text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JIMMY L. BARTLEY, Defendant-Appellee.
    Third District
    No. 3-83-0573
    Opinion filed June 29, 1984.

      John R. Clerkin, State’s Attorney, of Macomb (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Robert Agostinelli and Stephen Omolecki, both of State Appellate Defender’s Office, of Ottawa, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Jimmy L. Bartley, was stopped at a police checkpoint roadblock. Officers at the checkpoint observed the defendant and arrested him for driving under the influence of intoxicating liquor (hereafter DUI). (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 501.) The trial court granted the defendant’s motions to suppress his arrest and the related evidence. The State certified that the suppression order substantially impairs its ability to prosecute the defendant, and timely filed a notice of appeal.

Just prior to midnight on Saturday, December 18, 1982, officers from the McDonough County Sheriff’s Department, Macomb City Police, Illinois State Police and Illinois Secretary of State Police set up a checkpoint on a five-lane street in Macomb. The checkpoint was located at a point between the city’s only all-night restaurant and the central business district. The checkpoint operated for approximately two hours.

Following the hearing on the defendant’s motion to suppress, the trial court found that the purpose for establishing the instant checkpoint was to apprehend DUI violators. The court concluded that the State’s interest in apprehending DUI violators did not outweigh the intrusion caused by a checkpoint stop of citizens. The court held that the roadblock arrest violated the fourth amendment and therefore suppressed the evidence resulting from the defendant’s arrest.

Based on the record, there can be little doubt that the roadblock was established for the purpose of apprehending drunk drivers. Therefore, the sole question on appeal is whether such roadblocks are constitutionally permissible.

A checkpoint or roadblock stop constitutes a seizure within the meaning of the fourth amendment of the United States Constitution. In United States v. Martinez-Fuerte (1976), 428 U.S. 543, 49 L. Ed. 2d 1116, 96 S. Ct. 3074, the Supreme Court declared that vehicle stops at a fixed checkpoint are consistent with the fourth amendment and do not require a warrant. The case involved a permanent checkpoint set up at the Mexican border to monitor the transport of illegal aliens. The court held that such stops did not need to be based on a reasonable suspicion of illegal activity as did border stops by roving patrols. United States v. Brignoni-Ponce (1975), 422 U.S. 873, 45 L. Ed. 2d 607, 95 S. Ct. 2574.

The court’s reasoning was based on three considerations. First, a checkpoint stop involved minimal intrusion. The objective intrusion, which the court defined as the stop, questioning and visual inspection of the vehicles’ occupants, was the same in checkpoint and roving patrol stops. However, subjective intrusion, defined as concern, surprise or alarm generated in the minds of lawful travelers, was much less in the case of checkpoint stops which were conducted at fixed locations with ample warning as to what a motorist was to expect. In contrast, stops by roving border patrols were usually conducted without warning on lonely roads at night, causing a great deal of concern and uneasiness on the part of a detainee. Also, checkpoint stops were considered less intrusive because officers had no discretion as to which cars would be inspected. The regularized manner in which the checkpoint operated was neither arbitrary, random nor capricious.

Second, the important government and public interest in stopping the flow of illegal immigrants far outweighed the minimal objective and subjective intrusion caused by the checkpoint stops.

Finally, the problem of illegal immigration could not be dealt with in a less intrusive manner. The only effective way of detecting whether persons are being smuggled across the border is to subject traffic to close inspection.

Based on the minimal intrusion involved, limited police discretion, the important government interest at stake and the unavailability of effective alternatives, the court approved warrantless checkpoint stops. Three years later in Delaware v. Prouse (1979), 440 U.S. 648, 59 L. Ed. 2d 660, 99 S. Ct. 1391, the court, in dicta, extended this holding to roadblock license checks in urban settings.

In Prouse, the court held that random stops by roving patrol cars for the purpose of conducting license and safety checks were unconstitutional. Echoing the language of Martinez, the court held that the high degree of subjective intrusion caused by random stops outweighed the government interest in promoting highway safety and that random stops were an ineffective means of carrying out this interest. The court found that more effective and less intrusive means were available which minimized the field officers’ discretion over whom to stop. One such means suggested by the court was to question all oncoming traffic at roadblock type stops. And so the roadblocks began.

The constitutionality of a roadblock designed to detain all traffic in order to screen out intoxicated drivers is an issue of first impression in Illinois. As with all warrantless searches and seizures, the constitutionality of DUI roadblocks is determined by balancing the legitimate governmental interest against the degree of intrusion on individuals’ fourth amendment rights. Delaware v. Prouse (1979), 440 U.S. 648, 654, 59 L. Ed. 2d 660, 667, 99 S. Ct. 1391, 1396.

This balancing test involves three considerations: (1) the gravity of public concern served by the seizure; (2) the degree to which the seizure advances the public interest; and (3) the severity of the interference with individual liberty. Brown v. Texas (1979), 443 U.S. 47, 61 L. Ed. 2d 357, 99 S. Ct. 2627.

Regarding the first factor, it is beyond dispute that drunk drivers are a grave menace to the public and that stronger measures are needed to cope with the problem. However, we must bear in mind that in cases where the Supreme Court has either expressly or impliedly sanctioned checkpoint stops, the criminal activity targeted was of such a nature that there was no other less intrusive but equally effective means of detecting violators. Transporters of illegal aliens and violators of license and safety equipment laws can rarely be detected by observing traffic.

In contrast, the foremost method of detecting drunk drivers has been by observing driving behavior. An intoxicated motorist can be easily discerned by a trained officer without having to stop all traffic at a roadblock. Another less intrusive means of deterring drunk drivers is through the enactment of stiffer penalties.

In applying the second factor to this case, we find that the State has failed to demonstrate the superiority of a roadblock over these less intrusive alternative means of deterrence. There is nothing in the record which shows that the only practical or effective means of catching drunk drivers is by arbitrarily subjecting all citizens to police scrutiny without suspicion of wrongdoing simply because they happen to be traveling on a particular road at a certain time.

As to the third factor, we cannot describe as minimal the degree of intrusion caused by DUI roadblocks. In theory, such stops are less intrusive than random stops by roving patrols. Supreme Court decisions which have so held were based on the permanence of a checkpoint, the lack of discretion left to the field officer and the advance warning to the public as to the reason for the stop. United States v. Martinez-Fuerte (1976), 428 U.S. 543, 49 L. Ed. 2d 1116, 96 S. Ct. 3074.

In reality, DUI roadblocks are designed to be set up at night, without warning and at locations which are constantly changing. Motorists are often unaware of the reason for the stop prior to being asked to display their driver’s license. Lights are shined into their eyes and officers peer into the passenger compartment of their automobile. Although field officers generally have no discretion over whom to stop, we are unaware of any criteria used by supervisory officers in determining the need, location, time and duration of a roadblock. (See State v. Hilleshiem (Iowa 1980), 291 N.W.2d 314.) DUI roadblocks involve a significant degree of intrusion. See State ex rel. Ekstrom v. Justice Court (1983), 136 Ariz. 1, 663 P.2d 992.

Based on the foregoing, we find that the government interest in detecting drunk drivers by employing roadblocks does not outweigh the resulting public inconvenience and interference with the individual’s fourth amendment rights. DUI roadblocks involve a significant degree of intrusion and are of speculative deterrent value when compared to less intrusive means of enforcement. Therefore, we hold that roadblocks set up for the purpose of screening out drunk drivers violate article I, section 6, of the Illinois Constitution and the fourth and fourteenth amendments to the United States Constitution.

We express no opinion as to the constitutionality of license checkpoints since they are not at issue here. Nor does this opinion purport to limit the authority of law enforcement officials to apprehend on the basis of probable cause those motorists guilty of driving while under the influence.

The order of the circuit court of McDonough County granting the defendant’s motion to suppress is affirmed.

Affirmed.

ALLOY, P.J., and SCOTT, J., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MATTHEW L. PRUITTE, Defendant-Appellant.
    Third District
    No. 3—83—0710
    Opinion filed June 27, 1984.
    Robert Agostinelli and Sue Augustus, both of State Appellate Defender’s Office, of Ottawa, for appellant.

      Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Vicki R. Wright, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Following a bench trial in the circuit court of Will County, defendant, Matthew Pruitte, was found guilty of burglary and sentenced to a term of eight years’ imprisonment. On appeal defendant argues that his conviction should be reversed because (1) the trial court’s order denying the defendant’s motion to suppress evidence was erroneous because there were no reasonable grounds for a Terry stop; (2) in any event, the police exceeded the limits of a permissible Terry stop and arrested the defendant without probable cause; and (3) the trial court erred in denying the defendant’s right to withdraw his waiver of a jury trial by erroneously interpreting the provisions of section 9 of the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1981, ch. 911/2, par. 120.9).

At the hearing on the motion to suppress evidence the following facts were presented. On March 9, 1983, at 2:45 a.m., Officer Gordon Corp of the Joliet police department stopped the defendant in downtown Joliet. Corp testified that he stopped the defendant because defendant was staggering and since defendant was the only person Corp had seen in the area he was suspicious of him. Defendant identified himself as Matthew Pruitte and told Corp that he was going to a bar. Corp thought the defendant was intoxicated. After running a warrant check which came back clear, he left the defendant and continued on patrol. Two or three minutes later Corp again saw the defendant walking north on Chicago Street at Clinton.

While on patrol, Officer Charles McDonald heard a burglar alarm at the Fitwell Men’s Store. He found a broken window on the Chicago Street side and radioed in the report. McDonald secured the area, waited for the store owner and observed no persons in the immediate vicinity. Officer Corp was assisting a disabled motorist when he heard a radio dispatch of the burglary at Fitwell’s. Fitwell’s is approximately one block away from where Corp had last seen the defendant. Corp relayed a message over the radio, stating that he saw only one person in the downtown area, and described that person as a male, black, in his twenties, wearing a baseball cap backwards, blue jeans and a brown coat. He also gave the individual’s name as Matthew Pruitte.

Officer James Ryan heard the burglary report and drove to Fitwell’s, where he saw the broken window. He heard Officer Corp’s broadcast of the description of the defendant and he began circling the area near Fitwell’s, gradually increasing the radius of his circle. At approximately 3:40 a.m., Ryan found defendant walking at a normal pace northbound on Collins Street near Columbia. Defendant was carrying a bag under his right arm. Ryan drove past the defendant, turned around, and pulled the squad car on the sidewalk in front of the defendant.

Officer Ryan testified that he got out-of the squad car, called the defendant by name and asked him if he had a gun in the bag. Ryan did not notice any writing on the plain brown bag, nor could he tell what was in it. He testified that the defendant answered “No” and consented to allow Officer Ryan to look in the bag. Ryan found three pair of tagged jeans in the bag and contacted an officer at the scene of the burglary over the radio and determined that the jeans found in the bag were the same name brands as the jeans which were taken from Fitwell’s. He then placed defendant under arrest for burglary.

The defendant testified that as he was walking home that morning on Liberty Street, he heard someone call his name. He walked to the back of a vacant building and saw a man he did not recognize. The man asked the defendant if he remembered meeting him a previous night in back of a tavern while he was with defendant’s cousin. Defendant still did not remember him or his name. The man then pulled out a brown paper bag and asked defendant if he wanted to buy some blue jeans. Defendant offered to buy three pair for $25. He put the jeans in the bag, paid the man and continued walking home.

Defendant further testified the police pulled him over on Collins Street and looked in the bag; he did not give the police officer permission to look in the bag; he did not try to run because he had not done anything wrong; he did not break into the store; the closest he came to the store was two blocks; and he had been drinking beer earlier in the evening. The trial court denied the defendant’s motion to suppress evidence, and after a bench trial defendant was found guilty of burglary.

The defendant first argues that there were no reasonable grounds for a Terry stop and that, even if there were, the police exceeded the limits of a permissible Terry stop and arrested the defendant without probable cause. The People argue that the stop was an investigative encounter and not a Terry stop; that, assuming, arguendo, a Terry stop did occur, it was properly based upon sufficient articulable facts; and that the arrest did not take place when the police officer stopped his squad car on the sidewalk in front of the defendant.

A police officer may stop an individual and conduct a limited search for weapons even though the officer lacked probable cause to arrest, provided that prior to the stop he had reasonable grounds to suspect the individual was engaging in, or was about to engage in, criminal activity, and the officer has reason to believe the individual was armed and dangerous. Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.

This holding has been codified in sections 107 — 14 and 108 — 1.01 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, pars. 107 — 14, 108 — 1.01; see People v. McGowan (1977), 69 Ill. 2d 73, 370 N.E.2d 537.) Section 107 — 14 provides in pertinent part: “A peace officer *** may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense ***.” Section 108 — 1.01 states in brief that “[w]hen a peace officer has stopped a person for temporary questioning pursuant to Section 107 — 14 of this Code and reasonably suspects that he or another is in danger of attack, he may search the person for weapons. ***”

The People contend that the stop of the defendant was merely an investigatory encounter and not a Terry stop. The People cite several cases as authority for this contention; however, each case presents factually opposite situations and is not dispositive in the present case. In People v. Long (1983), 99 Ill. 2d 219, 457 N.E.2d 1252, a police officer followed the occupants of a pickup truck for one quarter of a mile. He neither activated his squad car’s Mars lights, sounded the siren, nor signaled the truck to stop in any manner. The driver of the pickup truck voluntarily pulled over to the side of the road. The court held that no illegal stop occurred which would warrant suppression of evidence. The stop was ruled merely an investigatory encounter.

Long is distinguishable from the present case. Officer Ryan testified that he drove past the defendant, turned his squad car around and drove it on the sidewalk, stopping several feet in front of the defendant. The defendant did not voluntarily stop to talk to the police officer as did the defendant in Long. In fact, the defendant had no choice in the matter, for as Officer Ryan testified, the defendant “had to stop.” The People’s reliance on Florida v. Royer (1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319, and People v. Brett (1984), 122 Ill. App. 3d 191, 460 N.E.2d 876, is also misplaced. Under the circumstances of the present case, Officer Ryan’s stop of the defendant was not merely an investigatory encounter. The issue now becomes whether the stop was properly based upon specific and articulable facts which, when taken together with rational inferences from those facts, reasonably warranted the intrusion under Terry.

The defendant argues that there were no reasonable grounds for a Terry stop of the defendant by Officer Ryan and cites as authority People v. Moorhead (1974), 17 Ill. App. 3d 521, 308 N.E.2d 381. We agree with the People that Moorhead is distinguishable from the facts in the present case. In Moorhead, the police stopped the defendant approximately three hours after receiving a report of a cleaning store robbery. Defendant was walking down the street about 2i!z miles from the location of the robbery. The police stopped the defendant because he matched the general description of the robbery suspect and because he was carrying a sweater over his arm in such a manner that the police officer was led to believe he was going to a cleaning store. (17 Ill. App. 3d 521, 523, 308 N.E.2d 381, 383.) The court held that the information possessed by the officers did not comport to the Terry standing and the seizure was too remote as to time and place. The police stopped the defendant based solely on an “inarticulate hunch” and, therefore, the defendant’s seizure was unjustified. 17 Ill. App. 3d 521, 527-28, 308 N.E.2d 381, 386.

In the present case, there was no such “inarticulate hunch” by Officer Ryan. He did possess information which does comport with the Terry standard. Ryan did not possess a general description of the defendant. He had an exact description as well as the name of the individual sought. The stop of the defendant was also not remote as to time and place. Defendant was stopped within 13 blocks of the store and within half an hour from the time of the burglary. Defendant was also observed within one block of the store only minutes before the burglary without a bag or other package. The defendant in Moorhead was stopped while walking down a street in Chicago at 4 p.m., while the defendant in the present case was stopped at 3:40 a.m. Testimony by the police officers establish that the defendant was the only person they observed within the period of time between 2:45 a.m. and 3:40 a.m. For these reasons, we believe Moorhead is not persuasive.

The court in Terry, in evaluating the reasonableness of a stop, held that the facts must be judged by an objective standard and stated “would the facts available to the officer at the moment of the seizure *** ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” 392 U.S. 1, 21-22, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880.

Considering the facts presented in the present case, we agree with the trial court that it was reasonable for Officer Ryan to make a Terry stop of the defendant. Under these circumstances, Officer Ryan’s stop of the defendant was reasonable and based upon specific and articulable facts. We therefore affirm the trial court’s holding that the stop was proper under Terry.

We do not agree with the defendant’s argument that Officer Ryan exceeded the bounds of a permissible Terry stop and arrested the defendant without probable cause. Officer Ryan testified that when he got out of his squad car he called the defendant by name and upon observing that defendant was now carrying a bag which he did not have before, Ryan asked the defendant if there was a gun in it and if he could have permission to look in the bag. From this evidence the trial court could have found that the defendant consented to the search. For this reason, the blue jeans found in the bag were not fruit of an illegal arrest.

Finally, the defendant argues that the trial court denied him his right to a jury trial by erroneously interpreting the provisions of section 9 of the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1981, ch. 911/2, par. 120.9). Prior to trial, and after meeting with a court liaison for TASC, the defendant filed a petition to elect treatment as an addict pursuant to section 8 of the Act. The defendant testified that after this meeting with the liaison he was under the impression that he was qualified for treatment. Defendant was also told by another inmate that he was eligible for treatment, which added to this belief.

The trial court admonished the defendant, pursuant to section 9, that by filing the petition to elect treatment the defendant would have to waive his right to a speedy trial and his right to a jury trial. Subsequent to this hearing, it was determined that the defendant was ineligible for treatment because it could not be verified that he was an addict. The defendant then moved to withdraw the petition and requested a jury trial, which were denied by the trial court.

Section 9 states in pertinent part: “If *** the individual states that he is an addict and the court finds that he is eligible to make the election ***, the court shall advise him that *** the prosecution of the charge may be continued or that the entry of any judgment of conviction *** shall be deferred if he elects to submit to treatment and is accepted for treatment ***.” The section also states: “The court shall farther advise him that (a) if he elects to submit to treatment and is accepted, he may be placed under the supervision of a licensed program ***; (e) to make such an election, he must waive a jury trial and consent to a trial by the court ***.” Ill. Rev. Stat. 1981, ch. 911/2, par. 120.9.

The intent of the legislature is ascertained primarily from a consideration of the language of a statute. If the intent can be ascertained from the language itself, such intent must prevail, and will be given effect without resorting to other aids for construction. (People v. Moore (1978), 69 Ill. 2d 520, 372 N.E.2d 666.) Courts do not favor any construction of a statute that would raise legitimate doubts as to its constitutionality. People v. Scheib (1979), 76 Ill. 2d 244, 390 N.E.2d 872.

We find that the language in the first sentence of the section and the language in (a) of the second sentence, i.e., “and is accepted,” should also be read into the admonishment of a jury trial waiver in (e) of the second sentence. In other words, an individual waives his right to a jury trial only when he elects to submit to treatment and is accepted. The court is unaware of any legislative intent to deny anyone his constitutional right to a jury trial upon the mere assertion of being an addict and in electing treatment for his addiction. It is more likely that the intent of the legislature was to have the individual waive his right to a jury trial after his acceptance into a treatment program. Our holding does not, however, preclude a trial judge from admonishing the individual before that individual is accepted for treatment to the effect that once accepted he waives his right to a jury trial.

The People argue that our holding in People v. Richardson (1983), 118 Ill. App. 3d 175, 454 N.E.2d 742, is persuasive in the present case. Richardson, however, dealt with a different issue and a different section of the Act which, contrary to the People’s assertion that the language of the two sections is identical, does not provide for a waiver of the constitutional right to a jury trial. In fact, in Richardson no rights of any kind were waived by the defendant when his alleged addiction was brought to the attention of the court.

The right to a jury trial is a constitutional right of highest importance. Its waiver for insubstantial reasons has never been approved. The People have not shown any reason why the waiver of a jury trial should be triggered merely by the filing of a petition, rather than on defendant’s embarking on a treatment program. Consequently, the waiver as interpreted by the trial court has no relation to any purpose sought to be accomplished by the Act.

For the foregoing reasons, the judgment of the circuit court of Will County is reversed and remanded with directions the defendant be granted a new trial.

Reversed and remanded.

SCOTT and HEIPLE, JJ., concur.


text:
      In re ROCKVILLE DRAINAGE DISTRICT NO. 2 (Rockville Drainage District No. 2, Plaintiff-Appellant, v. Clara Mougin et al., Defendants-Appellees).
    Third District
    No. 3-83-0730
    Opinion filed July 13, 1984.
    Gary L. Brown, of Kankakee, for appellant.
    J. Scott Swaim, of Kankakee, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

This appeal arises from the dismissal of a petition to approve construction and access costs of a drainage system in Kankakee County, Illinois. A petition for declaration of duties, complaint for injunction and petition for additional assessments was filed by the Commissioners of Rockville Drainage District No. 2 (Commissioners) on February 19, 1982. Defendants Clara and Martha Mougin (objectors) responded on April 14, 1982. A hearing was then held at which an engineer and surveyor testified that the present drainage system was outmoded and the cost to repair and update it would exceed the cost of a new system. In order to adequately drain the area and prevent crop damage, a fall of nine feet per mile was needed to prevent erosion, sedimentation and flooding. Several landowners also testified that crop damage had resulted from flooding. Following the hearing, the circuit court of Kankakee County dismissed the petition and found (1) that it had jurisdiction, (2) that the court had no authority to approve work already completed or to approve an assessment thereon, and (3) that the project would not benefit the Mougins, through whose property the drainage system had to pass in order to have an outlet.

The drainage system as proposed to replace the existing system was divided into two sections, A — G and H — L. Section A — G had already been completed and extends from the intake to the objectors’ property line. The adjacent landowners have voluntarily paid $150 per acre for construction of section A — G. The Commissioners did not seek court approval for either the project or its cost at the time construction was commenced. Construction of section H — L has not yet been commenced. This section extends from the objectors’ property line 'to the outlet, a distance of approximately 2,125 feet, at an estimated cost of $33,000 to $35,000. The cost of the entire project is estimated at $85,000.

The sole issue before this court is whether the circuit court erred in dismissing the petitions based upon its finding that the project would not benefit the objectors. We find that the court erred for the following reasons.

Section 4 — 24 of the Illinois Drainage Code sets out the grounds for dismissal of petitions submitted to a court for approval. (Ill. Rev. Stat. 1981, ch. 42, par. 4 — 24.) Section 4 — 24 states:

“If, at the conclusion of the hearing, the court finds that it is not necessary or advisable to construct any of the proposed work or to make any of the proposed changes or to exercise any of the proposed powers or to levy any proposed assessment, or finds that the cost thereof to the lands and other property in the district will exceed the benefits thereto, then the court shall dismiss the petition.”

In In re Petition to Levy Assessments (1974), 19 Ill. App. 3d 125, 310 N.E.2d 454, the court outlined the steps a court should follow when asked to approve a drainage petition. The court must first determine if it is advisable to engage in the proposed work. In so doing, the Fourth District said, the court must consider whether the costs exceed the benefits. This means that the court must consider all viable alternatives and if necessary incorporate these alternatives into the plan. (19 Ill. App. 3d 125, 130, 310 N.E.2d 454, 459.) In this case the court made no findings as to the advisability or necessity for the project, although evidence as to its necessity and advisability was brought out at the hearing, nor did the court find that the cost of the project “to the lands and other property in the district” exceeded the benefit. The only finding made by the circuit court is that the project would not benefit the Mougins. This finding is admittedly pertinent to the levy of an assessment against the Mougins; however, the drainage plan itself need only benefit the drainage district as a whole. (See Freesen v. Scott County Drainage & Levee District (1918), 283 Ill. 536, 119 N.E. 625.) Clearly the outmoded system benefited the district as a whole, and the new system will do likewise. Our review of the facts shows evidence that the benefit to the district as a whole of the new drainage system exceeds the cost. Even if, as the objectors allege, the system will benefit land outside of the district, special assessments can be levied against these landowners. Ill. Rev. Stat. 1981, ch. 42, par. 8 — 1 et seq.

Nor are we convinced that the objectors will not benefit from the installation of a new drainage system. Evidence was presented at the hearing which indicated that benefit to the objectors would be substantial.

The objectors also argue that because the Commissioners failed to seek court approval for construction of section A — G that the trial court could not levy any additional assessments to complete the project. Section 4 — 19 of the Drainage Code sets out the circumstances under which court approval is required. (Ill. Rev. Stat. 1981, ch. 42, par. 4 — 19.) The statute reads:

“If the commissioners determine that it is necessary or advisable (a) to exercise any of the specific powers conferred upon them by Section 4 — 16 of this Act, or (b) to levy an additional assessment (unless the alternate method of levying an additional assessment for repair work provided by Section 5 — 18 is being followed), or (c) to levy an annual maintenance assessment, or (d) to increase an existing annual maintenance assessment, or if the commissioners are requested in writing by a majority of the adult landowners owning one-third of the land, or by at least one-third of the landowners owning the major portion of the land, to exercise any such power or to levy any such assessment, then the commissioners shall file a verified petition in the court in which the district is organized for authority to exercise such power or powers or to levy such an assessment.”

Clearly the court had authority to approve the levy of an additional assessment as well as authority to approve the drainage plan as a whole and levy assessment for completion of the system, although the Commissioners undeniably should have sought approval for the entire system prior to construction of section A — G.

We, therefore, reverse the decision of the circuit court of Kanka-kee County dismissing the petition and remand this case to the circuit court for proceedings consistent with this opinion.

Reversed and remanded.

SCOTT and HEIPLE, JJ., concur.


author: JUSTICE HEIPLE

text:
    RONALD F. PILON, Plaintiff, v. GEORGE A. JOHNSON & SON, Defendant and Third-Party Plaintiff-Appellant (Lockport Plastering Company, Third-Party Defendant-Appellee).
    Third District
    No. 3—83—0807
    Opinion filed July 6, 1984.
    Roger D. Rickmon, of Murphy, Timm, Lennon, Spesia & Ayers, of Joliet, for appellant.
    John C. Bartier, of McKenna, Storer, Rowe, White & Farrug, of Wheaton, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

Defendant and third-party plaintiff George A. Johnson & Son appeal from an order of the Will County circuit court dismissing count I of its third-party complaint against Lockport Plastering Company. We affirm.

Plaintiff, Ronald E Pilón, filed a one-count complaint against Johnson, alleging that he had been injured on March 20, 1982, at a construction site where Johnson was the general contractor. Pilón’s complaint was based on Johnson’s allegedly wilful violation of the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, pars. 60 through 69). Johnson filed a third-party complaint in three counts against Lockport, Pilon’s employer and a subcontractor of Johnson. Count I alleged a right to indemnification arising out of a contract between Johnson and Lockport. Counts II and III alleged implied indemnity and contribution respectively.

The circuit court based its dismissal of count I on section 1 of “An Act in relation to indemnity in certain contracts” (Ill. Rev. Stat. 1981, ch. 29, par. 61), which provides:

“With respect to contracts or agreements, either public or private, for the construction *** or maintenance of a building *** every covenant, promise or agreement to indemnify or hold or hold harmless another person from that person’s own negligence is void as against public policy and wholly unenforceable.”

Article 12 of the subcontract between Johnson and Lockport provides, in relevant part:

“*** 'j'hg Subcontractor will indemnify and save harmless the *** General Contractor from and against any and all claims, costs, damages and demands resulting from injuries or death or damage to property alleged to have arisen out of a breach or violation of the Illinois Structural Work Act as a result of or connected with the performance of work by the Subcontractor. The Subcontractor will defend, at his own expense, any actions based thereon and shall pay all charges or attorneys and all costs and other expenses arising therefrom.”

The only supreme court case addressing the statute in question is Davis v. Commonwealth Edison (1975), 61 Ill. 2d 494, 336 N.E.2d 881. There, an architect charged with a violation of the Structural Work Act attempted to assert contractual indemnity against the general contractor. The significant holding of Davis is that the statute renders such contracts unenforceable in the Structural Work Act context. This interpretation was based on prior cases which held that “willful violation” of the Structural Work Act included conduct which amounts to negligence on the part of defendants. Juliano v. Oravec (1973), 53 Ill. 2d 566, 297 N.E.2d 893.

Johnson relies heavily on Schuch v. University of Chicago (1980), 87 Ill. App. 3d 856, 410 N.E.2d 258, which held that if the contract did not clearly and unequivocally shift liability for one’s own negligence to another, then the contractual indemnity would not be enforced, thereby rendering the statute inapplicable. However valid this reasoning may be, it cannot apply to the instant case. Whatever else the subcontract means, it is manifestly clear that Lockport must indemnify Johnson against any and all claims arising under the Structural Work Act if a Lockport employee is injured. It is equally clear that cases like Juliano stand for the proposition that Johnson can only be found liable to a subcontractor’s employee under the Act for some form of culpable conduct. The attempt to pass this liability on via contractual indemnity falls squarely within the language of section 1 of “An Act in relation to indemnity in certain contracts (Ill. Rev. Stat. 1981, ch. 29, par. 61) as construed by Davis.

Therefore, the decision of the circuit court of Will County is affirmed.

Affirmed.

SCOTT and STOUDER, JJ., concur.


author: JUSTICE HARRISON JUSTICE EARNS,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS MONROE et al., Defendants-Appellants.
    Fifth District
    No. 5—83—0490
    Opinion filed July 12, 1984.

      KARNS, J., dissenting.
    Marqua McGull-Billingsley, of Edwardsville, for appellants.
    William A. Schuwerk, Jr., State’s Attorney, of Chester (Kenneth R. Boyle, Stephen E. Norris, and Frank J. Bieszczat, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Following a bench trial in the circuit court of Randolph County, defendants Dennis Monroe, Andre Lanton, Dwayne Dodson and Spencer Bouldin were convicted of rape. On appeal, defendants contend that (1) they were not proved guilty beyond a reasonable doubt; (2) the court erred in admitting hearsay evidence; (3) each defendant was denied his right to confront witnesses against him by the trial court’s failure to allow the statements of his codefendants to be excised; and (4) the court abused its discretion in refusing to permit defendants to treat Jennifer Stice as a hostile witness. For the reasons which follow, we affirm the judgments of the circuit court.

In contending that they were not proved guilty beyond a reasonable doubt, defendants initially argue that complainant’s testimony failed to establish the “penetration of the female sex organ by the male sex organ” required to sustain a conviction under the applicable rape statute (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 1). Complainant testified, however, that each defendant “put his penis in me,” and the doctor who examined complainant testified that, in his opinion, complainant had recently had sexual intercourse. We believe that this testimony, taken in its entirety, was sufficient to establish beyond a reasonable doubt the element of penetration required under the statute.

Defendants next assert that the State failed to prove beyond a reasonable doubt that the acts complained of were committed by force and against complainant’s will. We disagree. The complainant, age 14 at the time of the events in question, testified that defendants, fellow students at her high school, pulled her into a vacant house, pushed her onto a mattress and forced her to engage in sexual intercourse with each of them. While defendants point out that complainant’s testimony that she was pulled into the house was not corroborated by any testimony from the girls who had been walking with complainant, the evidence established that these girls, who walked in a different direction when complainant approached some of the defendants in response to their calls, were not in a position to see what had occurred. Moreover, complainant’s testimony that she was forcibly assaulted and attempted to resist was corroborated by the presence of a bruise on her face and by the presence of a mark on defendant Lan ton’s shoulder, where complainant testified she had bitten him. We must also reject defendants’ assertion that the fact that complainant earlier sent a note to defendants asking them to meet her at her locker after school tends to create a reasonable doubt as to their guilt; as noted by the People, complainant’s desire to converse with defendants is hardly indicative of an accompanying desire to engage in sexual intercourse with them. We note also in this regard that no one contradicted complainant’s testimony that she wanted to see defendants in order to dissuade them from following her home by telling them, falsely, that her mother was going to pick her up after school. Finally, while a defense witness testified that she saw complainant wave from the window of the vacant house, and while another defense witness testified that complainant was laughing just following her tests at the hospital emergency room, complainant expressly denied doing either of these things. These conflicts in the evidence were for the trial judge to resolve, and we cannot say that the evidence, considered as a whole, is so improbable as to raise a reasonable doubt of defendants’ guilt.

Next, defendants contend that the court erred in admitting the testimony of Sandra Hassard and Kathy Welch, both of whom indicated that complainant told them that she had been raped. Defendants argue that complainant’s statements to Hassard and Welch were not sufficiently prompt to bring those statements within the corroborative complaint exception to the hearsay rule. We reject this contention. There is no fixed or definite time limit within which a complaint must be made; what is required is that the complaint be spontaneous and not made as a result of a series of questions to which answers are given. (People v. Damen (1963), 28 Ill. 2d 464, 473, 193 N.E.2d 25.) Here, the record discloses that complainant and her friend, Sandy Stice, walked several blocks to the home of Ms. Hassard, who is Sandy Stice’s mother, almost immediately after the alleged rapes. When Ms. Hassard saw complainant crying and walking with difficulty, she asked what had happened, and complainant replied immediately that she had been raped. Shortly afterward complainant went next door to the home of her sister, Kathy Welch. Complainant, who still appeared upset, told Ms. Welch that “I have something real important to tell you,” and then informed Ms. Welch what had happened. Under these circumstances, we cannot say that complainant’s statements to Ms. Hassard and Ms. Welch came so late as to not fall within the corroborative complaint exception to the hearsay rule. Lastly in this regard, while defendants argue that complainant failed to take advantage of a “perfect opportunity” to make a prompt complaint to her friends before she walked to Ms. Hassard’s house, complainant testified that she did in fact tell her friends that defendants had “forced her” to have sex with them.

The next issue raised by defendants concerns the trial court’s failure to allow the pretrial statement of each defendant to be excised of all references to codefendants. While recognizing that this case was tried by a judge and not a jury, defendants urge that they were prejudiced by the court’s reading of each defendant’s unexcised statement. The record does not support this contention. When defendants raised this issue at trial, the court specifically stated that it “would not consider what one says against the other in this situation.” Moreover, in a letter written to defense counsel after the trial and contained in the record on appeal, the trial judge explained that he did not allow the statements to be excised in order to insure “that the Appellate Court should see exactly what the trial Court saw.” In that same letter, the court said that it tried this matter “without considering any evidence that would violate the Bruton Rule.” In light of these statements by the trial judge, as well as the presumption that the court in a bench trial has considered only competent evidence, we must conclude that no error occurred in this regard. People v. McNeal (1977), 56 Ill. App. 3d 132,138-39, 371 N.E.2d 931.

Lastly, defendants contend that the court erred in not allowing them to treat Jennifer Stice as a hostile witness. The determination as to whether a witness is hostile rests largely in the discretion of the trial court, and the supreme court rule allowing the court to declare a witness hostile (87 Ill. 2d R. 238) applies only to witnesses who, while on the witness stand, prove to be hostile, uncooperative, or unwilling. (Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, 926, 419 N.E.2d 578.) Here, the trial judge indicated that he saw nothing hostile about Jennifer Stice at all, and that any reluctance in her testimony appeared to be attributable to her “awful lack of memory” about the relevant events. Having examined Jennifer Stice’s testimony in its entirety, we cannot say that the failure to declare her a hostile witness constituted an abuse of discretion on the part of the trial court.

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

Affirmed.

JONES, J., concurs.

JUSTICE EARNS,

dissenting:

The evidence in this case simply does not establish that the admitted acts of intercourse were done by force and against the will of the prosecutrix; it does prove that each defendant, as well as the minor female participant, is guilty of contributing to the sexual delinquency of a child under section 11 — 5 of the Criminal Code (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 5).

A fair consideration of the evidence convinces me that the idea of meeting these boys at the vacant house was conceived by the complainant, who had previously arranged to stay at her girlfriend’s, Sandy Stice’s, house that night. She sent the note to the boys at lunchtime to meet her after school at her locker. She accompanied them first to the art room, then upstairs to the vacant English room and then to the vacant house. By her own admission sexual touching occurred at the art room and as they walked to Sharon Hiller’s house. As they walked to Sharon’s house, the complainant was laughing as she conversed with defendants, according to Loretta Davis, a disinterested witness. One defendant asked her to “have sex” in the art room, and she made no complaint to the principal or any teacher.

The complaint of “rape” was made after her sister and Sandy’s mother found out, over her protest, about the incident. She wrote at least one note to one of the defendants after the incident. The note expressed her concern with the general rumors around school that her conduct had been voluntary and that she was tired of being called, in her words, “a nigger lover and stuff.” Her own testimony strongly suggests that she told Dennis Monroe that she knew he did not rape her, but there was no reason for concern as he would receive probation.

Her girlfriend, Sandy Stice, stood immediately outside the vacant house for the extended period of time that these acts took place, but she heard no scream, no outcries, just muted conversation. When the three girls finally came into the room, Spencer Bouldin and the prosecutrix were engaging in sexual intercourse. No complaint was made, nothing was said for the two minutes before Bouldin left. One of the girls earlier saw her at the front window and she waved. She then said that “she didn’t really want to do it but they forced her.” She appeared normal and made no complaint. Sandy’s mother, Sandra Hassard, testified that she didn’t recall the words “rape” or “force” being used, just that she had sex with four boys, and Mrs. Hassard thought that the police ought to know about it.

The statements of the defendants admitted in evidence are not incriminating but are supportive of defendants’ claims that the acts of sexual intercourse were voluntary. They were given to the Sparta police separately and are consistent in their versions of what occurred.


author: JUSTICE EARNS

text:
    EUGENE STRATEMEYER, Plaintiff-Appellee, v. LARRY WEST, Defendant-Appellant.
    Fifth District
    No. 5—83—0639
    Opinion filed June 14, 1984.

      William E Meehan, EC., of Cairo, for appellant.

      Law Offices of Guy M. Lahr III and Associates, of Metropolis, for appel-lee.
   JUSTICE EARNS

delivered the opinion of the court:

Plaintiff, Eugene Stratemeyer, brought this action for breach of contract against defendant, Larry West, to recover the amount allegedly owed on a contract to construct grain bins and related grain storage equipment on two farms owned by A & L Farms, a partnership of which West and Alan Falconer were sole members. The circuit court of Johnson County, sitting without a jury, entered judgment in favor of plaintiff for all sums due on the contract, interest and costs.

A & L Farms, dissolved in December 1980, was a partnership that dealt in the purchase and resale of farms in southern Illinois. West testified that he and Falconer entered into their business in 1978 or 1979. The farms were purchased together, owned jointly as partnership property, “cleaned up,” farmed for a time, then resold for an even-split profit between the partners. West described himself as “landowner” and Falconer as the tenant farmer and “general manager” of the various farms purchased. West testified that Falconer managed the day-to-day activity of the farms but had no authority to incur “major expenses.” West described the operation as “[pjretty much how a farm is run, you plant the seed and harvest it and sell it *** f)

In August 1980, plaintiff and Falconer consummated the contract whereby plaintiff would supply materials and labor for grain bins on the Eayser Farms and the Prater Farm, both of which were owned by the partnership at that time. The contract was signed by Alan Falconer. Stratemeyer testified that he dealt exclusively with Falconer in this instance and did not talk to West about these grain bins until after they were erected. Stratemeyer testified that it was his assumption at the time that Falconer was contracting for A & L Farms: “I had sold these people a bin before, I had no reason to believe that it was any other way. *** Falconer had made the deal before and I got my money.” Further, Stratemeyer testified that he had no knowledge in August of Falconer’s alleged want of authority nor any knowledge of the eventual partnership dissolution.

Falconer testified that he contacted Stratemeyer to supply and build the bins on the Eayser and Prater Farms as an incident of the partnership business. He stated that he spoke with West about the bins on several occasions before making arrangements with Strate-meyer. Falconer testified that he and West had made a decision that additional storage was needed, so they priced out grain bins and ob-tamed quotes or estimates from other providers. “[W]e were going to take the best deal that was offered for the quality of structure and for the type and [sic] would meet the operation.” Falconer added, “Mr. Stratemeyer had the best deal so Mr. Stratemeyer was the one that got the contract.” Falconer further testified that West did not specifically instruct him not to place the bins on the properties and that West did nothing to indicate that Falconer had no authority to do so. In fact, Falconer testified that West knew that the bins were ordered and were to be put on the properties. Finally, Falconer testified that the agreement with Stratemeyer was made before negotiations for dissolution of the partnership commenced.

West testified that he had no reason to obtain the bins since in August he was in the process of dissolving the partnership. He denied ever talking to Falconer about building the bins. He testified that the first time he saw or heard about the bins was after they were erected. He stated that he considered the partnership dissolved in April 1980, but it was not formally dissolved until December 1980. West further testified that the partnership previously owned the farms in question but that he had acquired ownership following Falconer’s bankruptcy, which occurred after the bins had been built.

First, defendant contends that plaintiff’s complaint failed to allege a necessary element of his cause of action: performance of the contract pleaded. We do not agree. Count II of plaintiff’s second amended complaint recites the following:

“3. On or about August 1, 1980, at the special instance and request of defendant, or defendant’s agent, plaintiff performed labor, to wit: Installation of grain bins and equipment incidental thereto and delivered materials, to wit: Bins, metal, motors, wiring, sand, fill, concrete, on and at said premises; an account of which labor and materials is attached ***.”

This averment specifically states that plaintiff performed labor, delivery and installation according to the account attached to the complaint. Defendant answered the allegation with a general denial but not until the close of plaintiff’s case did he move for judgment on the pleadings. Even then, he asserted only generally that there was no allegation of performance of conditions precedent. Nor in his post-trial motion did he point out specifically the defects complained of. For the first time, on appeal, he argues specifically that the complaint fails to allege compliance with the contractual term requiring “[a]ll work and delivery to be completed in a workmanlike manner according to standard practices.” We think that plaintiff’s allegation of performance and supporting facts was sufficient under Supreme Court Rule 133(c) (87

Ill. 2d R. 133(c)). Facts supporting defendant’s general denial were not advanced in the answer nor upon motion showing wherein there was a failure to perform, and we will not consider his novel argument on appeal. Moreover, the record considered entirely establishes full performance on plaintiff’s part.

Next, defendant contends that plaintiff’s pleading and proof were at fatal variance since the complaint alleged a contract with defendant and the proof related to a contract with either A & L Farms or Falconer. Plaintiff sued defendant individually for a debt allegedly resulting from the “request of defendant, or defendant’s agent” to provide labor and materials. The evidence established a contract with Falconer, and West admitted that a partnership with Falconer existed. Plaintiff’s pleading of agency in this regard and of a contract formed pursuant to the alleged agency is sufficient pleading of partnership upon which, if established by the proof, West could be found liable as a joint debtor. (See Ill. Rev. Stat. 1983, ch. 110, par. 2 — 410.) Thus, plaintiff’s proof may have related to a contract with West, his agent or the partnership. Since the partnership was dissolved at the time suit was commenced and since Falconer was declared bankrupt, West was the only solvent debtor left and a proper party to sue for the dissolved partnership obligation. We are not persuaded that plaintiff’s pleading and proof were at fatal variance.

Next, defendant contends that the evidence is insufficient to sustain recovery on the theory of a contract between plaintiff and the partnership. Defendant cites section 9 of the Uniform Partnership Act (Ill. Rev. Stat. 1983, ch. 1061/2, par. 9) for the proposition that absent proof of express authority, contracts made by a partner are not binding on the firm unless the contract is made in the ordinary course of partnership business. He concludes that since there is no evidence of Falconer’s express authority to contract with plaintiff and no evidence that he ever held Falconer out as having such authority, plaintiff’s claim must fail.

We do not accept this reasoning. Section 9 provides:

“(1) Every partner is an agent of the partnership for the purpose of its business, and the act of every partner, including the execution in the partnership name of any instrument, for apparently carrying on in the usual way the business of the partnership of which he is a member binds the partnership, unless the partner so acting has in fact no authority to act for the partnership in the particular matter, and the person with whom he is dealing has knowledge of the fact that he has no such authority.” (Ill. Rev. Stat. 1983, ch. 1061/2, par. 9(1).)

Thus, an act of a partner in apparently carrying on in the usual way the business of the partnership binds the partnership unless he has no authority and the third party has knowledge that he has no authority. The existence of the partnership having been admitted, proof of express authority was unnecessary. Rather, it was defendant’s burden to establish no authority and plaintiff’s knowledge. Plaintiff, of course, must have established that Falconer’s act was apparently done in carrying on the business of the partnership in the usual way.

Here the record establishes conflicting accounts of the extent of Falconer’s partnership authority. West testified that Falconer did not have authority to contract for “major expenses” and that he told Falconer this long ago. Yet, Falconer did have authority to generally manage the farms purchased, and no other evidence of restricted authority was offered. Falconer testified that West knew about the attempts to procure bins and had discussed and participated in the matter several times himself. Stratemeyer testified that based on past experience he assumed Falconer had authority and was unaware of his lack of authority. Where the evidence is conflicting, we must defer to the trier of fact, who had a superior opportunity to observe the witnesses and assess their testimony and credibility. (Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356, 226 N.E.2d 624, 626.) We will not upset the trial court’s implicit finding that Falconer was authorized to transact the instant business for and on behalf of the partnership, as it does not appear contrary to the evidence and indeed has support in the record. West need not have been aware of the contract to be held liable on it. See, e.g., Gardenhire v. Ray (1939), 302 Ill. App. 268, 23 N.E.2d 927.

Regarding defendant’s contention that Falconer’s act of contracting was not within the partnership’s ordinary course of business, there was no specific finding made by the trial court on this issue. The record, however, contains sufficient indicia from which it may be reasonably concluded that, as general manager of the farming aspect of the partnership, Falconer was responsible for planting, harvesting, storing and selling the crops. As an incident of this farming business he contracted with Stratemeyer for the erection of grain storage bins. We think this act was within the scope of the partnership business. Moreover, Stratemeyer could rightfully assume that the contract was within the scope of the partnership’s business. Finally, it is important to note that West testified that he had grain stored in the bins. That he has accepted a benefit from the contract makes his argument inappropriate.

Finally, defendant contends that the trial court improperly struck the evidence deposition testimony of defendant’s former attorney. It was offered for purposes of supporting defendant’s own testimony regarding his prior testimony given in an ancillary action against Falconer in a bankruptcy proceeding. Defendant had been called as an adverse witness in the instant case and was impeached by prior inconsistent statements concerning the nature of the debt for which Stratemeyer sued him. His prior testimony included statements admitting that Stratemeyer had liens on the two subject farms, that the grain bins were purchased by the partnership and represented partnership debts and that he would be personally liable for the obligations to Stratemeyer should Falconer default in bankruptcy. Defendant was given ample opportunity to qualify his prior testimony and in fact, when called by his own counsel, fully explained that he did not understand the meaning of “partnership debt” and “lien.” Defendant further explained that his prior testimony with reference to these terms was premised on the assumption that he would pay the debts in question only if they were proven to be valid.

Defendant argues that his former attorney’s testimony was proper evidence for corroborating defendant’s explanation of his prior testimony and for establishing the meaning he had ascribed to the legal terminology used and the circumstances surrounding his prior testimony.

In striking the proffered testimony the trial court reasoned that the defendant was available to explain or contradict his own former testimony. Since the court found that the proffered testimony established only what his former attorney thought or what he thought West thought and what pretrial preparation had been made in the former proceeding, the court further found the proffered testimony was irrelevant.

We find no reversible error in this regard. The trial court had previously admitted into evidence the transcript of the former proceeding. The court indicated that it would weigh the import of defendant’s prior testimony and consider it for its worth. The court undoubtedly was aware of the nature of that proceeding and the context of defendant’s testimony therein. We do not view defendant’s admissions in the prior proceeding to be properly qualified or explained by his former attorney’s interpretation of defendant’s knowledge and understanding. This is true especially since the former testimony was elicited from West by his own attorney and it was motivated precisely for the contrary purpose then of establishing as true what West now denies. The proffered testimony is not so much irrelevant as incompetent evidence. Inasmuch as defendant testified to precisely the same issues as those for which the deposition was offered in corroboration, we cannot say he was prejudiced by its exclusion.

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

Affirmed.

HARRISON and KASSERMAN, JJ., concur.


author: PRESIDING JUSTICE ALLOY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID FLIEGER, Defendant-Appellant.
    Third District
    No. 3—83—0813
    Opinion filed July 6, 1984.
    Rehearing denied August 7, 1984.

      Donald K. Birner, of Pekin, for appellant.
    Bruce W. Black, State’s Attorney, of Pekin (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

This is a paternity action brought against the defendant, David Flieger, pursuant to the provisions of the Illinois Paternity Act. (Ill. Rev. Stat. 1981, ch. 40, par. 1354.) At the time the complaint was filed, the mother and child were, and are, residents of Tazewell County. The defendant, served with summons in the State of Colorado, filed a special and limited appearance praying that service of summons be quashed because the Illinois court lacked in personam jurisdiction.

In an order entered December 9, 1983, the circuit court of Taze-well County denied the defendant’s motion to quash and found that this case presents a substantial question of law, the determination of which on appeal would materially advance the litigation. Thereafter, the defendant sought leave to appeal pursuant to Supreme Court Rule 308, which was granted. 87 Ill. 2d R. 308.

The question presented is thus: whether in a paternity action, in which the mother and child are Illinois residents, an Illinois court has in personam jurisdiction over a defendant who was served with summons out of State and who is not a resident of Illinois.

In her complaint, the mother states that the alleged father of her child presently resides in Colorado and that she had sexual intercourse with him between December 1979 and January 1980 in New Jersey. She further states that her child was born in New Jersey but that she and her child are currently residents of Tazewell County, Illinois.

In its order denying the defendant’s motion to quash, the court appears to indicate that its basis for finding in personam jurisdiction over the defendant is section 4 of the Illinois Paternity Act, which states, in pertinent part:

“The action may be filed in the county where the complainant may be so pregnant or delivered, or where the person accused may reside or be found, or in the county where the child resides.” Ill. Rev. Stat. 1981, ch. 40, par. 1354.

That paragraph further contains a two-year statute of limitations provision which has recently been declared unconstitutional. (Pickett v. Brown (1983), 462 U.S. 1, 76 L. Ed. 2d 372, 103 S. Ct. 2199; Jude v. Morrissey (1983), 117 Ill. App. 3d 782, 454 N.E.2d 24.) Following the portion of the paragraph pertaining to the statute of limitations provision is this statement:

“The time any person so accused is absent from or conceals himself within the State shall not be computed.” Ill. Rev. Stat. 1981, ch. 40, par. 1354.

The defendant has launched his attack against the statute on constitutional grounds, arguing that service of summons on him out of State in the instant paternity action has deprived him of due process because he has no “minimum contacts” with the State of Illinois (Kulko v. Superior Court of California (1978), 436 U.S. 84, 56 L. Ed. 2d 132, 98 S. Ct. 1690) and because he has not submitted to the jurisdiction of the Illinois courts by committing any of the acts enumerated in the long-arm statute. Ill. Rev. Stat. 1981, ch. 110, par. 2 — 209.

The State responds that the defendant had sufficient “minimum contacts” with the State of Illinois to subject him to the jurisdiction of the Illinois courts under the long-arm statute. According to the State, the provision of the long-arm statute which applies to the defendant is:

“(2) The commission of a tortious act within this State.” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 209(a)(2).)

In support of its position, the State relies on Poindexter v. Willis (1967), 87 Ill. App. 2d 213, 231 N.E.2d 1. In Poindexter, the complaint alleged that the mother, a resident of Madison County, Illinois, and the father, a resident of the State of Ohio, had intercourse in Champaign, Illinois. The defendant father, served with summons in Ohio, filed a motion challenging the Illinois court’s jurisdiction over his person on the ground that he was not amenable to service in Ohio since he was not a resident of Illinois. In Poindexter, the court, indicating that the Illinois Paternity Act places a duty on the father of a child born out of wedlock whose paternity is established to support that child, liberally defined “tortious act” under the long-arm statute to include “any act committed in this state which involves a breach of duty to another and makes the one committing the act liable *** in damages.” (Poindexter v. Willis (1967), 87 Ill. App. 2d 213, 217-18, 231 N.E.2d 1.) The court concluded that “the failure of the father to support an illegitimate child constitutes a tortious act within the meaning of the statute and subjects him to the jurisdiction of the lili-nois courts” under the long-arm statute. 87 Ill. App. 2d 213, 218, 231 N.E.2d 1.

The defendant in Poindexter raised his objection again in response to an action on the Illinois judgment filed in the Ohio court. (Poindex-ter v. Willis (1970), 23 Ohio Misc. 199, 51 Ohio Op. 2d 157, 256 N.E.2d 254.) The Ohio court found the reasoning of the Illinois court to be persuasive and ruled in favor of the mother.

We decline to follow Poindexter, however, and hold that where the only connection between the defendant and the State of Illinois is the present residence of a child who is allegedly his, there are not sufficient minimum contacts to allow an Illinois court to exercise jurisdiction over the person of the defendant.

In reaching this conclusion, we note initially that the parties appear to be in agreement that the only possible applicable provision of the long-arm statute is that pertaining to the commission of a tortious act. In Poindexter, the court found that the defendant father had breached his duty to support his child and thus had committed, for purposes of the long-arm statute, a tortious act. The error in this reasoning is that it assumes as true that which the plaintiff is seeking to prove. We are concerned here with a proceeding to establish paternity. Where paternity is disputed, the father of an illegitimate child may have a moral duty to support that child, but his legal duty of support only commences once paternity is established in an action such as the one in the instant case. (Ill. Rev. Stat. 1981, ch. 40, par. 1352; Cessna v. Montgomery (1976), 63 Ill. 2d 71, 344 N.E.2d 447.) It is apparent that if in fact the named defendant is not the father, then there was no legal duty for him to breach.

In the instant case, the defendant has had no contact whatsoever with the State of Illinois. Although it is alleged in the complaint that the defendant made one payment to the mother while she was in Illinois, that fact, even if true, would still not constitute sufficient minimum contact to say that the defendant has purposely availed himself of the benefits of Illinois law. Moreover, that allegation is denied by the defendant in his affidavit accompanying his motion to quash. At best, it is a disputed question of fact not ruled on and clearly not relied on by the trial court in reaching its decision.

Additionally, the State seeks to rely on People v. Wunsch (1916), 198 Ill. App. 437; however, we find that case to be inapposite. In Wunsch, the court presumed that the father was found within the city of Chicago when arrested.

We turn now to the statutory language on which the trial court appeared to rely in reaching its determination that it had the power to exercise in personam jurisdiction over this defendant. We find that the language in question does not relate to jurisdiction; rather, it is a venue provision rendering venue proper in the county where the child resides, where the defendant resides, or where “the complainant may be so pregnant or delivered.” Ill. Rev. Stat. 1981, ch. 40, par. 1354.

Other language found within that paragraph supports this conclusion. Specifically, we refer to the provision for tolling the two-year statute of limitations provision during the time the defendant is not within the State. When the two provisions are read together, it is clear that the first is intended to be a venue provision; otherwise, the second would be meaningless.

Our conclusion is buttressed by another provision within the same paragraph which provides that a complaint filed by a pregnant woman must be accompanied by a sworn affidavit that the alleged father of the child has “threatened to leave the jurisdiction of the State of Illinois because of the pregnancy.” (Ill. Rev. Stat. 1981, ch. 40, par. 1354.) One possible purpose for this provision is to allow the Hlinois court to act while the defendant is still in its power, despite the fact that the child has not yet been bom.

For the reasons stated above, we, therefore, reverse the order of the circuit court of Tazewell County denying the defendant’s motion to quash service of process.

Reversed.

STOUDER and SCOTT, JJ., concur.


author: PRESIDING JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MELVIN CLARK, Defendant-Appellee.
    Fifth District
    No. 5—83—0497
    Opinion filed July 9, 1984.

      John Baricevic, State’s Attorney, of Belleville (Stephen E. Norris and Mary W. Richardson, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Daniel E. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellee.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

Defendant Melvin Clark was arrested as a suspect in the burglary of BAG Video in Fairview Heights, Illinois. He was informed of his rights and placed in a holding cell at the Fairview Heights police department. After his arrest, police overheard his statements to another detainee at the jail. The admissibility of these statements is the subject of this appeal.

On July 5, 1983, the defendant filed a motion to suppress his alleged confession, contending it was obtained with an eavesdropping device without judicial approval allegedly in violation of the Illinois eavesdropping authorization statute (Ill. Rev. Stat. 1983, ch. 38, par. 108A — 3). The facts were established in a hearing on the defendant’s motion to suppress.

Three witnesses were called at the hearing. The only witness for the defense was the defendant himself. Melvin Clark testified that he was taken to the police station and never warned that his conversations in the jail cell would be listened to by police.

Detective Sergeant Patrick J. Prindable of the Fairview Heights police department testified for the State. He stated that he placed the defendant under arrest for burglary, advised him of his Miranda rights and took him to the station, where the defendant was placed in a holding cell.

Detective Prindable also testified concerning the procedures for the operation of the detention facility at the Fairview Heights police department. He identified, as People’s exhibit No. 1, general order No. 21 for the operation of the detention facilities, which was in effect at the time of the defendant’s arrest. He explained, as supervisor of the facility, that the procedure followed was to make visual contact every 60 minutes with the prisoners detained in the cell area, while audio monitoring of the detainees was conducted on a continuous basis.

The holding area contains seven cells, including three in the area where the defendant was detained. Prindable stated that officers are not physically present in the cell area absent a specific need to process a detainee. There exists between the cell block and the booking area a steel door with windows in it, through which voices can be heard. In addition, a device exists in the hall ceiling of the cell block to monitor communication within the cell block. Such communications are monitored in an upstairs dispatcher’s room to which only police personnel have access.

The detective explicitly testified at the July 7, 1983, suppression hearing that the purpose of police in monitoring conversations was to ensure the safety of prisoners, especially in the event of illness. The system, he stated, is maintained to protect prisoners and is not an investigative tool. Unmonitored areas are maintained so prisoners can speak freely with their lawyers or relatives, he stated. Detective Prin-dable testified that no departmental policies were violated in the booking or holding of the defendant at the Fairview Heights police department’s detention facility.

On cross-examination, Prindable stated that the department had not asked a circuit court judge for permission to eavesdrop in the jail. He also testified that the defendant was not told that all conversations in the holdover cells are monitored.

In addition, Jeffrey Stratman, communications officer for the Fairview Heights police department, also testified for the State. Stratman testified that he was monitoring the cell area on January 13, 1982, when he heard the defendant make incriminating statements. At this point, he stated, he notified another police officer, Sergeant Fredeking, an investigator, who then came to the communications center to hear the defendant’s statements. The communications officer identified People’s exhibits Nos. 2 and 3, photographs of speakers located in the cell area. These photographs, included in the record on appeal, establish that the detention facility’s intercom system was clearly visible from the defendant’s cell. On cross-examination, Stratman testified that the monitoring system is maintained for prisoner safety. He stated that while he was monitoring the defendant he heard no indication of a fight in progress.

After hearing the testimony recounted above, the circuit court of St. Clair County ordered the defendant’s statements suppressed. The State appeals, asserting that Illinois law does not preclude the monitoring of jail detainees. We agree.

It is settled law that imprisonment erodes many of the prisoner’s rights, including, under certain circumstances, any expectations of privacy in ordinary jailhouse conversations. In Lanza v. New York (1962), 370 U.S. 139, 8 L. Ed. 2d 384, 82 S. Ct. 1218, the United States Supreme Court reviewed a case involving the electronic interception of a conversation between a prisoner and a visitor. In that case, jail officials listened to and transcribed a conversation in the visitor’s room at the jail. The visitor, Lanza, was subsequently called before a State legislative committee studying possible corruption in the State’s parole system. He refused to answer questions, despite an offer of immunity, and was convicted of a misdemeanor. He later attacked the conviction, arguing that the committee’s questions were based on information obtained in violation of fourth amendment principles incorporated into the due process clause of the fourteenth amendment. The court rejected his argument, stating:

“*** to say that a public jail is the equivalent of a man’s ‘house’ or that it is a place where he can claim constitutional immunity from search or seizure of his person, his papers, or his effects, is at best a novel argument. To be sure, the Court has been far from niggardly in construing the physical scope of Fourth Amendment protection. A business office is a protected area, and so may be a store. A hotel room, in the eyes of the Fourth Amendment, may become a person’s ‘house,’ and so, of course, may an apartment. An automobile may not be unreasonably searched. Neither may an occupied taxicab. Yet, without attempting either to define or to predict the ultimate scope of Fourth Amendment protection, it is obvious that a jail shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room. In prison, official surveillance has traditionally been the order of the day. Though it may be assumed that even in a jail, or perhaps especially there, the relationships which the law has endowed with particularized confidentiality must continue to receive unceasing protection, there is no claimed violation of any such special relationship here.” Lanza v. New York (1962), 370 U.S. 139, 143-44, 8 L. Ed. 2d 384, 387-88, 82 S. Ct. 1218, 1220-21.

More recently, in United States v. Hearst (9th Cir. 1977), 563 F.2d 1331, the Ninth Circuit addressed a factually similar situation. In that case, defendant Patricia Hearst was in custody at the San Mateo County Jail when she received a visit from a childhood friend. Their conversation, in the jail’s visiting room, was monitored and recorded by a deputy sheriff, pursuant to an established jail security policy. Jail officials had decided to record all of the defendant’s conversations in accordance with the policy for “very publicized cases or high security problems.” (United States v. Hearst (9th Cir. 1977), 563 F.2d 1331, 1344.) The tape of the conversation was delivered to the FBI and the prosecution. Defendant Hearst attacked the use of the tape for several reasons, including her contention that the monitoring and recording of her conversations in jail violated her fourth amendment rights.

The Ninth Circuit relied on Lanza in rejecting this argument and emphasized that the Lanza decision still had significant precedential value. The court recognized that intrusions by jail officials pursuant to a policy with a justifiable purpose of imprisonment or prison security is no violation of the fourth amendment because of “*** the government’s weighty, countervailing interests in prison security and order.” (United States v. Hearst (9th Cir. 1977), 563 F.2d 1331, 1345.) The Hearst court held that the government had adequately established that the procedure in question was a reasonable means of maintaining prison security; therefore, no fourth amendment violation was established. The court also noted that defendant had made no direct allegation that jail authorities had monitored the conversation for any purpose other than prison security or that jail officials used prison security as a guise for an effort to gain incriminating evidence. United States v. Hearst (9th Cir. 1977), 563 F.2d 1331, 1347 n. 12.

Similar reasoning has been employed by Illinois courts. In People v. Myles (1978), 62 Ill. App. 3d 931, 379 N.E.2d 897, the defendant in a murder case telephoned his wife from a telephone located in the bullpen section of the jail. Over the phone was a large sign with two-inch lettering reading “All calls monitored.” A deputy listened to the defendant’s conversation concerning the crime and the murder weapon. The defendant’s wife brought the weapon to the police station and surrendered it to officers. The trial court found the gun was not the product of an illegal eavesdropping, but the trial court suppressed testimony about the defendant’s conversation with his wife. On appeal, the monitoring of the telephone conversation between the defendant and his wife was held not to violate the defendant’s fourth amendment rights. The court relied on Lanza v. New York (1962), 370 U.S. 139, 8 L. Ed. 2d 384, 82 S. Ct. 1218, and Katz v. United States (1967), 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507, in reasoning that there is no reasonable expectation of privacy in ordinary jailhouse conversations between spouses.

In the case at bar it is uncontroverted that the electronic monitoring system was designed and used to maintain safety at the jail. As in United States v. Hearst, defendant makes no direct contention that police used jail security as a guise for an effort to gain incriminating evidence. Moreover, defendant does not assert that his right to counsel was violated by a deliberate effort to obtain incriminating statements in the absence of counsel.

While the defendant stated he was not told about the monitoring system, photographs included in the record on appeal establish that the jail intercom system was clearly visible to him. Although the record is unclear as to whether the other detainee was in the same cell as the defendant, nothing of record suggests that there was any hidden microphone powerful enough to hear private conversations. In fact, the opposite is true. The facts of record show that an extremely obvious intercom picked up a conversation in a public area. For these reasons, in accordance with the above cited cases, we hold that the defendant had no reasonable expectation of privacy in his conversation with another detainee. See Annot., 57 A.L.R.3d 172 (1974).

We also find unreasonable the defendant’s construction of the Illinois eavesdropping authorization statute. (Ill. Rev. Stat. 1983, ch. 38, par. 108A — 3.) As we have emphatically stated, the monitoring system in question was plainly essential to maintain the safety and security of the jail. It would be unrealistic for us to hold that information obtained through a legitimate safety-oriented monitoring system could not be used in criminal cases. We decline to read the Act to make such rational and commendable conduct as maintaining jail safety an illegal activity; it is presumed that in formulating a statute the legislature did not intend absurdity, inconvenience or injustice. Nutrition Headquarters, Inc. v. Department of Revenue (1984), 123 Ill. App. 3d 997.

For the foregoing reasons, the circuit court’s order suppressing defendant’s confession is reversed and the case remanded for further proceedings.

Reversed and remanded.

JONES and KASSERMAN, JJ., concur.


text:
    TERRY M. MASON, Plaintiff-Appellant, v. THE BOARD OF TRUSTEES OF SOUTHERN ILLINOIS UNIVERSITY et al., Defendants-Appellees.
    Fifth District
    No. 5—83—0613
    Opinion filed July 10, 1984.

      Donna H. Kolb, of Carbondale, for appellant.
    Shari R. Rhode and Denise E. Gale, both of Office of Legal Counsel, Southern Illinois University, of Carbondale, for appellee Board of Trustees of Southern Illinois University.
    Clive Follmer, of Follmer & West, of Champaign, for appellee University Civil Service Merit Board of the State Universities Civil Service System.
   JUSTICE EARNS

delivered the opinion of the court:

Terry Mason, a civil service employee of Southern Illinois University (SIU), whose working time was reduced, appeals from the judgment of the circuit court of Jackson County, which entered an order striking Mason’s second amended complaint and finding that the court did not have subject matter jurisdiction except under the Administrative Review Law (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 101 et seq.).

Mason worked for the university as a routeman whose duties required him to drive motor vehicles, package and deliver materials, and assist in recordkeeping. His position required more skill than that of a driver, whose duties were limited to the physical work of driving and maintaining vehicles and delivery of goods. Mason’s employment status with the university changed many times between 1979 and 1983. He was terminated, reduced to half-time, raised to three-quarters time, placed on permanent lay-off status and returned to half-time. He claimed that his work reduction was caused by SIU’s improper reassignment of duties and that the University Civil Service Merit Board (Merit Board) tolerated such reassignments in violation of its duty to establish and oversee classification of university employees.

Mason objected to the changes in his employment both informally and formally to his supervisors. In September 1981 Mason filed a grievance alleging that the reassignment of job responsibilities violated his rights under the State’s University Civil Service System (Ill. Rev. Stat. 1983, ch. 241/2, par. 38bl et seq.). He exhausted the university’s grievance procedure, which provided for prompt written decisions and reasons by administrators at various levels. A three-member panel reviewed the grievance, and Mason was entitled to representation at all stages of the proceedings. After the president of the university and the board of trustees denied further review, Mason prosecuted his grievance to the director of the University Civil Service System. Mason filed his grievance under Rule 13 of the State Universities Civil Service System rather than under the legislative provision mandating a hearing for employees demoted for cause. Ill. Rev. Stat. 1983, ch. 241/2, par. 38b14.

Rule 13 provides that upon timely application an employee may have the director review “[a]ny action, or omission, by a designated employer representative ***.” The employer must provide a statement of its position and confirm that the employee has exhausted the normal administrative remedies. Under Rule 13 the director and Merit Board have the right to examine the employer’s records and to interview the appropriate parties. The employee may request review of the director’s decision by the Merit Board, which “shall examine the record” and affirm the director’s decision or order further proceedings. The Merit Board must certify its final decision to the director and to the parties. In this case, the director refused to review the university’s decision because Mason had not filed his application in a timely manner. He asked the Merit Board to review the director’s decision, but they denied further review.

On September 16, 1982, Mason filed suit against Southern Illinois University (SIU) seeking a writ of mandamus commanding the university to reinstate Mason in a full-time position and awarding costs. He sought a declaratory judgment that the grievance procedure denied him due process, so that the decisions made during the grievance procedure should be declared null and void. He also sought a declaration that the university’s actions violated the State’s University Civil Service Act (Ill. Rev. Stat. 1983, ch. 241/2, par. 38b et seq.). The complaint was dismissed for failure to state a cause of action, as was Mason’s amended complaint filed on January 13, 1983. A second amended complaint was filed on April 25, 1983, and joined the University Civil Service Merit Board as a defendant. Counts I, II, III named SIU as defendant; Counts IV and V named the Merit Board as defendant. Count I asked the court to order the university to reinstate him in a position from which he had been removed by the improper reassignment of job responsibilities without approval of the Merit Board. Count II again asked that the court declare the grievance procedure constitutionally invalid. Count III alleged that SIU failed to observe the distinctions between routeman and driver and prayed that Mason be allowed to move from one classification to another to the extent of becoming a driver while retaining the seniority attained as a routeman. Count IV sought a declaration that the Merit Board had permitted SIU to violate the classification and that Mason should be declared a driver with routeman seniority. Count V asked the court to declare the Merit Board subject to the Illinois Administrative Procedures Act (Ill. Rev. Stat. 1983, ch. 127, par. 1001 et seq.), to find Mason’s application under Rule 13 was timely filed, and to order the Merit Board to review the grievance.

On July 5, 1983, the trial court found that the second amended complaint failed to state a cause of action under the Administrative Review Law, which controlled judicial review of grievances asserted under the State’s University Civil Service System, and failed to provide a clear and concise statement of facts which would support a writ of mandamus or declaratory judgment. The court struck the second amended complaint but granted leave to file a third amended complaint within 21 days. The court further ordered that Mason could elect to stand on his second amended complaint, in which event the court would enter judgment for the defendants. After considering Mason’s motion to vacate or for judgment filed on July 22, 1983, the court found that Mason had elected to stand on the second amended complaint, which failed to state a cause of action and therefore its order striking the second amended complaint should stand. It entered judgment for the defendants. This appeal followed.

Mason asks us to determine whether the Administrative Review Law is applicable to grievance proceedings under the State’s University Civil Service System and whether his second amended complaint states a cause of action for mandamus and declaratory judgment. We find that judicial review under the Administrative Review Law of the Merit Board’s decision under Rule 13 is Mason’s exclusive remedy for the Merit Board’s action. Our view of the case makes it unnecessary to determine whether Mason’s complaint stated a cause of action for a declaratory judgment or writ of mandamus against SIU.

The Administrative Review Law governs every action seeking a judicial review of a final decision of any administrative agency “where the Act creating or conferring power in such agency, by express reference ***” adopts its provisions. (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 102.) Where it is expressly adopted, the Administrative Review Law is the exclusive method of review. (People ex rel. Chicago & North Western Ry. Co. v. Hulman (1964), 31 Ill. 2d 166, 201 N.E.2d 103.) In this case, section 36o of the University Civil Service System Act (Ill. Rev. Stat. 1983, ch. 241/2, par. 38b14) expressly adopts the Administrative Review Law.

Mason points out that the location of the language adopting the Administrative Review Law is in a section establishing a procedure for dealing with demotions and discharges for cause. He contends that the location of the adopting language shows legislative intent to limit administrative review to decisions arising under that section. While the position of the language adopting the Administrative Review Law may properly be considered (Foster v. Board of Fire & Police Commissioners (1980), 81 Ill. App. 3d 48, 400 N.E.2d 1089), it is the meaning of the adopting language which must be decisive. In Foster, administrative review was adopted in a section concerning removal and discharge of firemen and policemen and was made applicable to “decisions *** hereunder,” that is, to decisions within the scope of that section. (Foster v. Board of Fire & Police Commissioners (1980), 81 Ill. App. 3d 48, 50, 400 N.E.2d 1089, 1090.) In the present case, the adopting language appears in a section on demotions and discharges, but it makes administrative review applicable to “all proceedings for the judicial review of final administrative decisions of the Merit Board hereby created.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 241/2, par. 38b14.) The Merit Board was created in a preceding section of the Act. The reference to matters beyond the scope of the section on demotions and discharges extends applicability of administrative review to proceedings other than those established in that section.

In Buchanan v. Lenz (1983), 115 Ill. App. 3d 722, 450 N.E.2d 1298, the trial court acting under the Administrative Review Law affirmed the Merit Board’s refusal to hear a grievance after the director had determined that the application for review under Rule 13 was untimely. On appeal, the reviewing court stated that the Administrative Review Law was applicable to such a refusal to review and that the trial court was vested with the power to affirm or reverse the decision. Confronted with facts closely paralleling those in Buchanan, the trial court here correctly determined that it could review the Merit Board’s decision only under the Administrative Review Law. Mason’s constitutional claims could have been considered during the course of administrative review. (Sturm v. Block (1979), 72 Ill. App. 3d 306, 390 N.E.2d 912.) Although Mason argues that there is no record to review, it appears that in pursuing his administrative remedies to the Merit Board, Mason should have amassed a record of his own submissions, as well as the administrative responses, which the court could have reviewed.

Mason’s grievance asserted that the university had disregarded the job classifications which the Merit Board had exclusive power to establish. He sought a determination on this issue from the Merit Board. As we have already decided, review of the Merit Board’s action must be under the Administrative Review Law. Mason seeks separate remedies against the university by way of mandamus and declaratory judgment on issues related to job classifications. To allow Mason to proceed against the university on a writ of mandamus or declaratory judgment before the Merit Board’s decision is reviewed would defeat administrative review as an exclusive remedy. A determination of the university’s duty and Mason’s rights must follow such administrative review. We therefore affirm the trial court’s judgment striking the second amended complaint.

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

Affirmed.

WELCH, P.J., and KASSERMAN, J., concur.