capricious. It was rational and reasonable in light of the problems sought to be addressed by the rule.

Some passing comment, in conclusion, needs to be made concerning the distinction drawn by the trial court, and emphasized by appel-lee on appeal, between academic matters and nonacademic matters. The argument, plainly put, is that academic sanctions are inappropriate for punishing improper conduct which occurs outside the strictly academic context. Such compartmentalizing of the educational function of our schools evidences a strained and myopic approach to the purposes and goals of public education and finds no sanction in the School Code. Schools have an academic aspect, to be sure, and a substantial one, but their primary purpose and goal is education, education in the broad sense of the term. The rules and regulation of a school, especially those dealing with discipline, are designed to further that broad educational objective. Prohibiting school administrators from utilizing academic sanctions, or sanctions with academic implication, against conduct which occurs in a nonacademic setting would strip them of an effective tool for maintaining discipline both at school and at school activities of all natures. As applied in the instant case, it would also strip them of an effective tool for combatting the dangers posed by alcohol and drugs to teenagers. The presence of and the dangers posed by alcohol and drug use are not confined to any one context, and the measures to battle them cannot be confined either, if any success is to be made. An approach such as is argued by appellee would be most difficult to administer, would run contrary to the broad educational purposes of public education, and would be contrary to the best interests of the schools and their students. It is unsound.

I would find, in summary, that the in-school suspension of Mary Myre violated no constitutional right which she possessed and that the court’s judgment in her favor should be reversed. With a reversal of the judgment, the award of fees and costs, under section 1983, based upon her having prevailed in the action, would also be reversed.


author: JUSTICE McNAMARA

text:
    STEPHANIE INGRAM et al., Plaintiffs-Appellants, v. LITTLE COMPANY OF MARY HOSPITAL, Defendant-Appellee.-(ROBERT B. McCREADY, M.D., Defendant.)
    First District (3rd Division)
    No. 81-1567
    Opinion filed June 2, 1982.
    Modified on denial of rehearing August 25, 1982.

      Joseph C. Owens, of Chicago, for appellants.
    Lord, Bissell & Brook, of Chicago (Harold L. Jacobson, David J. Slawkowski, and Hugh C. Griffin, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court as modified upon the denial of rehearing:

Plaintiff, Stephanie Ingram, appeals from an order of the trial court dismissing count II of her second amended complaint in a medical malpractice action against defendant, Little Company of Mary Hospital. The trial court ruled that the complaint failed to state a cause of action against the hospital for wilful and wanton misconduct. Plaintiff’s complaint against Doctor Robert B. McCready for negligence and wilful and wanton misconduct and against the hospital for negligence is still pending in the trial court. The facts as revealed by the pertinent pleadings are as follows.

Plaintiff alleged that in April 1978, she consulted and employed Doctor McCready to treat her for her pregnancy. In June the doctor informed her the fetus had died.

In August 1978, she entered the hospital at the doctor’s instruction to have the fetus surgically removed. The doctor told plaintiff that he would induce contractions by the use of a new medication which was unfamiliar to him and the hospital staff. After the medication was administered and the desired effect was not achieved, contrary to the manufacturer’s recommendation, the doctor repeated the medication nine hours later. Despite the insufficient dilation of plaintiff’s uterus, the surgery was performed.

Assisted by hospital staff, the doctor removed the placenta and umbilical cord, but not the fetus. Plaintiff was placed in a hospital recovery room where the doctor informed her that he found no evidence of a fetus. Plaintiff was not advised by the doctor or any member of the hospital staff that she could spontaneously expel her fetus at any time.

The next day, plaintiff, assisted by a nurse, sat on a toilet. There, she felt her cervix enlarge and her baby fell into the toilet. When plaintiff requested that an autopsy be performed the doctor assured her it was unnecessary since the fetus was SVa months old. A subsequent report showed the fetus to be 5 or 6 months old.

The complaint further alleged that “with a conscious indifference to circumstances and conditions” the hospital by its agents and servants “committed the following wilful and wanton acts:

(a) Wilfully and wantonly maintained and controlled said hospital ***;
(b) Wilfully and wantonly failed to provide skillful *** medical, surgical and nursing care ***;
(c) Wilfully and wantonly performed [the operation] *** without removing the fetus from her womb, although it did remove umbilical cord and placenta ***;
(d) Wilfully and wantonly failed and omitted to call in another competent medical doctor to assist in or take over the treatment *** after [the doctor’s] unsuccessful effort to remove her unborn child ***;
(e) Wilfully and wantonly terminated the *** operation at a stage that left Plaintiff in such condition that the dead fetus was expelled spontaneously *** the following day ***.”

In finding the count deficient, the trial court suggested that the hospital, since it did not perform the surgery, could not be guilty of wilful and wanton misconduct under any circumstances. The hospital argues, however, that the complaint was deficient since, except for the insertion of the words “conscious indifference” and “wilful and wanton,” the allegations in count II essentially mirrored the allegations in another count based on ordinary negligence.

Defects in one count cannot be cured by reference to other counts not expressly incorporated therein; and conversely, the validity of one count cannot be destroyed by comparison to other allegations made in good faith in separate counts. See, e.g., O’Brien v. Township High School District 214 (1980), 83 Ill. 2d 462, 415 N.E.2d 1015, where our supreme court held that mirror-allegations of wilful and wanton misconduct stated a cause of action.

A hospital may be liable for injuries suffered by a patient under its care on two distinct theories. The hospital may be liable both for its physician-agent’s misconduct and for a violation of an independent duty owed by the hospital to review and supervise medical care administered to a patient. Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253; Johnson V. St. Bernard Hospital (1979), 79 Ill. App. 3d 709, 399 N.E.2d 198.

Wilful and wanton misconduct need not be an intentional act, but may be an act “committed under circumstances exhibiting a reckless disregard for the safety of others ***.” (O'Brien v. Township High School District 214, (1980), 83 Ill. 2d 462, 469.) Whether or not there has been wilful or wanton misconduct in a given case “necessitates close scrutiny of the facts as disclosed by the evidence.” 83 Ill. 2d 462, 469.

While ultimate facts necessary to support an action must be alleged, the pleader need not set forth evidence which very well may be derived from discovery subsequent to the filing of the complaint. • (People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 430 N.E.2d 1005.) The line between an ultimate fact and legal conclusion is difficult to discern and depends to some extent upon the particular case. (People ex rel. Fahner v. Carriage Way West, Inc.) We believe the allegations in count II state an action for wilful and wanton misconduct sufficient to withstand a motion to dismiss.

The present complaint contains highly detailed factual allegations of the acts committed by agents and servants of the hospital and also contains sufficient allegations of the hospital’s breach of its independent duties to review and supervise. We cannot say, prior to a presentation of the evidence, that plaintiff will not be able to prove the hospital’s alleged breach of duty. Without the aid of discovery, the averment that the actions or inactions of the hospital and its agents were performed with a conscious indifference to plaintiff’s safety, and in a wilful and wanton manner, sufficiently apprises the hospital of the claim against it. We cannot say, as a matter of law, that there is no evidence under these facts which could prove wilful and wanton misconduct. O’Brien v. Township High School District 214, Third Swansea Properties, Inc. v. Ockerlund Construction Co. (1976), 41 Ill. App. 3d 894, 354 N.E.2d 148; McRoberts v. Maxwell (1976), 40 Ill. App. 3d 766, 353 N.E.2d 159; Church v. Adler (1953), 350 Ill. App. 471,113 N.E.2d 327.

Two decisions relied upon by the hospital are inapposite. In Pen-dowski v. Patent Scaffolding Co. (1980), 89 Ill. App. 3d 484, 411 N.E.2d 910, a decision which preceded the supreme court’s holding in O’Brien, this court set aside on the basis of insufficient evidence a jury award for punitive damages for wilful and wanton misconduct. Further commentary on the sufficiency of the pleadings was merely dicta. Nor does the holding in Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177, dictate a different result in the present case. There, an allegation that defendant knowingly failed to remedy a dangerous condition was contradicted by another allegation that defendant attempted to change the condition after repeated drownings. No such contradiction exists here.

For the foregoing reasons, the judgment of the circuit court of Cook County dismissing count II of the second amended complaint is reversed and the cause remanded for further proceedings.

Judgment reversed and remanded.

WHITE, P. J., and RIZZI, J., concur.


author: JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTOPHER LEWIS WILKES, Defendant-Appellant.
    Fourth District
    No. 17506
    Opinion filed August 11, 1982.

      Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Robert J. Biderman and Garry W. Bryan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People. .
   JUSTICE WEBBER

delivered the opinion of the court:

Defendant was charged, tried, and convicted by a jury in the circuit court of Macon County of the offenses of rape and robbery in violation of sections 11 — 1 and 18 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 11 — 1 and 18 — 1). He was sentenced to imprisonment, 30 years for rape and 5 years for robbery, these sentences to run concurrently to each other, but consecutively to sentences being served at that time by the defendant under convictions in California.

Since no questions are raised on appeal concerning the adequacy of the State’s evidence nor the severity of the punishment, no extended recitation of the facts is necessary for the purposes of this opinion. The sole question raised in this court is the fact that defendant was compelled to appear at trial in shackles and jail uniform. However, the background of this question is important to an understanding of our decision.

Jury trial began on the morning of August 17, 1981, with jury selection. Defendant was present, unshackled and in street clothing, although he was in custody. Apparently the jury had not been selected by the time of the noon recess and defendant was returned to the jail for the midday meal. It also seems that he was shackled for traveling from the courtroom to the jail. Upon being returned by deputy sheriffs to the courtroom for the afternoon proceedings, defendant was outside the courtroom and out of the presence of the veniremen; the deputies were in the process of removing the shackles before entering the courtroom; when they were removed, defendant escaped from the deputies and fled from the courthouse. He was apprehended ábout one-half hour later, hiding in a trash dumpster about five blocks away. He was then returned to the courtroom wearing ankle and wrist shackles and a bright orange coverall with the legend “JAIL” stenciled across its back aspect. Defendant remained in such habiliments for the duration of the trial. Evidence of defendant’s flight was presented to the jury.

Although in his appeal defendant contests only the appearance at trial in shackles and jail clothing, he also points out two other occasions of the same variety: at a suppression hearing and at the post-trial motion hearing. While not arguing error in these incidents, he argues that the trial court’s remarks at those times indicate the court’s misapprehension of the law.

Prior to resuming jury selection, the State, out of the presence of the venire, made the record on the defendant’s flight. Defense counsel objected to bringing the defendant back to trial in shackles and jail uniform. The trial court overruled the objection, holding “that the restraint is necessary under these facts and circumstances.” Voir dire was then resumed and at its conclusion with a jury having been selected, defense counsel moved for mistrial on the same grounds as before, the appearance of the defendant in shackles and jail uniform. The State argued that defendant was seated facing the jury and therefore they were unable to see the legend “JAIL” across the back of the coverall. The trial court indicated in its ruling that it would attempt to have the defendant brought in and taken out of the courtroom after the jury had been removed so they could not observe the shackles, since in the court’s words they were “not readily visible to the jury panel so long as he’s seated at counsel table.” As to the uniform, the court stated that it was a “reasonable, necessary precaution.” It then denied the motion for mistrial.

Since different considerations apply, we will consider the shackles and the uniform separately. We hold that the shackles were justified; that the uniform was not and was error but harmless error; and that defendant was prejudiced by neither.

The supreme court carefully delineated the factors to be involved in shackling a defendant at trial in People v. Boose (1977), 66 I11.2d 261, 362 N.E.2d 303. It said:

“A defendant may be shackled when there is reason to believe that he may try to escape or that he may pose a threat to the safety of people in the courtroom or if it is necessary to maintain order during the trial. [Citations.] The determination is left to the discretion of the trial judge, and he may select the physical restraints most suitable in light of all the circumstances. [Citation.] The trial judge should state for the record his reasons for allowing the defendant to remain shackled, and he should give the defendant’s attorney an opportunity to present reasons why the defendant should not be shaclded. These proceedings should take place outside the presence of the jury. [Citations.]
Factors to be considered by the trial judge in making this determination may include:
‘[T]he seriousness of the present charge against the defendant; defendant’s temperament and character; his age and physical attributes; his past record; past escapes or attempted escapes, and evidence of a present plan to escape; threats to harm others or cause a disturbance; self-destructive tendencies; the risk of mob violence or of attempted revenge by others; the possibility of rescue by other offenders still at large; the size and mood of the audience; the nature and physical security of the courtroom; and the adequacy and availability of alternative remedies.’ [Citations.]
A reviewing court examines whether the trial court abused its discretion in requiring the defendant to appear shackled before the jury. It is obvious that the record should clearly disclose the reason underlying the trial court’s decision for the shackling and show that the accused’s attorney was given an opportunity to oppose this decision. [Citations.]” 66 Ill. 2d 261, 266-67, 362 N.E.2d 303, 305-06.

It will be seen that the experienced trial judge carefully followed the procedural dictates of Boose. After the record was made concerning defendant’s escape during recess, defense counsel was permitted to object and state the basis for his objection. After the voir dire was completed, he was permitted to move for mistrial and state his reasons at greater length. Both proceedings were held out of the presence of the jury. The trial judge did omit to state his reasons, other than- saying the precautions were “necessary.” However, it is apparent that he was letting the record speak for itself. Unlike Boose, where no apparent reason for shackling was advanced other than the nature of the offense, here a successful escape was accomplished in the very midst of trial and thus is far beyond the “reason to believe” he might try to escape. In the instant case escape was not a theory, it was a fact.

Shackling under such circumstances has been approved in other jurisdictions. Clark v. State (1967), 280 Ala. 493, 195 So. 2d 786, cert. denied (1967), 387 U.S. 571, 18 L. Ed. 2d 967, 87 S. Ct. 2071; People v. Rittenhouse (1971), 37 App. Div. 2d 866, 325 N.Y.S.2d 90.

Defendant argues that the trial court misapprehended the law as demonstrated by the court’s remarks at a suppression hearing and at argument on the post-trial motion. Defendant appeared in shackles at the suppression hearing and defense counsel objected. The court overruled the objection, stating, “Isn’t the restraint or shackling for the prejudicial effect it may have on the jury ***?” He then indicated that it did not prejudice him. Defendant cites Boose and In re Staley (1977), 67 Ill. 2d 33, 364 N.E.2d 72, wherein the supreme court set forth three reasons for avoiding shackling:

“(1) [I]t tends to prejudice the jury against the accused; (2) it restricts his ability to assist his counsel during trial; and (3) it offends the dignity of the judicial process. [Citations.]” People v. Boose (1977), 66 Ill. 2d 261, 265, 362 N.E.2d 303, 305.

It is true that the trial judge articulated only one of the reasons set forth in Boose, but this is no indication that he was unaware of the others. Furthermore, the suppression hearing dealt with nothing which appeared at trial and at trial the situation had changed radically with the escape which necessarily overrode other considerations.

We turn next to the court’s remarks at the hearing on the post-trial motion. He stated in part:

“Getting to this hearing today. Now then, we have the foundation from the trial. We also have a situation which makes the risk greater. We have a jury verdict of guilty. And again, if there’s reason for restraints at the trial, there are certainly restraints here. Once again, I’m not imposing any greater sentence because you are restrained. I’m not any more affected by the fact I see handcuffs, I see them everyday as they bring them in. We always have them taken off right behind the courtroom. We certainly don’t follow the rule that everybody who is handcuffed is evidently dangerous and evidently guity and evidently to be condemned; that is not the procedure, that is not the attitude. So, it’s a matter of having restraints today. I’m sure that the sheriff has a better idea of what is required in way of restraints than the Court who has very limited contact with any defendant and his conduct. I’m not up in the jail to see what goes on. Again, I do not think it is a matter that the Court ought to intervene and say, ‘Mr. Sheriff, you have the responsibility of the supervision and custody of this man, but the Court is going to tell you how to exercise that responsibility. The court’s going to say to you, Mr. Sheriff it’s your problem, but you cannot use what you should in order to accomplish the problem.’ And, I’m not about to say to the sheriff, ‘Remove those handicaps and let him run if he would run.’ I’m not about to say to the sheriff, ‘You can’t do what is necessary in order to perform your job.’ So again, with that matter, the Court is saying there is no error in having him here today under the restraint that he’s experiencing.”

From this defendant argues that the trial court was overborne by the sheriff and deferred completely to his opinion rather than making its own independent judgment. There is nothing in the record to sustain such a theory. At the testimonial hearing immediately following the escape a jailer opined that defendant was an escape risk, but otherwise there is no indication of any communication between the sheriff and the trial judge. In reading the court’s remarks fairly and as a whole, it is apparent that he was considering the sheriff’s opinion as only a part of his entire consideration of the factors set forth in Boose.

Defendant’s argument that errors in judgment by the trial court at the suppression hearing and at the post-trial hearing is without merit. It then follows that no error having been made at those times, there can be no taint extended to the proceedings at trial.

Defendant further argues that the trial court did not consider alternatives to shackling. He suggests the placing of additional guards in and about the courtroom. There is no indication that such additional personnel were avilable to the court without seriously infringing upon their other duties and obligations. It is also debatable as to which might have the more adverse effect upon the proceedings: shackles which were not visible nor obtrusive versus a veritable army of uniformed deputies present and at the ready.

Defendant also argues that leg shackles were enough and that little could be accomplished with the additional handcuffs. Handcuffs might be an impediment to a defendant in assisting his counsel (e.g., passing notes), but there is no indication in this record that defendant ever attempted to communicate with his counsel in any way.

We find no error in the trial court’s exercise of discretion (Boose) in shackling the defendant at trial, and we find no misapprehension in the trial court of the governing principles of law.

The orange jail uniform presents an entirely different situation. The Supreme Court has said that the State cannot constitutionally compel a defendant to stand trial before a jury in identifiable prison garb. (Estelle v. Williams (1976), 425 U.S. 501, 48 L. Ed. 2d 126, 96 S. Ct. 1691.) The Estelle court held that there is no essential State policy to be served in appearing in jail clothing, unlike the necessity of sometimes, and under proper circumstances, using physical restraint.

In the instant case the trial court said only that the orange coverall was a “reasonable, necessary precaution,” against what we cannot fathom. It might facilitate recapture, but we are at somewhat of a loss to see how another escape would be possible, given the presence of handcuffs and leg irons. Even if there were some additional security in the jail uniform, it must be balanced against the defendant’s interest in appearing in street clothing; in such a balance the weight preponderates in favor of the defendant.

In Estelle the Supreme court held that the error was waived by the failure of the defendant to object. Such is not the case here. Proper objection was lodged, not once, but twice, at trial, and also at the other hearings.

The requirement of jail garb was error, but it must be ascertained whether or not it was harmless error. Harmless constitutional error, as a doctrine, was laid down by the Supreme Court in Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824, but no precise formula for its application was announced. The appellate court in People v. Collins (1980), 85 Ill. App. 3d 1056, 1060, 407 N.E.2d 871, 875, suggested three approaches:

“(1) Focusing on the error to determine whether it might have contributed to the conviction [citation]; (2) Examining the other evidence in the case to see if overwhelming evidence supports the conviction [citation]; (3) Determining whether the error is merely cumulative or duplicates properly admitted evidence [citations].”

Estelle did not say that harmless error cannot apply in the case of an improperly clothed defendant, and the application of Chapman can be clearly inferred from the reasoning of Estelle.

We find Collins tests (1) and (3) appropriate here. The significant fact in this case is defendant’s flight, evidence of which was properly placed before the jury. The Estelle court quoted from United States ex rel. Stahl v. Henderson (5th Cir. 1973), 472 F.2d 556, cert. denied (1973), 411 U.S. 971, 36 L. Ed. 2d 694, 93 S. Ct. 2166: “ ‘No prejudice can result from seeing that which is already known.’ ” Estelle v. Williams (1976), 425 U.S. 501, 507, 48 L. Ed. 2d 126, 132, 96 S. Ct. 1691,1694.

The jury knew of the escape and to the extent that they knew, if at all, of the shackles, which we have held not to be error, the presence of the jail uniform was only cumulative and duplicative of properly admitted evidence and did not contribute to the conviction.

As to Collins test (2), overwhelming evidence, the case is somewhat closer. While the identification testimony and the forensic evidence standing alone might not be considered overwhelming, the addition of the element of flight does make them so. Its presence satisfies Collins (2).

Under any of the tests delineated in Collins, the error was harmless.

For all of the foregoing reasons, the judgment of the circuit court of Macon County is affirmed.

Affirmed.

GREEN, P. J., and MILLS, J., concur.