author: JUSTICE McGLOON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERTO REQUENA et al., Defendants-Appellants.
    First District (1st Division)
    Nos. 80-654, 80-2204 cons.
    Opinion filed March 8, 1982.
    Rehearing denied May 18, 1982.

      Ralph Ruebner and Scott Graham, both of State Appellate Defender’s Office, and Garland W. Watt, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik, and Dean P. Karlos, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

Defendants Roberto Requena, Joseph Martinez and Michael Martinez were charged by information with rape, deviate sexual assault, and aggravated kidnapping. After a jury trial, Requena was found guilty of rape and sentenced to a 10-year term. Joseph Martinez and Michael Martinez were found guilty of all charges and sentenced to 15 years for aggravated kidnapping, 20 years for rape, and 20 years for deviate sexual assault. Requena filed a separate appeal which was consolidated by this court with the appeal of Joseph and Michael Martinez.

On appeal, Requena contends (1) the trial court improperly excluded relevant defense evidence; (2) hearsay evidence was improperly admitted; (3) he was not proved guilty beyond a reasonable doubt; and (4) the jury should have been instructed on attempt rape. Joseph and Michael Martinez contend the State’s closing argument was prejudicial. All defendants contend their sentences are excessive.

We affirm.

Complainant testified that at approximately 4:15 a.m. on August 6, 1978, she and her boyfriend James Scott drove to a beach near a Commonwealth Edison plant. While there, a man whom complainant identified as Michael Martinez approached the driver’s side of the car and asked for a cigarette. As Scott complied with the request, he was sprayed in the face with mace. Joseph Martinez then reached through the passenger window and sprayed mace on complainant. The two assailants dragged complainant from the car, beat her, and forced her into a green Gremlin driven by defendant Requena. They drove for approximately 10 minutes and stopped near some gravel hills. All three men forced complainant to engage in intercourse and perform fellatio. Complainant was pushed out of the car and as defendants drove away, she noted the license number PW 3090.

After complainant dressed, she ran to the street and stopped a car. The driver helped her find a police officer. She gave the police the license number of the car and told him she had been raped by three men. The officer told her James Scott had already reported the incident. The officer returned to the scene of the alleged offense.

James Scott testified that after he was sprayed with a mace-like substance, he was unable to see, but heard complainant screaming. When he regained his sight, complainant was being forced into a car approximately 15 feet away. He attempted to follow the car, but drove off the road. Shortly thereafter, he returned to the beach with a friend. They found two policemen and drove around the beach. Fifteen minutes later, they found complainant with two police officers. Complainant was hysterical and badly bruised.

Officer Raymond Uchman testified that while he was tin duty in a squad car on the morning in question, he was approached by Scott and another man. Scott’s eyes were watering and he appeared tense. He and his partner took Scott to an area near the Commonwealth Edison plant and approximately 30 minutes later, they found complainant in a squad car with Lieutenant McNamara. Complainant was crying hysterically and her face was swollen.

Lieutenant McNamara testified that complainant approached his car at approximately 6 a.m. and stated she had been raped. McNamara noticed blood stains on her clothing. She did not appear to be intoxicated or under the influence of drugs. Complainant further told McNamara the license number of the car in which her assailants fled was BW 3090. McNamara learned the plates were registered to Martinez who lived at 10244 South Yates.

Officer James Cons ales monitored a police radio report at 6 a.m. and proceeded to 10244 Yates to look for a green Hornet. He saw the vehicle traveling on Yates and chased it five blocks before the car stopped. Requena and Michael Martinez were seated in front. Joseph Martinez was seated in back. A can of mace was found behind the back seat.

The parties stipulated to the following facts. A shirt worn by Michael Martinez and jeans worn by Joseph Martinez at the time of their arrest were stained with blood of the same type as that of complainant. Cloth found in defendant’s car was also stained with this same blood type. A physical examination of complainant revealed she sustained a black eye and contusions and abrasions of the neck, face, head, back, left wrist, right wrist and thigh. She also had a small vaginal laceration.

Defendant Michael Martinez testified that he, his brother Joseph, and Roberto Requena went to the beach to purchase marijuana. When he got out of his car, he heard a woman scream. He removed a can of mace from the glove compartment and approached the car from which the screams came. He saw Scott beating complainant. Complainant screamed for help and said Scott had taken drugs and was crazy. Michael Martinez sprayed Scott with mace, took complainant to his car and left the beach.

Later, they parked the car and complainant, while alone with Michael in the car, offered to engage in intercourse with Michael to thank him for saving her life. Later, she also had intercourse with Joseph Martinez and Roberto Requena. When defendants offered to take complainant home, she became irate. Rather, complainant wanted to return to the beach to find Scott, but defendants refused to take her. On cross-examination, he admitted that during an interview with an assistant State’s Attorney, he claimed he had never seen complainant or James Scott.

Joseph Martinez testified that when Michael returned to the car with complainant, complainant was sobbing and bloodied. She said her boyfriend had beaten her. Joseph also had intercourse and oral sex with complainant, but did not force her to participate.

Roberto Requena’s testimony corroborated that of the Martinezes. However, he testified that although he attempted, he was unable to have intercourse with complainant. Complainant agreed to have intercourse with Requena. On cross-examination, it was revealed that during an interview with the assistant State’s Attorney, Requena denied knowledge of the incident.

First, Requena contends that the trial court excluded relevant defense evidence where it precluded cross-examination of complainant regarding her use of an intrauterine device and her sexual activities, if any, with James Scott prior to the incident. The trial court excluded this evidence under section 115 — 7(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 115 — 7(a)) which provides:

“In prosecutions for rape or deviate sexual assault, the prior sexual activity or the reputation of the alleged victim is inadmissible except as evidence concerning the past sexual conduct of the alleged victim with the accused.”

Defendant contends the application of the statute deprived him of his due process and equal protection rights.

This statute was challenged on due process grounds in People v. Cornes (1980), 80 Ill. App. 3d 166, 399 N.E.2d 1346. In Comes, the court noted that the statute neither precluded cross-examination of a complainant nor prevented the defendant from attacking complainant’s credibility and veracity. The statute merely denied a defendant the opportunity to harass and humiliate the complainant. Therefore, the court found the statutory evidentiary restrictions did not violate defendant’s due process rights. On the basis of Comes, we find defendant’s due process argument to be without merit.

No Illinois court has addressed the issue of whether the statute violates equal protection rights. However, in Cherry v. State (Ind. 1981), 414 N.E.2d 301, and Finney v. State (Ind. App. 1979), 385 N.E.2d 477, the statute survived an equal protection challenge. The courts reasoned that because a defendant in a rape case is not within a suspect classification, the equal protection clause requires only that the statute be rationally related to a legitimate State purpose. The courts then found that the statute was a rational attempt by the legislature to protect the complainant from harassment and humiliation and encourage victims of sexual assaults to report the crimes without fear of having their past sexual activities brought before the public. We agree with the rationale in Cherry and Finney and find that section 115 — 7 of the Code of Criminal Procedure of 1963 does not violate defendant’s equal protection rights.

We add that the rape shield statute was not the only basis for excluding the evidence of complainant’s sexual activities, if any, with Scott. Even prior to the enactment of the statute, evidence of complainant’s prior specific sexual acts was inadmissible and defendant was limited to proving only complainant’s general reputation for immorality and unchastity. (People v. Collins (1962), 25 Ill. 2d 605, 186 N.E.2d 30, cert. denied (1963), 373 U.S. 942, 10 L. Ed. 2d 697, 83 S. Ct. 1551; People v. Burgin (1979), 74 Ill. App. 3d 58, 392 N.E.2d 251.) Thus, defendant in this case could not have questioned complainant regarding sexual activity she may have had with Scott prior to the incident.

Requena further contends hearsay evidence corroborating complainant’s testimony was improperly admitted. He first objects to Lieutenant McNamara’s testimony that complainant told him she had been raped. However, this evidence was admissible under the “prompt complaint” of rape exception to the hearsay rule. (People v. Damen (1963), 28 Ill. 2d 464, 193 N.E.2d 25; People v. Hernandez (1980), 88 Ill. App. 3d 698, 412 N.E.2d 572.) Requena further objects to the admission of complainant’s testimony that the police officer told her Scott had already reported the abduction and to the admission of Lieutenant McNamara’s testimony specifying the license number which complainant reported to him. The admission of this evidence was not objected to at trial nor was it raised in the post-trial motion. Thus, the issue was not preserved for review. (People v. Osborn (1977), 53 Ill. App. 3d 312, 368 N.E.2d 608, cert. denied (1978), 439 U.S. 837, 58 L. Ed. 2d 134, 99 S. Ct. 122; People v. Witherspoon (1975), 33 Ill. App. 3d 12, 337 N.E.2d 454.) Furthermore, the overwhelming evidence of guilt would render the error, if any, in admitting the evidence harmless. People v. Hall (1980), 90 Ill. App. 3d 1073, 414 N.E.2d 201.

Third, Requena contends he was not proved guilty of rape beyond a reasonable doubt. However, the record overwhelmingly refutes this contention. Complainant’s testimony alone, if believed by the jury, would have been sufficient evidence of guilt, even though contradicted by the accused. (People v. Lewis (1979), 73 Ill. App. 3d 951, 392 N.E.2d 707.) Corroborating evidence of guilt was established by complainant’s prompt report of the incident (People v. Damen (1963), 28 Ill. 2d 464, 193 N.E.2d 25; People v. Edmond (1979), 76 Ill. App. 3d 540, 395 N.E.2d 106), her hysterical condition after the occurrence (People v. Griggs (1970), 131 Ill. App. 2d 257, 266 N.E.2d 398), and defendant’s flight from police (People v. Ward (1980), 83 Ill. App. 3d 766, 404 N.E.2d 847). It is the function of the jury to weigh the evidence and assess the credibility of the witnesses. (People v. Burgin (1979), 74 Ill. App. 3d 58, 392 N.E.2d 251.) In view of the evidence in this case, we cannot encroach upon this function.

Fourth, Requena contends the trial court erred in failing to instruct the jury on attempt rape. Defendant admits he did not tender an attempt rape instruction, but maintains the instruction should have been given sua sponte.

A court must exercise restraint in giving instructions on its own motion. (People v. Spataro (1978), 67 Ill. App. 3d 69, 384 N.E.2d 553.) In doing so, it risks interfering with the defense strategy and thus committing error. (67 Ill. App. 3d 69, 75, 384 N.E.2d 553, 557, citing People v. Precup (1978), 73 Ill. 2d 7, 17, 382 N.E.2d 227, 231.) In the case at bar, defendant testified he was unable to have intercourse with complainant. It is therefore reasonable to assume that defense counsel intended to present the jury with only two alternatives, namely guilty of rape or not guilty, and eliminate the possibility of a guilty verdict on attempt rape. Under these circumstances the trial court was not obligated to instruct the jury on attempt rape.

Joseph and Michael Martinez contend the prosecutor’s improper remarks during closing argument denied them a fair trial. They first complain of the prosecutor’s statement that defendants had lied. However, in light of complainant’s testimony, this comment was warranted. (People v. Witherspoon (1975), 33 Ill. App. 3d 12, 337 N.E.2d 454.) Defendants also object to the prosecutor’s characterization of them as “animals” and to the comment that complainant, in reporting the incident, “did something that if more women would do * * * there would be a lot more defendants caught.” However, defendants’ objections to the comments were promptly sustained and the evidence of guilt was clear and convincing. Thus, we cannot say that the remarks influenced the verdict or denied defendants a fair trial. People v. Redmond (1979), 73 Ill. App. 3d 160, 390 N.E.2d 1364.

Finally, all defendants contend their sentences are excessive. They maintain the trial court ignored mitigating factors that they were in their 20’s when the crime was committed, they had no prior convictions, the social environment to which they would return was conducive to rehabilitation, and their backgrounds indicated they were unlikely to commit criminal acts in the future. Defendants therefore contend the trial court abused its discretion in sentencing.

The trial court is generally in a better position to determine sentences than is this court and considerable caution should be exercised in disturbing a sentence on appeal. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882; People v. Burdine (1980), 82 Ill. App. 3d 984, 412 N.E.2d 554.) In determining a sentence, the trial court is authorized to consider not only defendant’s character, but also the nature and circumstances of the offense. (People v. Lykins (1979), 77 Ill. 2d 35, 394 N.E.2d 1182, cert. denied (1980), 445 U.S. 952, 63 L. Ed. 2d 787, 100 S. Ct. 1602; People v. Cook (1976), 41 Ill. App. 3d 946, 354 N.E.2d 122.) Other factors to be considered are defendant’s credibility, demeanor, general moral character, mentality, social environment, habits and age. People v. Cozzi (1981), 93 Ill. App. 3d 94, 416 N.E.2d 1192; People v. Walls (1980), 87 Ill. App. 3d 256, 408 N.E.2d 1056.

Clearly, the brutal nature of the crimes is a compelling fact in aggravation of the sentences. Complainant was sprayed with mace, forcibly abducted, and beaten by Michael and Joseph Martinez. They forced her to engage in intercourse and deviate sexual acts. Apparently the Martinezes initiated the ordeal. In light of these factors and the seriousness of the offenses, we cannot say the trial court abused its discretion in sentencing each Martinez to 20 years for rape and deviate sexual assault and 15 years for aggravated kidnapping. Requena received a 10-year sentence for rape. The disparity between his sentence and those imposed upon the Martinezes is itself an indication that the trial court considered the factors in mitigation. Therefore, we find the trial court did not abuse its discretion.

For the foregoing reasons, the judgments of the circuit court of Cook County are affirmed.

Judgments affirmed.

CAMPBELL, P. J, and O’CONNOR, J., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    HARRIS TRUST & SAVINGS BANK, Trustee, Plaintiff-Appellee, v. WILLIAM L. DUGGAN, Commissioner, Department of Inspectional Services of the City of Chicago, et al., Defendants-Appellants.—(322 WEST OAKDALE, INC., et al., Petitioners-Appellants.)
    First District (3rd Division)
    Nos. 80-2126, 80-3079, 81-2271 cons.
    Opinion filed March 17, 1982.
    Rehearing denied May 3, 1982.

      Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Phillip L. Bronstein, Assistant Corporation Counsel, of counsel), for appellants William L. Duggan and City of Chicago.
    Raymond F. Simon and Joseph A. Spitalli, both of Chicago (Simon & Spitalli, of counsel), for other appellants.
    Donald Page Moore, Richard J. Roddewig, and Nancy L. Kaszak, all of Chicago, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

This is a consolidated appeal of three related trial court decisions concerning the Kellogg mansion complex in the 2900 block of North Lake Shore Drive in Chicago. The three actions were brought by the plaintiff bank, as trustee of the Helen L. Kellogg trust and owner of the subject property, against William L. Duggan, Commissioner of the Chicago Department of Inspectional Services, and the city of Chicago. Plaintiff first sought a writ of mandamus compelling the city to issue demolition permits for the subject property and later challenged the validity of a zoning ordinance and a landmark ordinance as they applied to that property. The trial court found in favor of plaintiff in all three actions and entered judgment against defendants for $1,037,849.76 pursuant to section 5 of the Mandamus Act (Ill. Rev. Stat. 1979, ch. 87, par. 5) for defendants’ wrongful failure to issue the permits. The city subsequently entered an agreement with plaintiff by which it relinquished its right to appeal and promised to issue the demolition permits in exchange for abandonment of its money judgment. After learning of the agreement, petitioners 332 West Oakdale, Inc., Martin J. Oberman and Hedwig Braun sought leave to intervene after judgment in the final action. The trial court denied intervention, and on appeal petitioners seek review of all three decisions arguing that none of plaintiff’s complaints stated a claim upon which relief could be granted. Plaintiff denies this contention. While agreeing that petitioners have standing to challenge the zoning decision, plaintiff maintains that they have no standing to challenge the landmark and mandamus decisions.

The property involved consists of three contiguous parcels of real estate located at 2946, 2952, and 2960 North Lake Shore Drive. The parcels are improved with three single-family residences which plaintiff acquired by deed from Mrs. Kellogg in 1972. At that time the property was zoned R8 and had been zoned R8 since 1961. The Kellogg family had resided in two of the homes. The third was acquired in 1971 for investment purposes. Upon the death of Mrs. Kellogg in 1978 plaintiff’s purpose was to liquidate the assets and distribute the residue to a charitable foundation which she had created in her lifetime. Pursuant to this purpose, plaintiff contracted to sell the property for $2,639,325. The contract was subject to the R8 zoning which existed at that time. On February 1,1979, plaintiff applied to the city for demolition permits. The permits were issued on March 6,1979, but were revoked on the following day. The city explained in its letter of revocation that the buildings were “located in an area now under consideration by the Commission on Chicago Historical and Architectural Landmarks for designation as a Chicago Landmark District.”

On April 6, 1979, plaintiff filed suit seeking a writ of mandamus compelling reissuance of the permits. During the pendency of the mandamus action however, the city, on August 10, 1979, enacted an ordinance which downzoned the property from R8 to R5, thereby precluding use of the subject property for purposes permitted under R8 zoning. As a result, the contract for sale was not effectuated. On October 22, 1979, plaintiff filed another action against the city seeking a declaratory judgment that the amendatory ordinance changing the zoning from R8 to R5 was unconstitutional and void. Oakdale, the owner of contiguous real estate, was granted leave to intervene as a party defendant. On June 25, 1980, the trial court entered a judgment in the zoning case declaring that the change in zoning from R8 to R5 was unconstitutional and void as it applied to the subject property and ordering that the subject property was lawfully usable for any purpose permitted under R8 zoning. On October 28, 1980, the trial court entered judgment for the plaintiff in the earlier action and ordered the issuance of a writ of mandamus ordering the city to reissue the demolition permits. In the meantime, however, the Commission on Chicago Historical and Architectural Landmarks had notified plaintiff of a hearing regarding the contemplated designation of the subject property as historical landmarks. The commission subsequently recommended to the city council that the property be so designated. Consequently, the court in the mandamus action initially stayed the execution of the writ for 45 days to allow the city council time to consider the question of landmark status. The writ was later stayed pending appeal.

On February 11,1981, the city council enacted an ordinance designating the subject property as a landmark. On March 31, 1981, plaintiff notified the commission of its continued desire to demolish the buildings and demanded that the city either allow demolition or acquire the property under eminent domain. Plaintiff further advised the commission that it waived its right to a hearing, and it requested that the commission proceed with the administrative procedures required under section 21 — 64.1 of the Municipal Code of Chicago. On April 21, 1981, plaintiff was advised by the city that its demands had been rejected and that the city denied it had any obligation to compensate plaintiff for the alleged taking. On May 15, 1981, plaintiff added a third count to its mandamus complaint alleging that the cumulative effect of defendants’ actions in revoking the demolition permit, downzoning the property, and finally in designating the property as a landmark operated to deprive plaintiff of all reasonable use of its property for more than two years. Plaintiff alleged that defendants’ actions thus resulted in its property being taken without due process and without payment of just compensation. On September 1, 1981, plaintiff amended its prayer for relief to conform to the evidence by adding a request for the entry of a declaration that the ordinance designating the subject property as a landmark was unconstitutional and void.

On September 2, 1981, the court entered judgment for plaintiff finding that the enactment by the city of its ordinance declaring plaintiff’s property as “Chicago Landmarks” coupled with the city’s refusal to issue demolition permits for the Kellogg mansions operated to deprive plaintiff of all reasonable use of its property thereby constituting a taking for public use for which plaintiff was entitled to just compensation. The court determined that $3,650,000 would be just compensation. Finding that the city was unwilling to compensate plaintiff, the court, rather than entering a judgment for money, entered a declaratory judgment declaring the ordinance designating the property as a historical landmark to be unconstitutional and void as applied to the subject property. In addition, the court awarded plaintiff $1,037,849.76 in damages under section 5 of the Mandamus Act.

Thereafter, the city entered an agreement with plaintiff by which the city relinquished its right to appeal all three actions and promised to issue the demolition permits in exchange for plaintiff’s abandonment of its money judgment. On September 14,1981, petitioners sought to intervene post-judgment in the landmark case. The petition was denied. Petitioners appeal from that denial and from all three decisions.

We first address petitioners’ contention that the trial court erred in denying their petition for leave to intervene in the landmark case. The question of when a third party may intervene is governed by section 26.1 of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 26.1.) Section 26.1 is to be construed liberally. (Bredberg v. City of Wheaton (1962), 24 Ill. 2d 612, 182 N.E.2d 742.) Its purpose is to avoid relitigation of issues in a second suit which are being litigated in a pending action. (Caterpillar Tractor Co. v. Lenckos (1981), 84 Ill. 2d 102, 417 N.E.2d 1343.) Intervention is proper, however, only where the intervenor stands to gain or lose by the direct legal operation and effect of a judgment in the suit. In re Appointment of Special State’s Attorneys (1976), 42 Ill. App. 3d 176, 356 N.E.2d 195.

Oakdale is an association of the approximately 53 individual members who reside in apartments in the Oakdale building, the lot line of which is 18 feet from the subject property. Oakdale alleges that judgment for the plaintiff and the “consequent demolition of the Kellogg mansions will adversely affect the character of their neighborhood, remove an appealing and aesthetically attractive group of landmark structures, result in the construction of a new and much larger residential building which will increase traffic, congestion, and crowding in the neighborhood” and substantially reduce the value of the Oakdale property. Plaintiff, however, is not seeking permission in the landmark case for the construction of such a building. Plaintiff seeks such relief in the zoning case, and it does not contest Oakdale’s right to intervene in that action. In the landmark case plaintiff merely seeks the invalidation of an ordinance which forbids the demolition of the existing structures. Oakdale does not allege, nor can we assume, that the demolition of the mansions will in itself decrease the value of the Oakdale property.

Oakdale also alleges that the issuance of a demolition permit would cause it immense and irreparable loss “by destroying the Kellogg mansions’ unique contribution to the cultural heritage and history of the City of Chicago.” It fails, however, to assert that it or any of its members derive any personal benefit from the preservation of the buildings. Although the potential harm alleged need not be economic in nature, it must be individualized. (Sierra Club v. Morton (1971), 405 U.S. 727, 31 L. Ed. 2d 636, 92 S. Ct. 1361.) While the interest which an intervenor has in the pending suit need not be direct, it must be greater than that of the general public. (Seger v. County of Du Page (1978), 58 Ill. App. 3d 858, 374 N.E.2d 1099.) Oakdale fails to assert such an interest.

Oakdale’s reliance on Standard Bank & Trust Co. v. Village of Oak Lawn (1978), 61 Ill. App. 3d 174, 377 N.E.2d 1152, is misplaced. In that case a plaintiff property developer sought to require a village to approve a site plan for the development of a shopping center. After plaintiff prevailed and the village voted not to appeal, neighborhood property owners sought to intervene. Unlike the present case, intervenors were able to allege that as a direct result of the judgment a shopping center would be erected near their property which would have an adverse effect on their property values. The primary issue in Standard Bank was the timeliness of the intervention, an issue we need not reach in the present case since we find that Oakdale does not have a sufficient interest in either the mandamus or the landmark case to warrant intervention.

Similarly, petitioner Oberman fails to assert a personal interest in the outcome of this suit to warrant intervention in the mandamus or landmark cases. He is alderman of the ward in which the property is located. His status as an alderman alone does nothing to enhance his right to intervene. (University Square, Ltd. v. City of Chicago (1979), 73 Ill. App. 3d 872, 392 N.E.2d 136.) Alderman Oberman asserts, however, that he was deprived by the actions of the parties and the trial court of the opportunity to exercise his legally delegated aldermanic responsibility under chapter 21, sections 21.62-21.64 of the Municipal Code to hear appeals from the denial of demolition permits for designated Chicago landmarks and to decide whether or not compensation should be paid.

Section 21 — 64.1 provides that when the building department receives an application to demolish a building previously designated as a landmark it must forward that application to the commission. It further provides that the application and relevant recommendations be subsequently forwarded, in accordance with a timetable specified in the ordinance, to the finance committee of the city council and finally to the council itself. The city council has the ultimate responsibility for rendering a decision. Alderman Oberman complains that the defendants violated the provision of the ordinance by failing to forward the application to the commission. He argues that the commission, the finance committee, and the city council were thereby deprived of an opportunity to review the matter and to consider ways and means available to preserve the landmark. He asserts that he was individually deprived as a member of both the finance committee and the city council.

Plaintiff, however, eliminated the initial step of this administrative process when on March 31,1981, it wrote directly to the commission of its continued desire to demolish the buildings. Plaintiff also waived its right to informal conference and a hearing in this letter and requested the commission to proceed with the administrative process of forwarding the matter to the finance committee and city council in accord with the ordinance. Therefore, the commission did receive the application. Whether or not the finance committee and city council ever considered the matter is not apparent from the record. It is apparent, however, that the city council was aware of the situation. In a letter dated October 28,1980, when the landmark ordinance was still under consideration, plaintiff advised Alderman Stone that it would not consent to any landmark designation absent adequate compensation from the city. Furthermore, plaintiff was advised by an attorney for the city on April 21,1981, that its demands had been rejected.

Even if the city did somehow bypass both the finance committee and the city council when it denied the application, however, Alderman Oberman has not necessarily been foreclosed from exercising his alder-manic prerogatives in this matter. The judgment here merely held the ordinance unconstitutional as applied to the subject property because the city refused to compensate plaintiff. In denying the request to intervene, that court expressed the wish that the “City’s administration and legislative officials would do their duty and pay the plaintiffs just compensation” so as to “preserve the buildings * ° * for the people of Chicago.” Therefore, a legislative solution may yet be available. Since Alderman Oberman has not shown that he will be affected by mandamus or landmark judgments he has not established a right to intervene.

Alderman Oberman also maintains that defendants further deprived him of the opportunity of exercising his legally delegated responsibility under chapter 6 — 8 of the code to consider and pass upon settlement agreements entered into by the city’s legal representatives. The validity of the agreement referred to, however, was a post-judgment matter and is not properly an issue before this court.

Hedwig Braun’s right to intervene was based upon her status as a paid-up tenant on the subject property until December 31,1981. Since she no longer has an interest which could be affected adversely by the judgment, we need not consider whether she had a right to intervene at the time the petition was filed. (Spencer v. Community Hospital (1975), 30 Ill. App. 3d 285, 332 N.E.2d 525.) The issue is now moot.

We next address Oakdale’s appeal from judgment for plaintiff in the zoning case. Its petition to intervene in that action was granted by the trial court, and its right to intervene is not contested by plaintiff.

The subject property, which faces Lincoln Park and Lake Michigan in the 2900 block of Lake Shore Drive, contains three mansions. In 1961 a comprehensive study of the area was done on behalf of the city. The conclusion of that study was that the properties fronting Lake Shore Drive in a six-block area from Belmont on the North to Diversey on the south, including the subject property, should be zoned R8. This determination was in accord with a city policy of having higher density and more people adjacent to the lakefront. Subsequently this six-block area contained six high-rises and a hospital all of which were developed to the limits of the R8 classification. In addition there was a convent on the subject property, neither of which were so developed and both of which conformed to R5. Sheridan Road is immediately west, and all the property on both sides of Sheridan Road in that area was zoned R7. The interior of those blocks between Sheridan Road and Lake Shore Drive contained a mixture of R5 and R7 zoning.

The zoning amendment of August 10,1979, rezoned only the subject property from R8 to R5. Essentially R8 allows a higher density, thus permitting a greater number of dwelling units than R5. The amendment precluded plaintiff from closing on its previously executed sales contract which was subject to the R8 classification.

Initially we consider Oakdale’s contention that the case should have been dismissed for plaintiff’s failure to exhaust its administrative remedies. Specifically, Oakdale asserts that plaintiff neither alleged nor proved that it either protested the enactment of the ordinance or petitioned the city council for a rezoning to R8 once the ordinance had been passed. While plaintiff insists that it did object to the ordinance, we do not believe that exhaustion of administrative remedies was necessary under the present circumstances. Although courts have generally required strict compliance with the exhaustion rule, an exception has been recognized where, as in the present case, an ordinance is attacked as unconstitutional in its entirety. Northwestern University v. City of Evanston (1978), 74 Ill. 2d 80, 383 N.E.2d 964; Bright v. City of Evanston (1956), 10 Ill. 2d 178, 139 N.E.2d 270.

We next consider Oakdale’s argument that plaintiff failed to state a cause of action because it did not allege facts pertaining to a proposed use of the subject property. Essentially plaintiff alleged that the downzoning from R8 to R5 had frustrated its plan to acquire an assemblage of real estate and then sell it for development in accordance with the then existing R8 zoning classification. Plaintiff thus alleged that the amendatory zoning amendment had imposed upon it an unconscionable hardship and was unconstitutional in that it was arbitrary, discriminatory and confiscatory and bore no reasonable relationship to the public welfare. Plaintiff did not, however, specify the exact use to which the property would be put if it were sold. Citing Sinclair Pipe Line Co. v. Village of Richton Park (1960), 19 Ill. 2d 370, 167 N.E.2d 406, Oakdale maintains that the trial court had no authority to declare the subject property suitable for any use permitted under the R8 classification. Oakdale urges that a court is authorized to set aside a zoning ordinance only to the extent necessary to permit a specified use proposed by plaintiff and that plaintiff’s failure to propose such a use in the present case was fatal to its cause of action. Furthermore, Oakdale asserts that the court’s declaration will bar the city from ever rezoning the property and exempt the owner from compliance with the Lake Michigan and Chicago Lakefront Protection Ordinance.

Oakdale correctly asserts that courts have no authority to rezone property from one classification to another. That is a legislative function. (Reeve v. Village of Glenview (1963), 29 Ill. 2d 611, 195 N.E.2d 188; La Salle National Bank v. City of Chicago (1970), 130 Ill. App. 2d 457, 264 N.E.2d 799.) Courts are, however, authorized to pass upon the validity of an existing zoning ordinance, whether or not plaintiff has proposed a specific use. Treadway v. City of Rockford (1963), 28 Ill. 2d 370, 192 N.E.2d 351; Forestview Homeowners Association, Inc. v. County of Cook (1974), 18 Ill. App. 3d 230, 309 N.E.2d 763.

Oakdale’s reliance on Richton Park is misplaced. In that case the plaintiff landowner sought to make specific improvements to his property which were not allowed under the existing zoning ordinance. Unlike the present case, invalidation of the existing ordinance would have left the property completely unzoned. Recognizing the undesirability of this result, the court held that where a specific use is proposed the trial court may frame relief in such a way as to guarantee that the owner will be able to proceed with that use without further litigation. The court did not hold the assertion of a proposed use to be an essential allegation to a cause of action challenging a zoning ordinance. Here invalidation of the amendatory ordinance which changed the zoning classification from R8 to R5 did not leave the property unzoned. Rather, the property remained subject to its prior R8 classification. (Treadway v. City of Rockford (1962), 24 Ill. 2d 488, 182 N.E.2d 219.) This reversion to R8 would have occurred even absent the court’s declaration that the subject property may be “lawfully usable for any use permitted under the R8 General Residence District Zoning.” This declaration does not, therefore, constitute judicial rezoning but rather a statement of the necessary consequences of the court’s having declared the zoning amendment invalid.

We next address Oakdale’s argument that plaintiff failed to establish that the amendatory ordinance was invalid in its application to the subject property and that the trial court erred in finding that the amendment constituted an unconstitutional taking.

The following pertinent testimony was adduced at trial. Rolf Campbell, a city planner and zoning consultant, testified for plaintiff and acknowledged the variety of lower zoning classifications west of the subject property. Although more than one classification in a given block could be compatible with good zoning, he opined that, in the subject area, the R5 classification should be limited to the interior of the block and extend neither to Lake Shore Drive nor Sheridan Road. He asserted that the highest and best use of the subject property, due to its lake-front location, was for a high-rise multi-family building in accord with the R8 zoning classification. Campbell stated further that such use would have no adverse effect on the health, safety and welfare of the surrounding area. He stated that the 1979 amendment which downzoned only the subject property was neither comprehensive in nature nor consistent with the trend of development in the area.

Terrance O’Brien, a real estate appraiser, testified for plaintiff and agreed with Campbell as to the highest and best use of the property. He also stated that there would be no adverse impact on the value of the surrounding property if the subject property were developed to R8 density. He estimated the value of the subject property to be $3,200,000 if zoned R8 and only $1,780,000 if zoned R5.

Martin Murphy, acting commissioner of the department of planning of the city, was called as an adverse witness by plaintiff. He admitted testifying before the building and zoning committee in opposition to the proposed 1979 amendment. At that time he thought that it was out of character with the underlying zoning which had been established in the area since 1961. He thought the amendment lacked consistency in that it was not the result of a comprehensive study of a large area. Murphy withdrew his objection when he was informed that the alderman who had introduced the amendment planned to introduce another amendment to downzone the neighboring convent to R5.

Jerry Jacobson, deputy commissioner of zoning, testified for defendants that the 1979 amendment resulted from a decision by the city, in response to community and aldermanic concern, to downzone various parcels of property within the area in order to reduce density. Rather than adopt a comprehensive zoning amendment, the city downzoned parcels in a piecemeal fashion. The only properties downzoned were those not yet developed to the maximum density permitted by the existing ordinance. Left intact were parcels already developed to the maximum use allowed. Jacobson estimated that nearly 90% of the land in the area had been downzoned in this piecemeal fashion. Stating that his definition of highest and best use was “one that best serves the needs of the community, and the City itself,” he gave his opinion that the highest and best use of the subject property was R5.

John McNamara, a real estate appraiser, testified for defendants that limiting the density of the subject property to R5 would benefit the surrounding area in that it would allow greater light than would an R8 development. He estimated the value of the subject property under R8 classification to be $3,050,000 while under R5 it would be worth only $1,800,000. He believed, however, that it could be economically developed under R5. McNamara stated further that the highest return to plaintiff would be under an R8 zoning and he defined highest and best use as “the use to which the property can be put over a period of time, with the greatest amount of monetary return to the owners.” But he insisted that R5 would be a better and higher use than R8, and he stated that the highest and best use was as a Kellogg mansion.

Where a zoning ordinance is challenged, a presumption always attaches to its validity. (Jacobson v. City of Evanston (1956), 10 Ill. 2d 61, 139 N.E.2d 205.) The party challenging the ordinance has the burden of proving by clear and convincing evidence that the application of the ordinance is arbitrary and unreasonable and constitutes a hardship to him which is not justified by any benefit to the public health, safety and welfare. (Exchange National Bank v. County of Cook (1962), 25 Ill. 2d 434, 185 N.E.2d 250.) Factors to be considered include the existing uses and zoning of nearby property, the extent to which property values are affected by the particular classification, the promotion of the public welfare, the relative gain to the public as compared to the hardship imposed on the property owner, and the suitability of the property for the purpose zoned. Chicago Title & Trust Co. v. Village of Wilmette (1963), 27 Ill. 2d 116, 188 N.E.2d 33; Forestview Homeowners Association, Inc. v. County of Cook (1974); 18 Ill. App. 3d 230, 309 N.E.2d 763.

Also relevant to the validity of a zoning ordinance is the question of whether it was adopted pursuant to a comprehensive plan. The absence of such a plan, although not dispositive on the issue of validity (First National Bank v. Village of Vernon Hills (1977), 55 Ill. App. 3d 985, 371 N.E.2d 659), weakens substantially the presumption of validity which normally attaches to a zoning ordinance, especially after years of original zoning on which interested persons have come to depend. (Forestview Homeowners Association, Inc. v. County of Cook.) The fact that, as here, a single parcel was rezoned does not absolutely negate the existence of a comprehensive plan. (Goffinet v. County of Christian (1976), 65 Ill. 2d 40, 357 N.E.2d 442.) Testimony here differed on whether the 1979 amendment was enacted pursuant to a comprehensive plan. In such instance, the findings of the trial court will not be disturbed unless against the manifest weight of the evidence. (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 145 N.E.2d 65.) The trial court found that the city had decided to reduce the zoning on various pieces of property in the area on a piecemeal basis, for the purpose of decreasing density. The court found that the method used benefited owners of existing high rise buildings by placing all the burden on those landowners, including plaintiff, who had not yet developed their properties to the maximum density allowed. The court found this arrangement to be a taking.

This approach by the city, however, is not unreasonable in itself so long as the benefit to the public outweighs the harm to the landowner. (Amdur v. City of Chicago (7th Cir. 1981), 638 F.2d 37.) In any event, the trial court found that the hardship to plaintiff was not justified by any benefit to the public. The downzoning not only precluded plaintiff from a sale of the land but it also substantially reduced the value of its property. While diminution in value alone does not suffice to invalidate an ordinance, it must be shown that the public welfare does not require the restrictions and resulting loss. (Zenith Radio Corp. v. Village of Mount Prospect (1973), 15 Ill. App. 3d 587, 304 N.E.2d 754.) Testimony as to public benefit was contradictory in the present case. Evidence offered by plaintiff demonstrated that the policy of encouraging R8 development on lake-front property benefited the public. Defendants’ evidence revealed that lower density would benefit plaintiff’s neighbors. The trial court’s determination that the hardship to plaintiff outweighed benefit to the public was not manifestly against the weight of the evidence.

For the reasons stated, the orders of the circuit court of Cook County denying petitioners leave to intervene in the landmark and mandamus cases are affirmed. The judgment finding the downzoning from R8 to R5 unconstitutional and void as applied to this property is also affirmed.

Judgments affirmed.

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


author: JUSTICE McGILLICUDDY

text:
    WILLIAM PARKSON, Plaintiff-Appellee, v. CENTRAL DuPAGE HOSPITAL, Defendant-Appellant.—(DR. GERALD A. JABAAY etal., Defendants.)—LAURIE BULAT, Plaintiff-Appellee, v. CENTRAL DuPAGE HOSPITAL, Defendant-Appellant.—(M. STRUGALA et al., Defendants.)
    First District (3rd Division)
    Nos. 80-503, 80-504 cons.
    Opinion filed March 31, 1982.
    Rehearing denied May 10, 1982.

      French & Rogers, of Chicago (Richard G. French and Timothy G. Keating, of counsel), for appellant.
    Lawrence Jay Weiner and Fredric Bryan Lesser, both of Lawrence Jay Weiner & Associates, and Goldberg & Goldberg, both of Chicago, for appellees.
    Harry L. Kinser, Kenneth C. Robbins, and Jeffrey W. Maysent, all of Chicago (McLaughlin, Kinser & Bryant, of counsel), for amici curiae Illinois Hospital Association and Chicago Hospital Council.
    Winston & Strawn, of Chicago (Calvin Sawyier and James L. Fletcher, of counsel), for amicus curiae Illinois State Medical Society.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

The plaintiffs in this consolidated appeal filed complaints alleging, inter alia, medical malpractice and drug product liability. The plaintiffs alleged that they had suffered injuries from injections of disease, the trade name used by defendant Baxter Laboratories, Inc., for chymopapain, a Federal Drug Administration investigational drug. During discovery, the plaintiffs sought the production of the medical records of patients, other than the plaintiffs, who also had been treated with disease at the defendant hospital, Central DuPage Hospital (the hospital). The hospital’s objections were overruled, and the trial court subsequently ordered the hospital to produce the admission and discharge summaries (the records) of some 800 patients. The court stated that the hospital could strike the names and identifying numbers of the patients from the records. The hospital failed to comply with the court’s orders and was held in contempt of court. The hospital appeals.

The issues presented in this appeal are: (1) whether a hospital can assert the physician-patient privilege; (2) whether the physician-patient privilege protects the hospital’s records; (3) whether the physician-patient privilege has been waived by the hospital or the patients; (4) whether the hospital records are relevant to the plaintiffs’ actions; and (5) whether the records are protected by the patients’ constitutional and Federal statutory rights of privacy and due process.

Although communications between a doctor and patient were not protected at common law (The Physician-Patient Privilege, 56 Nw. U.L. Rev. 263 (1961)), the State of Illinois has created a statutory protection for certain information obtained by a physician in his professional relationship with a patient. (People v. Bickham (1980), 90 Ill. App. 3d 897, 414 N.E.2d 37, aff'd (1982), 89 Ill. 2d 1, 431 N.E.2d 365.) The Illinois statute, which is similar in substance to those of other States (Geisberger v. Willuhn (1979), 72 Ill. App. 3d 435, 390 N.E.2d 945), provides in pertinent part:

“No physician or surgeon shall be permitted to disclose any information he may have acquired in attending any patient in a professional character, necessary to enable him professionally to serve such patient, except only * * * (2) in actions, civil or criminal, against the physician for malpractice, (3) with the expressed consent of the patient, ° e (4) in all civil suits brought by or against the patient, * * * wherein the patient’s physical or mental condition is an issue, * * * (6) in any criminal action where the charge is either murder by abortion, attempted abortion or abortion • * Ill. Rev. Stat. 1979, ch. 51, par. 5.1.

The plaintiffs in the instant case argue that the statute only permits the physician or surgeon to assert the privilege on behalf of the patient. Thus, they contend that the hospital does not have standing to claim the physician-patient privilege.

We believe that in certain instances a hospital can assert the physician-patient privilege to protect the records of its patients. While no Illinois court has ruled on this issue, we believe that such a conclusion can be drawn inferentially from the case of Cannell v. Medical & Surgical Clinic, S.C. (1974), 21 Ill. App. 3d 383, 315 N.E.2d 278. Cannell held that the defendant medical clinic had a duty to disclose a patient’s medical history, upon the patient’s request, to third parties. In reaching this conclusion the court quoted the following passage from Emmett v. Eastern Dispensary & Casualty Hospital (D.C. Cir. 1967), 396 F.2d 931, 935:

“ ‘The responsibilities of physicians and hospitals to protect their patients’ medical facts from extrajudicial exposure spring from the confidential nature of the relationship. We find in the fiducial qualities of that relationship the physician’s duty to reveal to the patient that which in his best interests it is important that he should know.’” (Emphasis added.) 21 Ill. App. 3d 383, 385, 315 N.E.2d 278, 280.

This issue specifically was decided by the Arizona courts in Tucson Medical Center Inc. v. Rowles (1974), 21 Ariz. App. 424, 520 P.2d 518. The Arizona statute construed in that case provided that in a civil action physicians and surgeons could not, without the consent of their patients, be examined as to certain physician-patient communications. (Ariz. Rev. Stat. Annot. §12 — 2235 (1982).) In holding that the hospital could assert the privilege on behalf of the patient, the court stated:

“We have neither discovered nor have we been cited to authority holding directly that a hospital cannot assert the privilege as to records containing confidential material when both the physician and the patient are absent from the proceedings. * * * [OJur decision above that hospital records are covered by the physician-patient privilege mandates that the hospital assert this privilege when neither the patient nor his physician are parties to the proceeding. To hold otherwise would deprive a patient of the confidentiality granted him by A.R.S. §12 — 2235 * 21 Ariz. App. 424, 429, 520 P.2d 518, 523.

Central DuPage Hospital was the only defendant from whom the plaintiffs sought the records of patients who were treated with disease. Therefore, we hold that the hospital was mandated to assert the physician-patient privilege to insure that the patients’ records would be protected in accordance with the intentions of our statute.

The next issue raised in this appeal is whether the Illinois physician-patient privilege is applicable in the case at bar. The plaintiffs contend that the records were discoverable because they met the second of seven statutory exceptions to the privilege — “in actions, civil or criminal, against the physician for malpractice” (Ill. Rev. Stat. 1979, ch. 51, par. 5.1). It is the plaintiffs’ position that this exception is not limited to the records of the patient who brings an action for malpractice. They argue that the exception should apply to the records of all patients of the physician who is being sued for malpractice.

As we stated in People v. Bickham, the purpose of the physician-patient privilege is to encourage free disclosure between the physician and patient and to protect the patient from the embarrassment and invasion of privacy which disclosure would entail. (See also The Physician-Patient Privilege, 56 Nw. U.L. Rev. 263, 266-69 (1961).) The physician-patient privilege, as with other statutory privileges, is a legislative balancing between relationships that society feels should be fostered through the shield of confidentiality and the interests served by disclosure of the information in a court of law. (See In re Westland (1976), 48 Ill. App. 3d 172, 362 N.E.2d 1153; Note, Physician-Patient Privilege, 46 Chi.Kent L. Rev. 37 (1969).) Except for the purposes specified in the statute, the legislature has decided in favor of the former.

Recognizing a similar legislative policy determination, New Jersey courts have held that their statutory physician-patient privilege prohibits a physician from revealing to a plaintiff in a civil malpractice action the identities, ailments and treatments of his patients who are not parties to the litigation. In Osterman v. Ehrenworth (1969), 106 N.J. Super 515, 256 A.2d 123, the court refused to allow the disclosure of such information without the consent of the nonparty patients and held that the revelation of such information “would amount to judicial disregard of the legislatively expressed public policy; it would disclose that which the legislature has specifically acted to protect.” (106 N.J. Super. 515, 525, 256 A.2d 123, 129.) The disclosure of nonparty patients’ information has been forbidden in several other States as well. Tucson Medical Center, Inc. v. Rowles; Costa v. Regents of University of California (1953), 116 Cal. App. 2d 445, 254 P.2d 85; Argonaut Insurance Co. v. Peralta (Fla. App. 1978), 358 So. 2d 232; Shepherd v. McGinnis (1964), 257 Iowa 35, 131 N.W.2d 475.

The information in the patients’ records in the case at bar deserves the protection of confidentiality that the legislature envisioned and in accordance with the public policy expressed above. Although the Illinois statute on the physician-patient privilege exempts civil malpractice actions, we believe that that exception should be limited to only allow the disclosure of the records of the patient who is bringing the malpractice action. A broadening of that exception to allow the disclosure of communications involving patients who are not parties to the litigation would neither serve a public interest nor the private interests of those nonparty patients.

We also reject the plaintiffs’ argument that the physician-patient privilege would not have been violated because the trial court ordered that the names and identifying numbers of the patients be excluded from the records. A similar trial court order was held violative of the privilege in Argonaut Insurance Co. v. Peralta. (Contra, Community Hospital Association v. District Court (1977), 194 Col. 98, 570 P.2d 243.) As in Argonaut Insurance Co., the plaintiffs in the instant case seek specific medical information about nonparty patients. The hospital’s admit and discharge summaries of the other patients who had been injected with disease contain information acquired in attending the patients, which information the Illinois physician-patient privilege protects. Cf. Gourdine v. Phelps Memorial Hospital (1972), 40 App. Div. 2d 694, 336 N.Y.S.2d 316 (the physician-patient privilege does not apply to ordinary incidents and facts which are not necessary for a physician to treat his patient).

Whether the patients’ identities would remain confidential by the exclusion of their names and identifying numbers is questionable at best. The patients’ admit and discharge summaries arguably contain histories of the patients’ prior and present medical conditions, information that in the cumulative can make the possibility of recognition very high. (See Doe v. Roe (1977), 93 Misc. 2d 201, 214 n.9, 400 N.Y.S.2d 668, 677 n.9.) As the patients disclosed this information with an expectation of privacy, their rights to confidentiality should be protected.

The third issue raised in this appeal is whether the physician-patient privilege was waived. The plaintiffs argue that the hospital has waived the privilege by responding to a supplementary interrogatory that to the hospital’s knowledge no patients, except the plaintiffs, had suffered adverse reactions to the drug disease. A similar argument was rejected in Tucson Medical Center, Inc. v. Rowles wherein the court stated that the privilege only could be waived by the holder of the privilege, the patient. We agree and hold that the hospital in the case at bar could not waive the patients’ rights to confidentiality. We further find that the patients did not waive the physician-patient privilege when they signed authorizations allowing the hospital to release their medical information to “such agencies as might be concerned with third party payment of charges for services.” We do not believe that the execution of this limited waiver evidences an intent by the patients to allow the release of their medical information to unknown individuals or agencies or to the public at large. Cf. People v. Mileris (1981), 103 Ill. App. 3d 589 (no expectation of confidentiality where patients’ medical records are subject to disclosure under Workmen’s Compensation Act).

Since we find that the physician-patient privilege bars the discovery of the hospital records sought by the plaintiffs, a discussion of the other issues raised in the instant case is unnecessary.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings in accordance with the views expressed herein.

Reversed and remanded.

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

       By leave of court, amicus curiae briefs were filed by the Illinois Hospital Association, the Chicago Hospital Council and the Illinois State Medical Society.

       The plaintiffs also argue that the records may contain information given by the patients to hospital nurses and technicians. Entries in hospital records regarding communications between patient and support personnel are privileged where the latter are acting as assistants or agents to the physician. (See 8 Wigmore, Evidence §2382, at 834-35 (McNaughton rev. 1961).) As the record is incomplete in this regard, we cannot reach a conclusion on this contention.

       The plaintiffs alternatively argue that a protective order could be entered to limit the dissemination of the patients’ records to the parties involved in the instant litigation. While no protective order was entered in the case at bar,, we believe that the physician-patient privilege still would have been violated. See State ex rel. Benoit v. Randall (Mo. 1968), 431 S.W.2d 107 (screening of patients’ records by plaintiff alone would violate doctor-patient privilege).


author: JUSTICE ROMITI

text:
    ONE WAY LIQUORS, INC., et al., Plaintiffs-Appellees, v. JANE M. BYRNE, Local Liquor Control Commissioner of the City of Chicago, et al., Defendants-Appellants.
    First District (4th Division)
    No. 81-571
    Opinion filed April 1, 1982.

      Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Cheryl L. Smalling, Assistant Corporation Counsel, of counsel), for appellants.
    Dore & Clark, Ltd., of Chicago (Cornelius F. Dore, William G. Clark, Jr., and llene M. Davidson, of counsel), for appellees.
   JUSTICE ROMITI

delivered the opinion of the court:

The local liquor commissioner revoked plaintiffs’ license after their president was convicted of grand theft. The circuit court reversed because the order contained no findings regarding plaintiffs’ rehabilitation or lack of it. It also refused to dismiss plaintiffs’ appeal although plaintiffs had failed to file a petition for rehearing before the license appeal commission as required by law. We find that the circuit court erred in refusing to dismiss the appeal. Accordingly, we reverse the judgment of the circuit court.

Ahmad H. Yusuf, the president of One Way Liquors, Inc., and Yale Food & Liquor Inc. was convicted of grand theft on March 29,1978, and sentenced to 30 months’ probation. This fact is conceded by the plaintiffs. Informed of the conviction, the commissioner commenced proceedings on the charge that “on 31 March 1978, the president of the licensed corporation, Ahmad H. Yusuf, was convicted of grand theft before the Honorable Judge Cawley, and is therefore ineligible to hold a license, pursuant to chapter 43, §120(4), Ill. Rev. Stat. 1977.” Section 2(4) of article VI of the Liquor Control Act provides:

“No license of any kind issued by the State Commission or any local commission shall be issued to:
(4) A person who has been convicted of a felony under any Federal or State law, if the Commission determines, after investigation, that such person has not been sufficiently rehabilitated to warrant the public trust; * * Ill. Rev. Stat. 1977, ch. 43, par. 120(4).

Proceedings on the charge were repeatedly continued, at the request of plaintiffs, while Yusuf’s conviction was being unsuccessfully appealed. The matter was finally heard on May 12,1980. The city, as it had done at several previous hearings, introduced evidence of the conviction. For the first time, plaintiffs raised the issue that the city had failed to show there was an investigation and that Yusuf was not sufficiently rehabilitated to warrant the public trust. The hearing examiner indicated a belief that it was conclusively presumed the person was not rehabilitated until the sentence or period of probation was completed. In his order, he simply found Yusuf had been convicted of grand theft and therefore was ineligible to hold a license pursuant to section 2(4) of article VI of the Act (Ill. Rev. Stat. 1977, ch. 43, par. 120(4)).

Appeal was taken to the license appeal commission of the city of Chicago, and a hearing was held. At that hearing the chairman also indicated the belief that, as a matter of law, a person is not rehabilitated until he finishes serving his sentence. In its order issued September 9,1980, the commission affirmed the order, expressly finding that when it has been proven that the licensee is under the sentence of supervision of a court for violations of law, the city has sustained its burden regarding the issue of nonrehabilitation.

Although required to file a petition for rehearing by sections 8 and 8a of article VII of the Act, which provide in part:

“Within 20 days after the service of any rule, regulation, order or decision of said commission upon any party to the proceeding, such party may apply for a rehearing in respect to any matters determined by said commission. If a rehearing is granted, the commission shall hold the rehearing and render a decision within 20 days from the filing of the application for rehearing with the secretary of the commission. The time for holding such rehearing and rendering a decision may be extended for a period not to exceed 30 days, for good cause shown, and by notice in writing to all parties of interest. No action for the judicial review of any decision of said commission shall be allowed unless the party commencing such action has first filed an application for a rehearing and the commission has acted upon said application. Only one rehearing may be granted by the commission on application of any one party” (Ill. Rev. Stat. 1977, ch. 43, par. 154),

plaintiffs did not file a motion for rehearing. Instead, on October 14,1980, plaintiffs filed a complaint in the circuit court for judicial review. Defendants moved to dismiss the complaint because of plaintiffs’ failure to file a petition for rehearing. At the hearing the circuit court stated that the commission had no jurisdiction to revoke the license unless it first determined Yusuf was not rehabilitated. It further stated that the order was so patently illegal that the commission’s jurisdiction never came into play and the order could be attacked at any time despite time or other limitations in the statute. Accordingly, it was not necessary that plaintiffs exhaust their administrative remedies. The circuit court further held that it was reversing only because of the failure to make the proper finding and that because this was a matter of substance, it did not have the jurisdiction to remand the case to the commission. In its written order the circuit court found:

1. the orders of revocation contained no findings of fact regarding the lack of rehabilitation of plaintiff as required by statute.
2. the filing of a petition for rehearing before the license appeal commission would have been a useless act in that the orders of revocation were legally insufficient on their face.

The circuit court denied defendants’ motion to dismiss and reversed the orders of revocation and ordered the commissioner to fully reinstate the plaintiffs’ retail liquor licenses.

Since this court holds that the circuit court erred in denying defendants’ motion to dismiss, it is unnecessary for us to determine either (1) the effect of defendants having proceeded under the wrong statute, the evidence being clearly sufficient to sustain revocation under the correct one and plaintiffs having ample notice that the commissioner was seeking to revoke the licénse because of the conviction or (2) whether the hearing examiner and the license appeal commission chairman were justified in stating there was a conclusive presumption plaintiffs’ president was not rehabilitated.

Appeals from orders of the commission are purely statutory and to be legally effective they must be prosecuted in accordance with the requirements of the statute. (Scherer Freight Lines, Inc. v. Illinois Commerce Com. (1962), 24 Ill. 2d 359, 181 N.E.2d 134; City of Edwardsville v. Illinois Commerce Com. (1952), 412 Ill. 34, 104 N.E.2d 283; Alton R.R. Co. v. Illinois Commerce Com. (1950), 407 Ill. 202, 95 N.E.2d 76.) It is well established that where, as here, the statute provides that no appeal shall be allowed unless the party has first filed an application for rehearing and the commission has acted on the application, the circuit court cannot consider a petition for review unless an application for rehearing has both been filed and acted upon. (Scherer Freight Lines, Inc. v. Illinois Commerce Com. (1962), 24 Ill. 2d 359, 181 N.E.2d 134; City of Edwardsville v. Illinois Commerce Com. (1952), 412 Ill. 34, 104 N.E.2d 283; Alton R.R. Co. v. Illinois Commerce Com. (1950), 407 Ill. 202, 95 N.E.2d 76; Private Tele-Communications, Inc. v. Illinois Bell Telephone Co. (1975), 31 Ill. App. 3d 887, 335 N.E.2d 110; also Central Illinois Light Co. v. Illinois Commerce Com. (1970), 47 Ill. 2d 257, 265 N.E.2d 154.) As the Illinois Supreme Court stated in City of Edwardsville v. Illinois Commerce Com. (1952), 412 Ill. 34, 36-37, 104 N.E.2d 284:

“This court had occasion to pass upon a similar situation in the case of Alton Railroad Co. v. Commerce Com. 407 Ill. 202. In that case we were called upon for an interpretation of section 67 of the Public Utilities Act, (par. 71,) and held that ‘the statutory requirement that a petition for rehearing be filed to an order of the commission precludes an appeal from the order until a rehearing is sought and acted upon, such rehearing being a step in the pro-. ceedings for review of the commission’s rulings.’
On application for rehearing from its final order, the commission has an opportunity to reconsider, change, modify, correct and to enter a different order if it deems such action necessary. We are of the opinion that the plain requirement of the statute that a petition for rehearing from a final order of the commission must be filed and passed upon by the commission before appeal cannot be bypassed or avoided.”

Plaintiffs contend, and the trial court found, that they were not required, despite the clear statutory requirement, to exhaust their administrative remedies. Ordinarily a party involved in an administrative action must exhaust all available administrative remedies before seeking relief from the courts. (Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 326 N.E.2d 737.) Exceptions to the exhaustion rule have been allowed where a statute, ordinance or rule is challenged as unconstitutional on its face, where multiple remedies exist before the same zoning board and at least one has been exhausted, where irreparable harm will result from further pursuit of administrative remedies, and where an administrative body’s jurisdiction is attacked on its face on the ground it is not authorized by statute. (Aliperto v. Department of Registration and Education (1980), 90 Ill. App. 3d 985, 414 N.E.2d 117; National Account Systems, Inc. v. Anderson (1980), 82 Ill. App. 3d 233, 402 N.E.2d 656.) There has been no contention that any of the first three exceptions are applicable. However, the circuit court found that because no finding had been entered as to Yusuf’s rehabilitation, the commissioner was without jurisdiction to enter a final order.

The meaning of the word “jurisdiction” is limited in scope. It only applies to the authority to hear and decide the case and does not depend on the correctness of the decision made. (People ex rel. Titzel v. Hill (1931), 344 Ill. 246, 176 N.E. 360, and see Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541, 387 N.E.2d 258.) A body has jurisdiction to make a wrong as well as a right decision. (Fiore v. City of Highland Park (1968), 93 Ill. App. 2d 24, 235 N.E.2d 23, appeal denied (1968), 39 Ill. 2d 624, cert. denied (1969), 393 U.S. 1084, 21 L. Ed. 2d 776, 89 S. Ct. 867.) It is clear from the statutes already cited that the local liquor commissioner had jurisdiction to revoke the plaintiffs’ licenses.

The failure of the liquor control commission to make findings of fact does not render the order void. (Vavrys v. Illinois Liquor Control Com. (1968), 92 Ill. App. 2d 451, 236 N.E.2d 241, appeal denied (1968), 39 Ill. 2d 627.) Indeed, it has been held that since the Liquor Control Act does not require the making of express findings (Local Liquor Control Com. v. State Liquor Control Com. (1978), 59 Ill. App. 3d 1, 374 N.E.2d 1298; Vavrys), the failure of the commission to make express findings does not require a reversal of its decision to revoke a liquor license. (Vavrys.) It is clear that the absence of express findings of fact by a commission as to the factors which the legislature commanded it to consider makes the basis of its decision questionable and weakens the force of its determination. (Maywood Park Trotting Association, Inc. v. Illinois Harness Racing Com. (1959), 15 Ill. 2d 559, 155 N.E.2d 626.) And in Reinhardt v. Board of Education (1975), 61 Ill. 2d 101, 329 N.E.2d 218, where the board of education failed to specify for which of the several charges brought against a teacher it was dismissing her, the Illinois Supreme Court held that a decision by an administrative agency must contain findings to make possible a judicial review of the agency’s findings. It did not, however, hold the decision void. Rather it remanded the cause to the board for it to make proper findings so that judicial review would be possible. It can be concluded from Reinhardt and from Kotrich v. County of Du Page (1960), 19 Ill. 2d 181, 166 N.E.2d 601, appeal dismissed (1960), 364 U.S. 475, 5 L. Ed. 2d 221, 81 S. Ct. 243, cited in Reinhardt, that orderly and efficient review procedure under the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.), may, under certain circumstances, require that the administrative agency make written findings, even though such are not specifically required by statute, but that the failure to make such findings, even if required for purposes of review, does not render the decision of the agency void for want of jurisdiction.

Indeed in this case, it would not seem that additional findings were necessary for orderly and efficient review. The commissioner expressly found that the license was revoked because of the conviction for grand theft. (This differs from Reinhardt where several charges, not one, had been brought against the teacher and the court could not determine for what reasons the teacher was dismissed and what evidence the board accepted or rejected.) It is also clear that the only evidence before the commissioner as to rehabilitation was the fact Yusuf was still on probation and that the commissioner believed this was sufficient. Thus the proper issue for review (had the statutory method for review been followed) would not have been an absence of findings but whether the commissioner’s findings were supported by the evidence — assuming that in fact it was necessary to prove ábsence of rehabilitation; as already noted, under the correct statute and ordinance, such proof was not required.

The plaintiffs contend that exhaustion of remedies was not required because it would have been patently futile to seek a rehearing, the license appeal commission having clearly defined its position. But the exhaustion requirement cannot be avoided simply because relief may be or even probably will be denied by the agency. (Northwestern University v. City of Evanston (1978), 74 Ill. 2d 80, 383 N.E.2d 964.) Certainly it cannot be avoided simply because, as the circuit court ruled, the order was legally insufficient on its face. Clear errors are first for the agency to correct, and only then for the courts to consider.

To conclude, appeals from orders of a commission are purely statutory and to be legally effective they must be prosecuted in accordance with the requirements of the statute. Since the plaintiffs failed to file a petition for rehearing, as required by statute, the circuit court erred in refusing to dismiss the complaint for administrative review. Accordingly, the cause is reversed and remanded to the circuit court with directions to set aside its judgment herein and to dismiss the appeal.

Reversed and remanded with directions.

JOHNSON, P. J., and JIGANTI, J., concur.

       The commissioner proceeded under the wrong statute. Section 2(4) of article VI of the Liquor Control Act applies to the issuances of licenses. It does not purport to limit the power of the commissioner to revoke the license. This power is controlled by sections 1 and 3(1) of article IV, and section 5 of article VII of the Act. Under section 5 of article VII of the Act, a license may be revoked for violation of any provisions of the Liquor Control Act or for violation of any of the rules and regulations established by the local liquor control commissioner. Section 1 of article IV of the Act empowers local municipalities to enact ordinances as to revocation of licenses. As appellant points out in its brief, chapter 101, section 27 of the Municipal Code of the city of Chicago provides that the commissioner may suspend or revoke a license if the license has violated any of the statutes of the State. There is no requirement that the commissioner find the licensee not to be rehabilitated and it is established that the mayor may revoke the city-issued license of any licensee found to violate any State statute. S & F Corp. v. Daley (1978), 59 Ill. App. 3d 1024, 376 N.E.2d 699, appeal denied (1978), 71 Ill. 2d 615.


author: JUSTICE LINN

text:
    LAWRENCE LANDSTROM, Appellant, v. JANE KRETTLER, Appellee.
    First District (4th Division)
    No. 81-164
    Opinion filed April 8, 1982.

      Jonathan L. Mills, of Chicago, for appellant.
    Much, Shelist, Freed, Denenberg, Ament & Eiger, P. C., of Chicago (Howard M. Cohen and Donald J. Russ, Jr., of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Petitioner Lawrence Landstrom, executor and contingent residuary beneficiary of the estate of Ellen Setterfield, appeals from the trial court’s order awarding decedent’s silverware to Jane Krettler, a named beneficiary under the decedent’s will. The trial court interpreted the bequest to Krettler of “personal effects, jewelry and furniture” to include decedent’s silverware, despite the fact that no specific bequest of “silverware” was set forth in any provision of the will. Landstrom contends the trial court erred in its interpretation, and he claims the trial court’s ruling is both lacking in precedential support and contrary to the intent of Ellen Setter-field, the testator.

We affirm the trial court’s ruling.

Facts

Ellen Setterfield died testate on June 3,1980. Her will, dated August 1, 1960, disposed of personal property appraised at $71,376.26. The three pertinent clauses of the will are as follows:

“SECOND: I give and devise the sum of $5000.00 to my sister-in-law Kathryn Mitchell * ° °. In case she shall pre-decease me I give said sum to her children living at my death.
THIRD: I give and devise my personal effects, jewelry and furniture to my niece Jane Krettler * ° °. In case she shall predecease me the above property shall be added to the residue of my estate.
FOURTH: All the rest, remainder and residue of my estate, real, personal and mixed, of which I may die seized or possessed, I give, devise and bequeath to my beloved niece, Audrey V. Landstrom 6 * In case she shall pre-decease me all of said residue and remainder of my estate shall go to her brother, Lawrence Landstrom, to be his absolutely and forever.”

The fifth and final clause of the will appointed Lake Shore National Bank of Chicago as executor, with Lawrence Landstrom as successor executor.

Both Kathryn Mitchell, legatee under the first paragraph, and Audrey V. Landstrom, residuary legatee under the fourth paragraph, predeceased Ellen Setterfield. Both bequests then passed to the respective contingent beneficiaries. When Lake Shore National Bank declined to serve as executor, Lawrence Landstrom became executor of the estate.

Opinion

Appellant Landstrom contends the trial court erred when it interpreted the term “personal effects, jewelry and furniture” to include the decedent’s valuable silverware, which was not specifically mentioned in the will. The court thus distributed the silverware to Krettler, the wrong beneficiary. Landstrom argues that since silverware is not either jewelry or furniture, it must be a “personal effect” in order to pass to Krettler under the third paragraph of the will. He then urges this court to adopt an interpretation of the term “personal effects” that would limit its meaning to items normally worn or carried about the person or having an intimate relation to the person, thereby excluding “silverware.” Accordingly, Landstrom claims the silverware should have been distributed to him as part of the residuary estate. We disagree.

Initially we note that although “personal effects” usually does refer to items worn on, carried by, or otherwise having an intimate relation to the person (In re Lathrop’s Estate (1956), 100 N.H. 393, 395, 128 A.2d 199, 201), the term is not restricted to such a meaning. Illinois courts have found the term “personal effects,” when examined in light of the context of a particular case, to refer to far more types of property than Landstrom’s definition would allow. Thus, in Mokros v. Blackman (1941), 312 Ill. App. 346, 350, 38 N.E.2d 514, 516, the court held that the phrase “goods, chattels, papers, books and personal effects” limited the term “personal effects” to all tangible personal property; only the intangible personal property passed under the residuary clause. In Linn v. Davis (1922), 223 Ill. App. 503, the term was interpreted to include all the personal property of the deceased.

Additionally, Landstrom appears to overlook two important tenets of will construction: (1) the “paramount rule that the intention of the testator is to be ascertained and effect given to it if not contrary to law” (Boyle v. Moore (1921), 299 Ill. 571, 573, 132 N.E. 761, 762); and (2) the “fundamental rule * * 'to consider the whole scope and plans of the testator and to compare the various provisions with one another.” (Leary v. Kerber (1912), 255 Ill. 433, 435, 99 N.E. 662, 663.) We believe that instead of finding the testator’s intent by examining the entire will as one document, Landstrom would have us view the three terms, “personal effects, jewelry and furniture,” describing the bequest to Jane Krettler as isolated and mutually exclusive. Landstrom’s position is that a given item not clearly categorizable as furniture or jewelry or a personal effect may not pass to Krettler under the third clause of the will. Silverware, he contends, is obviously not jewelry or furniture; if it is to pass under the third clause at all, it must be a personal effect. Since, as Landstrom contends, his narrow definition of “personal effects” cannot include silverware, the silverware must pass under the residuary clause.

Although the term “personal effects” has no fixed or technical meaning, it usually refers to things associated with the person unless it gains broader meaning when construed in view of the provisions of the entire will. (In re Neefus’ Will (Sur. Ct. 1952), 110 N.Y.S.2d 584, 585.) The trial court found that the language of the third clause, instead of designating three narrow, mutually exclusive categories of personal property, described a general class consisting of all the precious or valuable tangible personal property Ellen Setterfield possessed at her death. The second clause contained her only other specific bequest, $5000 to her sister-in-law Kathryn Mitchell, with Kathryn’s children as contingent beneficiaries in case their mother predeceased the testator. All the remaining personal property, which passed under the residuary clause, consisted solely of intangible personal property, namely cash held in a savings account. The terminology used by the testator to dispose of her residual estate is standard boilerplate found in thousands of wills. We believe the trial court correctly found that such general language could not be used to justify passing one tangible asset in contravention of the overall plan of distribution, a neat division into tangible and intangible personal property.

In addition to considering the arguments and authorities presented by the respective parties, the trial court’s independent research disclosed other probate decisions concerning disposition of silverware not specifically mentioned and bequeathed in a will. Thus, in Earle v. Barrett (1935), 51 Ga. App. 514, 180 S.E. 855, the court determined that a silver set should be included in the phrase “my personal effects in my home consisting of household and kitchen furniture” (51 Ga. App. 514, 515, 180 S.E. 855, 856):

“Although judicial precedents are few and somewhat conflicting, where a silver service or silverware has been in daily use in a household, ministering to the necessity, convenience, or comfort of the occupants, it is ordinarily construed to be ‘household furniture’ the same as chairs, beds, tables, and like useful or ornamental articles.” 51 Ga. App. 514, 516-17, 180 S.E. 855, 857.

Landstrom’s final argument attaches significance to the words “beloved niece” used to describe Audrey Landstrom, the primary residuary beneficiary. Landstrom concludes that the testator’s use of the word “beloved” shows an obvious intent to favor Audrey by implicitly bequeathing her the silverware. However, the use of a single adjective of affection is hardly sufficient evidence to upset an otherwise logical scheme of distribution under the will. Additionally, the “beloved” niece predeceased the testator, thus rendering the argument moot. Not only did the testator refrain from using the same word of affection when speaking of Lawrence Landstrom, she also refrained from calling him her nephew, referring to him only as “her [Audrey Landstrom’s] brother.”

Landstrom cites In re Kilmers Estate (Sur. Ct. 1946), 65 N.Y.S.2d 769, 775, as authority for the proposition that in a conflict between two possible constructions of language in a will, the one favoring a blood relative, dependent, or other close associate should be adopted. In this case, no such conflict exists because the construction urged by Landstrom is unsupported by any other evidence in the will.

For all the reasons discussed above, we affirm the ruling of the trial court.

Affirmed.

JOHNSON, P. J., and ROMITI, J., concur.