author: JUSTICE McNAMARA

text:
    ALFRED A. OBERMAIER et al., Plaintiffs-Appellees, v. NORMAN OBERMAIER, Indiv. and as Trustee of the Trust under the Will of Emma B. Obermaier, Deceased, for the benefit of Alfred A. Obermaier, Defendant-Appellant.
    First District (3rd Division)
    No. 83—830
    Opinion filed May 10, 1984.
    Modified on denial of rehearing December 5, 1984.

      Stephen C. Sandels, Walter M. Jones, and John R. Doyle, all of Chicago (McDermott, Will & Emory, of counsel), for appellant.
    Mark A. Lies III, Peter C. Woodford, and Jerome F. Buch, all of Chicago (Seyfarth, Shaw, Fairweather & Geraldson, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiffs brought this action against defendant Norman Obermaier seeking to recover damages for breach of fiduciary duties and fraud in the sale of stock. After a trial without a jury, the trial court entered judgment for plaintiffs and awarded $1.1 million in compensatory damages, $250,000 in punitive damages, and $241,057 in prejudgment interest at the statutory rate. Defendant appeals, and plaintiffs have cross-appealed, urging that the damages are inadequate.

In the late 1930’s, Alfred and Norman, who are brothers, began working for Alnor Instrument Company, a company owned by their father. Alfred contributed engineering skills and was responsible for several of Alnor’s patents, while Norman contributed management skills. The parties’ father died in 1958. Their mother, Emma, then controlled 230 shares of stock, while Alfred and Norman each had a one-half interest in the remaining 5,259 shares. Harris Trust & Savings Bank is a nominal plaintiff as the successor trustee of the Alfred A. Obermaier Trust No. 2, which held 870 shares in Alnor for Alfred’s benefit at the time of the sale of stock at issue here.

The brothers did not get along, and Alfred’s drinking problem following his father’s death prevented him from contributing to Alnor as he had in the past. In order to ensure that Norman would control Al-nor, in 1971 Emma added a codicil to her will. When she died in 1973, Norman received 115 shares outright and was appointed trustee of the other 115 shares under a trust for Alfred’s benefit. After Norman had voting control, Alfred became less involved with Alnor but did keep apprised of its financial condition. In 1976, the brothers considered selling Alnor and retiring.

Norman and his attorney dealt with all of the prospective buyers. In August 1977, Podd-Bell Corporation expressed interest in buying Alnor at Norman’s asking price of $8 million. Norman also offered to sell Alnor for $7.5 million if Podd-Bell would allow him to purchase back oil and gas leases for $39,000. At the time, Norman valued the leases at $500,000. When Podd-Bell refused this alternative, but offered $8 million, Norman demanded a consulting contract for 10 years at $50,000 a year. Although Alfred’s attorney had asked to be apprised of any developments in the sale of Alnor, Norman did not tell him of the negotiations between Podd-Bell and himself.

Podd-Bell signed a letter of intent offering $8 million and a consulting contract for defendant. When it became clear, however, that Podd-Bell was having trouble raising the money, a second letter of intent with an expiration date of March 31, 1978, was signed. Both brothers signed the letter, Alfred relying on Norman’s statement that the price was fair. Alfred’s attorney never saw the letter of intent.

In an attempt to find financing, Podd-Bell contacted a Swedish corporation, Studsvik Energiteknik AB, which agreed to invest in Al-nor. The proposed agreement called for installment payments to the brothers. Norman, however, was becoming displeased with Podd-Bell and the persons it chose to run Alnor. He was concerned that the installment payments would not be made. When Podd-Bell did not meet the March 31 deadline, Norman told Alfred about his concerns and, on April 3,1978, refused to grant an extension.

When the Podd-Bell letter expired, Norman discussed buying out Alfred’s stock. Alfred countered that he would buy out Norman, but Norman told him that no one at Alnor would work for him. Alfred then agreed to Norman’s offer of $4 million for Alfred’s interest. Norman also told Alfred, as he had told Podd-Bell earlier that day, that he would not look for another buyer for at least a year.

Prior to the expiration of the Podd-Bell offer, Norman and Albert Aspito, Alnor’s executive vice-president, were in touch with Dr. Dezso Ladanyi, president of Alnor’s subsidiary, Noral. Ladanyi indicated his interest in buying Alnor, and prior to April 3, he began organizing a group of investors. Norman initially indicated that he was interested in selling 49% of his stock for $1.96 million.

According to Ladanyi’s testimony and his diary notations, on the same day on which Norman offered to buy out Alfred, Aspito contacted Ladanyi. Aspito told him Alnor was available for $8 million, and then he said Norman only wanted to sell 49% of the company, with Aspito getting part of the equity. Norman also told Ladanyi that Norman wanted $5 million for his interest in Alnor but that the deal was “on hold” because Alfred might find out and retaliate. Norman denied discussing anything more than the sale of 49% of his stock, while Aspito had no recollections of the conversations with Ladanyi. Ladanyi was never successful in finding investors and never made an offer to buy Alnor.

From April 3 to May 8, 1978, attorneys for the brothers drafted and revised the stock purchase agreement. Norman insisted that the agreement contain a specific provision releasing him from any liability for any sale of Alnor in “the near or distant future.” A final draft of the agreement was approved and the closing was set for May 8. Alfred contracted for a private appraisal of his shares, although the appraiser did not tour the plant and was unaware of the continued interest of several buyers. The shares were appraised for less than $4 million. Alfred, individually and as his own trustee, sold 2,629^2 shares, and Norman, as trustee for Alfred under Emma’s will, sold 115 shares to Alnor. Alfred received $800,000 immediately, the balance to be paid by Alnor in installments.

On May 8, prior to the closing, Norman received a call from Dr. Gerhard Kelter, Studsvik’s attorney. Kelter arranged to meet Norman on May 10 to discuss the purchase of Alnor. Citing Alnor’s increased sales potential, its improved profit picture and its new products, Norman asked for $6 million. By July 4, 1978, Norman and Studsvik agreed on the sale of Alnor. The sale was completed in December for $6.2 million, with Studsvik assuming the remaining payments to Alfred.

When Alfred learned of the sale and of Norman’s additional profit, he brought this action alleging fraud and breach of fiduciary duties and seeking one-half of the additional consideration Norman received. After a trial, the trial court found clear evidence of fraud and a breach of Norman’s fiduciary duty to disclose all information relevant to the stock sale.

We consider first Norman’s contention that the trial court erred in finding constructive fraud and a breach of fiduciary duty. We believe, however, that the order of the court clearly indicates a finding of actual, not constructive, fraud.

Actual fraud is an intentional misrepresentation or intentional concealment, by one party, of a material fact which is relied on to the detriment of another party. (Gary-Wheaton Bank v. Burt (1982), 104 Ill. App. 3d 767, 433 N.E.2d 315; Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 380 N.E.2d 1040.) The inaccurate or concealed information must be such that if the party had been aware of it he would have acted differently. (Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 380 N.E.2d 1040.) Whether the party has reasonably relied on the information is a question for the trier of fact. (Duhl v. Nash Realty, Inc. (1981), 102 Ill. App. 3d 483, 429 N.E.2d 1267.) Constructive fraud does not require actual dishonesty or an intent to deceive. In a fiduciary relationship, where there is a breach of a legal or equitable duty, a presumption of fraud arises. Zeilenga v. Stelle Industries, Inc. (1977), 52 Ill. App. 3d 753, 367 N.E.2d 1347.

Norman contends that there was no misrepresentation or concealment of material facts. Relying on Agatucci v. Corradi (1945), 327 Ill. App. 153, 63 N.E.2d 630, and James Blackstone Memorial Library Association v. Gulf, Mobile & Ohio R.R. Co. (7th Cir. 1959), 264 F.2d 445, cert. denied (1959), 361 U.S. 815, 4 L. Ed. 2d 62, 80 S. Ct. 56, he asserts that a purchaser of stock has no duty to disclose the possibility of a future sale, and on the closing date neither Ladanyi nor Studsvik had made him a firm offer. The present case, however, is distinguished by the fact that Norman was also Alfred’s trustee. Furthermore, Norman concealed other information in addition to that about potential buyers of Alnor.

A trustee owes the highest duty to his beneficiary to fully and completely disclose all material facts when he is dealing with the trust. (Jackson v. Pillsbury (1942), 380 Ill. 554, 44 N.E.2d 537.) The trial court found that Norman did not disclose the continued interest of at least three potential purchasers, his belief that Alnor’s position warranted a higher price, and his attempt to retain Alnor’s oil and gas leases. The materiality of an alleged misrepresentation is a question of fact, and the trial court’s finding will not be disturbed unless it is against the manifest weight of the evidence. (Kehl v. Abram (1904), 210 Ill. 218, 71 N.E. 347.) The information here was material.

• Norman also contends that Alfred did not reasonably rely on his statements because Alfred retained separate counsel and requested a private appraisal of his shares. Nevertheless, as the beneficiary under the trust created by his mother, Alfred had the right to rely on his trustee to act in good faith (Sauvage v. Gallaway (1946), 329 Ill. App. 38, 66 N.E.2d 740), and that he did so rely is supported by the record. Norman’s duty to act in Alfred’s best interest was not negated by Alfred’s retaining separate counsel, especially in light of the fact that Norman actively prevented Alfred’s attorney from getting the very information he needed to advise Alfred knowledgeably.

Finally, with respect to the issue of actual fraud, Norman contends that there was no evidence of his intent to defraud Alfred. We do not agree. From the time the brothers decided to sell Alnor, Norman was negotiating with prospective purchasers to arrange a better deal for himself than for Alfred. When Podd-Bell made its initial offer, Norman attempted to negotiate a buy-back scheme for oil and gas leases at a substantial discount for himself. Norman also told both Alfred and Podd-Bell that he would not look for another buyer for about one year, while at the same time he was discussing a possible sale to Ladanyi. Norman also disregarded the requests of Alfred’s attorney for information on prospective purchasers. The strong and appropriate language of the trial court that Norman “skinned” his brother and was engaged in “unconscionable conduct” lends itself to but one interpretation. The trial court properly found that Norman’s conduct constituted actual fraud.

Norman next contends that the trial court’s finding of a breach of fiduciary duty is against the manifest weight of the evidence because the court gave probative weight to inadmissible hearsay testimony from Ladanyi. Norman maintains that Ladanyi’s testimony about his conversations with Aspito, who was relaying what Norman told him, is double hearsay. Norman, however, did not object to this testimony by Ladanyi at trial. Hearsay evidence, received without objection, may be given its natural probative weight. (Svenson v. Miller Builders, Inc. (1979), 74 Ill. App. 3d 75, 392 N.E.2d 628.) Moreover, Norman’s right to cross-examine the declarant was not denied, since both he and Aspito testified at trial. The trial court did not err in considering Ladanyi’s testimony.

Norman also contends that the trial court’s findings of the continuing interest of Podd-Bell in purchasing Alnor, Studsvik’s desire to revive the deal, Ladanyi’s negotiations at a $5 million price, Norman’s belief that Alnor was worth more than $4 million, Dr. Kelter’s May 8 phone call, and Norman’s attempt to retain the oil and gas leases, were all on items which were immaterial or already known to Alfred. We find that such contention is without merit. As we have already stated, Norman’s duty as a trustee was more extensive than that of a mere purchaser of stock, and any information he had should have been disclosed. Where the trustee deals with the trust for his own benefit, the presumption arises that the transaction was fraudulent. (Curtis v. Fisher (1950), 406 Ill. 102, 92 N.E.2d 327.) The burden of proving the fairness of the transaction, after a full and complete disclosure, is on the dominant party. (Jackson v. Pillsbury (1942), 380 Ill. 554, 44 N.E.2d 537.) Norman failed to show that the transaction was fair, and the court’s findings were proper.

Norman also contends that the doctrine of estoppel precludes the findings of the trial court. Prior to filing this action, Alfred filed a claim in Federal court alleging a securities violation. The Federal court dismissed that action with prejudice. In the Federal suit, Alfred alleged claims for common law fraud and breach of duties, but the court refused to consider them and dismissed them without prejudice. Indeed, in dismissing the State law claims without prejudice, the Federal court noted that conduct not prohibited by Federal securities laws may, nonetheless, amount to a breach of fiduciary duties. (See Santa Fe Industries, Inc. v. Green (1977), 430 U.S. 462, 51 L. Ed. 2d 480, 97 S. Ct. 1292.) We note also that the findings of the trial court are not inconsistent with any of the factual findings in the Federal dismissal of the securities violation claims. Alfred’s cause of action is not barred by equitable estoppel.

Norman also maintains that the release contained in the stock purchase agreement bars Alfred’s claims of fraud and breach of fiduciary duty. The release provides that Alfred understood that his brother might sell his interest in Alnor in the near or distant future and that Alfred specifically released and discharged Norman and Al-nor from any claims which might arise out of the sale. Norman concedes that a contract procured through actual fraud is voidable at the option of the injured party. (Ainsworth Corp. v. Cenco, Inc. (1982), 107 Ill. App. 3d 435, 437 N.E.2d 817; Shanle v. Moll (1974), 25 Ill. App. 3d 113, 323 N.E.2d 148.) Nevertheless, Norman argues that the trial court made a finding of constructive fraud which will not vitiate the release provision. Having already determined that Norman’s conduct constituted actual fraud and that the trial court so found, we reject this argument. The release provision is voided, and it does not bar Alfred’s cause of action.

Norman finally challenges the award of damages. He contends that the trial court erred in extending his fiduciary duty to all of plaintiffs’ stock, and that the court erred in awarding punitive damages.

Norman’s attempt to restrict the award of the damages to the 115 shares held in trust is based on the notion that the sole basis for the trial court’s findings is Norman’s breach of fiduciary duty as trustee. With respect to the remaining shares, Norman maintains that he could deal with Alfred as though they were strangers.

A trustee may deal with his beneficiary, outside the scope of their relationship, as if no fiduciary relationship existed. The fiduciary relationship will not extend to nontrust property. (Stoke v. Wheeler (1945), 391 Ill. 429, 63 N.E.2d 492; G. Bogert, The Law of Trusts and Trustees sec. 544, at 427-28 (rev. 2d ed. 1978).) Yet where the trustee fraudulently misleads the other party, the transaction will be set aside. Illinois Rockford Corp. v. Kulp (1968), 41 Ill. 2d 215, 242 N.E.2d 228; Wood v. MacLean Drug Co. (1932), 266 Ill. App. 5.

Although Norman’s breach of fiduciary duty extended only to the shares held in trust, his fraudulent conduct extended to the entire transaction. The contract was procured by fraud, and the trial court properly awarded Alfred one-half of the additional consideration Norman received from Studsvik.

Norman’s argument that the award of punitive damages was improper is also without merit in light of our decision that Norman acted fraudulently. Punitive damages are appropriate to punish and deter conduct where defendant is guilty of fraud (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353), or an intentional breach of fiduciary duty (Glass v. Burkett (1978), 64 Ill. App. 3d 676, 381 N.E.2d 821). Whether to award punitive damages is an issue for the sound discretion of the trial court, and its decision will not be set aside absent an abuse of discretion. (Monotronics Corp. v. Baylor (1982), 107 Ill. App. 3d 14, 436 N.E.2d 1062.) There was no abuse of discretion here where the trial court found a flagrant breach of fiduciary responsibility and clear evidence of fraud.

In their cross-appeal, plaintiffs contend that the trial court erred in awarding prejudgment interest at the statutory, rather than market, rate because the lower rate does not fully compensate Alfred for the loss of the use of the money. Plaintiffs argue that Norman should not be allowed to profit as a result of his wrongdoing.

There is no right to recover prejudgment interest absent a statute or agreement. (Kramlich v. Home Federal Savings & Loan Association (1974), 26 Ill. App. 3d 430, 325 N.E.2d 657.) The right to such interest in Illinois is authorized by statute. (Ill. Rev. Stat. 1981, ch. 17, par. 6402.) Section 2 of “An Act in relation to *** interest ***” is applicable to judgments in fraud cases. (Forrester v. State Bank (1977), 52 Ill. App. 3d 34, 363 N.E.2d 904; Pfeffer v. Farmers State Bank (1931), 263 Ill. App. 360.) Plaintiffs urge the exercise of the equitable powers of the court to award a higher rate of interest (Finley v. Finley (1980), 81 Ill. 2d 317, 410 N.E.2d 12), and to compensate Alfred for his brother’s unconscionable behavior. We find that the interest award in conjunction with the trial court’s award of punitive damages adequately compensated Alfred.

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

Judgment affirmed.

RIZZI, P.J., and McGILLICUDDY, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE BUCKLEY JUSTICE CAMPBELL,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD STACK, Defendant-Appellant.
    First District (1st Division)
    No. 82—1066
    Opinion filed November 5, 1984.
    CAMPBELL, J., dissenting.

      James J. Doherty, Public Defender, of Chicago (Marilyn Martin, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Paula Carstensen, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Following a jury trial, defendant Richard Stack was convicted of the murders of his wife and 13-month-old son. He was sentenced to two concurrent terms of natural life.

On appeal, the issues raised by defendant include: (1) whether the trial court erred in refusing to ask certain voir dire questions designed to ascertain the prospective jurors’ attitudes towards the insanity defense; (2) whether the admission of evidence and prosecutorial argument regarding defendant’s silence following his Miranda warnings constituted reversible error; (3) whether it was reversible error to allow an expert witness to interpret another witness’ testimony; (4) whether defendant was denied a fair trial due to the prosecutor’s alleged misstatements regarding the consequences of an acquittal; and (5) whether defendant was proved sane beyond a reasonable doubt. We reverse and remand for a new trial.

The record discloses that on May 11, 1980, defendant murdered his wife by repeatedly kicking her in the head, stabbing her with a pool cue and then slashing and mutilating her body. After murdering his wife, defendant threw his 13-month-old son against a wall, fracturing the infant’s skull. Defendant then repeatedly stabbed the baby with the same pool cue he used in murdering his wife.

Dr. Robert Stein, the Cook County medical examiner, testified that he performed autopsies on the bodies of Carol Ann Stack and Richard Stack, Jr. Dr. Stein found nearly 100 stab and slash wounds on the body of Carol Ann. He also found segments of wood, identical to a pool cue, along with other foreign objects within the pleural cavity of her body. Dr. Stein’s examination of the infant’s body revealed a depressed skull fracture in addition to numerous puncture wounds, contusions and lacerations of the head and chest areas.

Chicago police officers William Christopher and Thomas Scott testified that when they arrived at defendant’s residence on May 11, 1980, they saw defendant leaning out of a broken window screaming and yelling. Officer Scott testified that defendant was yelling about devils and demons. Both officers said that defendant called out to them, “I have been looking for you. I just killed my wife and baby.” At Officer Scott’s instruction, defendant opened the front door and was handcuffed on the front porch without resistance. Officer Scott testified that defendant was given his Miranda rights and that defendant indicated he understood each right. Defendant was then transported to Holy Cross Hospital for treatment of superficial cuts to his hands and face.

Detective William Foley testified that he spoke with defendant in the emergency room of Holy Cross Hospital. Detective Foley advised defendant of his Miranda rights and then asked defendant why he was at the hospital. Defendant responded that he was being treated for hand injuries. In response to other questions, defendant stated that he had attended mass twice that day and that following the second mass he began fighting the demons which were coming from his wife and child. Defendant explained that the demons came from his wife because she had not gone to confession. Defendant further stated that there was evil in the world and he was trying to drive the demons out. When asked how he committed the murders, defendant stated that he did not want to say anything about the method he used because the answer was in the Bible. Foley testified that during the interview defendant appeared to be in contact with reality. Foley said that defendant’s treating physician, Dr. Jane Caseley, wanted commitment papers signed and that several doctors and nurses were talking about transporting defendant to a psychiatric facility. Foley, however, disagreed, and defendant was taken to a lockup after being released from the hospital.

Mary Bolster, Carol Ann’s mother, testified that she saw defendant on May 10, 1980, the night before the murders, and did not notice anything unusual about defendant’s behavior that evening. Bolster also said that when she called Carol Ann the afternoon of the murders, defendant answered the telephone and “they conducted a very usual conversation.”

Among those testifying for the defense was Dr. Jane Caseley, an emergency room physician at Holy Cross Hospital who treated defendant for cuts to his hands on May 11, 1980. Dr. Caseley stated that the police requested that defendant not be sedated and, thus, no anesthetic was used during the suturing procedure. Caseley recalled that defendant winced once during the suturing but his hands remained still during the remaining procedure. Defendant told Dr. Caseley that his left hand belonged to someone else. Dr. Caseley further stated that defendant was cooperative in answering questions, but when asked about his medical history he responded that Dr. Caseley and the nurses should ask the Pope. Dr. Caseley also stated that defendant spoke in a low coarse voice of demons. In Dr. Caseley’s opinion, defendant was in need of psychiatric care, “so she signed commitment papers.” At Officer Foley’s request, however, defendant was instead taken to a lockup.

Various relatives and friends of defendant also testified and recounted occasions on which defendant acted unusually. Additionally, Father Robert Lutz, a Chicago priest, described a visit from defendant in which defendant discussed the evil in the world. Following the visit, Father Lutz suggested to defendant’s brother-in-law, John Principato, that defendant seek professional help.

Father Joseph Bennett, Cook County jail chaplain, testified that a few days after the offense Father Lutz requested that he visit defendant. Father Bennett stated that defendant told him that he had special powers and was commanded by God to kill his wife and child. Defendant also said that he had used his hands to kill the child and used a perfume bottle to kill his wife. In Father Bennett’s opinion, defendant was not in contact with reality.

Dr. Albert Stipes, a psychiatrist employed by the Cook County Court Psychiatric Institute, testified that he examined defendant on June 11, 1980. Stipes stated that defendant exhibited a well-organized system of active delusions concerning special powers such as reading backwards and the belief that he was being persecuted by non-Catholics. Defendant described a visual hallucination that he had, prior to committing the murders, of an old man turning into a child. Dr. Stipes testified that in evaluating defendant, he considered a report made by Dr. Garbín in which defendant stated that he had fought with his wife for three hours and had finally killed the demon within her. The report also included the following quote from defendant: “My baby handed me rosary beads in alcohol and I shoved it in her. The baby then changed, too, and came at me and I killed that demon too, beating it.”

Dr. Robert Reifman, director of the Cook County Circuit Court Psychiatric Institute, examined defendant on December 18, 1981, and February 18, 1982. Dr. Reifman also reviewed defendant’s medical records and the police report during this period. During the 1981 interview, Dr. Reifman observed that defendant exhibited extremely disoriented thought, agitation, confusion and hyperactivity symptoms attributable to, in Dr. Reifman’s opinion, an inappropriate change in antipsychotic medication in the jail. During the examination, defendant told Dr. Reifman that defendant’s baby looked like the baby Jesus, which was a sign that defendant’s wife was possessed by demons. According to Dr. Reifman, defendant committed what defendant believed to be an altruistic act which was necessary to save the world from demons and devils.

Drs. Stipes and Reifman agreed that defendant suffered from paranoid schizophrenia, experienced a major break with reality and lacked both the substantial capacity to appreciate the criminality of his conduct and the ability to conform his conduct to the requirements of law on the date of the murders. The doctors also agreed that defendant was not lying, feigning illness or malingering.

During the State’s rebuttal, Patricia Greco testified that she had known defendant and Carol Ann since grade school. Greco testified as to arguments that defendant had with Carol Ann on four separate occasions in 1976, 1977, and 1979. During the 1977 argument, defendant bit off and swallowed the diamond from Carol Ann’s engagement ring.

Diane Bolster, Carol Ann’s sister, testified that on the day prior to the murders, defendant and Carol Ann visited her, and during the 45-minute conversation defendant never mentioned religion, demons or devils. On the morning of the murders, Bolster visited defendant and Carol Ann and, after offering to watch the baby for Carol Ann, defendant jumped up and said, “No, the baby stays here.” Defendant then walked out of the house with the baby, saying, “Leave me alone, I will do what I want.”

Dr. Werner Tuteur, a psychiatrist and chief consultant to the Elgin Mental Health Center, testified on rebuttal that he examined defendant on September 19, 1981, October 6, 1981, and February 17, 1982, and reviewed reports on defendant from the Chester Mental Health Center, the Cook County Circuit Court Psychiatric Institute, and the police. During the interviews defendant said that he had seen the devil come out of his wife’s body and that it had laid hands on her. Defendant told Dr. Tuteur that he had one experience with demons the day after the murders but had seen devils and demons before the murders during hangovers. Dr. Tuteur found no evidence of mental disease during the interviews which, in his opinion, indicated that a mental disease never existed. Dr. Tuteur testified that defendant’s belief about dying for people’s sins were delusions and hallucinations caused by alcohol. Dr. Tuteur disagreed with the diagnoses of defendant as being a paranoid schizophrenic and believed that defendant could have conformed his conduct to the requirements of the law. According to Dr. Tuteur, defendant’s conduct of screaming to police officers that he had just killed his wife and child indicated that defendant knew the criminality of his actions.

I

We first address defendant’s contention that the trial court erred in refusing to question prospective jurors on the voir dire examination with regard to any bias or prejudice the jurors might have against the insanity defense. Prior to trial, defense counsel submitted the following questions for the trial judge to ask on voir dire:

“1. Have you or anyone close to you had any experience with a psychiatrist or psychologist?

2. Do you agree with the concept that a person should not be held responsible for his acts if he is not capable of conforming his conduct to the requirements of the law?

3. Can you find someone not guilty by reason of insanity?

4. Do you have any feeling or viewpoint concerning the defense of insanity in a criminal case? If so, what?”

The trial judge agreed to ask the first question, but refused the other three, stating that he would instead ask the prospective jurors if they could follow the law.

The purpose of voir dire examination is to permit counsel to ascertain whether the minds of prospective jurors are free from bias or prejudice. (People v. Witted (1979), 79 Ill. App. 3d 156, 398 N.E.2d 68.) Where insanity is in issue, the parties have a right to examine jurors concerning their attitude on the insanity defense. (People v. Robinson (1981), 102 Ill. App. 3d 884, 429 N.E.2d 1356; People v. Moore (1972), 6 Ill. App. 3d 568, 286 N.E.2d 6.) The manner and scope of voir dire examination lies within the discretion of the trial court. People v. Teague (1982), 108 Ill. App. 3d 891, 439 N.E.2d 1066.

In the case at bar, we believe that the trial court abused its discretion concerning the voir dire examination. Although the questions tendered by the defense in this case were designed to probe and discover any potential bias or prejudice regarding the insanity defense, the only question asked pertained to personal experiences with a psychiatrist or psychologist. This question was insufficient to elicit a response concerning the insanity defense. Further, the general questions of whether the jurors could follow the law and whether they could be fair and impartial were also insufficient to cure the error. Such broad inquiries failed to call attention to specific matters which might lead the jurors to display disqualifying attitudes and preoccupations. (United States v. Lewin (7th Cir. 1972), 467 F.2d 1132, 1138.) The trial court therefore erred in refusing to ask the above questions tendered by the defense.

The State argues that any error as to the voir dire was harmless, and cites People v. Pitts (1982), 104 Ill. App. 3d 451, 432 N.E.2d 1062. In Pitts, it was held that no reversible error resulted from the trial court’s refusal to examine jurors concerning their attitudes on the insanity defense because there was overwhelming evidence of defendant’s sanity. The court in Pitts concluded that the finding of defendant’s guilt would not have changed even if the suggested questions had been put to prospective jurors. (104 Ill. App. 3d 451, 457.) This same conclusion cannot be reached in the cáse before us. Here, both Drs. Stipes and Reifman testified that they examined defendant and agreed that he suffered from paranoid schizophrenia, and lacked both the substantial capacity to appreciate the criminality of his conduct and the ability to conform his conduct to the requirements of the law at the time of the murders. Both doctors further agreed that defendant was not lying or feigning illness. Additionally, the defense evidence received corroboration from the State’s lay witnesses; for instance, both arresting officers told Detective Foley that defendant had been screaming about God, devils and demons before he was taken into custody.

Hence, unlike Pitts, we cannot with certainty conclude in this case that the verdict would not have changed even if the tendered questions had been asked on voir dire. Although we believe that, given the evidence in this case, the error as to this matter was sufficient alone to require the reversal and remand of this cause, our determination is supported by other trial errors discussed below.

II

We turn next to defendant’s argument that it was error to admit evidence and prosecutorial argument concerning his invocation of the right to remain silent. Defendant objects to the admission of testimony elicited from Detective Foley, during the State’s rebuttal, that defendant told Assistant State’s Attorney Bredeman that he chose not to say anything after being advised of his Miranda rights. Defendant also objects to the cross-examination of Dr. Reifman with respect to the psychiatric significance of defendant’s invocation of his right to remain silent. Finally, defendant objects to the prosecutor’s comment in closing argument that defendant “all of a sudden” exercised his right to remain silent when Dr. Caseley wanted to commit defendant but Detective Foley wanted to retain custody of defendant.

Defendant alleges that the admission of such evidence and argument constituted an intolerable penalty on his exercise of his fifth amendment right against self-incrimination. We agree. Because comment on the exercise of the fifth amendment privilege against self-incrimination diminishes the privilege by making its assertion costly, both due process and the fifth amendment forbid evidentiary use of a defendant’s claim of that privilege in the wake of Miranda warnings. (Griffin v. California (1965), 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229.) Such comment is permissible only for the limited purpose of impeaching a defendant who actually makes post-arrest statements contradicting his trial testimony or who falsely testifies to an exculpatory post-arrest statement. (People v. Foster (1980), 81 Ill. App. 3d 915, 926, 401 N.E.2d 1221.) Neither exception applied in the present case.

In the analogous case of People v. Vanda (1982), 111 Ill. App. 3d 551, 444 N.E.2d 609, this court held that the admission of the defendant’s post-arrest request for counsel as evidence of the defendant’s sanity was error. Our court found very little relevance in the evidence with respect to the defendant’s mental state and refused to carve out a special circumstance allowing a penalty on the defendant’s exercise of a constitutional right simply because sanity is placed in issue. Such a holding would force the defendant to an intolerable choice between foregoing his constitutional right or bearing the prejudice of having his assertion of the right introduced against him at trial. People v. Vanda (1982), 111 Ill. App. 3d 551, 563; see also Greenfield v. Wainwright (11th Cir. 1984), 741 F.2d 329.

The foregoing holds true in the instant case. We note the jury was not cautioned to consider the evidence for a limited purpose. Indeed, the trial court repeatedly overruled defense objections, thereby judicially validating the jury’s consideration of the evidence for any substantive purpose. The evidence was not isolated; it was used to cross-examine defendant’s expert witness and during the State’s rebuttal. In closing argument, the prosecutor emphasized the significance of the evidence:

“At 5:15, the Assistant State’s Attorney comes in. You heard from Foley, you saw the memorandum that Dr. Reifman read. And the State’s Attorney says to him — explains him his rights. And what does the defendant say? He says, do I have to answer questions? And the State’s Attorney tells him no, you have that right not to. And he says, that’s what I want. And the conversation is really important when you consider what was happening at that time. When Dr. Caseley wanted to send him away and Detective Foley wanted to retain responsibility for that man, which was his job, all of a sudden, ladies and gentlemen, while that is going on, the defendant exercises his right to remain silent. One of the most important rights anybody in custody could have. And now you want to tell us that he didn’t understand where he was, that he was out of touch with reality on that date?”

The evidence thus improperly served to promote the State’s theory that defendant was “feigning” schizophrenia. Given the foregoing facts and circumstances, it is clear that the error as to this matter severely prejudiced defendant.

Ill

We next consider defendant’s contention that it was error for the State’s expert, Dr. Tuteur, to comment upon the testimony of another witness, Peter Bukiri. Bukiri had testified that he and defendant had planned to take their two children somewhere on the date of the offense. During the prosecutor’s direct examination of Dr. Tuteur, the following exchange occurred:

“Q. Doctor, had I informed you of the testimony of a man known as Peter Bukiri in this case, a man who had set out in his testimony he was going to meet the defendant on Mother’s Day afternoon with the defendant and his child and he and his child?

A. Yes, it [sic] did.

Q. Did that indicate anything to you, Doctor?

A. Yes, as far as I understand, he was supposed to take his little boy to meet this man with his little boy, but his wife didn’t like that.

MR. KULL: Objection.

THE COURT: That is what he said? I don’t know that you can go into that.

MR. KULL: How does he know that?

THE COURT: I don’t know.”

Defendant argues that it was for the jury, rather than Dr. Tuteur, to draw whatever inferences existed in Bukiri’s testimony. Defendant further asserts that Dr. Tuteur’s testimony bolstered the State’s motive evidence concerning defendant’s marital disputes and was therefore prejudicial. We are in agreement with defendant. The admission of the testimony in question improperly invaded the province of the jury and was error. See People v. Linkogle (1977), 54 Ill. App. 3d 830, 368 N.E.2d 1075; People v. Cunningham (1966), 73 Ill. App. 2d 357, 218 N.E.2d 827.

IV

Defendant also objects to several comments made by the prosecutor during final argument. The prosecutor repeatedly stated that society would “have to live with” defendant if the jury allowed him to escape responsibility. Defendant maintains that the remarks misled the jury into believing that if he was acquitted for reasons of insanity, he immediately would be returned to society. He contends, therefore, that the remarks were a misstatement of the law and were thus prejudicial.

We find that the remarks complained of were error. Similar comments have been held to be improper. (People v. Wilson (1983), 120 Ill. App. 3d 950, 960, 458 N.E.2d 1081.) We note that no curative instruction was given; an instruction tendered by defendant clarifying the correct post-verdict consequences of an acquittal was denied by the court.

V

Finally, defendant argues that the State failed to rebut beyond a reasonable doubt the evidence that he was legally insane at the time of the murders. After reviewing the record, we believe that whether or not defendant in this case was legally insane presented a question of fact to be resolved by the jury, following a fair and impartial trial.

For the foregoing reasons, we reverse defendant’s conviction and remand this cause for a new trial. Given our disposition, we find it unnecessary to address defendant’s remaining allegations.

Reversed and remanded.

McGLOON, J., concurs.

JUSTICE CAMPBELL,

dissenting:

I

The majority has concluded that the trial court abused its discretion concerning the voir dire examination, holding that the trial court erred in refusing to ask the three questions tendered by the defendant. The second question involved a question of law (People v. Phillips (1981), 99 Ill. App. 3d 362, 425 N.E.2d 1040), and the third question was argumentative and properly refused. The fourth question was also properly refused, and the court was correct in telling the jury that the case involved the insanity defense and asking the jurors whether they could give both sides a fair trial. The manner and scope of voir dire examination lies within the sound discretion of the trial court. (People v. Teague (1982), 108 Ill. App. 3d 891, 439 N.E.2d 1066.) I am not convinced that the court erred in refusing to propound the three questions tendered by the defendant in light of the overwhelming evidence of the defendant’s guilt. See People v. Pitts (1982), 104 Ill. App. 3d 451, 432 N.E.2d 1062.

II

The majority has also concluded that the admission of evidence and arguments relating to the defendant’s invocation of his right to remain silent constitutes an intolerable penalty on defendant’s exercise of his fifth amendment right against self-incrimination. The State asserts that the prosecutor made the remark that defendant “all of a sudden” exercised his right to remain silent to support the State’s contention that defendant was coherent and aware of his rights immediately following the murders. The State further asserts that defendant did not remain silent following his arrest, but instead gave statements and acted in a manner which was inconsistent with defendant’s claim of insanity. The State cites defendant’s actions at the time of his arrest, his confession to Detective Foley following the murders, and his extensive statements to defense psychiatrists. Defendant did not remain silent and was in touch with reality, and as such, the prosecutor did not improperly comment on defendant’s right to remain silent. The State argues alternatively that, even if defendant did assert his right to remain silent, that evidence was highly probative of defendant’s mental state and was needed to rebut evidence of defendant’s insanity following the murders. I agree with the State’s position, and any error in admitting the evidence was harmless error beyond a reasonable doubt. The cases cited by the majority stand for general propositions of law and are of little help here. See Sulie v. Duckworth (7th Cir. 1982), 689 F.2d 128; People v. Spicer (1979), 79 Ill. 2d 173, 402 N.E.2d 169; People v. Vanda (1982), 111 Ill. App. 3d 551, 444 N.E.2d 609.

Ill

The majority holds that it was error for the State’s expert, Dr. Tuteur, to comment upon the testimony of another witness, Peter Bukiri, a friend of defendant’s, who testified regarding the defendant’s conduct on the day before the murders. Following Dr. Tuteur’s response, defense counsel objected and the trial judge questioned how Dr. Tuteur could give such an opinion. Defendant argues that it was for the jury, not for Dr. Tuteur, to draw whatever inferences existed in Bukiri’s testimony. Defendant further argues that Dr. Tuteur’s testimony bolstered the State’s motive evidence concerning the defendant’s marital disputes and was therefore prejudicial. The State, however, argues that the opinion testimony drew an obvious inference from the evidence adduced at trial and therefore was not prejudicial. (People v. Sprinkle (1979), 74 Ill. App. 3d 456, 393 N.E.2d 94.) After a review of the record, I find the error, if any, to be harmless in view of the overwhelming evidence of defendant’s sanity at the time of the murders. Cf. People v. Ward (1975), 61 Ill. 2d 559, 338 N.E.2d 171.

IV

Defendant also objects to several comments made by the prosecutor during the final argument. The defendant claims that the remarks misled the jury into believing that if defendant was acquitted for reasons of insanity, he would be immediately returned to society. Defendant therefore maintains that the remarks were a misstatement of the law and thereby prejudicial.

In People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203, the Supreme Court did not find that similar comments were reversible error, and People v. Wilson (1983), 120 Ill. App. 3d 950, 458 N.E.2d 1081, does not support the conclusion of the majority in the case at bar. In my view, People v. Wilson does not stand for the proposition that the comments of the prosecutor, standing alone, constitute reversible error. Under the facts of People v. Wilson, when a close question was presented on the key issue of the defendant’s sanity at the time of the occurrence, other factors peculiar to that case (denial of request for continuances and in quashing subpoenas) prompted the court in granting a new trial.

V

Finally, the evidence presented in this case was not closely balanced, and the errors complained of were not of such a magnitude that the defendant was denied a fair and impartial trial. The record and the evidence presented support the finding of guilty, as the State has met its burden in this case. I do not agree with the majority that the errors complained of constitute reversible error, and I would affirm the conviction.


author: JUSTICE PERLIN

text:
    JAMES G. MIDDLETON, M. D., Plaintiff-Appellant, v. GARY L. CLAYTON, Director, Department of Registration and Education, Defendant-Appellee.
    First District (2nd Division)
    No. 84—244
    Opinion filed November 7, 1984.
    James G. Middleton, of Des Plaines, for appellant, pro se.

    Neil F. Hartigan, Attorney General, of Springfield (Susan C. Weidel, Assistant Attorney General, of counsel), for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

James G. Middleton (petitioner) appeals from an order of the circuit court which affirmed the decision of the Department of Registration and Education (Department) denying petitioner’s request for restoration of his license to practice medicine in Illinois.

The record discloses the following underlying facts: petitioner was first licensed to practice medicine in 1959 in the State of Missouri. In 1962 he was licensed in Georgia and in Tennessee. In 1963 he petitioned for licensure in Illinois based on reciprocity with Tennessee. He was licensed in Illinois, on that basis, in 1964.

In 1961 petitioner pleaded guilty to a charge of assault and battery in Ohio. In May 1962 petitioner’s Missouri medical license was revoked “on the basis of unprofessional and dishonorable conduct.” The Missouri Board of Registration found that petitioner had on two occasions administered certain drugs to a female patient which “rendered her powerless to resist” and then committed sexual acts upon her, without her consent.

In 1971 petitioner’s Illinois medical license was revoked by the Department, premised on its findings that petitioner had committed acts which constituted “dishonorable, unethical or unprofessional conduct.” The acts found to have been committed by petitioner were: (1) in the years 1968 through 1970, he had injected five different female patients with drugs, rendering them helpless to resist, and then taken sexual liberties with them, without their consent; (2) when applying for an Illinois medical license in 1963, petitioner had failed to advise Illinois authorities that his Missouri medical license had been previously revoked; and (3) when petitioner applied for medical licensure in Georgia in 1962 he was required to respond, under oath, to the question of whether he had ever been “charged or convicted” of a crime. Petitioner answered “no” when, in fact, he had previously pleaded guilty to the Ohio criminal charge, and had been charged in Missouri with the crime of rape by the use of drugs.

The record also demonstrates that petitioner, following his Illinois license revocation, was convicted of a single felony charge of deviate sexual assault in Illinois in 1972, and, in the same year, of a Federal felony charge of unlawful possession of firearms.

After serving his prison sentences, petitioner first applied to the Department for restoration of his Illinois medical license in April 1980. Petitioner, who was not then represented by counsel, was denied restoration. In October 1981 petitioner secured counsel, and reapplied for restoration. It is this second application which is involved in the present appeal.

At the administrative hearing before the Illinois State Medical Disciplinary Board (Board), petitioner presented the testimony of Dr. Bernard Shulman, chairman of the department of psychiatry at St. Joseph’s Hospital in Chicago. He testified that he had examined petitioner for about an hour and one-half, and devoted several additional hours consulting with other doctors who had also examined petitioner, as well as reviewing background documents. In Dr. Shulman’s opinion, there was no evidence that petitioner was suffering from any mental or emotional illness. He found no evidence to indicate that petitioner would have any greater trouble than any other practicing physician in avoiding the medical or psychiatric problems relating to the practice of medicine. Dr. Shulman felt it appropriate to restore petitioner’s medical license.

On cross-examination, Dr. Shulman acknowledged he was not an “expert” in “cases of deviate sexual behavior.”

Petitioner also presented the testimony of his wife and 10 friends, many of whom had been patients of petitioner. Based on their observations of petitioner over the past 12 years, they agreed that petitioner was rehabilitated and fit to practice medicine. Many of the witnesses stated that they would again consult petitioner should his medical license be restored.

Petitioner testified that since his release from prison in 1980 he has been active six days per week in continuing medical education, and had earned more than 1,900 hours of credit in such courses. He had attempted to work in medically related fields, but had been unable to do so due to his license revocation. He was “rehabilitated” due to his continuing “socialization” and medical education. He would, if required by the Department, agree to practice medicine in a controlled environment such as a group, rather than solo practice.

With regard to the Department’s factual findings which led to his 1971 license revocation in Illinois, petitioner denied having abused any patients. He stated that he did not advise Illinois that his Missouri medical license had been previously revoked because he was not asked that specific question, but admitted he nonetheless should have informed Illinois of that fact. He denied the charges of sexual abuse on which the revocation of his Missouri license was based. He admitted pleading guilty to the Ohio criminal charge, but contended he was “basically” innocent. He denied his guilt of the Illinois deviate sexual assault charge. He admitted his guilt to the Federal weapons charge. When asked if he felt “remorse” for the victims of his offenses, petitioner stated that there were no victims “except my wife and myself.” He said he felt remorse for the victims to the extent that their personal problems prompted them to make untrue charges against him.

Petitioner told the Board that if he were allowed to resume the practice of medicine, he would not molest patients. He also contended that there is no basis for the theory that an individual’s past conduct is determinative of his future conduct.

At the request of the Board, Dr. James Cavanaugh, director of the “Psychiatry in the Law” section of the department of psychiatry at Rush-Presbyterian-St. Luke’s Medical Center in Chicago, examined petitioner. Dr. Cavanaugh testified he spent some seven hours interviewing petitioner and conducted several psychological and neurological tests of petitioner. If one accepts as true the allegations of petitioner’s past misconduct, the likelihood of recidivism is “significant.” Petitioner has no psychiatric, psychological or neurologic dysfunction.

It was Dr. Cavanaugh’s opinion that the ability to predict “future dangerousness” is increased with a history of “prior dangerousness.” Dr. Cavanaugh has treated 30 to 50 persons charged with deviate sexual behavior, and 80% to 90% of those had repeated such behavior prior to Cavanaugh’s treatment.

While Dr. Cavanaugh found no major psychiatric problems afflicting petitioner, there were “suggestions” of “personality disorders.” If petitioner did in fact commit the acts he denies, Dr. Cavanaugh would feel “quite comfortable in saying at a minimum there is a major sociopathic or personality disorder problem” and the likelihood of a recurrence of sexual abuse is great.

On June 15, 1983, the Board issued its decision. It found, inter alia, that petitioner “has not engaged in any form of psychiatric treatment”; that he “continues to deny any wrongdoing and expresses no contriteness” and that the Board “takes notice of the seriousness of the previous charges and accepts them as true.” The Board concluded that “petitioner has failed to show sufficient evidence of rehabilitation” and recommended that the Department deny his petition for license restoration. On August 13, 1983, the Department’s director issued his order, which adopted the findings, conclusions and recommendation of the Board and denied petitioner’s application for license restoration.

Following denial of his motion for rehearing before the Board, plaintiff filed a pro se complaint for administrative review in the circuit court. He there alleged that the Department’s standards for determining “rehabilitation” were impermissibly vague; that the Department erred in requiring that petitioner admit wrongdoing and express contriteness; and that the Board gave insufficient weight to petitioner’s witnesses and the evidence of petitioner’s rehabilitation. Petitioner also filed with the court additional documents which, he contended, had not been considered by the Board.

The circuit court determined that the Department’s decision was supported by the manifest weight of the evidence, and affirmed the decision denying restoration of petitioner’s license to practice medicine.

On appeal, petitioner’s pro se briefs appear to raise four issues: (1) whether the Board and trial court considered all of the evidence; (2) whether the trial court employed the correct standard of review; (3) whether the Board incorrectly required petitioner to admit, and express contriteness for, his past misconduct as a basis for restoration of his license; and (4) whether the standards governing restoration of medical licenses is impermissibly vague.

Petitioner’s contention that neither the Board nor the trial court considered all of the evidence which favored petitioner is based on his assertion that materials he had sent (apparently by mail) to the Board at some undisclosed time prior to the administrative hearing in this case were “censored” by the Board’s attorney. The record is devoid of any factual evidence to sustain such a charge. Other than petitioner’s repeated accusations that the Board was somehow prevented from viewing these documents, we find no evidence to indicate that any member of the Board, or Board employee, interfered with petitioner’s presentation of evidence.

While the record is unclear, it appears that in the interval between denial of petitioner’s first petition for restoration of licensure and his second application, he forwarded documents to the Board. After the administrative hearing in this case (wherein petitioner introduced hundreds of pages of documentary evidence which, for the most part, related to his continuing medical education), petitioner determined that not all of the documents he had intended be introduced had, in fact, been introduced. From this, petitioner concludes that the Board was at fault. We disagree. It is clearly petitioner’s responsibility to make certain that documents he intends to introduce at hearing are, in fact, provided. Moreover, to the extent that the documents which he claims were “censored” by the Board are those which he filed with the trial court on administrative review (these include an “abbreviated resume of Dr. Middleton’s education”; petitioner’s “brief history of case and statement of facts”; and three letters recommending that petitioner’s license be restored), we find that the gist of each of these statements was presented to the Board. We conclude that petitioner’s allegation that the Board “censored,” or in some manner was prevented from reviewing petitioner’s evidence, is unfounded.

Petitioner next contends that the Department erred in requiring him, as a basis for restoration of his license to practice medicine, to “express contriteness” for his alleged past misconduct. This contention is based, apparently, on one of the Department’s 26 findings of fact, to wit: “that the petitioner continues to deny any wrongdoing and expresses no contriteness.” Petitioner cites In re Wigoda (1979), 77 Ill. 2d 154, 395 N.E.2d 571, for the proposition that restoration of a professional license may not be made contingent on the applicant’s refusal to admit wrongdoing. In this regard, the Wigoda opinion cited with approval the following language from In re Hiss (1975), 368 Mass. 447, 333 N.E.2d 429:

“ ‘[We] refuse to disqualify a petitioner for reinstatement solely because he continues to protest his innocence of the crime for which he was convicted. Repentance or lack of repentance is evidence, like any other, to be considered in the evaluation of a petitioner’s character and the likely repercussions of his requested reinstatement.’ ” In re Wigoda (1979), 77 Ill. 2d 154, 161.

In the instant case, we do not find that the Department required petitioner to admit wrongdoing or express contriteness as a condition for restoration of his license. Instead, consistent with Wigoda, the Department merely noted the fact of petitioner’s assertion of innocence. We therefore reject petitioner’s argument that the Department improperly required him to admit wrongdoing in order to have his license restored.

Petitioner argues that the Department’s standards governing restoration of medical licenses are overly vague and imprecise. The authority of the State to strictly regulate the medical profession is well established.

“The right and duty of the legislature to enact strict regulations concerning physicians has been well explained by this court as follows:
‘Society places itself in the hands of plaintiff’s profession for protection of the life and health of the community. The practice of medicine, in addition to skill and knowledge, requires honesty and integrity of the highest degree. *** The state under its police powers has the duty of protecting society from those of the profession who are not qualified to be the recipients of this trust. ***.’ ” Ming Kow Hah v. Stackler (1978), 66 Ill. App. 3d 947, 955, 383 N.E.2d 1264.

Section 17.07 of the Illinois Medical Practice Act (Act) (Ill. Rev. Stat. 1981, ch. 111, par. 4446) addresses the authority of the Department to restore revoked or suspended medical licenses. It provides:

“At any time after the suspension, revocation, placing on probationary status, or taking disciplinary action with regard to any license or certificate, the Department may restore it to the accused person, or take any other action to reinstate the license in good standing, without examination, upon written recommendation of the Board.”

The contention petitioner here makes, i.e., that section 17.07 of the Act is invalid because it is impermissibly vague, has been rejected previously by this court. In Leu v. Department of Registration & Education (1980), 88 Ill. App. 3d 255, 410 N.E.2d 467, the court rejected the argument that because section 16 of the Act lists some 26 specific grounds upon which a medical license may be revoked or suspended (Ill. Rev. Stat. 1981, ch. 111, par. 4433), it was therefore required that the same specificity be included in the section of the Act governing restoration of a medical license.

“Petitioner does not question that the legislature could properly set standards for the Department, but claims that the absence of the type of standard in section [16] invalidates section 17.07. It is clear that the General Assembly cannot delegate its general legislative power to determine what the law shall be as to the restoration of a medical license; however, it may authorize others, such as the Department, to do those things which it might properly do, including the power to implement the statute, but cannot do understandingly or advantageously itself. [Citations.] The preciseness of the standards employed or required to be set depends on the complexity of the subject matter and the ultimate objective of the act in question. [Citation.] The very nature of the objective to be achieved, the overriding public interest in seeing that only qualified persons are licensed to practice medicine in Illinois, and the problems to be solved, may have negated the usefulness of setting more particular standards by the legislature. [Citations.]
Here, the legislature may have decided that the technical complexity and diversity of problems and the degree of detail involved in ascertaining at what point in time and the conditions upon which a medical license may be restored after suspension or revocation could be better resolved by the Department and left to its judgment and administrative discretion so long as its findings are not against the manifest weight of the evidence and subject to judicial review. The administrative discretion granted to the defendant in section 17.07 of the Act, even though an admittedly flexible standard, does not improperly delegate legislative authority as claimed by petitioner. [Citations.]
***. The language of section 17.07 plainly indicates that the legislature intended to grant to the Board the discretion to recommend approval or disapproval of a petition for restoration based upon evidence presented at a hearing. One purpose of the hearing before the Board is to maintain sound, professional standards of conduct for the purpose of protecting the public and the standing of the medical profession in the eyes of the public. [Citation.]” Leu v. Department of Registration & Education (1980), 88 Ill. App. 3d 255, 262-63, 410 N.E.2d 467.

We agree that the flexible standard governing restoration of medical licenses is permissible and proper.

Petitioner next contends that the trial court erred in that it allegedly employed an incorrect standard of review. He states “[t]he court erred in not finding legal impropriety below when the components of the [Department] made findings of fact that did not conform to the expert testimony, documents, reports and exhibits placed before it and directed to it that were without exception favorable and beneficial to Dr. Middleton.”

The standard of review in an action for administrative review of an order of the Department relating to licensure is “limited to determining whether that conclusion was supported by substantial evidence, or was it contrary to the manifest weight of the evidence” (Wedeberg v. Department of Registration & Education (1968), 94 Ill. App. 3d 451, 456, 237 N.E.2d 557). It is also recognized that the court has a duty to examine the procedural methods employed at the administrative hearing, to insure that a fair and impartial procedure was used. See Lloyd A. Fry Roofing Co. v. Pollution Control Board (1974), 20 Ill. App. 3d 301, 314 N.E.2d 350.

In the present case the trial court, on the record, correctly noted its role and responsibility in administrative review cases. We find that the trial court employed the proper standard of review.

In light of the evidence presented to the Board, we cannot conclude that the Department’s decision to deny restoration of petitioner’s license to practice medicine is contrary to the manifest weight of the evidence. Nor do we find procedural error in the administrative hearing afforded petitioner.

For these reasons, the judgment of the circuit court is affirmed.

Affirmed.

HARTMAN, P.J., and STAMOS, J., concur.

      Plaintiff’s pro se briefs are difficult to comprehend. His initial brief contains: 25 paragraphs of “Points and authorities” which are repetitive and confusing “issues”; 11 further “issues”; a one-paragraph “argument” and some 70 pages of “exhibits.”
      Taken with this case was the Department's motion to strike various “exhibits” contained in petitioner’s brief. These exhibits purport to demonstrate that petitioner’s convictions in the Illinois and Federal criminal trials were improper. We agree with the Department that these documents are not a proper part of the record since they were not introduced in the administrative hearing, and that the issue of defendant’s guilt in those criminal proceedings is not subject to relitigation by the Department at administrative hearings. The Department’s motion to strike is granted.


text:
    ANNA LOU SWANSON, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Johns-Manville, Appellee).
    First District (Industrial Commission Division)
    No. 1—84—379WC
    Opinion filed May 30, 1984.
    Modified on denial of rehearing November 30, 1984.

      Philip F. Maher, of Chicago, for appellant.
    Rooks, Pitts, Fullagar & Poust, of Chicago (Douglas F. Stevenson and Robert B. Hess, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, Anna Lou Swanson, appeals from a judgment of the circuit court of Cook County confirming a decision of the Industrial Commission. The Commission denied compensation to Swanson on a claim for work-related asbestosis brought under the Workmen’s Occupational Diseases Act (Ill. Rev. Stat. 1967, ch. 48, par. 172.36 et seq.).

Petitioner was employed by respondent Johns-Manville from 1951 to 1968. Most of that time, her duties required her to go into the manufacturing area, where she was exposed to silica and asbestos.

The arbitrator found that the relationship of employee and employer existed between petitioner and respondent; that petitioner was exposed to the hazards of an occupational disease; that said exposure resulted in an occupational disease; and that said exposure and said disease arose out of and in the course of her employment. The arbitrator found, however, that petitioner’s present state of ill-being “which has resulted in her disablement” was not causally related to her exposure to an occupational disease. The Commission affirmed and adopted the decision of the arbitrator.

A claimant seeking recovery under the Act has the burden of establishing not only the existence of the disabling disease but also a causal connection between the disease and the condition of employment. (General Steel Industries v. Industrial Com. (1971), 49 Ill. 2d 552, 276 N.E.2d 290; Rockford Transit Corp. v. Industrial Com. (1967), 38 Ill. 2d 111, 230 N.E.2d 264.) A worker is considered disabled when he can no longer work without endangering his life or health. (Owens-Corning Fiberglas Corp. v. Industrial Com. (1977), 66 Ill. 2d 247, 362 N.E.2d 335.) Petitioner maintains that the Commission’s decision, that she did not prove her disablement was causally related to her occupational disease, is against the manifest weight of the evidence. We agree.

Petitioner had chest pains, respiratory congestion, numb extremities, difficulty in breathing, and difficulty in climbing stairs. Each of these problems was associated with her decreased pulmonary function due to asbestosis and left her disabled. Hence, petitioner met her burden under the Act, and the Commission erred in denying recovery to her.

The Commission may have been diverted from a proper conclusion because some of the evidence presented by petitioner included expenses for treatment of medical conditions which she did not prove were causally related to asbestosis. There was testimony that petitioner was also receiving treatment for obesity, constipation, bowel blockage, carpal tunnel syndrome, ulcers, hemorrhoids and tenosynovitis. Nevertheless, petitioner is entitled to compensation for her disability and expenses incurred in the diagnosis and treatment of her asbestosis as provided in section 8 of the Act.

We also reject Johns-Manville’s argument that the Commission merely resolved the matter of disputed medical evidence in favor of respondent. Petitioner offered the report of Dr. William W. Douglas of Mayo Clinic, who diagnosed petitioner’s condition as asbestosis. The report also contained a statement that the doctor recognized her asbestosis before he knew petitioner was exposed to asbestos. JohnsManville countered with the testimony of Dr. Eugene Pitts that petitioner did not have asbestosis. It is clear from its findings that the Commission rejected the testimony of Dr. Pitts and accepted the medical evidence offered by Dr. Douglas that petitioner had asbestosis.

Johns-Manville maintains, however, that the statute of limitations precludes petitioner’s claim. Section 6(c) of the Act requires notice to the employer within one year of the disablement. (Ill. Rev. Stat. 1967, ch. 48, par. 172.41(c).) The date of disablement, and not the last day of exposure, governs the giving of notice. (General Steel Industries v. Industrial Com. (1971), 49 Ill. 2d 552, 276 N.E.2d 290.) This requirement, that application for adjustment of claim must be filed within one year after disability or after the last payment of compensation, is a statute of limitations rather than a jurisdictional requirement, and it may be waived. Pantle v. Industrial Com. (1975), 61 Ill. 2d 365, 335 N.E.2d 491.

Although the issue was apparent on the face of the application, the first time the statute of limitations was raised was one year after the claim was filed, during the testimony of petitioner before the arbitrator. At that time, counsel for Johns-Manville stated that the statute did not apply. The issue was not raised again until two years later, at which time the arbitrator found that Johns-Manville had waived the right to raise the issue. The Commission affirmed the finding. The Commission’s decision that Johns-Manville waived this affirmative defense by failing to assert it in a timely manner is not against the manifest weight of the evidence.

Johns-Manville finally contends that under the statute then prevailing petitioner could only be found disabled if she was not earning full wages. (Ill. Rev. Stat. 1967, ch. 48, par. 172.36(e).) Since petitioner earned full wages in the year after she left Johns-Manville, Johns-Manville argues that she was not disabled. Johns-Manville did not raise this issue in its brief and first mentioned the contention at oral argument. Consequently, we deem the issue waived. Riley v. Unknown Owners (1975), 25 Ill. App. 3d 895, 324 N.E.2d 78.

For the reasons stated, the judgment of the circuit court of Cook County affirming the decision of the Industrial Commission is vacated and the cause is remanded to the Commission for further proceedings consistent with the holdings of this opinion.

Vacated and remanded.

SEIDENFELD, P.J., and BARRY, WEBBER and KASSERMAN, JJ., concur.


author: JUSTICE NASH

text:
      In re MARRIAGE OF THOMAS NELSON, Petitioner-Appellant, and TYRA LAURIE NELSON, Respondent-Appellee.
    Second District
    Nos. 2—83—0786, 2—83—1088 cons.
    Opinion filed October 30, 1984.
    Hercules, Paul, Zagoras & Associates, of Waukegan, for appellant.
    William G. Rosing and Stephen G. Applehans, both of Rosing, Magee & Applehans, of Waukegan, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

In these consolidated cases petitioner, Thomas Nelson, appeals from orders of the circuit court of Lake County which registered a judgment of dissolution of his marriage to respondent, Tyra Nelson, originally entered in Lee County, and undertook enforcement proceedings.

The issues presented by these appeals are whether an order registering and enrolling a judgment for dissolution of marriage entered in another judicial circuit of this State is a final appealable order and whether such registration was properly done in this instance,

The marriage of the parties was dissolved in the circuit court of Lee County (Fifteenth Judicial Circuit) in February 1983; a property settlement agreement was incorporated into the judgment and the wife awarded custody of their two minor children. In August 1983 the wife filed a petition in the circuit court of Lake county (Nineteenth Judicial Circuit) requesting that the judgment be registered pursuant to section 511(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 511(b)). After summons was issued and served upon the husband in Lee County, he filed a motion to vacate the petition for registration, alleging Lake County was not the proper venue as he resided in Lee County. The trial court found that respondent and the children resided in Lake County and that section 511(b) of the Act provided for registration of judgments from another judicial circuit in this State; it ordered enrollment of the judgment in Lake County. The husband sought reconsideration, noting he resided in Lee County where the judgment of dissolution has been entered and section 512 of the Act required that post-judgment venue remain in Lee County. The motion to reconsider was denied, and the trial court found there was no reason to delay enforcement or appeal as set forth in Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)). The husband filed a notice of appeal (No. 83 — 786) which the wife has moved to dismiss in this court, asserting the order from which he appeals was not a final order. We have taken that motion with the case.

On November 15, 1983, during the pendency of that appeal, the wife filed a petition for rule to show cause in the circuit court of Lake County alleging the husband had failed to pay for certain dental expenses of the children required by the judgment of dissolution. The husband’s request that the trial court stay that matter pending the appeal of the venue issue was denied. The wife’s petition that the husband be restrained from proceeding in the Lee County circuit court with a petition to enjoin her from proceeding in Lake County was granted, and the trial court further awarded the wife a judgment for $304 for dental expenses of their daughter. The husband also appeals from these orders (No. 83 — 1088).

No. 83-786

We consider first whether an order registering a judgment for dissolution of marriage from another judicial circuit in Illinois is a final and appealable order.

The procedures to be followed in order to enforce or seek modification of a judgment of dissolution in Illinois are as set forth in section 511 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 511). Where the judgment was entered in a different judicial circuit of this State than that in which enforcement is sought, section 511(b) provides that a party “shall commence the proceeding by filing a petition establishing the judgment and attaching a copy of the judgment as a part of the petition.” The statutory language does not suggest that the mere filing of the petition is itself a cause of action, and it appears to be only a procedural step necessary to commence a post-judgment proceeding for enforcement of a judgment of another circuit. As such, an order allowing a petition to register the judgment cannot be deemed a final appealable order.

In similar context, it has been established that a denial of a change of venue from one county to another (Mexicali Club, Inc. v. Illinois Liquor Control Com. (1976), 31 Ill. App. 3d 797, 799, 347 N.E.2d 190, 192) or an order transferring a cause from one court or division to another (Peter G. Georges, Inc. v. Feldon Building Corp. (1978), 61 Ill. App. 3d 631, 636, 377 N.E.2d 1102) are not final orders and thus are not appealable. See Executive Commercial Services, Ltd. v. Daskalakis (1979), 74 Ill. App. 3d 760, 768, 393 N.E.2d 1365, cert. denied (1980), 446 U.S. 967, 64 L. Ed. 2d 826, 100 S. Ct. 2945.

We find that the order granting registration and enrollment of the Lee County judgment in Lake County was not a final order under Supreme Court Rule 303 (87 Ill. 2d R. 303) as it did not adjudicate any of the rights of the parties under the judgment for dissolution thus enrolled. Nor did the insertion by the trial court in its order of language required by Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)) to authorize interlocutory appeal of a final judgment where there are multiple parties or claims make this nonfinal order appealable. Chicago Title & Trust Co. v. Guaranty Bank & Trust Co. (1978), 59 Ill. App. 3d 362, 364, 375 N.E.2d 522.

We conclude that appeal No. 83 — 786 must be dismissed.

No. 83-1088

In this appeal the husband again seeks review of the order registering the Lee County judgment in Lake County and, also, the subsequent proceedings to enforce it in that jurisdiction.

Post-judgment venue for proceedings to enforce or modify a judgment of dissolution of marriage is provided for by section 512 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 512). It states:

“After 30 days from the entry of a judgment of dissolution of marriage or the last modification thereof, any further proceedings to enforce or modify the judgment shall be as follows:
* * *
(b) If one or both of the parties then resides in the judicial circuit wherein the judgment was entered or last modified, further proceedings shall be had in the judicial circuit that last exercised jurisdiction in the matter; ***.”

The dissolution judgment was entered in February 1983 in the Fifteenth Judicial Circuit of Illinois. The record discloses that the husband continued thereafter to reside in that circuit and when the wife filed her petition to register the judgment in the Nineteenth Judicial Circuit, more than 30 days after its entry, summons was served upon him in Lee County. (See Ill. Rev. Stat. 1983, ch. 40, par. 511(b).) The husband appeared in the Lake County court and objected to the change of venue on the grounds he was a resident of Lee County.

Although it appears to be clear that post-judgment venue remained in the Fifteenth Judicial Circuit in these circumstances, and could not be properly removed to the Nineteenth Judicial Circuit, the wife contends that application of section 512 is permissive so as to authorize a court to establish a judgment of another judicial circuit despite the fact one party to the cause continues to reside in the circuit wherein the judgment was original entered. The wife argues the trial court had discretion to permit the enrollment in circumstances where that would be equitable under the facts of a case, noting she and the children now live in Lake County, the dental expenses were incurred there and it would be a hardship to require her to enforce the judgment in Lee County. She cites Fuhrer v. Fuhrer (1968), 91 Ill. App. 2d 358, 235 N.E.2d 389, and Jackson v. Jackson (1965), 55 Ill. App. 2d 77, 204 N.E.2d 153, cases which were decided prior to the adoption of the Illinois Marriage and Dissolution of Marriage Act and describe the common law practice of registering a divorce decree in another county. It has been noted, however, that the former practice of registering a divorce decree has been rendered obsolete by the adoption of section 512 of the Act (In re Marriage of Hostetler (1984), 124 Ill. App. 3d 31, 34, 463 N.E.2d 955), a conclusion with which we agree.

Section 512 of the Illinois Marriage and Dissolution of Marriage Act states that post-judgment venue of proceedings to enforce or modify a judgment “shall” be as provided in the statute.

It is true, as urged by the wife, that use of the word “shall” does not have a fixed or inflexible meaning in a statute. (Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 21, 373 N.E.2d 1332.) As most recently discussed in People v. Singleton (1984), 103 Ill. 2d 339, the word is generally regarded as mandatory, but may be interpreted as permissive, depending upon the context in which it is used and the intent of the legislature. Applying these factors here, we believe, requires a conclusion that the word “shall” in section 512(b) is mandatory. The legislature had an opportunity in enacting section 512 to provide the court with discretion to entertain post-judgment proceedings in such cases in any circuit where a party to the dissolution was currently in residence. However, it did not do so and granted discretion to a court only to “transfer matters involving a change in child custody to the judicial circuit where the minor or dependent child resides.” (Ill. Rev. Stat. 1983, ch. 40, par. 512(b).) That limited discretion is extended only to the court which entered or last modified the judgment, and does not suggest that another court may assume authority to exercise even that discretionary power. As the statute permits the exercise of discretion only in the one specified matter, its provision that other post-judgment proceedings shall be in the judicial circuit which last exercised jurisdiction in the matter must be viewed as mandatory. See Ill. Ann. Stat., ch. 40, par. 512, Historical and Practice Notes, at 786 (Smith-Hurd 1980).

We conclude that as post-judgment venue in Lake County was improperly assumed, the trial court lacked authority to order enrollment of the Lee County judgment or to enforce it.

Accordingly, the orders of the circuit court of Lake County enrolling the judgment and enforcing it are reversed.

Reversed.

LINDBERG and UNVERZAGT, JJ., concur.


author:
JUSTICE O’CONNOR
       JUSTICE DOWNING,

text:
    THE VILLAGE OF OAK LAWN, Plaintiff-Appellant, v. EDWARD ROSEWELL, Cook County Collector and Treasurer, et al., Defendants-Appellees.
    First District (2nd Division)
    No. 83—1895
    Opinion filed June 12, 1984.
    Modified on denial of rehearing December 4, 1984.

      DOWNING, J., dissenting.
    Klein, Thorpe & Jenkins, Ltd., of Chicago (Arthur C. Thorpe, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Susan Condon, Assistant State’s Attorney, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff, village of Oak Lawn, brought this action against Edward Rosewell, county collector and county treasurer of Cook County, and the county of Cook, challenging the constitutionality of a statute which authorizes the collection of a penalty on delinquent real estate taxes and the payment of those penalties collected into the county treasury. Plaintiff sought declaratory and injunctive relief, repayment of all such penalties collected by the defendants on behalf of the village and certification of this action as a class action. On July 18, 1983, the trial court granted defendants’ motion to dismiss pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615) and entered judgment for defendants. We affirm.

As alleged in plaintiff’s amended complaint, section 224 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 705) establishes a penalty on delinquent real estate taxes which accrues at the rate of 1^2% per month, and which is to be paid by the county collector into the county treasury for county purposes. The statute provides:

“All real estate upon which the first installment of taxes for the year 1950 remains unpaid on the first day of July 1951 shall be deemed delinquent as to such first installment and such unpaid first installment shall bear interest after the first day of July 1951, at the rate of l/2% per month until paid or forfeited, and all real estate upon which the first installment of taxes for years subsequent to the year 1950 remains unpaid on the first day of June annually shall be deemed delinquent as to such first installment and except as may be provided pursuant to Section 224.1, and such unpaid first installment shall bear interest after the first day of June annually at the rate of 1V2% per month until paid or forfeited; and all real estate upon which the second installment of taxes remains due and unpaid on the first day of September, annually, shall be deemed delinquent as to such second installment, and such unpaid taxes as to such second installment shall bear interest after the first day of September, at the rate of IVaTo per month until paid or forfeited. *** And all such collections on account of interest shall be paid into the county treasury to be used for county purposes *** tf

Plaintiff alleges that since the effective date of the 1970 Illinois Constitution, the defendants have collected tax funds on behalf of plaintiff and of all units of local government and school districts similarly situated, including interest on delinquent tax bills. Plaintiff further alleges that defendants’ retention of the interest on delinquent taxes pursuant to section 224 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 705) violates the provisions of article VII, section 9, of the 1970 Illinois Constitution, which provides in part:

“(a) Compensation of officers and employees and the office expenses of units of local government shall not be paid from fees collected. Fees may be collected as provided by law and by ordinance and shall be deposited upon receipt with the treasurer of the unit. Fees shall not be based upon funds disbursed or collected, nor upon the levy or extension of taxes.” Ill. Const. 1970, art. VII, sec. 9(a).

Defendants moved to dismiss plaintiff’s amended complaint for failure to state a claim, based on the fact that the interest authorized by section 224 of the Revenue Act of 1939 did not constitute a “fee” which was assessed against plaintiff within the meaning of article VII, section 9(a), and that plaintiff therefore lacked standing to bring the instant action because it had no claim to or interest in funds specifically authorized for “county purposes.” The trial court granted defendants’ motion, and plaintiff appeals.

Plaintiff contends that the late collection charge which is added to delinquent real estate taxes is derived from the tax collection and disbursement process and therefore constitutes a “fee” based upon funds collected in violation of section 9(a) of article VII of the Illinois Constitution. Plaintiff also argues that the retention by the county of interest on late payments of taxes constitutes an unlawful “skim off” whereby the county is receiving a “windfall” that has no relationship to its own tax levying or budgeting process, and that the county’s practice violates equal protection by discriminating against those taxing bodies where there are late payments of taxes.

Defendants argue that the statutory penalty at issue, which is imposed directly against delinquent taxpayers, is not a fee charged to local government units and is not, therefore, unconstitutional.

Plaintiff relies principally on language contained in the appellate court’s decision in Board of Commissioners of Wood Dale Public Library District v. County of Du Page (1982), 107 Ill. App. 3d 409, 437 N.E.2d 923, aff’d (1983), 96 Ill. 2d 378 (hereinafter referred to as Wood Dale I), which was the first of two appeals in a case involving the collection and retention of interest earned on tax collections which were invested by the county treasurer of Du Page County prior to its distribution of such funds to the taxing body. Plaintiffs there maintained that by withholding interest from the local taxing districts and “diverting” such interest to the county treasury instead, the county was, in effect, charging the districts a “fee” based upon funds collected and on the levy and extension of taxes, in violation of article VII, section 9(a). The appellate court agreed, and rejected an interpretation of the treasurers act (Ill. Rev. Stat. 1979, ch. 36, par. 22.1), which authorized the retention of such interest. The court stated its belief that,

“*** the retention of interest that is challenged here is a prohibited fee according to article VII, section 9(a), should hinge on a consideration of the policies intended to be served by that provision rather than on artificial semantic distinctions based on cases decided long before its adoption.” (Emphasis added.) (Board of Commissioners of the Wood Dale Public Library District v. County of Du Page (1982), 107 Ill. App. 3d 409, 413.)

The appellate court then considered the rationale contained in City of Joliet v. Bosworth (1976), 64 Ill. 2d 516, 356 N.E.2d 543, in which the supreme court struck down a portion of the fees and salaries act (Ill. Rev. Stat., 1974 Supp., ch. 53, par. 39(a)) which allowed counties to bill each taxing district within the county for its proportionate share of the costs incurred in extending and collecting taxes. Looking to the constitutional hearings preceding thé enactment of article VII, section 9(a), the court in Bosworth found that the intention of that provision was “to preclude counties from seeking, in any form, reimbursement from the various taxing bodies for county services rendered in the collection of taxes.” (Board of Commissioners of the Wood Dale Public Library District v. County of Du Page (1982), 107 Ill. App. 3d 409, 414, citing City of Joliet v. Bosworth, 64 Ill. 2d 516, 524, 356 N.E.2d 543.) Recognizing the broad construction which had in the past been given to section 9(a), the Wood Dale I court concluded:

“To be a ‘fee’ based upon funds collected or upon the levy or extension of taxes, it would seem sufficient that a charge is derived from the tax collection and disbursement process; the interest ‘charge’ in this case is clearly tied to the collection process, as the interest accrues to the county by virtue of the tax collection process as it is presently structured.” (Board of Commissioners of the Wood Dale Public Library District v. County of Du Page (1982), 107 Ill. App. 3d 409, 415.)

The court also found that the tax collection process mandated by the treasurers act, if applied to noncounty funds, violated the equal protection clauses of the Federal and Illinois constitutions by allowing counties to receive interest on their collected tax monies while denying the benefit to other local government units. (107 Ill. App. 3d 409, 416.) Plaintiff here reasons that there is no difference in substance between the situation in Wood Dale I and the retention of interest on tax funds for late payment, because, in both instances, money is earned on funds belonging to the local taxing districts and school districts.

Initially, we note that City of Joliet v. Bosworth (1976), 64 Ill. 2d 516, 356 N.E.2d 543, and other cases cited by plaintiff, concerned situations, unlike the instant one, where the costs involved were borne directly by the taxing bodies out of their tax proceeds. The situation contemplated in Bosworth differs from the case now before us, in which the subject charges are imposed directly against the taxpayers separate from, and in addition to, the taxes at hand. Our courts have long held that such sums imposed during delinquency as an addition to the taxes are in legal effect “penalties,” even though they are called “interest,” (People v. Nash (1936), 364 Ill. 224, 233, 4 N.E.2d 101 (Shaw, J., dissenting), citing People ex rel. Johnson v. Peacock (1881), 98 Ill. 172; see also United States v. Nelson (N.D. Ill. 1949), 91 F. Supp. 557), and have recognized them to be “a form of coercion, to induce the owners of property to pay the taxes with reasonable promptness.” People v. Kamm (1964), 48 Ill. App. 2d 447, 448, 199 N.E.2d 645.

In People v. Nash (1936), 364 Ill. 224, 4 N.E.2d 101, our supreme court considered whether collected penalties on forfeited real estate were to be paid to the county or distributed to the various taxing bodies. The relevant provisions were silent on this point, stating only that the amount of taxes, interest, and penalties due were to be collected and paid over “in like manner as other taxes.” The court therefore looked to an 1879 amendment to section 177 of the Revenue Act of 1872, the predecessor of section 224 of the Revenue Act of 1939, dealing with interest added before forfeiture, which added to that statute the language now found in section 224 that “all such collections on account of interest shall be paid into the county treasury to be used for county purposes.” (1879 Ill. Laws 252, 253; Ill. Rev. Stat. 1981, ch. 120, par. 705.) The majority concluded that all such sums collected should be paid to the county treasury, for county purposes, with no distinction between interest accrued before and after forfeiture. In support of this construction, it was noted that the county was designated as fiscal agent for the State in collecting the taxes for all of its various political subdivisions. The court then examined various revenue laws and other related statutes concerned with the distribution of tax monies and found a “clear legislative intent” that only the principal of the taxes levied was to be distributed to the various taxing bodies other than the county, and noted that in all of those situations, “the interest added to the taxes by the legislature by way of penalty before and after forfeiture [was] necessarily outside of the power and jurisdiction of the various political subdivisions to. determine.” (People v. Nash (1936), 364 Ill. 224, 229, 356 N.E.2d 543.) In so holding, the majority in Nash disregarded what was considered to be the “general rule” in other States that in the absence of express legislative direction, tax penalties follow the tax and go to the State, county or city according as the one or the other is entitled to the tax itself. (People v. Nash (1936), 364 Ill. 224, 233, 356 N.E.2d 543 (Shaw, J., dissenting); People v. Kamm (1964), 48 Ill. App. 2d 447, 452.) The court also rejected the argument raised by the county that the word “taxes” included penalties, and, in response to a constitutional question raised by appellants there, even the dissenting opinion recognized that:

“In order to be a tax within the meaning of the constitutional provision it would of necessity be imposed upon all persons and property alike. This essential distinction is obvious when it is borne in mind that penalties are paid only in those cases where the tax becomes delinquent. All are taxed alike by the proper taxing bodies while penalties are incurred only by those who fail to pay.” People v. Nash (1936), 364 Ill. 224, 234, 356 N.E.2d 543; see also United States v. Nelson (N.D. Ill. 1949), 91 F. Supp. 557.

We find that the payments challenged here are penalties, which are not for the purpose of generating additional tax revenues for the taxing bodies, but rather, to aid in the administration of tax collections by the county, the entity charged with the duty of collecting such taxes, and are, as such, clearly distinguishable from those “fees” which are prohibited by article VII, section 9(a). We therefore believe our ruling to be constrained by the express legislative directive set forth in section 224 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 705) and the reasoning set forth by the supreme court in People v. Nash (1936), 364 Ill. 224, 234. We also note that courts’ recognition that such changes as are desired by plaintiffs here must come through the legislative rather than the judicial processes. People v. Nash (1936), 364 Ill. 224, 231-32.

Moreover, because the delinquency penalty constitutes a separate charge to the individual taxpayer, we find that it does not constitute the type of “hidden county tax” or “unlawful skim off” which section 9(a) was designed to circumvent. See Board of Commissioners of Wood Dale Public Library District v. County of Du Page (1982), 107 Ill. App. 3d 409, 416.

Plaintiff’s equal protection argument similarly must fail. A statute which is rationally related to a legitimate purpose will not be presumed unconstitutional merely because it establishes legislative classifications or confers a burden on some classes but not on others. (Friedman & Rochester, Ltd. v. Walsh (1977), 67 Ill. 2d 413, 367 N.E.2d 1325; McDonald v. Board of Election Commissioners (1969), 394 U.S. 802, 22 L. Ed. 2d 739, 89 S. Ct. 1404.) Further, where, as here, the facts reasonably can be conceived to sustain it, the statute must be upheld. (Hoffman v. Clark (1977), 69 Ill. 2d 402, 372 N.E.2d 74; Thorpe v. Mahin (1969), 43 Ill. 2d 36, 250 N.E.2d 633.) Plaintiff has failed to meet its burden of establishing that the challenged statute is clearly unreasonable and palpably arbitrary. Illinois Coal Operators Association v. Pollution Control Board (1974), 59 Ill. 2d 305, 311, 319 N.E.2d 782.

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

Affirmed.

HARTMAN, P.J., concurs.

JUSTICE DOWNING,

dissenting:

I consider the payments were actually “fees” for administrative services performed by the county treasurer’s office in connection with delinquent taxes. As such, in my opinion, the payments violate the provisions of article VII, section 9(a), of the 1970 Illinois Constitution (Ill. Const. 1970, art. VII, sec. 9(a)). I would reverse the judgment of the circuit court of Cook County.

      The decision in Wood Dale I has been reconsidered by the trial court and appellate court in light of amendments to section 280 of the Revenue Act of 1939 requiring the distribution of collected tax revenues within 30 days of the due date and 30-day intervals thereafter in counties of less than 3 million persons. The appellate court in Board of Commissioners of Wood Dale Public Library District v. County of Du Page (1983), 119 Ill. App. 3d 1085, 457 N.E.2d 1291, declined to construe section 280 to authorize the challenged retention of interest. The court also allowed retrospective relief only to the 1976 filing date of City of Joliet v. Bosworth (1976), 64 Ill. 2d 516, 356 N.E.2d 543. The supreme court reversed that portion of the appellate court’s opinion granting retrospective relief and remanded with directions to order distribution of the funds from the date of its decision in Wood Dale I. Board of Commissioners of the Wood Dale Public Library District v. County of Du Page (1984), 103 Ill. 2d 422.

       Justice Downing participated in the above opinion before the'expiration of his term in office.