author: JUSTICE BARRY JUSTICE STOUDER,

text:
    FREDMAN BROTHERS FURNITURE CO., INC., Plaintiff-Appellant, v. THE DEPARTMENT OF REVENUE, Defendant-Appellee.
    Third District
    No. 3—83—0349
    Opinion filed November 30, 1984.
    STOUDER, P.J., dissenting.

      Herbert I. Fredman, of Collinsville, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Scott D. Spooner, Assistant Attorney General, of counsel), for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

This cause has come before this court for a second time. In 1979 the Department of Revenue issued a notice of tax liability to Fredman Brothers Furniture Company (Fredman) for the period January 1, 1976, through December 31, 1978, and following an administrative hearing, the Department issued its final assessment finding that Fred-man owed $12,403.78 in taxes, penalties, and interest. The assessment was issued on August 24, 1981, and was received by Fredman on August 26, 1981. Pursuant to section 4 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1981, ch. 120, par. 443), Fredman filed a request for rehearing on September 24, 1981, which was denied on October 15,1981.

On November 19, 1981, Fredman filed a complaint for judicial review of the Department’s final assessment in the circuit court of Peoria County. The court subsequently dismissed the complaint because Fredman failed to post bond within 20 days as required by section 12 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1981, ch. 120, par. 451). Fredman appealed, and this court reversed the dismissal and remanded the cause with directions that Fredman be granted a review of the assessment in the circuit court. (Fredman Brothers Furniture Co. v. Department of Revenue (1982), 110 Ill. App. 3d 479, 442 N.E.2d 627.) Upon remand, the Department filed another motion to dismiss the complaint, this time on the ground that the circuit court lacked subject-matter jurisdiction to review the August 24, 1981, final assessment because Fredman had failed to file its complaint for administrative review within the time allowed by statute. Under former section 267 of the Administrative Review Act (now a part of article III of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 103)), an action to review a final administrative decision must be commenced by filing a complaint within 35 days from the date a copy of that decision is served upon the party affected. Here the complaint was filed on November 11, 1981, more than 35 days after August 26, 1981, the date when Fredman received the order. The trial court granted the Department’s motion to dismiss, and Fredman appeals that ruling.

Taxpayer Fredman contends that the trial court ignored the mandate of this court to grant taxpayer review of the disputed assessment and that the jurisdiction issue was waived when it was not raised during the previous appeal. The Department relies upon the rule that lack of jurisdiction of the parties or the subject matter “can be raised at any time, in any court, either directly or collaterally.” (Dorr-Wood, Ltd. v. Department of Public Health (1981), 99 Ill. App. 3d 170, 173, 425 N.E.2d 499, 501. See also City of Chicago v. Fair Employment Practices Com. (1976), 65 Ill. 2d 108, 357 N.E.2d 1154.) We believe the words “at any time, in any court” would include in the circuit court following a remand from the appellate court. The mandate of this court directing the trial court to proceed to review the assessment was, of course, based on the assumption that the circuit court had jurisdiction of the subject matter. Accordingly, we hold that it was proper for the trial court to entertain the Department’s objection to jurisdiction.

Although not urged by the parties to this appeal, the dissent to this opinion takes the view that the 35-day limit for commencing judicial review of an administrative decision is a statute of limitations, not a jurisdictional requirement, and, therefore, is a defense that can be waived. We believe that the law of Dlinois is to the contrary. The 35-day limit has been held to be a jurisdictional requirement. People ex rel. Olin Corp. v. Department of Labor (1981), 95 Ill. App. 3d 1108, 420 N.E.2d 1043; Hoffman v. Department of Registration & Education (1980), 87 Ill. App. 3d 920, 410 N.E.2d 291; Johnson v. State Police Merit Foard (1968), 99 Ill. App. 2d 458, 241 N.E.2d 468.

Fredman also argues that our decision in the first appeal of this cause was final as to all questions which were raised and also all issues which could have been raised. As we have indicated, the prevailing rule is that a challenge to jurisdiction of the subject matter is always timely and can be raised at any stage of the proceeding, even upon remand following an appeal.

Next Fredman argues that the Department’s “final assessment” was not a final administrative decision subject to judicial review until 35 days after the request for rehearing was denied. The time for seeking judicial review is set forth in section 3 — 101 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 101), which states:

“In all cases in which a statute or a rule of the administrative agency requires or permits an application for a rehearing *** to be filed within a specified time (as distinguished from a statute which permits the application for rehearing *** to be filed at any time before judgment by the administrative agency against the applicant or within a specified time after the entry of such judgment), and an application for such rehearing *** is made, no administrative decision of such agency shall be final as to the party applying therefore until such rehearing *** is had or denied.”

Thus, the determining factor as to the finality of the administrative decision is whether the Retailers’ Occupation Tax Act permits application for rehearing within a specified time. The applicable provision of that act is found in section 4 (Ill. Rev. Stat. 1981, ch. 120, par. 443), which states, in part:

“After the issuance of a final assessment, or a notice of tax liability which becomes final without the necessity of actually issuing a final assessment as hereinbefore provided, the Department, at any time before such assessment is reduced to judgment, may (subject to rules of the Department) grant a rehearing *** upon the application of the person aggrieved.”

Thus, it is clear in this case the statute does not provide a specified time within which application for rehearing must be filed, but rather permits such application at any time before the assessment is reduced to judgment. Section 3 — 101 of the Code of Civil Procedure covers the instant situation, as follows:

“However, if the particular statute permits an application for rehearing *** to.be filed with the administrative agency for an indefinite period of time after the administrative decision has been rendered (such as permitting such application to be filed at any time before judgment by the administrative agency against the applicant ***), then the authorization for the filing of such application for rehearing or review shall not postpone the time when the administrative decision as to which such application shall be filed would otherwise become final, but the filing of the application for rehearing *** in this type of case shall constitute the commencement of a new proceeding before such agency, and the decision rendered in order to dispose of such rehearing *** shall constitute a new and independent administrative decision.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 110, par. 3-101.)

The statute goes on to specify how judicial review may be obtained from the denial of a rehearing in such a case.

Since the Retailers’ Occupation Tax Act provides for an indefinite period for application for rehearing, the 35-day period for filing a complaint for judicial review began to run on August 26, 1981. Fred-man’s complaint filed on November 11, 1981, was barred under section 3 — 101. Although this result may at first blush seem harsh, we believe it is compatible with the well-recognized legislative policy of insuring the financial solvency of State and local governments by facilitating the collection of taxes. Rather than permit a taxpayer to delay payment of taxes indefinitely by seeking rehearings of administrative rulings, the legislature in its wisdom has imposed reasonable time limitations upon the aggrieved taxpayers.

In People v. Scudder Buick, Inc. (1971), 47 Ill. 2d 388, 266 N.E.2d 324, the Illinois Supreme Court ruled that an administrative decision by the Department of Revenue was not final until the application for rehearing was disposed of and, therefore, that the 35-day period for judicial review does not begin to run while the application for rehearing is pending. However, Scudder Buick does not aid Fredman, because that case involved the assessment of capital stock taxes, and the applicable rule of the Department of Revenue provided that applications for rehearing must be filed within five days after the decision has been rendered and notice given. Consequently, Scudder Buick was controlled by the provision of section 3 — 101 involving a specified time for application for rehearing. The instant case is not.

Fredman cites Danison v. Paley (1976), 41 Ill. App. 3d 1033, 355 N.E.2d 230, in support of its contention that the decision was not final and reviewable until the application for rehearing was denied. Actually, Danison involved a situation where the plaintiff did not file an application for rehearing, and the court ruled that the administrative decision was final since no rehearing was sought. The court also stated that it is not necessary to file an application for rehearing in order to exhaust administrative remedies.

Fredman also claims that it has appealed from the denial of the application for rehearing as an alternative to its appeal from the final assessment. However, the complaint for judicial review, as amended, does not by its language purport to seek review of the denial of the rehearing. The prayer for relief is limited to a request for a review of the final assessment, and, although the application for rehearing is mentioned in the complaint as a part of the history of the proceeding, mere reference does not entitle the taxpayer to a review of that ruling. We also note that section 3 — 101 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 101) specifies that the record upon judicial review of the denial of an application for rehearing shall be limited to the application for rehearing and the order denying such application “and shall not include the record of proceedings had before the rendering of the administrative decision as to which the application for rehearing *** shall have been filed unless the suit for judicial review is commenced within the time in which it would be authorized by this Act to have commenced if no application for rehearing *** had been filed.” Under this provision, the taxpayer cannot obtain review of the final assessment by means of judicial review of the denial of its application for rehearing in any event.

As we have indicated, we believe the trial court did not err in ordering the dismissal of Fredman’s complaint.

Affirmed.

HEIPLE, J., concurs.

JUSTICE STOUDER,

dissenting:

I respectfully dissent from the majority opinion, primarily because I believe that the majority’s interpretation of the statute, specifically section 3 — 101 of the Code of Civil Procedure, produces an untenable result. Reading the statute to require judicial review while rehearing is pending before the administrative agency makes a mockery of the rehearing procedure provided for in the Retailers’ Occupation Tax Act. However, before discussing what I feel are the faults of the majority’s reading of section 3 — 101, I will add that, while I agree that the circuit court had a right to review the timeliness of the taxpayer’s request for judicial review, I disagree that it was appropriately considered because of a lack of subject-matter jurisdiction.

The matter of timeliness may be properly considered when raised in the trial court prior to a trial on the merits of the case, and there is no mandate that timeliness be raised at the first possible opportunity to do so. Consequently, timeliness may properly be raised as a defense in the opposing party’s answer. This does not, however, make the question of timeliness a jurisdictional matter, as the majority maintains. Too often, in my opinion, the word “jurisdiction” is misused and certainly overused. The time-bar of the statute of limitations does not deprive a court of jurisdiction. The statute of limitations operates to extinguish the remedy, not to extinguish the cause of action itself, and is said to be a rule of convenience. (See 51 Am. Jur. 2d Limitation of Actions sec. 13 (1970).) When errors are not jurisdictional they can be waived, as is certainly true with the statute of limitations. Furthermore, when an error can be waived it is not jurisdictional. The failure to raise error should not disturb the finality of a • decision.

The majority cites Dorr-Wood, Ltd. v. Department of Public Health (1981), 99 Ill. App. 3d 170, 425 N.E.2d 499, for the proposition that subject matter jurisdiction can be raised “at any time in any court either directly or collaterally.” I agree with this statement; however, Dorr-Wood involved a situation where the Administrative Review Law was found not applicable. This, in my mind, is a question of subject-matter jurisdiction and differs from this case, where the Revenue Act explicitly adopts the Administrative Review Law (see Ill. Rev. Stat. 1983, ch. 120, par. 451), and the reviewability of its decisions is unquestionable.

I, therefore, would have held that even if review of this matter were time barred by statute, at least its reviewability is unquestionable, and, because it is reviewable, the circuit court did not lack subject-matter jurisdiction. The question of timeliness is a potential bar to review and could be properly raised in the trial court, but I do not believe that the failure to timely file deprives the reviewing court of jurisdiction. Such cases as People ex rel. Olin Corp. v. Department of Labor (1981), 95 Ill. App. 3d 1108, 420 N.E.2d 1043, Hoffman v. Department of Registration & Education (1980), 87 Ill. App. 3d 920, 410 N.E.2d 291, and Johnson v. State Police Merit Board (1968), 99 Ill. App. 2d 458, 241 N.E.2d 468, illustrate the use of jurisdictional language in cases where the timeliness of the filing does not raise the crucial issue of jurisdiction. In fact, the predicate case Pearce Hospital Foundation v. Illinois Public Aid Com. (1958), 15 Ill. 2d 301, 154 N.E.2d 691, does not characterize the timeliness in seeking judicial review as being jurisdictional. Article VI, section 9, of the 1970 Constitution is general in its conferral of jurisdiction (Ill. Const. 1970, art. VI, sec. 9) upon the circuit courts of Illinois. Subject-matter jurisdiction, i.e., the general power to hear controversies of the type presented here, clearly exists by virtue of constitutional and statutory authority.

The majority’s interpretation of sections 3 — 101 and 3 — 103 of the Administrative Review Law requires judicial review of an administrative decision while rehearing before the Department of Revenue is still pending. This result is ludicrous and contravenes several major tenets of administrative law. I would have interpreted the statute to require that the action for review be commenced within 30 days after the rehearing procedure has terminated, so long as the rehearing procedure is instituted within 35 days after the final assessment has been served upon the taxpayer. This interpretation both furthers the goals of exhaustion and finality and still expedites the collection of revenues which the majority recognizes as an important goal of the legislature.

To sustain the holding of the majority would require the taxpayer to (1) institute judicial review when all administrative remedies have not yet been exhausted; (2) to seek judicial review when the decision of the administrative agency is not final, and (3) would permit simultaneous administrative and judicial review. The legislature has seemingly cleverly avoided these problems by designating all administrative rehearing procedures when “the particular statute permits an application for rehearing *** to be filed with the administrative agency for an indefinite period of time” as “new proceeding[s].” (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 101.) Merely appending a new label to rehearing proceedings does nothing to change their character or the fact that the statute clearly authorizes judicial review of nonfinal administrative determinations. If it is a rehearing procedure in terms of function served, it is a continuation of the administrative process, not a new proceeding.

It is the general rule in Illinois that administrative remedies must be exhausted before resort to judicial review is had to challenge an administrative decision, except where multiple remedies exist before the same administrative agency and at least one has been exhausted, where irreparable harm will result from further pursuit of administrative remedies, or where it would be patently useless to seek relief before the administrative agency. (Graham v. Illinois Racing Board (1979), 76 Ill. 2d 566, 394 N.E.2d 1148.) I believe that once Fredman Brothers made an application for a rehearing within 35 days after the final assessment, as is authorized in the statute, its administrative remedies were not exhausted, and, therefore, the 35-day limitation period to seek judicial review did not begin to run until Fredman Brothers was either granted or denied a rehearing. Any other interpretation is inconsistent with the concept of finality in administrative review.

Undeniably, section 3 — 101 states that when there is an indefinite time allowed for making application for rehearing, this does not postpone the time when the administrative decision would otherwise become final. Common sense dictates that in terms of finality the assessment is not truly final until the application for rehearing is denied or, if the application is granted, when the Department issues its new assessment based on the outcome of the rehearing. That part of section 3 — 101 dealing with an indefinite time to apply for rehearing is ambiguous and should be held unenforceable and of no effect; otherwise, the legislature will have left us with another of Justice Cardozo’s famous “Serbonian Bogs.”

To read section 3 — 101 as the majority does negates the administrative rehearing procedure provided for in the Revenue Act and clearly does not give effect to the true intent of the legislature, whose intention was to provide a rehearing procedure for proceedings under the Retailers’ Occupation Tax Act.

I would reverse the circuit court and hold that the taxpayer’s request for judicial review was timely filed and he is, therefore, entitled to an adjudication on the merits.


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
    OLIVER BROWN, Plaintiff-Appellant, v. THE CITY OF PEKIN, Defendant-Appellee.
    Third District
    No. 3—83—0488
    Opinion filed August 24, 1984.
    Rehearing denied January 8, 1985.
    Jerry Serritella, of Peoria, for appellant.
    William Kasley and Patrick E. Oberle, Corporation Counsel, of Pekin, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Oliver Brown, a fireman for the city of Pekin, appeals from a declaratory judgment in favor of defendant city denying him credit for 11 years’ service for purposes of computing his entitlement to longevity pay and vacation time.

Brown was hired as a fireman by the defendant city on December 17, 1957, and he continued in active service until October 1, 1968, when he received a back injury while fighting a fire. He was placed on medical disability status and received a disability pension until May 1, 1982, when he was certified by the pension board as able to return to active duty. When plaintiff returned to active service, he was placed at the bottom of the fire department seniority list by the Pekin director of public safety, who listed plaintiff’s date of employment as of May 1,1982.

The current city policy for compensating members of the fire department was established by Resolution No. 288, adopted August 17, 1981, which provides, in part, as follows:

“7. Longevity increases to base wage:
Each employee shall receive a percentage of their wage as follows for longevity service:
5 to 10 years -5%
10 to 15 years -6%
15 to 20 years -7%
20 years & over -8%

When plaintiff returned to active duty, he was paid the base wage without any increment for longevity service. Plaintiff filed a declaratory judgment action, claiming that he was entitled to credit for the 11 years served prior to his disability. At the bench trial, the director of public safety testified that, when he prepared the seniority list in June of 1982, he interpreted Resolution 288 to mean that longevity pay would be based upon continuous service. Another fireman, Darrell Meisinger, testified that he resigned from the fire department in 1966 after working 41/2 years, that he was rehired in 1967, and that he was given credit for his prior service for purposes of computing his longevity pay but not for purposes of the seniority list prepared in 1982.

The trial court found that Resolution No. 288 does not address the issue of seniority, that plaintiff has no inherent right to seniority or longevity, that the city of Pekin is not precluded from adopting a seniority list based upon continuous service under the provisions of Resolution No. 288, that the city’s practice of regular continuous service for longevity pay and vacation time reflects the legislative intent of the city council in adopting Resolution No. 288, and that plaintiff’s “medical retirement” from 1968 to 1982 constituted a severance of continuous service for the purpose of Resolution No. 288. The court then held that plaintiff is entitled to longevity pay and vacation time only from May 1, 1982. Plaintiff appeals from the court’s judgment. We reverse.

Plaintiff asserts that the trial court erred in construing the phrase “longevity service” to mean “continuous service.” He argues that his right to longevity pay is analogous to his right to pension benefits under the Illinois Pension Code (Ill. Rev. Stat. 1981, ch. lOSVa, par. 4— 108), which does not require continuous service for the purpose of determining pension rights of firemen. Another provision of the Pension Code provides that a fireman receiving a disability pension must have a physical examination each year prior to reaching age 50. (Ill. Rev. Stat. 1981, ch. lOSVa, par. 4 — 112.) The requirement of an annual physical examination was added to the statute in 1976, so plaintiff presumably had been examined six times before he was found to have recovered from his disability in 1982. Section 4 — 112 also provides that a fireman who has recovered from his disability shall be reinstated into active service at the same rank or grade which he held at the date he was placed on disability. This latter provision is clearly indicative of a public policy to avoid penalizing a fireman who has been disabled by demoting him in effect to a lower grade or rank when he returns to active duty. Obviously this plaintiff was obligated to return to the fire service or to resign.

Plaintiff does not, of course, contend that the provisions of the Pension Code are controlling or can override this administrative policy decision of the public safety director. But plaintiff does suggest that the Pension Code provisions are indicative of the probable legislative intention of the city council here in using the ambiguous phrase “longevity service” in Resolution No. 288. We suggest that an ambiguity exists where the term “longevity service” is used without further definition (much as was the case in King v. Equitable Life Assurance Society (1984), 125 Ill. App. 542, where we found the phrase “active work” to be ambiguous as used in a group life insurance policy insuring a disabled police officer).

It is significant that section 5 of article XIII of the Illinois Constitution of 1970 provides:

“Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.”

The significance of this provision is that it characterizes membership in a pension system as a contractual relationship. This characterization would apply to disability pension benefits as well as general retirement benefits. Similarly, when a fireman is employed by a unit of local government, his employment should be considered an enforceable contractual relationship. Here Resolution No. 288 was a part of the employment contract of each fireman. It is a general principle of contract law that an ambiguous provision in a contract will be construed against the party who prepared the contract and who chose the words used, since the scrivener is the one responsible for the ambiguity. (Des Plaines Motor Sales, Inc. v. Whetzal (1965), 58 Ill. App. 2d 143, 306 N.E.2d 806.) Applying this principle to the instant case, it is obvious that a city official prepared Resolution No. 288 and the city council adopted it without including “continuous service” in some form. Thus the ambiguous words should be construed against the city and in favor of the employee, and plaintiff should be given credit for the time served prior to his disability.

Longevity pay and other seniority rights are rewards for periods of service to the city and, no doubt, are intended as inducements to keep experienced firemen on the payroll. To deny plaintiff credit for 11 years of prior service simply because he was seriously injured in the line of duty and was placed on disability status for a period of time seems patently unfair. (The record indicates that plaintiff suffered a back injury while fighting a fire and subsequently had to have a spinal fusion. We are not given any other information concerning plaintiff’s lengthy disability and subsequent recovery.) The trial court termed plaintiff’s period of disability as “medical retirement” and held that it constituted a severance of “continuous service.” Under this reasoning, a 30-year veteran fireman could lose his seniority rights and longevity pay by a short period on disability status. This would be more patently unfair. We cannot in good conscience condone a construction of Resolution No. 288 that would permit such an injustice to occur when such a legislative intent is not indicated.

We conclude, therefore, that the trial court erred in interpreting Resolution No. 288 so that the city could deny plaintiff his longevity pay and other seniority rights by treating his period of disability as though it were a severance of his employment as a fireman. We hold that public policy, legislative intent, and plain justice require the city to give this plaintiff credit for the time served as a fireman prior to his job-related disability. The judgment of the trial court is reversed, and this cause is remanded for entry of judgment consistent with this opinion.

Reversed and remanded with directions.

HEIPLE and SCOTT, JJ., concur.


author: JUSTICE MILLER

text:
    MARSHA LYNN PRUITT, Plaintiff-Appellee, v. RICKEY JOE PRUITT, Defendant-Appellant.
    Fourth District
    No. 4—84—0235
    Opinion filed November 30, 1984.
    Hurt & Brinkoetter, of Decatur, for appellant.
    Frederic M. Grosser, of Grosser & Hays, of Champaign, for appellee.
   JUSTICE MILLER

delivered the opinion of the court:

Defendant appeals from an order of the circuit court of Cham-paign County awarding the plaintiff $4,500 in past-due child-support payments. He contends that the parties’ oral modification of the child-support obligation is not binding nor enforceable.

The parties were divorced in 1973. At that time, child support was set at $120 per month for two children. In September of 1977, the parties discussed a modification of child support, and the defendant began paying $250 per month in child support. Defendant made regular payments of $250 per month until January 1982. The defendant has not paid any child support since January 1982. Defendant’s termination of child-support payments coincided with plaintiff’s remarriage in February 1982. Plaintiff’s marriage was annulled in January 1983. In April of 1983, plaintiff filed a petition for rule to show cause to enforce child-support payments.

At the hearing on this matter, the defendant denied making an agreement with the plaintiff for an increase in child support. He testified that the increased payments that he did make were an advance on child support. However, in defendant’s appellate brief he acknowledges that he did make a promise to plaintiff to pay an increased amount of child support.

The trial court found that the parties had made a bilateral agreement to increase child-support payments to $250 per month in September 1977 and that these payments were made until January 1982. The court entered judgment in favor of the plaintiff in the amount of $4,500 for past-due child-support payments. The court ratified the parties’ agreement providing for child support of $250 per month. The court expressly reserved its ruling on the amount of attorney fees to be awarded to the plaintiff. The trial court’s order did not include a finding that “there is no just reason for delaying enforcement or appeal” of the judgment. 87 Ill. 2d R. 304(a).

Before proceeding to the merits of this appeal, we must consider whether the trial court’s order is final and appealable. This court has an obligation to inquire into its jurisdiction over a cause even where the parties on appeal fail to raise the issue. Parties may not confer jurisdiction upon the court by consent. Board of Education v. Chicago Teachers Union, Local 1 (1975), 26 Ill. App. 3d 806, 326 N.E.2d 158.

Our supreme court in In re Marriage of Leopando (1983), 96 Ill. 2d 114, 449 N.E.2d 137, held that a petition for dissolution of marriage addresses a single claim that is not fully adjudicated until all its ancillary issues are resolved and that an order entered in connection with the petition is, therefore, not appealable, with or without a Rule 304(a) finding, until all of the issues presented by the petition are resolved. Leopando has been interpreted as preventing the appeal of a dissolution of marriage order which reserves the question of the apportionment of attorney fees for decision at a later date. In re Marriage of Derning (1983), 117 Ill. App. 3d 620, 453 N.E.2d 90; In re Marriage of Rosenow (1984), 123 Ill. App. 3d 546, 462 N.E.2d 1287.

Although Leopando involved appellate review of a dissolution proceeding order, we believe that the policy considerations of discouraging piecemeal appeals apply to a motion for a rule to show cause. Post-decree petitions are not new actions, but merely continuations of the dissolution proceeding. (In re Marriage of Kozloff (1984), 101 Ill. 2d 526, 463 N.E.2d 719.) We hold that Leopando prevents the appeal of a motion for a rule to show cause which reserves the question of the apportionment of attorney fees for decision at a later date. Without this rule, the trial court’s later ruling on attorney fees could involve another appeal. Piecemeal appeals in post-decree petitions are inconsistent with the policy expressed by the supreme court in Leopando that all issues within dissolution proceedings should be resolved in a single judgment.

Accordingly, we find that the order from which defendant appeals is not a final, appealable order. Therefore, we do not have jurisdiction to adjudicate the merits of defendant’s appeal. (In re J.N. (1982), 91 Ill. 2d 122, 435 N.E.2d 473.) Thus, the appeal is dismissed.

Appeal dismissed.

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


author: JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ORLANDO EARL DORSEY, Defendant-Appellant.
    Fourth District
    No. 4—84—0090
    Opinion filed November 30, 1984.

      Daniel D. Yuhas and Jonathan Haile, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Eider man, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

Defendant pleaded guilty in the circuit court of Champaign County to two counts of rape and one count of aggravated battery in violation of sections 11 — 1 and 12 — 4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 11 — 1, 12 — 4). He was sentenced to concurrent terms of 20 years’ imprisonment on each of the rape convictions and five years’ imprisonment on the aggravated battery convic- . tion.

Defendant concedes that he failed to file a motion to withdraw his guilty plea within 30 days from the judgment entered herein as required by Supreme Court Rule 604(d) (87 Ill. 2d R. 604(d)) before an appeal may be taken from judgment entered on a guilty plea. He contends, however, that this omission should be excused by the trial judge’s failure to properly admonish him regarding his appellate rights as required by Supreme Court Rule 605(b) (87 Ill. 2d R. 605(b)). The State responds that defendant was properly admonished as to his appellate rights and asserts that this appeal should be dismissed for the failure of defendant to file a motion to withdraw his guilty plea in the trial court.

After the sentences were pronounced, the following colloquy took place between the court and defendant Dorsey:

“THE COURT: Mr. Dorsey, the law requires me to advise you about your rights of appeal from your plea of guilty. You have the right to ask the court to withdraw your plea or pleas, which means you have the right to ask the court to take back those pleas of guilty.
To do that you have to file in this court within 30 days of today a written request that you be given the opportunity to take back those pleas. If that request was allowed and your pleas were given back to you, the charges to which you pleaded guilty would be set for a full trial, along with any other charges which were dismissed in this case, they would also be set for trial. If you are unable to afford an attorney to assist you in that kind of a proceeding, an attorney would be appointed for you free of charge, and if you are unable to afford a written record of what went on here today, and also back on January 6th when you pleaded guilty, that written record would be provided for you free of charge. Do you understand your appellate rights?
MR. DORSEY: Yeah.
THE COURT: Defendant advised of his appellate rights pursuant to Supreme Court Rule 605.
MISS LENIK [Defense Counsel]: Your honor, we would ask that an appeal be ordered.
THE COURT: From the sentence?
MISS LENIK: Yes, judge.
THE COURT: All right.
MR. SILVERMAN [Defense Counsel]: Judge, I am not sure, I don’t know whether we have to ask to withdraw the plea to procedurally appeal it or if we can just appeal the sentence directly.
THE COURT: Well, I suppose that’s for the lawyer to decide. But, I will direct the clerk to file a notice of appeal and prepare the record, the court reporter is directed to prepare the report of proceedings of today and on January 6th, 1984. The State Appellate Defender is appointed to represent the Defendant on appeal. The clerk is to notify the State Appellate Defender of his appointment.”

Supreme Court Rule 605(b) requires that:

“In all cases in which a judgment is entered upon a plea of guilty, at the time of imposing sentence, the trial court shall advise the defendant substantially as follows:
(1) That he has a right to appeal;
(2) That prior to taking an appeal he must file in the trial court, within 30 days of the date on which sentence is imposed, a written motion asking to have the judgment vacated and for leave to withdraw his plea of guilty, setting forth his grounds for the motion;
(3) That if the motion is allowed, the plea of guilty, sentence and judgment will be vacated and a trial date will be set on the charges to which the plea of guilty was made;
(4) That upon the request of the State any charges that may have been dismissed as a part of a plea agreement will be reinstated and will also be set for trial;
(5) That if he is indigent, a copy of the transcript of the proceedings at the time of his plea of guilty and sentence will be provided without cost to him and counsel will be appointed to assist him with the preparation of the motions; and
(6) That in any appeal taken from the judgment on the plea of guilty any issue or claim of error not raised in the motion to vacate the judgment and to withdraw his plea of guilty shall be deemed waived.”

Upon consideration of the mandates of Supreme Court Rule 605(b), it is apparent that the admonishments in this case were insufficient to properly advise defendant of his appellate rights. The trial judge failed to substantially admonish defendant that a motion to withdraw his pleas and vacate the judgment entered thereon was a prerequisite to appeal and that any issue not raised in such a motion would be waived. The judge’s response to defense counsel’s inquiry about the procedural requirements for appeal failed to inform defendant of his rights in this regard. This error was compounded when the judge ordered the clerk to file a notice of appeal although there was at that point no existing order from which properly to appeal.

It is fundamental that a notice of appeal cannot substitute for a Rule 604(d) motion and that an appeal from judgment entered on guilty pleas in the absence of such motion must be dismissed. (People v. Frey (1977), 67 Ill. 2d 77, 364 N.E.2d 46.) However, where the trial court fails to properly admonish the defendant regarding his appellate rights in compliance with Supreme Court Rule 605(b), a defendant should not be penalized for failing to follow the proper procedure to preserve those rights. People v. Anderson (1979), 71 Ill. App. 3d 176, 389 N.E.2d 204.

The defendant has set forth no claims of error regarding the entry of his guilty pleas but requests only that this case be remanded to allow him the opportunity to file a proper motion to withdraw his pleas. As stated in People v. Ahlstrand (1983), 113 Ill. App. 3d 363, 447 N.E.2d 517, a defendant in this situation should accompany his request for remandment with a showing of the facts, if available, upon which he relies to secure the withdrawal of his pleas.

It appears from the record that defendant’s sole complaint below was the length of his sentences. This complaint is not recognized as a sufficient ground, standing alone, to allow the withdrawal of the guilty pleas. However, given the present posture of this case, we have no alternative but to remand the case with directions to allow defendant to file a motion to withdraw his guilty pleas within 30 days from the return of this case to the trial court and thereafter to proceed in accordance with Supreme Court Rule 604(d). People v. Saldana (1977), 53 Ill. App. 3d 636, 368 N.E.2d 1055.

Remanded with directions.

TRAPP and MILLER, JJ., concur.


author: JUSTICE McNAMARA

text:
    WILLIAM BOARD, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Harvey Bennett, Appellant).
    Third District (Industrial Commission Division)
    No. 3—84—0195WC
    Opinion filed November 27, 1984.

      Charles D. Knell and Charles S. Watson, both of McConnell, Kennedy, Quinn & Johnston, of Peoria, for appellant.
    Joseph R. Napoli, Arthur J. Inman, and Goldsworthy & Fifield, all of Peoria, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Francis Osborn, an employee of appellant Harvey Bennett, d/b/a Harvey’s 24 Hour Towing, filed a claim for compensation for injuries sustained in a work-related accident. An arbitrator found that Osborn was a loaned employee to appellee William Board, d/b/a Board’s Auto-body. Under section 1(a)(4) of the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1(a)(4)), both employers were held jointly liable to Osborn, and Bennett was entitled to recover from Board any payment made to Osborn. Bennett sought review before the Industrial Commission, and the Commission upheld the arbitrator’s decision.

Within 20 days of the Commission’s decision, Board petitioned the circuit court of Peoria County for a writ of certiorari and a writ of scire facias. The praecipe for the writs named only Osborn and the Commission as parties in interest. Bennett did not receive notice of the proceedings, and he did not appear.. The circuit court set aside that part of the Commission’s decision which held that Osborn was a loaned employee, and the court held that Board was not liable for Osborn’s injuries. As a result of the court’s decision, Bennett became solely responsible for Osborn’s injuries.

Bennett learned of the court’s ruling and within three days filed a motion to vacate the court’s order. He maintained that the circuit court had not acquired jurisdiction because Board did not name Bennett in the praecipe as a party in interest. The circuit court denied Bennett’s motion to vacate its order, and he appeals.

Section 19(f)(1) of the Act specifies that “the written request shall contain the last known address of other parties in interest and their attorneys of record who are to be served by summons.” (Ill. Rev. Stat. 1983, ch. 48, par. 138.19(f)(1).) Strict compliance with the statute is required before the circuit court acquires subject-matter jurisdiction. Matthiessen & Hegeler Zinc Co. v. Industrial Com. (1940), 373 Ill. 293, 26 N.E.2d 84.

Bennett argued in the circuit court and contends here that he is a party in interest and, because he was not named in the praecipe, the circuit court never acquired jurisdiction. Relying on the decisions in Albert Mojonnier, Inc. v. Industrial Com. (1968), 41 Ill. 2d 128, 242 N.E.2d 184 (Mojonnier I), and Albert Mojonnier, Inc. v. Industrial Com. (1969), 42 Ill. 2d 182, 246 N.E.2d 243 (Mojonnier II), the circuit court concluded that Bennett was not a party in interest.

In Mojonnier I, an employee of Manpower, Inc., was injured while working for Mojonnier. After the arbitrator found that Mojonnier was a borrowing employer, Mojonnier sought review, naming only the claimant. Claimant’s cross-petition named both employers. The Commission upheld the arbitrator’s award to claimant and Mojonnier petitioned the circuit court, again failing to name Manpower in the praecipe. Claimant’s motion to quash the writ of certiorari for failure to name a party in interest was denied by our supreme court. The court stated, “Manpower apparently decided to stop at the Commission level and Mojonnier did not need to include Manpower in the praecipe for writ of certiorari.” (41 Ill. 2d 128, 132.) In Mojonnier II, a similar factual situation was presented, and the court, without discussion, found Mojonnier I controlling.

The supreme court more recently addressed the section 19(f)(1) requirements in Daugherty v. Industrial Com. (1983), 99 Ill. 2d 1, 457 N.E.2d 381. In that case, the claimant, his employer and the Treasurer of the State of Illinois, as custodian of the Second Injury Fund, were all before the arbitrator and the Commission. When the claimant filed a petition in the circuit court, he failed to name the Treasurer in the praecipe as a party in interest. The supreme court held that the Treasurer was a party in interest because he “participated in the hearing before the arbitrator and, in fact, petitioned the Commission for review of the arbitrator’s decision.” (99 Ill. 2d 1, 6.) Because the claimant did not name the Treasurer, and because an amended praecipe could not correct the omission, the court held that the employer’s motion to quash the writ should have been granted.

In the present case, we find Daugherty controlling. Bennett, like the Treasurer, was an active participant in the proceedings before the arbitrator and filed a petition for review with the Commission. Although Bennett understandably “decided to stop at the Commission level,” so too did the Treasurer. Insofar as the decision in Daugherty ignored this fact, we interpret Daugherty to overrule Mojonnier I and Mojonnier II on this issue. Such a reading comports with a long tradition in Illinois that a party’s rights may not be affected where that party is not before the court to defend his interests. (See Bryant v. Lakeside Galleries, Inc. (1949), 402 Ill. 466, 84 N.E.2d 412; Gaumer v. Snedeker (1928), 330 Ill. 511, 162 N.E. 137; Popovich v. Ram Pipe & Supply Co. (1979), 74 Ill. App. 3d 343, 392 N.E.2d 954.) Consequently, we hold that the circuit court erred.in denying Bennett’s motion to vacate its order.

For the reasons stated, the judgment of the circuit court of Peoria County is vacated, and the cause is remanded for further proceedings consistent with the holdings of this opinion.

Vacated and remanded.

LINDBERG, BARRY, WEBBER, and KASSERMAN, JJ., concur.


author: JUSTICE SCOTT JUSTICE STOUDER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MATTHEW S. DICKERSON et al., Defendants-Appellees.
    Third District
    Nos. 3—84—0278 through 3—84—0281 cons.
    Opinion filed November 30, 1984.

      STOUDER, J., dissenting.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    James E. Egan, of McSteen, Phelan & Egan, P.C., of Joliet, for appel-lees.
   JUSTICE SCOTT

delivered the opinion of the court:

The instant appeal raises the question of whether a trial court properly dismissed implied consent proceedings after finding the underlying municipal ordinances to be invalid. The defendants, Matthew S. Dickerson, Clinton Terry, Larry Sellers, and John Lesiotis, were charged in separate incidents with driving under the influence of alcohol (DUI) and related traffic offenses. Each DUI charge was brought under a municipal ordinance. Each of the defendants refused to take a breathalyzer test at the time of their arrest.

The defendants subsequently requested an implied consent hearing. During the hearings, the defendants argued that the underlying municipal DUI ordinances were invalid. The trial court agreed with this premise and dismissed the proceedings. It is from this order that the State now appeals.

We initially address the motion to dismiss the State’s appeal brought by the defendant, John Lesiotis. Lesiotis argues that the appeal must be dismissed in cause No. 3 — 84—0281 because it was not timely filed. The trial court issued an oral order dismissing Lesiotis’ hearing on February 21, 1984. This order was entered in the record the same day. No notation was made that a further written order was required. The trial court subsequently entered a written order “in support of” its prior order on March 8, 1984. The State’s notice of appeal was filed April 3,1984.

Supreme Court Rule 303 provides, in relevant part, that a notice of appeal must be filed within 30 days after the entry of the final judgment. (87 Ill. 2d R. 303.) The time at which the judgment is entered is determined under the provisions of Supreme Court Rule 272. (87 Ill. 2d R. 272.) Rule 272 provides:

“If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed. If no such signed written judgment is to be filed, thfe judge or clerk shall forthwith make a notation of judgment and enter the judgment of record promptly, and the judgment is entered at the time it is entered of record.”

In the instant case, there is no evidence that the judge required submission of a written judgment. No notation of such a requirement was made. Thus, under Rule 272, the judgment was final at the time it was entered of record. The judgment was entered of record on February 21, 1984. The State’s notice of appeal was filed April 3, 1984. The State’s motion was not filed within 30 days, and, therefore, was not timely. Accordingly, the motion of the defendant, John Lesiotis, to dismiss the appeal in cause No. 3 — 84—0281 is granted.

We now consider the merits of the State’s argument in the remaining consolidated appeals.

In dismissing the hearings, the trial court relied on Village of Mundelein v. Hartnett (1983), 117 Ill. App. 3d 1011, 454 N.E.2d 29. In Hartnett, the defendant was charged with driving under the influence of alcohol pursuant to a municipal ordinance. Like the municipal ordinances in the instant case, the ordinance in Hartnett provided a fine only as a possible sentence. The Hartnett court found that the ordinance was invalid because it did not conform to the requirements established in section 11 — 501(c) of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95x/2, par. 11 — 501(c)). Section 11 — 501(c) requires that driving under the influence be a Class A misdemeanor. Class A misdemeanors are punishable by fine and imprisonment. (Ill. Rev. Stat. 1983, ch. 38, pars. 1005 — 8—3, 1005 — 9—1.) Thus, the municipal ordinance in Hartnett was invalid because it failed to provide for incarceration as a potential sentence.

The trial court in the instant case found that the municipal ordinances prohibiting driving under the influence were invalid under Hartnett because none of the ordinances provided for a sentence which potentially included a term of imprisonment. The trial court then concluded that the defendants were not properly arrested for purposes of the implied consent statute because the ordinances were invalid. The trial court dismissed the implied consent proceedings.

The instant proceedings were brought under the implied consent statute, section 11 — 501.1 of the Illinois Vehicle Code. (Ill. Rev. Stat. 1983, ch. 95V2, par. 11 — 501.1.) Section 11 — 501.1(a) provides that any person who drives or is in actual physical control of a motor vehicle is deemed to have given consent to relevant tests if arrested for violating Section 11 — 501 or any similar provision of a local ordinance. Section 11 — 501.1(c) provides that a hearing on a refusal to take a relevant test shall cover only the issues of whether a person was placed under arrest for an offense defined in section 11 — 501 or similar local ordinance, whether the arresting officer had reasonable grounds to believe the driver was under the influence, and whether the person refused to submit to the test. People v. Horberg (1984), 123 Ill. App. 3d 456, 462 N.E.2d 831.

The issues of whether the arresting officer had reasonable grounds and whether the defendant refused to take the tests are unaffected by the validity of the municipal ordinances involved in the instant case. The issue for consideration by this court, then, is whether the defendants were properly placed under arrest where the ordinances violated were subsequently declared invalid.

We find that the defendants were properly arrested in the instant case for purposes of section 11 — 501.1. In Michigan v. DeFillippo (1979), 443 U.S. 31, 61 L. Ed. 2d 343, 99 S. Ct. 2627, the United States Supreme Court held that the defendant’s arrest for violation of a municipal ordinance was valid even though the ordinance itself was subsequently declared invalid because it was unconstitutional. The court noted that police officers are charged with enforcement of laws unless and until the laws are declared unconstitutional. Thus, where the officer relied in good faith on an ordinance which was not grossly and flagrantly unconstitutional, an arrest based on a violation of that ordinance is valid.

In the instant cases, it is apparent that the arresting officers acted in good faith in relying on the respective ordinances. The fact that the ordinances were subsequently declared invalid does not negate the validity of the arrests.

Additionally, the ordinances in the case at bar were challenged in a collateral civil proceeding. Section 11 — 501.1 should be liberally construed to accomplish its purpose of protecting the citizens of Illinois on this State’s highways. People v. Horberg (1984), 123 Ill. App. 3d 456, 462 N.E.2d 831.

We, therefore, find that the arrests of the defendants, Dickerson, Terry and Sellers, were valid arrests under section 11 — 501.1. The causes must, therefore, be remanded for further proceedings on those additional issues which the defendants may choose to raise in their implied consent hearings.

The State’s appeal is dismissed in cause No. 3 — 84—0281. The judgment of the circuit court of Will County is reversed in causes No. 3— 84 — 0278, 3 — 84—0279, and 3 — 84—0280, and remanded for further proceedings consistent with this decision.

Reversed in part, and remanded for further proceedings.

HEIPLE, J., concurs.

JUSTICE STOUDER,

dissenting:

I agree with the result reached by my colleagues granting defendant Lesiotis’ motion to dismiss; however, I respectfully disagree with the reasoning and result reached regarding the other defendants. In my opinion the trial court correctly applied Village of Mundelein v. Hartnett (1983), 117 Ill. App. 3d 1011, 454 N.E.2d 29, and dismissed the implied consent hearings.

The appropriate portion of the implied consent statute provides for a hearing where it is to be determined, inter alia, “whether the person was placed under arrest for an offense as defined in Section 11 — 501 of this Code or a similar provision of a local ordinance.” (Ill. Rev. Stat. 1983, ch. 95x/2, par. 11 — 501.1(c).) It. is undisputed these defendants were not placed under arrest for a violation of section 11 — 501; therefore, each arrest had to have been made for violation of an ordinance similar to section 11 — 501. The basis of the invalidity of the ordinance in Hartnett was the court’s conclusion that the ordinance was not similar to section 11 — 501, and in fact the ordinance was so dissimilar it was invalid. The ordinances involved in the case sub judice are legally equivalent to or substantially the same as the ordinance in Hartnett and are as a matter of law dissimilar to section 11 — 501. Since the arrests were not for violations of similar ordinances, this requirement of the implied consent provision is not satisfied, and the trial court properly found in favor of defendants.

The majority’s reliance on Michigan v. DeFillippo (1979), 443 U.S. 31, 61 L. Ed. 2d 343, 99 S. Ct. 2627, is not determinative of this appeal, since we are concerned with an arrest under an ordinance which is dissimilar to section 11 — 501 and not with the validity of an arrest pursuant to an ordinance subsequently declared invalid.

Based upon my analysis of this case, I would affirm the trial court’s judgments in favor of defendants.


author: JUSTICE HEIPLE JUSTICE BARRY, PRESIDING JUSTICE ALLOY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SUSAN BROOKS, Defendant-Appellant.
    Third District
    No. 3—84—0082
    Opinion filed November 30, 1984.
    BARRY, J., concurring in the decision.
    ALLOY, P.J., dissenting.
    Robert Agostinelli and Thomas A. Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    L. Patrick Power, State’s Attorney, of Kankakee (John X. Breslin and John M. Wood, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the decision of the court and the following opinion:

Defendant Susan Brooks was convicted of armed violence at a bench trial in Kankakee County. She was sentenced to a mandatory minimum term of six years of imprisonment.

At trial, the defendant testified that she was at home in her trailer on the evening of September 28, 1983, when the two alleged victims pulled into her driveway. According to the defendant, she went out to their car, took a drink of their whiskey, and all three then went into her trailer. They sat down and began talking and an altercation over children’s clothing ensued. According to the defendant, after approximately 15 minutes had passed one of the alleged victims stood up, as if to leave, and pulled a gun out of her pants. The defendant then grabbed her gun which was by the couch and shot the victim in the arm. According to the defendant, she did this to prevent the victim from shooting her. The defendant also denied striking the other alleged victim in the back of his head with a rifle.

Upon arrest, the defendant was given Miranda warnings and taken to the county detention center. At that time, the arresting officers testified, the defendant said they had “no business arresting her and that next time she would kill us all or them all.” Later on at the detention center, as one of the officers attempted to quiet the defendant, she told the officer that she “did it all.” After a fresh set of Miranda warnings, the defendant told the officer that she had hit one individual with a gun, shot another, and that “next time, she’d kill them all.”

On cross-examination, the prosecutor elicited a denial that the defendant had ever made these admissions to an officer. The prosecutor continued by asking when she first mentioned that one of her victims had a gun. The defendant’s objection that this was an improper attempt to impeach by means of. protected post-arrest silence was overruled. It is from this alleged error that the defendant appeals.

The leading case in this area is Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240. There, the Supreme Court barred the use of defendant’s post-arrest silence against him at trial. The principal focus of the opinion was that post-Miranda silence was “insolubly ambiguous,” in that one could never be certain whether defendant’s silence was, in whole or in part, an exercise of the right to remain silent.

A line of cases that developed from Doyle dealt with the situation where defendant made some statements to the police, but gave additional or different testimony at trial. In People v. Rehbein (1978), 74 Ill. 2d 435, 386 N.E.2d 39, defendant was charged with deviate sexual assault and unlawful restraint. He originally gave the police an alibi, but defended on the basis of consent at trial. The prosecution cross-examined him on his failure to mention the victim’s consent to the police. The supreme court affirmed Rehbein’s conviction. The gist of the holding is that where defendant’s statements at trial are wholly inconsistent with prior statements, then impeachment is proper, as with any other prior inconsistent statement.

Defendant argues that the Rehbein holding mandates a reversal in this case, as the statements admitting the shooting- and hitting of the victims with a gun are not inconsistent with a claim of self-defense. While this is undoubtedly true, the literal holding of Rehbein and its progeny has no application here.

The case of Anderson v. Charles (1980), 447 U.S. 404, 65 L. Ed. 2d 222, 100 S. Ct. 2180, significantly weakens the force of the Rehbein holding. There, defendant gave a story to the police which was wholly inconsistent with his story at trial. Cross-examination was directed at the defendant’s failure to tell the latter version to the police. While these facts are identical to Rehbein in all relevant respects, the court did not tailor its holding so narrowly:

“Doyle [Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240] bars the use against a criminal defendant of silence maintained after receipt of governmental assurances. But Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all.” Anderson v. Charles (1980), 447 U.S. 404, 408, 65 L. Ed. 2d 222, 226, 100 S. Ct. 2180, 2182.

The focus of the court in Anderson was clear. When a defendant who has been advised of his right to remain silent speaks, he cannot complain of impeachment which directly attacks statements made at trial which do not comport with statements given to the police.

Defendant argues that our recent decision in People v. Timmons (1983), 114 Ill. App. 3d 861, 449 N.E.2d 1366, is controlling. In Timmons, defendant was charged with delivery of a controlled substance. Upon arrest, defendant admitted the purchase of “acid,” but denied delivering to anyone. At trial, an alibi defense was raised specifying defendant’s whereabouts and activities at the time of the alleged delivery. The prosecutor asked defendant why he waited until trial to tell this story. We reversed and remanded due to an absence of a threshold inconsistency between trial testimony and statements given to the police.

Timmons is distinguishable from the case at bar. There, defendant’s failure to specify the facts underlying his alibi to the police is exactly what Miranda and Doyle were designed to protect. There was complete consistency between a denial of the acts underlying the offense and an alibi. Thus, any attempt at impeachment necessarily went to defendant’s silence upon arrest, as no prior inconsistent statements were made. Here, however, defendant’s version as originally given was not wholly consistent with the later version, as the additional fact of self-defense was not mentioned at first. More importantly, though, is the point raised in Anderson. Miranda and Doyle do not protect the defendant who chooses to speak after being warned to remain silent. Furthermore, going beyond the Anderson holding, defendant here actually incriminated herself after being apprised of her rights. It is indeed strange for the defendant to claim a violation of her right to a fair trial based on a Miranda-type error when she waived her Miranda rights by incriminating herself.

It appears at first that this case deviates from two factually identical First District cases (People v. Foster (1980), 81 Ill. App. 3d 915, 401 N.E.2d 1221; People v. Robinson (1976), 44 Ill. App. 3d 447, 358 N.E.2d 43). However, both cases were decided before Anderson. Also, Robinson was a case where defendant effectively remained completely silent. Caught with a smoking gun, defendant said, “I know my rights. I did it, but I’m not going to tell you why.” Since Robinson’s shooting of the victim was obvious, his admission was immaterial. In Foster, it was not entirely clear how the defendant had incriminated himself. Thus, neither case is controlling.

This is an example of rigid adherence to articulated principles without an analysis of the policies underlying them. Cases like Miranda and Doyle were designed to insure that those accused of crimes could not be convicted by their own words. Doyle and Anderson specifically enforce this right by insulating the reticent defendant from the use of this protected silence against him. However, when the accused chooses to forego this right of silence and to incriminate herself, as the defendant did here, she should not be heard to complain when the prosecutor seeks to impeach her credibility with statements whose force stems directly from the self-incrimination. On the other hand, in cases such as Timmons, where the story told at trial cannot be used other than to impeach the defendant for not telling it to the police immediately, the right to remain silent is unreasonably attacked. As no such negative impact is present in this example of self-inculpation, we affirm.

Affirmed.

JUSTICE BARRY,

concurring in the decision:

I choose to take a more simplistic, pragmatic approach to this bench-trial case. While I agree with the result reached by my colleague, Justice Heiple, I find that the post-arrest admissions and testimony of the defendant, while inconsistent with self-defense, are not totally and directly contradictory to her story at trial, and that therefore it was error for the trial court to overrule the defendant’s objections to the prosecutor’s inquiry as to when defendant first told anyone about the victim’s gun.

Initially the defendant indicated that the victim Roach was attacked at some other place, and then at trial indicated that she had lied when she said that. At trial the defendant admitted that she shot Roach. Her prior arrest record, including four prior convictions involving dishonesty, were known to the trial judge, and it is axiomatic that the trial judge need not give any credibility to her testimony. Further, the testimony of other eyewitnesses does not indicate that Roach was armed.

In this case there was substantial evidence of guilt; in fact, the evidence is overwhelming. (See People v. Green (1979), 74 Ill. 2d 444, 386 N.E.2d 272.) The defendant admitted the acts forming the basis for armed violence, the only crime of which she was convicted. The trial judge did not have to believe any aspects of her self-defense claim, including defendant’s totally unsupported allegation that the victim Roach had a gun.

I would find the trial court’s admission of evidence of defendant’s post-arrest silence to have been error, but harmless beyond a reasonable doubt, and therefore not reversible.

PRESIDING JUSTICE ALLOY,

dissenting:

I respectfully dissent. The critical issue is whether the defendant’s statement at trial, her statement that one of the victims had a gun, is manifestly inconsistent with the statements she made after her arrest. (People v. Beller (1979), 74 Ill. 2d 514, 522-25, 386 N.E.2d 857; People v. Rehbein (1978), 74 Ill. 2d 435, 441-42, 386 N.E.2d 39, 42, cert. denied (1979), 442 U.S. 919, 61 L. Ed. 2d 287, 99 S. Ct. 2843; People v. Timmons (1983), 114 Ill. App. 3d 861, 449 N.E.2d 1366.) After the arrest, defendant Brooks did not state that her victims were unarmed, or in any other way indicate or suggest that. If she had, then clearly there would be a manifest inconsistency between her trial testimony and her post-arrest statements. The record indicates, however, that the question of whether her victims were armed did not come up at all in those post-arrest statements. And, in fact, the majority does not dispute the lack of inconsistency. They accept that there is no inconsistency between the statements admitting the shooting and Brooks’ subsequent claim of self-defense at trial.

Rather, the majority believes that Anderson v. Charles (1980), 447 U.S. 404, 65 L. Ed. 2d 222, 100 S. Ct. 2180, “significantly weakens the force of the Rehbein holding,” which is the rule applied by the court in People v. Better and by this court in People v. Timmons. I do not believe that Anderson v. Charles has such effect upon the rulings of the Illinois Supreme Court. In Anderson v. Charles, the United States Supreme Court found the requisite manifest inconsistency. The defendant in that case made post-arrest statements indicating that he had stolen an auto off the street “about two miles from the local bus station.” At trial he testified that he had stolen the auto from a tire store next to the bus station. The questions by the prosecutor focused upon that clear inconsistency and when and why the defendant changed his mind. The court found that the questions were designed to elicit an explanation of prior inconsistent statements. There is no distinction between the rules applied in Anderson v. Charles and those stated by our supreme court in Rehbein and Beller. The facts in Anderson and Rehbein are very similar, as are the courts’ decisions. I cannot adopt the majority’s construction of Anderson, and find that Anderson stands for the proposition that “[w]hen a defendant who has been advised of his right to remain silent speaks, he cannot complain of impeachment which directly attacks statements made at trial which do not comport with statements given to the police.” In Anderson, the court applied the manifest inconsistency standard, and found the inconsistency present. The majority would apparently do away with that standard, and substitute a vague, indefinite one based upon whether post-arrest statements “comport” with trial testimony.

The issue in Anderson which the United States Supreme Court emphasized was whether the questions by the prosecutor were designed to draw meaning from silence or were designed for the purpose of eliciting an explanation of inconsistent statements. In the instant case, where, as the majority concedes, there were no inconsistent statements, it is difficult to conclude that the prosecutor was seeking to elicit an explanation of inconsistent statements. Rather, he was quite clearly seeking to draw attention to the fact that the defendant had not said anything previously about the victim’s gun and her self-defense claim. He was seeking to draw attention to her previous silence on these matters. This was reversible error. That result, I believe, is dictated by the decisions in Anderson v. Charles, People v. Beller, People v. Rehbein, and People v. Timmons. For this reason, I respectfully dissent.


author: JUSTICE CAMPBELL

text:
    ARVIN RADCLIFF, Plaintiff-Appellant, v. THE CITY OF BERWYN, Defendant-Appellee
    First District (1st Division)
    No. 83—1746
    Opinion filed November 26, 1984.
    William J. McGrath, of Hickory Hills, for appellant.
    Russell W. Hartigan, City Attorney, of Berwyn, for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Arvin Radcliff, appeals from an order entered July 15, 1983, upholding the constitutionality of the city of Berwyn ordinance, section 6 — 12(1—b), which regulates the off-street parking of motor vehicles. Plaintiff was arrested on May 1, 1982, for violation of the ordinance. Following his arrest, plaintiff filed a complaint for injunc-tive relief on September 9, 1982, which action is the subject of this appeal. His complaint, charged that the ordinance at issue was an unconstitutional attempt to control and regulate the parking of vehicles on private property. The quasi-criminal proceedings against plaintiff have been held in abeyance pending the disposition of this appeal.

Plaintiff had purchased old cars and parked them in his driveway. The driveway is immediately adjacent to his home and extends from the sidewalk in front of the house all the way to the rear of the home. At the hearing in this matter held on July 15, 1983, photographs were produced which showed at least seven inoperative vehicles on plaintiff’s driveway.

Plaintiff, in his brief, has attempted a broad constitutional attack on the city of Berwyn ordinance, section 6 — 12(1—b), by arguing it is too vague. The cases cited by plaintiff, however, stand for general propositions of law, and the argument section of his brief does not readily demonstrate the relationship between the cases cited and the order appealed from. At the outset, we note that a court of review is not required to search the record to find a reason for reversing the judgment of the trial court. Husted v. Thompson-Hayward Chemical Co. (1965), 62 Ill. App. 2d 287, 296, 210 N.E.2d 614, 619; In re Petition to Annex Certain Territory to Village of Willowbrook (1963), 42 Ill. App. 2d 432, 435, 192 N.E.2d 553, 555.

We construe plaintiff’s arguments generally to be that the ordinance in question fails to meet the minimal standards for constitutionality since it does not provide appropriate standards and guidelines and is an unlawful extension of municipal authority upon the use of private land. In construction of ordinances, the same rules are applied as those which govern the construction of statutes. (Village of Park Forest v. Wojciechowski (1963), 29 Ill. 2d 435, 437, 194 N.E.2d 346, 348.) The test is whether the ordinance is clear enough to “convey sufficient definite warning as to proscribed conduct when measured by common understanding and practices.” (Laurence v. City of Chicago (1969), 42 Ill. 2d 461, 464, 248 N.E.2d 71, 73, appeal dismissed (1969), 396 U.S. 39, 24 L. Ed. 2d 208, 90 S. Ct. 263.) The ordinance at issue provides, in pertinent part:

“WHEREAS, the storage and parking (of) vehicles on open private land in the city in violation of that ordinance contributes to unhealthful and unsanitary conditions thereon,
THEREFORE, be it ordained by the City Council of the City of Berwyn, Illinois,
* * *
3. It shall be unlawful to park or store any inoperable, junk vehicle, or relic, vintage, or antique vehicle not regularly used for transportation upon private land.” Berwyn City Ordinance, sec. 6-12(1 — b)(1966).

We believe the proscribed conduct is sufficiently articulated in the ordinance. It prohibits the parking of inoperable vehicles not regularly used for transportation upon open private land. The term “open private land” is defined in the body of the ordinance as “an area of land not enclosed by a garage or carport.” The ordinance further provides for penalties by a “fine not to exceed $200.00 for each offense.” Plaintiff has failed to allege any specific grounds for holding the ordinance constitutionally deficient. We find this plain language constitutes sufficient notice to potential violators to survive defendant’s charge that the terms of the ordinance are too vague.

The Illinois Municipal Code grants to a municipality the power to enact any ordinance it deems necessary for the promotion of health or the suppression of disease. (Ill. Rev. Stat. 1981, ch. 24, pars. 1 — 2—1, 11 — 20—5.) In addition, a municipality may “define, prevent and abate nuisances” (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 60—2) and may “pass and enforce all necessary police ordinances” (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 1—1). We find that the city of Berwyn had the power to prohibit the keeping, storing and maintaining of motor vehicles not in an operable condition on private property, unless the premises were a properly licensed junkyard and complied with all of the ordinances of the city governing such facilities. The unsightly nature of most inoperable equipment and the attractiveness of such unkempt areas to rats and vermin are well known. The ordinance before us was unquestionably enacted for the purpose of promoting the health and protecting the safety of the members of the community. We note that the comparable State statute allows a municipality to remove inoperable vehicles on either public or private property. See Ill. Rev. Stat. 1981, ch. 24, section 11 — 40—3.

Since competent authority exists for the passage of this ordinance, “the presumption is always in favor of its validity.” (City of Ottawa v. Brown (1939), 372 Ill. 468, 471, 24 N.E.2d 363, 365; Henson v. City of Chicago (1953), 415 Ill. 564, 114 N.E.2d 778.) This cloak of presumptive validity is especially strong here, since the policy of this State is to favor legislation designed to preserve the public health and safety. (Greyhound Lines, Inc. v. City of Chicago (1974), 24 Ill. App. 3d 718, 321 N.E.2d 293.) We hold, therefore, that the city of Berwyn did have the power to enact the ordinance and that it was applicable to plaintiff in its operative effect.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

McGLOON and O’CONNOR, JJ., concur.