text:
    KEITH A. HOLESINGER, Plaintiff-Appellee, v. DUBUQUE FEEDER PIG COMPANY, INC., Defendant-Appellant.—(TRI-STATE BANK, Garnishee.)
    Third District
    No. 80-376
    Opinion filed March 1, 1982.

      Michael A. Stapleton, of East Dubuque, for appellant.
    Russell J. Holesinger, of Deckro & Holesinger, of Morrison, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The intervenors, Bernard and Diane Nie, owners of Dubuque Feeder Pig Company, Inc., appeal from the order of the circuit court of Whiteside County finding that a garnishment lien held by the plaintiff-creditor, Keith A. Holesinger, attached to funds contained in a bank account at the garnishee Tri-State Bank. The issue presented for review is whether a determination by a bankruptcy court to abandon a bank account, which was subject to a preexisting garnishment lien, voided the lien and prevented further State court action thereon by the lienholder.

On June 21, 1978, the plaintiff obtained a judgment against the defendant-debtor, Dubuque Feeder Pig Company, Inc. (Dubuque), in the amount of $7,087. In March 1979, he initiated the instant garnishment action and filed an affidavit claiming that funds owned either in whole or in part by Dubuque were maintained in a Tri-State Bank checking account. The garnishee’s answer to garnishment interrogatories indicated that checks made payable to Dubuque Feeder Pig Co. and Dubuque Feeder Pig Company, Inc., were deposited in the individual account of the intervenors. The intervenors are the sole shareholders and officers of Dubuque. Before the cause proceeded to a hearing, Dubuque, through its president, Bernard Nie, filed a voluntary bankruptcy petition in the United States District Court for the Northern District of Iowa, thereby staying the pending garnishment proceedings in the circuit court. As required in the Bankruptcy Act, Dubuque listed the plaintiff in its bankruptcy schedule as an unsecured creditor of the company. Dubuque did not list the Tri-State Bank account subject to the plaintiff’s garnishment action as part of its assets. On August 29,1979, the bankruptcy court declared Dubuque to be bankrupt and released the company from its dischargeable debts, which included the plaintiff’s “unsecured” claim.

On October 10, 1979, Dubuque, through Nie, its president, filed an amendment to the voluntary petition, declaring that the plaintiff was pursuing his claim against Dubuque by garnishing a bank account in the name of Nie. The company alleged that its schedule of assets did not include the bank account because the funds contained in the account were owned solely by the Nies and requested that the bankruptcy court determine whether Dubuque had any interest in the account. After giving notice to the plaintiff, the trustee examined Bernard Nie and concluded that, because the Tri-State account contained exclusively the funds of Bernard and Diane Nie, the company had no interest or equity in the account. Accordingly, on January 24,1980, the bankruptcy court ordered the trustee to abandon the bank account.

Nie, as president of Dubuque, then moved in the circuit court to dismiss the garnishment action and to discharge the garnishee, arguing that the previous findings of the bankruptcy court concerning the ownership of the bank account were conclusive and precluded the circuit court from relitigating that issue. The court rejected the application of res judicata and found that the garnishment lien attached to the funds contained in the bank account. At the same time, Nie personally petitioned the bankruptcy court to intervene and to enjoin the garnishment action in the circuit court. Based on its earlier abandonment order, the bankruptcy court denied Nie’s application for intervention and injunctive relief. The circuit court then rejected the intervenors’ motion to vacate its judgment and, on June 16,1980, entered an order in favor of the plaintiff, finding a valid garnishment lien in his favor attaching to the bank account. The intervenors mailed their notice of appeal to the clerk of the circuit court on July 14,1980, but the notice was not received until July 21,1980.

As a preliminary issue, the plaintiff contends that the intervenors’ failure to have their notice of appeal filed in the circuit court within 30 days after the entry of the final judgment from which they now appeal deprives this court of its jurisdiction. Supreme Court Rule 303(a) (Ill. Rev. Stat. 1979, ch. 110A, par. 303(a)) provides that “[Njotice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or nonjury case, within 30 days after the entry of the order disposing of the motion.” This requirement of timely notice of appeal is mandatory, and the failure to comply with this requirement renders an appellate court without jurisdiction. (Allabastro v. Wheaton National Bank (1980), 91 Ill. App. 3d 222, 414 N.E.2d 537.) The facts show that, although the intervenors’ attorney mailed the notice of appeal on July 14, two days before the expiration of the 30-day period, the clerk of the circuit court did not receive the notice until seven days later, on July 21. The plaintiff asserts that actual receipt of the notice, not the date of mailing, should control in determining the date on which the notice of appeal is “filed.” We must reject the plaintiff’s argument and hold that, for purposes of Rule 303(a), the time of mailing constitutes the date on which the notice of appeal is filed in the circuit court. In reaching this decision, we are cognizant of a contrary result in Schneider v. Vine Street Clinic (1979), 77 Ill. App. 3d 946, 397 N.E.2d 194, where a divided court declared that the date of filing of the notice of appeal is the date of actual receipt by and filing with the clerk of the circuit court.

However, an examination of related statutory provisions indicates a general intent that mailing of the notice of appeal within 30 days from the entry of judgment will constitute filing of notice with the clerk of the circuit court. Contrary to Schneider, we do not see this decision as reaching outside our jurisdictional authority to adjudicate this instant case. Instead, today’s decision is based upon our authority to determine the boundaries of our jurisdiction, a power which lies inherent in every court. See United States v. United Mine Workers (1946), 330 U.S. 258,91 L. Ed. 884, 67 S. Ct. 677.

We first refer to section 1.25(1) of “An Act to revise the law in relation to the construction of the statutes” (Ill. Rev. Stat. 1979, ch. 1, par. 1026(1)), which states that, unless provided otherwise, any writing that must be filed with the State or any political subdivision thereof shall be deemed filed with the recipient on the date shown by a post office cancellation mark. Although this section would not seem to apply specifically to the instant situation because the clerk of the circuit court, an office within the judiciary, is not the “State” or a “political subdivision thereof,” section 1.25 does evince a general policy to equate filing with mailing.

Second, Supreme Court Rule 11 (Ill. Rev. Stat. 1979, ch. 110A, par. 11(b)) provides that papers other than process and complaint may be served by depositing them in a post office or a post office box. The proof of such service is provided for in Rule 12, which states that service to other parties of papers other than process and complaint may be established by proof of depositing the papers in the mail and that the effective date of such mailed papers is complete four days after mailing. Although these provisions likewise would seem not to apply specifically to the instant situation because the notice of appeal must be received by the circuit court in order to perfect appellate jurisdiction, since Rules 11 and 12 direct their attention to notice of the parties served with papers other than process and complaint, they do demonstrate a propensity of equating filing with mailing for papers required to be filed in the circuit court. Finally, Supreme Court Rule 373 states that the constructive date of filing papers in a reviewing court “shall be deemed the time of mailing the record on appeal, any brief, excerpts from record, or any other papers required to be filed in a reviewing court within a specified time.” As with section 1.25 and Supreme Court Rules 11 and 12, Supreme Court Rule 373 does not govern the filing of the notice of appeal because the notice must be filed in the circuit court not a reviewing court. (See Ill. Ann. Stat., ch. 110A, par. 373, Committee Comments, at 501 (Smith-Hurd 1976).) Yet, Rule 373, as do the other aforementioned sections, clearly establishes a policy that favors the time of mailing over actual receipt when the rights of parties are involved.

Our holding today is also supported by the supreme court’s order reinstating the appeal of In re Estate of Eiberger, which is discussed in the dissent in Schneider v. Vine Street Clinic (1979), 77 Ill. App. 3d 946, 948, 397 N.E.2d 194, 196. In Eiberger, the appellant incorrectly mailed the notice of appeal to the appellate court instead of the circuit court. The notice was received by the appellate court within 30 days of the final judgment, and by the time the clerk forwarded the notice to the circuit court, the 30-day period elapsed. The appellate court then dismissed the appeal for failure to comply with Rule 303, but the supreme court, in the exercise of its supervisory jurisdiction, summarily ordered the appellate court to reinstate the appeal. (In re Estate of Eiberger, No. 50090, filed January 26,1978.) For these foregoing reasons, we will continue to adhere to our established custom and accept jurisdiction where the notice of appeal is mailed within the 30-day period set forth in Rule 303, but where the circuit court does not receive the notice until after the expiration of the 30-day period.

The crux of the interveners’ argument on appeal is that, because the bankruptcy court first adjudicated the issue of the ownership of the funds held in the bank account and ordered the bankruptcy trustee to abandon any claims of ownership therein, the State court was barred by res judicata from considering that issue in the instant garnishment attachment action brought by the plaintiff against the discharged debtor, Dubuque. We disagree and affirm.

The doctrine of res judicata will preclude a second suit raising an issue adjudicated in the first suit where: (1) the parties or their privies are identical; (2) the identical issue was raised and litigated in the prior action; (3) the issue was material and relevant to the disposition of the prior action; and (4) the determination made of the issue in the first suit was necessary and essential to the resulting judgment. (Hoffman v. Hoffman (1928), 330 Ill. 413, 161 N.E. 723.) In the instant case we find that the lack of privity between the parties to the bankruptcy action and the garnishment action prevents the application of merger and bar to the circuit court’s adjudication of whether the debtor owned or controlled funds held by the garnishee.

A discharge in bankruptcy does not in any way affect, release, or discharge a valid lien created under State or Federal law. (Filker v. Honda Motor Co. (1980), 87 Ill. App. 3d 865, 409 N.E.2d 495.) For this reason, bankruptcy is often depicted as a forum for unsecured creditors, and a secured creditor may elect to remain “aloof” from the proceedings, subsequently enforcing his lien against the debtor’s encumbered property independently of and without prejudice from the actions of the bankruptcy court. (9A Am. Jur. 2d Bankruptcy §779 (1980).) In March 1979, when the plaintiff served the garnishee with summons and interrogatories, the plaintiff’s garnishment lien arose in the debtor’s property held by the garnishee bank. (Pilafas v. Pilafas (1963), 39 Ill. App. 3d 69, 188 N.E.2d 235.) At that moment the plaintiff became a secured creditor, who, by electing to remain aloof, declined to participate in the bankruptcy proceedings and, accordingly, suffered no prejudice to his secured rights.

The trustee, who is usually elected by the unsecured creditors at the first creditors’ meeting, represents the estate and thus, the interests of the unsecured creditors. Because of this congruity of interests, a trustee stands privy to an unsecured creditor for the application of res judicata. (Normal State Bank v. Killian (1944), 386 Ill. 449, 54 N.E.2d 539.) On the other hand, unless a fully secured creditor elects to participate in the bankruptcy proceedings, he has no voice in the selection of the trustee because he has no concomitant stake in the estate. Accordingly, the doctrine of res judicata will not preclude such a secured creditor from litigating in a later action an issue which- putatively was identical to the issue litigated in the bankruptcy action because of the nonidentity of interests between the trustee and the secured creditor.

The decision to abandon property, the legal effect of which is to remove the property from the bankruptcy court’s jurisdiction and to place the parties in the same position which they held prior to the filing of bankruptcy (In re Polumbo (W.D. Va. 1967), 271 F. Supp. 640), was made by the bankruptcy court and was based upon findings of the trustee following an examination of the debtor.

Although Dubuque listed the plaintiff in its schedule of unsecured creditors, such filing of schedules does not have the force of an independent proceeding for raising res judicata. (Filker v. Honda Motor Co. (1980), 87 Ill. App. 3d 865, 409 N.E.2d 495.) For the foregoing reasons, we hold that the circuit court correctly rejected Dubuque’s claim that res judicata prevented the court from entering a judgment finding a valid garnishment lien in funds held in the garnishee’s bank.

Accordingly, we affirm the judgment of the circuit court of White-side County.

Affirmed.

STOUDER and ALLOY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WEBBER

license: Public Domain

text:
    ROBERT W. HOWE, Adm’r of the Estate of Cloyd Howe, Deceased, Plaintiff-Appellant, v. CLARK EQUIPMENT COMPANY, Defendant-Appellee.—(KEITH KEMPER, Defendant.)
    Fourth District
    No. 17365
    Opinion filed February 18, 1982.

      Phebus, Tummelson, Bryan & Knox, of Urbana (Joseph W. Phebus and Janet E. Flaccus, of counsel), for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago (Fred E. Schulz and Ruth E. Van Demark, of counsel), for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

This appeal presents a question concerning punitive damages; specifically, whether they are recoverable under section 2 of the Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, par. 2) or under section 27 — 6 of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 110%, par. 27 — 6) (the Survival Act), or under neither. Since the case comes to us at the pleading stage, we are not called upon to decide what factual basis may exist for their imposition.

Plaintiff, as administrator of the estate of Cloyd Howe, deceased, filed a four-count complaint against the defendant. The basis of the suit was that of strict liability. The factual allegations were that defendant was the manufacturer of an end loader known as a Melroe Bobcat; and that the decedent, while operating the Bobcat, sustained injuries which ultimately resulted in his death as a result of unreasonably dangerous conditions, or a combination thereof, existing in the Bobcat. Counts I and III sought compensatory damages under the Wrongful Death Act and for personal injuries to the decedent, respectively. These counts are still pending at the trial level and are not involved in this appeal.

Counts II and IV reiterated the factual allegations and further alleged wilful and wanton disregard for the safety of the public on the part of the defendant. They sought punitive damages under the Wrongful Death Act and for personal injuries and were parallel to counts I and III..

On motion of the defendant, the circuit court of Champaign County dismissed counts II and IV on the basis that there is no right to punitive damages under either the Wrongful Death Act or the Survival Act. On motion of the plaintiff, the trial court made the necessary finding under Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)), and this appeal ensued.

It is fundamental that a motion to dismiss admits all well-pleaded facts and therefore, for the purposes of this appeal, we must assume as a matter of law that the Bobcat was unreasonably dangerous, that the unreasonably dangerous condition was the cause of the decedent’s injuries and subsequent death, and that the defendant was guilty of wilful and wanton misconduct in the manner described in counts II and IV. All that then remains is a question of law, whether under any circumstances punitive damages may be recovered under the aforementioned statutes.

The positions of the parties, stated briefly, are: plaintiff maintains alternatively that (1) there is a common law action for wrongful death, apart from and in addition to the statute, under which punitive damages may be recovered as in any common law action; or (2) the prior authorities under the Wrongful Death Act may be read to allow punitive damages. Defendant maintains that the Wrongful Death Act speaks only of “fair and just compensation” and that this language automatically precludes any consideration of punitive damages.

As to the Survival Act, the positions, stated briefly, are: plaintiff maintains that prior authorities permit punitive damages. Defendant maintains that the Survival Act speaks only of “injury to the person” and that a death action is not included within the scope of that language under the prior authorities.

A concentrated history of the statutes will be helpful before proceeding to an examination of the authorities. The original rule, stemming from Baker v. Bolton (K.B. 1808), 1 Camp. 493, 170 Eng. Rep. 1033, was that “in a civil court, the death of a human being could not be complained of as an injury.” In order to abrogate the harshness of the rule, the legislature in 1853 enacted the predecessor of the Wrongful Death Act, and followed this in 1872 by enacting the Survival Act.

Early interpretations of these acts were quite restrictive. Holton v. Daly (1882), 106 Ill. 131, held that the Wrongful Death Act was the exclusive remedy and that no common law action existed on account of the presence of the statute. It was also held that the Survival Act allowed survival of an action only when death resulted from a cause other than the act which caused the original injury.

Commencing in 1960, the supreme court began to relax somewhat these strictures. In Saunders v. Schultz (1960), 20 Ill. 2d 301, 170 N.E.2d 163, the court held that there existed a common law right to recover funeral and medical bills incurred as a result of the tortious conduct. This right was held to exist independently of the Wrongful Death Act and decisions to the contrary were overruled. The court noted that such expenses were imposed on a surviving spouse, or on the estate of the decedent, by law and constituted very real damages, and the court further observed that the common law is responsive to changing obligations and relationships. Plaintiff here relies on this language in arguing that the time has come to recognize a common law action for wrongful death beyond the statute.

The next step was taken by the supreme court in 1974 with Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423, 308 N.E.2d 583. In that case the court expressly overruled Holton and held that the Survival Act was the proper vehicle to recover damages for the pain and suffering experienced by the decedent from the time of the injury until the time of death, even when the injury was the direct cause of death. The seminal language in the opinion is:

“The remedy available under Holton will often be grievously incomplete. There may be a substantial loss of earnings, medical expenses, prolonged pain and suffering, as well as property damage sustained, before an injured person may succumb to his injuries. To say that there can be recovery only for his wrongful death is to provide an obviously inadequate justice. Too, the result in such a case is that the wrongdoer will have to answer for only a portion of the damages he caused. Incongruously, if the injury caused is so severe that death results, the wrongdoer’s liability for the damages before death will be extinguished. It is obvious that in order to have a full liability and a full recovery there must be an action allowed for damages up to the time of death, as well as thereafter.” 56 Ill. 2d 423, 431, 308 N.E.2d 583, 587.

It is thus clear that the Wrongful Death Act is no longer a bar to claims for pain and suffering on the part of the decedent and to claims for expenses relating to his illness and death and resulting from the tortious conduct. These pass under the Survival Act.

However, in neither Saunders nor Murphy was the court faced with a claim for punitive damages. That subject came before the court in Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, 330 N.E.2d 509, and in National Bank of Bloomington v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 160, 383 N.E.2d 919.

Mattyasovszky rather clearly rejected any notion of punitive damages under the Survival Act; it likewise stated quite unequivocally that no common law action for wrongful death existed in this State and that the Wrongful Death Act was limited to compensatory damages. However, as to the Survival Act, it is not equally clear on what basis the court was persuaded.

In Mattyasovszky the decedent, a 12-yeár-old boy, was killed when he fell under the wheels of a bus. The imponderable element in the case is that the driver of the bus, the agent of the defendant corporation, had been dismissed out of the action. After rejecting the punitive claim under the Survival Act, the court then stated:

“Moreover, the punitive and admonitory justifications for the imposition of punitive damages are sharply diminished in those cases in which liability is imposed vicarioúsly. [Citations.] With respect to this problem, section 217C of the Restatement (Second) of Agency states:
‘Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if:
(a) the principal authorized the doing and the manner of the act, or
(b) the agent was unfit and the principal was reckless in employing him, or
(c) the agent was employed in a managerial capacity and was acting in the scope of employment, or
(d) the principal or a managerial agent of the principal ratified or approved the act.’
Serious questions inevitably arise in a case like the present, in which the driver of the bus, whose conduct was primarily responsible for the injury, is no longer a party defendant because he was dismissed by the plaintiff before the case went to the jury.” 61 Ill. 2d 31, 36-37, 330 N.E.2d 509, 512.

The decision thus appears to leave open the question of vicarious liability for punitive damages, assuming that all the conditions of section 217C of the Restatement (Second) of Agency (1958) are met.

National Bank of Bloomington explicated the proposition. Punitive damages had been assessed pursuant to the provisions of section 73 of the Public Utilities Act (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 77). The supreme court stated that the Survival Act does not create a new cause of action, but simply allows the personal representative of the decedent to maintain those statutory and common law actions which the decedent possessed at the time of his death. The court again stated that the Wrongful Death Act is not the exclusive remedy. The critical language of the decision insofar as punitive damages are concerned is:

“This court’s decision in Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, does nothing to abate the defendant’s statutory liability for punitive damages upon the death of the injured person. In Mattyasovszky, where the decedent died instantly, his estate sought to recover punitive damages which the decedent, under the common law, might have recovered had he survived. The court summarily denied recovery of punitive damages because the Survival Act itself has ‘never been thought to authorize the award of punitive damages.’ [Citation.] The court, however, did not base its denial of common law punitive damages on the broad proposition that punitive damages are unrecoverable when injury results in death. The court held that the imposition of punitive damages was improper in light of the fact that the party whose conduct was primarily responsible for the injury had been dismissed from the action.” (Emphasis in original.) 73 Ill. 2d 160,173, 383 N.E.2d 919, 924.

In our opinion, this decision stands for three propositions: (1) the dismissal of the agent in Mattyasovszky and the consequent loss of any basis thereby for vicarious liability was the basis for the holding in that case; (2) that the Survival Act is only a conduit whereby any causes of action possessed by the decedent may be prosecuted by his personal representative; and (3) that if statutory causes of action for punitive damages survive, by extension of logic there is no bar to similar common law causes of action.

The instant case, being one sounding in strict liability in tort wherein wilful and wanton misconduct is charged, fits within the pattern established by National Bank of Bloomington. If the decedent had survived and were able to prove his allegations, he might have been entitled to punitive damages. (Moore v. Jewel Tea Co. (1969), 116 Ill. App. 2d 109, 253 N.E.2d 636, affd (1970), 46 Ill. 2d 288, 263 N.E.2d 103.) No question of vicarious liability, or the lack of it, is present in the instant case and no reason appears why under the conduit theory of National Bank of Bloomington the decedent’s common law cause of action for punitive damages did not pass to the plaintiff.

Punitive damages is an emotional subject and has generated much strident debate within the legal profession. If they are viewed in their traditional and historical context as being in the nature of punishment and as a warning and example to deter the defendant and others from committing like offenses in the future (Eshelman v. Bawalt (1921), 298 Ill. 192, 131 N.E. 675), the question of death becomes immaterial. Warning and deterrence will be just as great whether the injured party is alive or dead.

Plaintiff urges us to follow the supreme court’s lead in Saunders and find that there is a common law action for wrongful death based upon * * the genius of our common law that it can be, and is, responsive to the changing obligations and relationships within our legal system.” (20 Ill. 2d 301,310,170 N.E.2d 163,168.) However socially desirable that may be, in view of the supreme court’s denial of the proposition in Mattyasovszky, it must remain with that body, or with the legislature, to effect such a sweeping change in the law.

We therefore find that the circuit court of Champaign County was correct in dismissing count II (punitive damages for wrongful death) and its action in so doing is affirmed; we further find that it was incorrect in dismissing count IV (punitive damages for personal injury) and its action in so doing is reversed. The cause is therefore remanded to that court with directions to reinstate count IV and for further proceedings in accordance with the views expressed herein.

Affirmed in part, reversed in part, and remanded with directions.

MILLS and LONDRIGAN, JJ., concur.


author: JUSTICE LONDRIGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM K. KELLEY, Defendant-Appellee.
    Fourth District
    No. 17229
    Opinion filed February 25, 1982.

      Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and James K. Horstman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Yoder, Yoder, Zanoni, Flynn, Prall & Willard, of Bloomington (Michael J. Flynn, of counsel), for appellee.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

The State is appealing the trial court’s suppression of evidence. Without an arrest or a search warrant and without consent, two deputy sheriffs entered the defendant’s apartment and seized 28.7 grams of marijuana, a hash pipe, and a small tray; the next day a complaint was filed charging the defendant with possession of marijuana. The trial court granted the defendant’s motion to suppress the evidence, and we affirm.

The facts here are not in dispute. On December 21, 1980, two McLean County deputies, Fillmore and Karl, went to a duplex in Bloomington to serve an arrest warrant. Karl went to the back of the building to prevent anyone from trying to flee, and Fillmore stayed at the front; he knocked first on the left-hand door, which no one answered, and then on the right-hand door, where he heard music. The defendant answered, opening the inside door and holding the storm door open six to eight inches, according to him, or one to two feet, according to Fillmore. Fillmore and the defendant soon established that the defendant was not the man named in the warrant; Fillmore called Karl back to the front of the house. Fillmore then told the defendant that he smelled marijuana; the defendant did not respond. Fillmore asked permission to enter the apartment, but the defendant refused. At that point Fillmore believed that a crime was being committed, and he explained at the hearing that an immediate intrusion was necessary because waiting for a warrant would have given the defendant time to remove the evidence. Fillmore had obtained one warrant before, and that had taken four hours.

After the defendant refused to allow the deputies inside, they entered the apartment, walking through a small foyer and into the living room, where they saw a hash pipe on a table. Fillmore smelled marijuana and a haze hung in the air. The defendant did not appear to Fillmore to be high.

The defendant was not under arrest when the deputies entered his home.

Ron Dozier, McLean County State’s Attorney, testified for the State on the steps necessary for obtaining a search warrant. The search here occurred on a Sunday morning; Dozier explained that securing a warrant on a Sunday morning is sometimes time-consuming.

The State argues that circumstances were sufficiently exigent to justify the warrantless, nonconsensual entry of the defendant’s apartment and applies to the facts here the analysis used in People v. Abney (1980), 81 Ill. 2d 159, 407 N.E.2d 543. In Abney police officers entered a home without warrants or consent to arrest the defendant; inside they saw incriminating evidence, a bullet, in plain view. The supreme court held that the intrusion was justified and the bullet therefore admissible:

“Exigent circumstances here present militated against delay and justified the officers’ decision to proceed without a warrant. Additional factors also indicated that the officers acted in a reasonable fashion. 81 Ill. 2d 159,168-69, 407 N.E.2d 543, 547.

The three exigent circumstances were (1) the need for the taking of prompt action by the officers, (2) the absence of “deliberate or unjustified delay by the officers during which time a warrant could have been obtained,” and (3) the officers’ knowledge that the suspect was armed and dangerous. (81 Ill. 2d 159, 169-71, 407 N.E.2d 543, 548.) Abney also found that “[i]n addition to the exigent circumstances set forth above, other factors were present which suggest that the officers acted reasonably.” (81 Ill. 2d 159, 171, 407 N.E.2d 543, 549.) The four additional facts were that the police acted on “ ‘a clear showing of probable cause,’ ” that the defendant had been “clearly identified as the assailant” by the victim of the offense, that the police had “strong reason to believe” that the defendant was inside his apartment, and that the officers’ entry was peaceful rather than forcible. (81 Ill. 2d 159,171-73,407 N.E.2d 543, 549.) The State here construes these four items as exigent circumstances, but the language used by the court in Abney suggests that the second group of facts are not exigent circumstances and not part of the analysis of the emergency (see People v. Hart (1980), 88 Ill. App. 3d 484, 410 N.E.2d 633; People v. Wilson (1980), 86 Ill. App. 3d 637, 408 N.E.2d 988; but see People v. Rembert (1980), 89 Ill. App. 3d 371, 411 N.E.2d 996).

Standing outside the defendant’s apartment the deputies were able to smell marijuana smoke; this supplied them with probable cause to believe that marijuana was in fact present in the apartment (see People v. Campbell (1977), 67 Ill. 2d 308, 367 N.E.2d 949). Yet as Justice Harlan wrote in Jones v. United States (1958), 357 U.S. 493, 497-98, 2 L. Ed. 2d 1514,1518-19, 78 S. Ct. 1253,1256-57:

“It is settled doctrine that probable cause for belief that certain articles subject to seizure are in a dwelling cannot of itself justify a search without a warrant. [Citations.] * * * Were federal officers free to search without a warrant merely upon probable cause to believe that certain articles were within a home, the provisions of the Fourth Amendment would become empty phrases, and the protection it affords largely nullified.”

See also Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639,100 S. Ct. 1371; Abney.

The State argues that most of the facts mentioned in Abney were present here and that therefore exigent circumstances justified the entry. Without a doubt the deputies acted promptly: they entered the apartment immediately after seeking and not receiving the defendant’s consent; also, their entry was not delayed to the extent that they could have obtained a search warrant during that time. The defendant was not, however, known to be armed or dangerous, and the suspected offense was not serious and did not threaten anyone else with harm.

Prompt action was necessary here, according to the State, to prevent the destruction of the evidence. The State relies in part on the defendant’s knowledge of the deputies’ belief that marijuana was inside the apartment. This alone cannot be enough to avoid the requirement of a warrant, however, for under the theory every encounter with a person could be transformed into an emergency by a timely expression of suspicion. The destructibility of evidence does not by itself excuse the lack of a warrant. In People v. Ouellette (1979), 78 Ill. 2d 511, 401 N.E.2d 507, the supreme court held that in exigent circumstances police with a search warrant for narcotics may enter a dwelling without knocking on the door and announcing themselves and said:

“We do not, however, agree with the State that the existence of narcotics is, in itself, an exigent circumstance justifying such an intrusion into a defendant’s or a suspect’s premises.” 78 Ill. 2d 511, 516,401 N.E.2d 507, 509.

None of the exigencies mentioned in Ouellette and its companion case, People v. Conner (1979), 78 Ill. 2d 525, 401 N.E.2d 513, are present here; the deputies were not in danger, and they did not know whether the defendant had an arrangement for disposing of his contraband quickly. Because the deputies here did not have a search warrant, Ouellette’s “principle applies with even greater force” (People v. Patrick (1981), 93 Ill. App. 3d 830, 833, 417 N.E.2d 1056, 1059).

We therefore conclude that exigent circumstances were not present in this case and affirm the order of suppression.

Affirmed.

WEBBER and TRAPP, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CHRISTOPHER SIMS, Defendant-Appellee.
    Fourth District
    No. 17369
    Opinion filed February 25, 1982.
    Chris E. Freese, State’s Attorney, of Sullivan (Robert J. Biderman and James K. Horstman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Paul L. Stone, of Stone and Stone, of Sullivan, for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

The defendant, a minor, was charged with fleeing or attempting to elude a police officer, in violation of section 11 — 204(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95M, par. 11 — 204(a)). Defendant was charged with the offense by means of a Uniform Illinois Traffic Citation and Complaint form. As the charge of fleeing or attempting to elude a police officer is a Class B misdemeanor, defendant could have been sentenced to a term of 6 months’ imprisonment. Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—3(a)(2).

Defendant moved to dismiss the charge, alleging that the exception under section 2 — 7(2) of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 702 — 7(2)) allowing criminal prosecution of minors under the age of 17 years of age for traffic offenses applies only to traffic offenses for which no jail sentence is possible. The trial court allowed defendant’s motion to dismiss, finding that the language of section 2 — 7(2) is ambiguous and construed it to mean that a minor may be prosecuted for any traffic offense punishable by fine only or any other offense also punishable by fine only. The State now brings this appeal.

The single issue presented for review, therefore, is whether section 2 — 7(2) of the Juvenile Court Act should be construed to mean that a minor may be prosecuted for a traffic offense punishable by imprisonment. We conclude that a minor may be prosecuted only for those offenses which are punishable by fine only and affirm the judgment of the trial court.

Section 2 — 7 of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 702 — 7) provides, in part, as follows:

“(1) Except as provided in this Section, no minor who was under 17 years of age at the time of the alleged offense may be prosecuted under the criminal laws of this State or for violation of an ordinance of any political subdivision thereof.
(2) Subject to paragraph (1) of Section 2 — 8, any minor alleged to have committed a traffic, boating or fish and game law violation or an offense punishable by fine only may be prosecuted therefor and if found guilty punished under any statute or ordinance relating thereto, without reference to the procedures set out in this Act.”

The State contends that the use of “or” in section 2 — 7(2) must be used as a disjunctive, indicating an intent by the legislature that minors may be criminally prosecuted for traffic, boating, and fish and game violations and sentenced to terms of imprisonment. We do not believe that it was the intent of the legislature to provide protection to minors charged with criminal offenses punishable by imprisonment but not to provide such protections to minors charged with traffic violations or fish and game violations in which imprisonment is a possibility. We believe that the language found in section 2 — 7(2), “or an offense punishable by fine only,” is language modifying the preceding language in section 2 — 7(2). We therefore construe section 2 — 7(2) to mean that any minor alleged to have committed a traffic, boating, or fish and game violation punishable by fine only, or any other offense punishable by fine only, may be prosecuted therefor.

The first purpose of the Juvenile Court Act is not to punish minors but to correct. (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 2; In re Armour (1974), 59 Ill. 2d 102, 319 N.E.2d 496.) The Juvenile Court Act is to be liberally construed to carry out the foregoing purpose- (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 2.) If the purpose of the Juvenile Court Act is in guiding and rehabilitating minors, we can discern no rationale nor intent by the legislature that minors accused of traffic offenses punishable by imprisonment should not be afforded the same protections and safeguards as minors charged with other criminal offenses.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

MILLS and LONDRIGAN, JJ., concur.


author: JUSTICE MILLS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES “CHUCK” MILLER, Defendant-Appellant.
    Fourth District
    No. 16469
    Opinion filed March 3, 1982.
    Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Tim P. Olsen, State’s Attorney, of Jacksonville (Robert J. Biderman and Garry W. Bryan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

The State’s Attorney asked a single, fatal question of the defendant on cross-examination.

The query was in direct violation of the United States Supreme Court’s edict in Doyle v. Ohio.

Because of it, we must reverse and remand for a new trial.

Facts

Miller, Clarence “Butch” Armstrong, and Randy Williams were charged with abducting, beating, robbing, and killing Neil Gorsuch.

Armstrong’s case was tried separately. Williams pleaded guilty to kidnapping and the other charges against him were dropped when he agreed to testify against Miller and Armstrong.

Upon denial of Miller’s motion for change of venue, a jury trial was held in Morgan County. The prosecution’s case against Miller consisted mainly of the testimony of Randy Williams. At Miller’s trial, Williams testified substantially as follows:

At 1:30 a.m. on February 9,1980, Williams, his brother Rick, “Butch” Armstrong, and a person later identified as the victim left a tavern in Jacksonville, Illinois. The four got into a car belonging to a friend of Rick Williams. Rick drove to his house and got out. Randy began driving with the victim sitting behind him and Armstrong sitting in the back seat next to the victim. During this trip, Armstrong administered a beating to the victim.

After driving around for an undetermined length of time, the trio arrived at Williams’ house. Once inside, it was discovered that the victim had become incontinent. While the victim was in the bathroom cleaning himself, Armstrong obtained from Williams a .12-gauge shotgun, shells, and a .32-caliber pistol containing one shell. When the victim exited the bathroom, Armstrong, finding feces on the floor, struck and knocked Gorsuch down. Williams attempted to clean up the feces and blood, but was not completely successful. Thereafter, the trio prepared to leave. Armstrong placed both guns in the car, shoved the victim into the rear seat, and then got in the passenger side of the car. Williams began driving and at some point, Armstrong fired the .32-caliber pistol into the back seat of the car, ostensibly to convince the victim to keep his head down. During this time, the victim’s face was covered with a stocking cap.

Subsequently, with Armstrong giving directions, Williams drove to a trailer court. According to Williams, it was still dark at this time. Armstrong got out and went to a trailer, but returned shortly thereafter. Miller followed a few minutes later and got into the back seat of the car with the victim. Williams again began to drive, with Armstrong and Miller giving directions. Miller asked the victim if he had any money. According to Williams, the victim replied affirmatively, whereupon Miller hit the victim and demanded all of his money. Williams testified that he then heard Miller going through the victim’s pockets.

Williams testified that he drove west out of Jacksonville through the country until he came to a bridge, where Armstrong ordered him to stop. Miller was the first to exit the car. Armstrong followed, and handed Miller the shotgun. Williams was the next to get out. Armstrong then took the victim by the arm, pulled him out of the back seat of the car, and shoved him up against the rail of the bridge. Williams testified that Miller then shot the victim in the head. According to Williams, Armstrong took the shotgun, reloaded it, and also shot the victim in the head. Armstrong put a third shell in the shotgun and gave it to Williams. When Williams shot and missed, Armstrong ordered Williams to shoot again and to do it right this time or be buried there with the victim. As the shotgun was reloaded for this fourth shot, the empty shell fell through the floor of the bridge. Williams testified that he thought he hit the man with his second shot.

Armstrong then grabbed the body of the victim by the feet and flipped it over the north side of the bridge. On Armstrong’s orders, Williams picked up the spent shells — except the one which fell through the bridge. Armstrong, Miller, and Williams got into the front seat of the car, with Williams again driving. According to Williams, it was still dark when the trio left the bridge, heading west. A short while later, the shells, ^jilong with the victim’s wallet and driver’s license, were thrown out the passenger side of the car. The three returned to Williams’ house, where they disposed of the shotgun. While it was still dark, Williams and Miller took Armstrong home and proceeded to a cafe. It was beginning to get light out when they arrived at the cafe. Later, Williams took Miller home.

That afternoon, Miller, Williams, and Armstrong met at another tavern in Jacksonville. All of them then went to Williams’ house, where Williams cleaned up the house and the car used in the murder. The three returned to the tavern. Armstrong later left, but Williams and Miller were soon joined by Williams’ brother, Rick. Williams informed his brother, Rick, that he was in trouble and needed to talk. After some more drinking, Miller, the Williams brothers, and Chris Peterson went to Williams’ house. Williams testified that he and Rick went into a bedroom, where he told brother Rick that “they” had killed the person who was with them the previous evening. Thereafter — according to both brothers’ testimony— Miller entered the bedroom and admitted the killing. Miller and Williams then left for another bacchanalian evening. They were arrested together the next morning.

Williams’ testimony was challenged in several respects on cross-examination. Williams admitted to lying to the police about what he had told his brother the day after the murder and was unable to give details of the conversation between Miller, Rick, and himself when Miller allegedly admitted the murder. It was also brought out that the day after the offense, Williams told the police that Armstrong had fired the .32-caliber pistol into the rear seat while on the way to the bridge where the victim’s body was found, and not before picking up defendant, as Williams had testified at trial. Additionally, Williams admitted that he had been drinking since 1:30 p.m. on the date of the offense; could not recount exactly where he had driven on the night of the murder; and was unable to say how much time elapsed between the events leading up to the murder.

Finally, an expert witness for the defendant testified that in his opinion, the victim was not shot at the bridge where his body was found. On cross-examination, however, the witness stated that his opinion was based on the belief that the victim’s body could not have hung over the railing of the bridge after the shooting, but that he had never examined either the bridge or the body of the deceased.

Despite these infirmities, there was some corroboration for Williams’ testimony. Several persons confirmed that Armstrong and the Williams brothers left the tavern with the victim. Chris Peterson confirmed the testimony that Rick was dropped off at his house soon after leaving the tavern. Although they were unable to give exact times, several witnesses testified that in the early morning hours of February 9, 1980, Butch Armstrong came to a trailer and spoke briefly with Miller, and that Miller, left with Armstrong and did not return until after daylight. In addition, Randy Williams’ mother testified that Miller and her son arrived at her cafe for breakfast about 6:15 a.m. on the day in question. It was stipulated that the sun rose at 6:59 a.m. on that day. The pathologist for the State testified that after performing an autopsy on the victim, he determined that the cause of death was either of two shotgun wounds to the head. Other scientific and physical evidence tended to corroborate Williams’ testimony.

Miller testified in his own behalf that it was nearly daylight when Armstrong and Williams came to the trailer to see him. He stated that the pair told him that Williams had beaten the victim with a pair of “numchucks” and that the victim had been shot to prevent him from going to the police. Miller contended that Armstrong and Williams only came to him for advice after they had committed the murder.

Opinion

The following colloquy took place at Miller’s trial between Miller and the State’s Attorney, Edwin Parkinson:

“Q. Mr. Miller, how old are you?
A. Twenty-three.
Q. Why didn’t you tell this story to anyone - when you got arrested?”

An objection to the last question was sustained and the jury was instructed to disregard, but a motion for mistrial was denied. Defendant contends that this examination violated his fifth and fourteenth amendment rights . to due process of law.

The clear directive issued by the Supreme Court in Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, and United States v. Hale (1975), 422 U.S. 171, 45 L. Ed. 2d 99, 95 S. Ct. 2133, is that prosecutors may not comment upon — nor question defendants regarding — post-arrest silence. To do so is fundamentally unfair as silence is “insoluably ambiguous” and may constitute simply the exercise of the constitutional right to remain silent. The prosecutor’s comments here clearly violate this directive, and the State does not seriously contend otherwise. Rather, the State contends that any error which did occur was harmless.

In neither Doyle nor Hale was the Supreme Court faced with the question of the applicability of the harmless-error doctrine. However, in Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824, the court held that even constitutional errors may be harmless if it is clear beyond a reasonable doubt that the error did not contribute to the defendant’s conviction. Additionally, our own supreme court has applied the harmless-error doctrine in a case involving a Doyle violation. People v. Beller (1979), 74 Ill. 2d 514, 386 N.E.2d 857.

However, while the harmless-error doctrine may be applied to errors of this type, the Chapman standard was not met here. While the evidence in this case was sufficient to prove Miller’s guilt beyond a reasonable doubt (see People v. Wollenberg (1967), 37 Ill. 2d 480, 229 N.E.2d 490; People v. Sheridan (1977), 51 Ill. App. 3d 963, 367 N.E.2d 422), it was not so overwhelming as to preclude all reasonable doubts about the effect of the prosecutor’s comment. As previously noted, there is corroboration for the testimony of the accomplice, Randy Williams. However, nothing except Williams’ testimony directly links Miller with the crimes.

We are cognizant that the jury was instructed to disregard the prosecutor’s comment and that a prompt instruction will usually cure an error at trial. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.) As Carlson recognized, there are exceptions to this rule. It seems that no decision of the courts in this State has dealt precisely with the issue of whether a Doyle violation may be negated by a curative instruction. Federal reviewing courts have held that instruction alone is never sufficient. See United States v. Edwards (5th Cir. 1978), 576 F.2d 1152; and Morgan v. Hall (1st Cir. 1978), 569 F.2d 1161.

Such a per se rule is at odds with Chapman, which requires a more individualized approach. Nevertheless, it cannot be said that beyond a reasonable doubt the instruction given in this case cured the error. The trial was essentially a credibility contest between defendant Miller and Randy Williams. The reference to post-arrest silence cast aspersions on Miller’s credibility and may have irreparably prejudiced him in the eyes of the jury. Thus, reversal is required.

Defendant has alleged numerous other errors, but these have either been waived for failure to raise them in his post-trial motion (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856), or will necessarily be decided anew by the trial judge based on the factual situation presented at defendant’s new trial.

Reversed and remanded for new trial.

GREEN, P. J., and TRAPP, J., concur.


author: PRESIDING JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELLIS HENDERSON, Defendant-Appellant.
    Fourth District
    No. 17328
    Opinion filed March 3, 1982.
    Daniel D. Yuhas and James G. Woodward, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Riderman, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On March 20, 1981, in the circuit court of Champaign County, defendant, Ellis Henderson, entered a plea of guilty to the charge of driving while a license or permit is suspended or revoked. (Ill. Rev. Stat. 1979, ch. 95*2, par. 6 — 303.) Defendant was subsequently sentenced to a period of 7 months’ imprisonment. On appeal, defendant maintains his guilty plea must be vacated, because the court violated Supreme Court Rule 402 by simultaneously addressing all defendants who intended to plead guilty. Ill. Rev. Stat. 1979, ch. 110A, par. 402.

At the hearing, the trial court admonished all defendants who wished to plead guilty of the consequences of their pleas; their rights to a jury trial; the nature of a jury trial; and the right of each defendant to testify on his own behalf. The court then directed admonitions personally to each individual defendant.

The court personally informed defendant of the nature of the charge and the minimum and maximum sentence which could be imposed. He then asked defendant if he wished to plead guilty or not guilty. The court further questioned whether defendant understood what had been explained, and whether he had any questions concerning the rights he was offering to give up. From a thorough reading of the record, it appears the trial court made considerable effort to determine whether the plea was voluntary, and whether defendant understood the implications of his plea.

At the sentencing hearing on May 1,1981, defendant’s attorney made a motion to withdraw as counsel. That motion was denied. A presentence report was submitted together with defendant’s driving record. The report indicated defendant had prior felony convictions, and since being released on parole in 1978, he had seven prior traffic convictions.

Defendant filed a motion to withdraw his guilty plea alleging that he did not “knowingly, intelligently or voluntarily waive his right to a jury trial, nor did [he] fully understand or comprehend the admonitions of the court pursuant to Supreme Court Rule 402 at the time of the entry of the plea.” At the hearing on the motion, defendant stated he did not receive effective assistance of counsel regarding the possible sentences available to the court. That motion was denied, and the court specifically found that defendant did understand the nature of the charge and the possible penalties.

Supreme Court Rule 402 requires “substantial compliance” with its provisions (Ill. Rev. Stat. 1979, ch. 110A, par. 402). In People v. Krantz (1974), 58 Ill. 2d 187, 317 N.E.2d 559, the court noted that literal compliance was not required, and the entire record could be considered in determining whether the accused understood the nature of the charge. 58 Ill. 2d 187,192, 317 N.E.2d 559, 562.

Defendant argues the court violated Rule 402 by failing to address him individually concerning his basic rights. However, when the court personally addressed defendant, he was informed of the nature of the charge and the possible penalties. Defendant indicated he understood these admonitions, as well as those previously given by the court. It appears the court was in “substantial compliance” with the rule, and did not abuse its discretion in denying defendant’s motion to withdraw the guilty plea.

The decision of the circuit court is affirmed.

Affirmed.

WEBBER and TRAPP, JJ„ concur.


text:
      In re ALAN WATHAN.—(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. ALAN WATHAN, Respondent-Appellant.)
    Fourth District
    No. 17364
    Opinion filed March 4, 1982.
    Linda Ganski, of Legal Advocacy Services, and Ann Hymowitz, of Guardianship and Advocacy Commission, both of Champaign, for appellant.

      Basil G. Greanias, State’s Attorney, of Decatur (Robert J. Biderman, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

This appeal lies from a finding of the circuit court of Macon County that the respondent, Alan Wathan, was a person subject to involuntary admission to the Department of Mental Health on June 16,1981. A notice of appeal was timely filed from the trial court’s writ of hospitalization and subsequently briefs were filed by the State’s Attorney. Following the filing of the briefs a motion to dismiss the appeal as moot was filed by the petitioner. The motion, and the objection thereto, were ordered taken with the case by this court. Since we determine that the appeal should be dismissed as moot, we will not reach the issues raised in the briefs.

Some factual background is necessary as it forms the basis for our determination that the appeal must be dismissed. On March 31, 1981, the respondent was the subject of a petition for involuntary admission. He was adjudicated a person subject to involuntary admission and was ordered hospitalized in the Department of Mental Health and Developmental Disabilities.

On June 3, 1981, a second petition for involuntary admission was filed. Following a hearing on June 16, 1981, the respondent was again found to be a person subject to involuntary admission and was again ordered hospitalized in the Department of Mental Health and Developmental Disabilities. It is from this- order that the respondent appeals.

On July 2,1981, the circuit clerk was ordered to file notice of appeal for the respondent as the court had been advised that the respondent desired to appeal. The Guardianship and Advocacy Commission was appointed to represent the respondent on appeal. The notice of appeal was filed on July 2, 1981, by the circuit clerk. However, on August 25, 1981, the respondent applied for voluntary admission to the Adolf Meyer Zone Center, the mental health facility into which he had been committed.

We recognize that generally the mootness doctrine does not apply to mental health cases. (In re Garcia (1978), 59 Ill. App. 3d 500, 375 N.E.2d 557.) This general rule was promulgated in recognition of two exceptions to the mootness doctrine: (1) when dismissal would eliminate an entire class of cases from appellate review, and (2) where there are collateral legal consequences which survive the expiration of the order under review. In re Sciara (1974), 21 Ill. App. 3d 889, 316 N.E.2d 153.

An initial order for hospitalization may not exceed 60 days pursuant to section 3 — 813(a) of the Mental Health and Developmental Disabilities Code. (Ill. Rev. Stat. 1979, ch. 91M, par. 3 — 813(a).) Thus it is apparent that such orders would normally come within the purview of the mootness doctrine and must be subject to the exception since dismissal would eliminate an entire class of cases from appellate review, i.e., a single 60-day admission.

Moreover, it has been held that the question of the collateral consequences exception must be considerd on a case-by-case basis. The reviewing court must examine the totality of circumstances as an adjudication could return to plague a respondent in some future proceedings and could affect other aspects of a respondent’s life. Thus, Sciara allows the application of the mootness doctrine only where there are no possible future adverse collateral legal consequences.

However, we find this to be a case where the mootness doctrine should be applied. In the instant case the respondent was twice committed on an involuntary basis. Following the second commitment the respondent applied for voluntary admission to the Department of Mental Health. Respondent’s actions merely confirm the finding of the trial court that he was indeed in need of treatment for mental illness. Consequently, respondent’s own actions eliminate any possibility of future adverse collateral legal consequences. For this reason the mootness doctrine does apply in the instant case, and we find the appeal to be moot.

For the foregoing reasons the petitioner’s motion to dismiss the appeal is hereby granted.

Dismissed.

GREEN, P. J., and TRAPP, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY A. LaCOMBE, Defendant-Appellant.
    Fourth District
    No. 17337
    Opinion filed March 4, 1982.

      John P. O’Rourke, of Dukes, O’Rourke, Stewart, Martin & Helm, Ltd., of Danville, for appellant.
    Edward Litak, State’s Attorney, of Danville (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

Reckless homicide.

But not only must the criminal conduct be reckless, it must also be wilful and wanton.

Ergo, we must reverse.

LaCombe was charged with reckless homicide, convicted by a jury, and sentenced to 2 years’ probation.

Facts

The victim, Terry Lacey, was killed when he was run over by defendant’s truck. The State presented the following evidence during its case in chief:

Carson Swinford lived in a house adjacent to the Northeast Grade School in Danville, Illinois. During the early morning hours of July 28, 1980, he was awakened by the sound of a loud car or truck engine. He proceeded to the bedroom window through which he saw a reddish pickup truck drive around the side of the building out of sight. He then went back to bed, having seen nothing unusual. The truck was not weaving.

Keith Stelzer, another neighbor whose house abutted the Northeast Grade School complex, was watching television between 1:30 and 2 a.m. His attention was distracted by the sound of a car or truck engine. He too looked out his window and saw a reddish pickup truck on the school playground. The truck was driving without taillights or headlights. The truck moved around the school building out of Stelzer’s sight. It was not traveling rapidly but he heard it “rev up” as if it were changing gears. Stelzer did not see the truck again but within two to three minutes heard sounds which seemed to him to be the opening and closing of the doors and the tailgate of a truck. Because Stelzer thought this conduct was suspicious, he called the police. He also stated it was not unusual for cars to drive on the field.

When the police arrived three to five minutes later, they asked him to accompany them to the athletic field. The grass was wet and Stelzer saw a number of tire marks on the field. He also testified that the truck was moving at 15 to 20 m.p.h. and that the noise from the engine was not caused by speeding. It was his opinion that the truck was not driving at a speed which would pose a danger to anyone. The truck was not weaving, doing circles, or “bobbing.”

Robert Knapp testified that on July 27 he walked his dog on the athletic field. At that time there were no tracks in the grass or on the asphalt and no circular ruts on the ball field. The next day, when he again walked his dog, he saw numerous tire marks on the playground, on the ball field, and on the asphalt adjacent to the buildings. Though some of the tire tracks appeared fresh, Knapp could not say with certainty that all of them had recently been made.

Officer Michael Byrne received a call directing him to the Northeast school at approximately 2 a.m. on July 28. As he entered the playground area of the school in his police van, he saw a red pickup truck with the lights off leaving the playground. He attempted to follow the truck but because of a row of hedges, his vision was obscured and he lost sight of the truck for a few moments.

Byrne stopped his vehicle in an intersection and then saw movement at a house down the block from him. He backed his police van up to the house and saw defendant standing beside a red pickup truck.

When Byrne stopped, defendant came up to the van and told the officer in an excited voice that “Jack Terry is lying out there dying.” Defendant was distraught and repeated the substance of this statement several times to the officer who tried to calm him down.

Because defendant was excited, Byrne placed him under arrest to keep him in custody until the officer could find out what had happened. Byrne detected a “fairly strong” odor of alcohol on defendant and, over objection, testified that he arrested the defendant for driving under the influence. The court then offered and gave a limiting instruction to the jury that this testimony could only be used for the purppse of ascertaining why the officer acted in the manner he did.

Byrne observed a large number of circular tire tracks which had been cut into the athletic field by what appeared to be automobile tires. The marks were both straight and circular.

On cross-examination, Byrne admitted that he never saw the defendant driving the truck and that the truck was not being driven in a reckless manner when it left the field. Byrne also admitted that other than the smell of alcohol emanating from defendant, defendant did not exhibit any other signs of intoxication. Though Byrne took pictures of the various tire tracks he did not attempt to match these with any of the numerous emergency vehicles which drove onto the field that night or with defendant’s truck.

C. L. McDougall, a footprint, tire, and fingerprint examiner for the IBI, testified that he had examined the tires of defendant’s truck with the aid of a microscope. He compared these with the shirt which the victim had been wearing on the night of the accident. On direct examination he stated that it was his opinion that the tire marks on the shirt had similar class characteristics to the front tires of defendant’s, truck. That is, the marks were of a similar tread design. On cross-examination, however, McDougall was unable to say definitely that the marks on the shirt were identical to the tread design from defendant’s front tires. McDougall had not made an examination to ascertain if specific markings from the tires correlated with those on the shirt. A motion to strike this testimony because there was no foundation tying the markings on the shirt to defendant’s tires was denied.

Frederick Costigan, another police officer, located the victim on his back near the goal posts on the athletic field next to the school buildings. When found, Lacey was still alive though his pulse subsequently stopped. He was transported to a local hospital after CPR was administered. Costigan saw numerous tracks on the field produced by a vehicle which had been spinning around in circles while accelerating. Costigan, however, did not compare these marks with any of the tires of the vehicles which had been on the field that night.

Richard Adams processed the athletic field the day after the accident. He described the skid marks which he saw and he took plaster casts of several of the skid marks. Adams also obtained a search warrant for defendant’s truck and seized its tires. The front tires were regular passenger car tires while the rear tires were snow or “mud lug” tires. Adams was unable to match any of the photographs of the tire tracks or the plaster casts with any particular tire from defendant’s truck.

Dr. Grover Seitzinger, a pathologist, testified that the victim’s chest was crushed. The cause of death was internal hemorrhage due to a torn heart which was caused by a force compressing the breastbone against the backbone.

William LaCombe, Jr., brother of the defendant, testified that the defendant and Lacey, together with a number of others, had attended a birthday party for defendant at defendant’s parents’ home on the afternoon of July 27. At approximately 7:50 p.m., he, in a separate car, followed the defendant and the victim to a local tavern. Defendant was driving his red pickup truck.

LaCombe stayed with defendant at the tavern for two hours and saw defendant drink two beers. He also stated that the decedent and defendant were good friends and that there were no altercations between them on that night.

John Bolser, a friend of the parties, also lived in a house adjacent to the Northeast school yard. At 2 a.m. on July 28 he was awakened when he heard his dog bark and a voice calling out to send for an ambulance. Bolser went outside and saw the police. The defendant, who was standing with the police, told Bolser that Lacey was dying and pointed to the athletic field.

Bob Richard, a police officer, testified that he and Officer Byrne transported defendant to the police station. Defendant emitted a moderate alcoholic odor but did not otherwise appear intoxicated. Defendant passed several balancing tests which the officer administered.

After being given his Miranda rights, defendant asked for the opportunity to make a phone call. After several attempts, defendant apparently contacted his father. Richard was standing 10 feet from the defendant during the conversation. Defendant never asked Richard to leave the room.

Richard overheard the defendant’s half of the conversation. Richard then told the jury that defendant, in response to an unheard question, stated into the phone:

“ ‘It’s serious. Can you get a hold of him.’ * * * ‘It’s serious. It’s more serious than that. I can tell you. Well, let’s say I might have run over somebody.’ ”

The State then rested after the trial court, upon careful and detailed review, admitted each of the State’s exhibits which consisted of numerous photographs of the Northeast Grade School together with plaster casts of certain tire tracks, the pickup truck tires, and the shirt worn by the decedent.

William LaCombe, Sr., father of the defendant, testified for the defense that the victim was a close friend of defendant. LaCombe was not sure whether defendant had consumed any alcoholic beverages during the cotuse of the cookout, though he did not believe defendant would drink in front of defendant’s small son. Defendant left the party at 7:30 p.m. Later that evening, LaCombe was awakened by a phone call. Defendant told him that “Terry has been run over and they think I did it.”

Defendant then attempted to make an offer of proof that on prior occasions the victim climbed out of a moving car or truck being driven by these witnesses. Lacey would either climb into the rear of the pickup truck or onto the roof of the moving car. The vehicles were normally traveling at high rates of speed when this occurred. In all, the three witnesses testified to five such incidents in the last 10 years. The trial court concluded that this was insufficient to establish “habit” and denied admission of the testimony.

Defendant testified that he and the victim were close friends. He was with Lacey at the birthday party and left to go to a pig roast at a local tavern at approximately 7:45 p.m. Defendant and the victim stayed at the tavern for five hours. He and the victim then left and, after a short stop at another tavern, they decided to drive to Bolser’s house to see if he was awake. When they approached the block where the school was located, defendant drove his truck onto the athletic field and cut his wheels hard, sliding the back end around so that his truck was facing Bolser’s house in the distance across the field. Defendant opined that he was driving 12 to 15 m.p.h. at the time.

Defendant then drove across the field making a wide turn and drove back across the length of the field. During this process, he spun the truck around in circles on two occasions. Defendant had driven across the athletic field on a number of other occasions on go-carts or motorcycles but never with his truck. Though the headlights were turned off, defendant testified he had full control of his truck.

As defendant was driving in a straight line near the baseball diamond, Lacey told defendant that he was going to “ride the iron horse.” Defendant thought that Lacey was talking about the mechanical bull at the State Fair because they had discussed that earlier in the evening. When defendant looked in the victim’s direction, he saw Lacey climbing out of the window of the truck. At the point defendant first saw the victim the upper part of his body was outside of the vehicle. As defendant looked away, the victim’s legs went out the window. All of this happened within a matter of seconds.

Within a short moment, defendant felt a “jump” in the right rear of his truck. He applied the brakes, looked in the mirror and saw Lacey lying on the ground. Defendant stated that he believed that he struck the victim with the right rear tire of his truck. Defendant went to the aid of Lacey and then drove to Bolser’s house for help. Defendant stated that he was driving on the school yard for only two to three minutes before the accident.

Defendant and the other witness testified that the victim’s reputation for carefulness was poor. A third witness testified that the victim’s reputation for carefulness was good. Although defendant was allowed to recall this latter witness after claiming surprise at his answer, his subsequent testimony that the victim was reckless and careless was struck by the trial court.

Issue

Among the issues raised by defendant is the question of whether he was proved guilty beyond a reasonable doubt. In a reckless homicide prosecution, the State is obligated to prove that the defendant caused the death by driving a motor vehicle recklessly and that he drove the motor vehicle in a manner likely to cause death or great bodily harm. (People v. Boyle (1979), 78 Ill. App. 3d 791, 396 N.E.2d 1347.) Reckless conduct alone is not sufficient to sustain a conviction; the reckless conduct must be wilful and wanton. (People v. Ziegler (1979), 78 Ill. App. 3d 490, 396 N.E.2d 1160.) The acts which a defendant does which caused the death must be such as are likely to cause death or great bodily harm to some individual when performed recklessly. (People v. Bonzi (1978), 65 Ill. App. 3d 927, 382 N.E.2d 1300.) Criminal liability does not attach to every act of negligence resulting in injury, or even death, to another person, but only to negligence of such a reckless or wanton characteristic to show an utter disregard for the safety of others under circumstances likely to cause injury. People v. Crego (1946), 395 Ill. 451, 70 N.E.2d 578.

Upon a painstaking review of the record in this case we cannot say that there was sufficient evidence presented to demonstrate guilt beyond a reasonable doubt. While the evidence presents an extremely close factual question, we believe it raises a reasonable doubt which must be resolved in favor of defendant.

The evidence showed that defendant was driving on the athletic field in the early morning hours of July 28, 1980. During the course of this journey across the field, defendant drove the pickup truck in circles with sufficient force to tear up the wet sod. Though the police officers testified that it appeared that the driver had been accelerating during these turns, they were not able to establish any speed of the vehicle. Moreover, the neighbors adjacent to the school yard who saw the truck all testified that there was nothing unusual about the driving behavior and one witness estimated defendant’s speed at 15 to 20 m.p.h. While a prudent jury could well conclude that there were sufficient facts presented to establish that this conduct was reckless, that finding alone cannot substantiate the verdict.

The crucial issue is whether defendant’s acts were “likely to cause death or great bodily harm.” The undisputed evidence showed that the victim, for reasons known only to himself, decided to climb out the window of the moving truck. During the course of this maneuver which was accomplished in a few short seconds, the decedent apparently lost his grip and fell beneath the wheels of the truck. While we may properly condemn defendant’s conduct, we cannot attach criminal liability to it if his reckless acts were not likely to cause the death, or if the victim’s reckless conduct could not have been anticipated by defendant.

In People v. Frary (1976), 36 Ill. App. 3d Ill, 343 N.E.2d 233, defendant was convicted of involuntary manslaughter and reckless homicide. He had been drinking in a bar sometime between 2 and 4 a.m. A friend arrived on a motorcycle seeking gasoline for an automobile stranded on the highway. Defendant offered to follow the victim to the stalled auto and syphon gas from the car tank. Defendant then followed the motorcycle at a speed of 75 m.p.h. As they approached a bridge beyond which the stalled car was located, defendant did not notice that the motorcycle driver began to slow down. The motorcycle driver lost control of the bike and defendant, who was three to four car lengths behind, swerved to avoid a collision but nevertheless ran over the motorcycle, killing one of the passengers and injuring another.

In reversing the conviction, the court stated that the only reckless conduct apparent with which defendant could reasonably be charged was failure to maintain a safe interval and driving in excess of the speed limit. On the facts, the court held that these were insufficient to prove beyond a reasonable doubt wilful or wanton conduct, recklessness, or criminal negligence.

In People v. Potter (1955), 5 Ill. 2d 365, 125 N.E.2d 510, the facts showed that defendant was driving a bus in Chicago. The bus was approaching an unmarked intersection into which a car drove at a right angle to the bus. Estimates of the bus’ speed were between 45 and 50 m.p.h. The bus and the car collided in the center of the intersection and an occupant of the car was killed.

The supreme court concluded that the conviction could not stand because the uncontroverted testimony disclosed that the proximate cause of the collision could conceivably have been the unexpected conduct of the automobile driver in driving onto a main thoroughfare from a side street. It could not be said that the failure of the defendant to anticipate this action on the part of the automobile driver was reckless since the reckless conduct of defendant, if any, was only his driving in excess of the speed limit which constituted neither criminal negligence nor wilful or wanton misconduct.

In People v. Chambers (1972), 8 Ill. App. 3d 430, 289 N.E.2d 476, defendant improperly overtook an automobile in the right lane on a highway which was snow covered and on which only three of the four lanes were open to traffic. After overtaking the car, and while defendant’s automobile was over the center line of the highway, defendant’s car skidded into the car he had just passed in the right lane and then veered into the left lane of the highway proceeding to a head-on collision. On appeal, the court held that the fact that defendant was guilty of improperly overtaking the car on his right did not establish that his conduct was reckless. The conviction was reversed.

In People v. Friesen (1978), 58 Ill. App. 3d 180, 374 N.E.2d 15, the evidence indicated that the headlights on defendant’s car were operational though defendant drove the car with them off because they caused a drain on his battery due to a fault in the electrical system. The evidence also showed that he could have operated the headlights in that condition and that he could have arrived at his next destination without any apparent mechanical difficulty arising in the car. Although the court found that defendant was negligent in driving at night with only his parking lights on, the negligence did not rise to the level of criminal recklessness and could not support his conviction following the death of a pedestrian who was struck by defendant’s vehicle. The evidence also showed that defendant was driving slowly and that the pedestrian was walking in the roadway on the wrong side of the street.

The only potentially reckless conduct which the State proved in this case was that defendant drove on the athletic field in circles with his lights off. While we cannot accept defendant’s argument that a victim’s negligence will, in all instances, relieve a defendant from criminal liability since the acts of the defendant and not the victim are those against which the standard of recklessness must be measured, we cannot say that driving in this fashion constituted either criminal negligence or wilful or wanton misconduct under the extremely close facts of this case.

We also cannot accept the State’s argument that the opinion of Officer McDougall that the tire marks on the victim’s shirt were similar to the class characteristics of the front tires of defendant’s truck is proof beyond a reasonable doubt. The State’s theory was that the front — not the rear — tires of defendant’s truck struck the victim. In order for this to have occurred, the State theorizes that after the victim fell out of the window of the truck, defendant circled around and drove over him. Defendant testified that he was driving in a straight line when the victim left the truck and believed that he struck the victim with his rear tires.

We do not agree with the defendant that the State’s evidence was completely speculative. However, in view of McDougall’s testimony that he could not specifically match the marks on the shirt with the tire tread, we conclude that a reasonable doubt exists in this regard upon which defendant’s conviction cannot be sustained.

(Because of our conclusion as to the foregoing issue, we need not consider defendant’s other claims of error.)

Reversed.

LONDRIGAN and TRAPP, JJ., concur.


author: JUSTICE TRAPP

text:
    THE PEOPLE ex rel. WAYNE ANDY TURNER, Plaintiff-Appellant, v. DAVID W. LEWIS, Defendant-Appellee.
    Fourth District
    No. 482-0039
    Opinion filed March 3, 1982.

      Joseph R. Schroeder, of Bennett & Schroeder, of Marshall, for appellant.
    Craig DeArmond, of Harlan Heller, Ltd., of Danville, for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

This case involves a question of standing under section 2 of “An Act in relation to practice and procedure in cases of quo warranto” (Ill. Rev. Stat. 1979, ch. 112, par. 10). Plaintiff made a demand upon the Attorney General to file a complaint in quo warranto against defendant, the appointed State’s Attorney of Clark County. Plaintiff alleged that defendant is not legally entitled to hold the office of State’s Attorney for Clark County because his appointment was in violation of section 25 — 11 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 25 — 11). The Code provides that when a vacancy occurs in a non-home-rule county it shall be filled by the chairman of the county board with the advice and consent of the county board, and the appointee shall be a member of the same political party as the person he succeeds. Plaintiff alleges that defendant is a republican whereas his predecessor, the elected State’s Attorney who resigned during his incumbency, was a democrat.

The Attorney General declined to act, A similar demand was made upon defendant to file a suit in quo warranto against himself, which defendant declined to do. Plaintiff thereafter petitioned the trial court for leave to file the action in quo warranto on his own behalf based on his standing as a Clark County resident, taxpayer, registered voter, and democratic committeemen and chairman of the Clark County democratic central committee.

Defendant filed a motion to dismiss and, after a hearing, the court dismissed plaintiff’s amended pétition upon a finding that plaintiff did not have a sufficient and peculiar interest in the question to permit him to contest the validity of. defendant’s right to hold the office of Clark County State’s Attorney.

The sole issue before this court is whether plaintiff has standing to challenge defendant’s title to the office of State’s Attorney. Section 2 of “An Act in relation to practice and procedure in cases of quo warranto” (Ill. Rev. Stat. 1979, ch. 112, par. 10) states:

“The proceeding shall be brought in the name of the People of the State of Illinois by the Attorney General or State’s Attorney of the proper county, either of his own accord or at the instance of any individual relator; or by any citizen having an interest in the question on his own relation, when he has requested the Attorney General and State’s Attorney to bring the same, and the Attorney General and State’s Attorney have refused or failed so to do, and when, after notice to the Attorney General and State’s Attorney, and to the adverse party, of the intended application, leave has been granted by the circuit court, or any judge thereof.”

Prior to 1937 the quo warranto statute provided that only the Attorney General or the State’s Attorney could institute a suit in quo warranto after securing leave of the court to do so. They could commence the action upon their own or upon the relation of a private individual. A private individual who desired that such an action be brought was required to apply to the Attorney General or State’s Attorney. These officers did not have unlimited discretion to refuse these applications, however, and under certain circumstances they could be compelled by mandamus to bring the action. (People ex rel. McCarthy v. Firek (1955), 5 Ill. 2d 317, 125 N.E.2d 637.) The present quo warranto statute (Ill. Rev. Stat. 1979, ch. 112, par. 10), originally enacted in 1937, eliminated the cumbersome action of filing mandamus actions to compel public officers to institute these proceedings upon the relation of private individuals. Under the present statutory scheme, a private citizen is required to request that these public officers institute the action but upon their refusal to do so, the individual citizen may apply directly to the court for leave to file the action on his own relation.

Aside from demonstrating that the Attorney General and State’s Attorney have been asked to proceed and have refused, an individual must demonstrate that he has standing to pursue the remedy in his own stead. While the private interests of one citizen may be an interest shared by other members of the community for the purposes of establishing standing, the personal interest must still be pleaded and proved. McCarthy, People ex rel. Buffalo Utility Co. v. Village of Buffalo Grove (1967), 85 Ill. App. 2d 382, 229 N.E.2d 401; People ex rel. Miller v. Fullenwider (1928), 329 Ill. 65, 160 N.E. 175; People ex rel. Durst v. Village of Germantown Hills (1977), 51 Ill. App. 3d 969, 367 N.E.2d 426.

The private interest allegedly invaded must be directly, substantially, and adversely affected by the action sought to be challenged in the quo warranto proceeding. The damage to that private interest must be then occurring or certain to occur. The petitioner cannot rely on an expected damage to his private interests. Durst.

It has been held that only the Attorney General or State’s Attorney, as representatives of the people, have standing to apply for a writ of quo warranto in matters of purely public interest or concern and that their discretion in these matters is absolute. (People ex rel. Freeport Fire Protection District v. City of Freeport (1980), 90 Ill. App. 3d 112, 412 N.E.2d 718.) The rationale for this position is that an individual does not have the requisite standing to challenge a purely public wrong. The interests which a citizen may have are not peculiar to that person as an individual but are interests which are held in common to every citizen and resident of the community. If citizenship was sufficient to entitle a plaintiff to be granted leave to file the complaint in quo warranto it would follow that every citizen and resident would have an equal right to the use of writ. (People ex rel. Hiller v. Bevirt (1938), 297 Ill. App. 335, 17 N.E.2d 629.) In view of the restrictions placed upon the right of an individual to maintain the action under the statute and, at common law, courts have consistently held that the legislature did not intend by its enactment of section 2 of the quo warranto statute to lay in the hand of every citizen and resident the right to file and prosecute a quo warranto proceeding against a public official. Hiller.

While recognizing that the categories of public and private rights are not mutually exclusive (People ex rel. McCarthy v. Firek (1955), 5 Ill. 2d 317,125 N.E.2d 637), plaintiff must nevertheless demonstrate that he has a personal interest which had been invaded which is sufficiently distinct from the interest of the general public even though other members of the general public may be affected in the same manner as plaintiff.

Plaintiff’s first argument is that he has standing by reason of the fact that he is a taxpayer in Clark County. In McCarthy the supreme court held that certain voters, taxpayers, and owners of real estate within a sanitary district had standing to file a complaint against the trustee of the sanitary district. The court held that the interest of a taxpayer in a sanitary district which extended only one to two miles in each direction was sufficiently distinct from the interest of the general public to permit these individuals to maintain the action.

We find plaintiff’s reliance upon McCarthy inapposite. Irrespective of the fact that the taxpayer in McCarthy was only one of a group of similarly affected taxpayers and citizens, standing was nevertheless premised on direct adverse tax consequences. In this case, plaintiff has made no allegations of adverse tax consequences. Without an allegation of adverse effect, taxpayer status is not a basis for relief.

Plaintiff also maintains he has standing because he is a citizen and voter in Clark County. In the first instance, plaintiff is not challenging the legality of any of the official acts of defendant which would be improper in a quo warranto proceeding. (People ex rel. Chillicothe Township v. Board of Review (1960), 19 Ill. 2d 424, 167 N.E.2d 553.) As such, defendant’s occupation of the office of State’s Attorney has not harmed plaintiff as a citizen in any respect which is distinct from the “harm” which has accrued to every other citizen.

The same rationale applies to plaintiff’s claim that he has been harmed as a voter in Clark County. Though defendant maintains that democratic voters have been harmed to a greater extent than citizens whose political affiliation is otherwise, plaintiff nevertheless maintains that any voter has standing to challenge defendant’s right to hold office. This concession demonstrates that this status is not personal to plaintiff but is shared by the electorate at large irrespective of political party affiliation.

Plaintiff also argues that his status as democratic committeeman and central committee chairman of the party is a sufficiently distinct interest to permit the filing of the petition. As chairman of the central committee, plaintiff, under statute, may exercise certain powers and perform certain duties such as forwarding to the State Board of Elections the names and addresses of officers within the party elected by the party. (Ill. Rev. Stat. 1979, ch. 46, par. 7 — 9(a).) Though plaintiff may have certain powers and duties, officers of the party and plaintiff are not public officials. People ex rel. Brundage v. Brady (1922), 302 Ill. 576, 135 N.E. 87.

It has also been held that a bona fide public official does not have standing to challenge the alleged usurpation of another public office. (Hiller.) If public officers do not have automatic standing to challenge someone’s right to hold a public office, it follows that plaintiff’s status within a political party is not sufficient to confer standing upon plaintiff to maintain this action.

Further support for this conclusion can be found in the supreme court’s opinion in People ex rel. Rudman v. Rini (1976), 64 Ill. 2d 321, 356 N.E.2d 4. In Rudman, the supreme court declared unconstitutional a statute which delegated to county central committees of the political party of which the incumbent was a candidate at the time of his election the ability to appoint replacements to fill vacancies that occurred between elections. The statute was struck down as an improper delegation of sovereign power.

One of the claims of the parties was that political party committees for the respective counties were on a par with public officers and could be delegated authority since they- were controlled by statute. The supreme court, however, disagreed, finding that the appointing committees were indistinguishable from private individuals. The court went on to state:

“The committees do not carry the badge of public office. They are not accountable to the public, they give neither oath nor bond, and they do not separately substantially represent the polulace of the area affected by the appointment. (See People ex rel. Kell v. Kramer, 328 Ill. 512, 519; Telcser v. Holzman, 31 Ill. 2d 332, 336.) It is not the political party but the people that have the real interest in the vacant office, and the method of selection should reflect their choice as well as possible.” 64 Ill. 2d 321, 327, 356 N.E.2d 4, 7.

This passage supports the conclusion that the interest of plaintiff as a democrat or as a particular officer within the local party committee is indistinguishable or undifferentiated from that of any other member of that same party and, to some extent, from any voter or member of any other political party. In the absence of a distinguishable, personal interest, plaintiff has not demonstrated that he has standing sufficient to warrant the trial court’s granting of his petition to file the writ. See also Ney v. Whiteley (1904), 26 R. I. 464, 59 A. 400.

Defendant’s final contention is that if his status is not sufficient foundation upon which to ground standing, a question remains whether anyone can maintain a suit in this regard. We disagree. Clearly, a rival claimant to the office would have standing to challenge the present officeholder. (People ex rel. Palmatier v. Tighe (1956), 11 Ill. App. 2d 1, 135 N.E.2d 811; People ex rel. Romano v. Krantz (1958), 13 Ill. 2d 363, 150 N.E.2d 627.) In his petition, plaintiff alleged that the name of at least one other individual had been forwarded to the county board for consideration after the democratic central committee selected him for nomination to the vacancy. Since the record does not contain sufficient facts to demonstrate that this individual would, in fact, qualify as a rival claimant, we express no opinion as to that issue even though defendant concedes that this individual would be a rival claimant.

Defendant has also persuasively argued that any member of the board of supervisors who objected to defendant’s appointment as State’s Attorney would have standing to challenge his authority to hold that office. In this instance, standing would be predicated on the statutory authority and duty of the board to fill vacancies in the office. (Ill. Rev. Stat. 1979, ch. 46, par. 25 — 11.) Since the duty to appoint lies with the chairman of the board subject to advice and consent of the members thereof, the objecting board member would have a right to challenge appointments which do not comport with statutory requirements.

We are also persuaded that a special prosecutor, appointed by the court, would have standing to challenge defendant’s authority to hold office. While we accept plaintiff’s argument that his demand upon defendant to file suit against himself was without effect even though required by statute, plaintiff’s remedy was to petition the court for the appointment of a special prosecutor under the authority of section 6 of “An Act in regard to attorneys general and state’s attorneys” (Ill. Rev. Stat. 1979, ch. 14, par. 6), which authorizes appointment by the court of special prosecutors in cases in which the State’s'Attorney is an interested party. The statute also provides that the attorney so appointed shall have the same power and authority as the State’s Attorney has. Upon appointment of the special prosecutor, plaintiff could then have made his demand upon said prosecutor to bring this action.

In sum, plaintiff has not substantiated his argument that if he does not have the necessary standing to file suit no one does. Thus, this court is not faced with the situation in which the law grants a right without a concomitant remedy. We conclude that plaintiff has not demonstrated an interest sufficient to entitle him to file a complaint in quo warranto.

The trial court’s order denying plaintiff’s leave to file his complaint in quo warranto is therefore affirmed.

Affirmed.

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