author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DALE MIFFLIN, Defendant-Appellant.
    Fourth District
    No. 4—83—0205
    Opinion filed January 5, 1984.

      Fuller, Hopp, Barr & McCarthy, P.C., of Decatur (Glenn O. Fuller, of counsel), for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Eider man and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Following a bench trial, defendant Dale Mifflin was convicted of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(a)(2)) and sentenced to 25 years’ imprisonment. Defendant appeals from this judgment of the circuit court of Champaign County. We affirm.

Defendant raises three issues on appeal: (1) whether he was proved guilty beyond a reasonable doubt, (2) whether his trial counsel was incompetent, (3) whether the trial court abused its discretion by sentencing him to 25 years’ imprisonment.

On July 26, 1982, at 6:25 p.m., defendant called for an ambulance saying that he had a baby who was not breathing. When the ambulance arrived the 14-month-old child was unconscious, gasping in a labored manner, his pupils fixed and dilated. The child did not respond to verbal or physical stimuli. Defendant told ambulance personnel that the child was normal during the day but had a convulsion prior to his call for the ambulance. En route to the hospital, the child commenced decerebrate posturing indicative of increased cranial pressure. His breathing became more labored and his respiratory and pulse rates dropped. The child developed respiratory arrest at the hospital and was revived. An operation was performed to remove blood clotting from the head and relieve intercranial pressure. After several days on life-support equipment, the child, Sean Mifflin, died. Defendant, the child’s father, was indicted on the offenses of murder and involuntary manslaughter.

Dr. Bobowski, pathologist, performed an autopsy on Sean. He testified that the cause of death was cerebral death due to edema resulting from some trauma. The external examination of the child revealed “multiple bruises actually from the head to the toes.” Internal examination revealed several additional injuries caused by blunt injuries or blows inflicted from a minimum of 24 hours to a week or longer before the child was admitted to the hospital.

A paramedic testified that she heard defendant tell a doctor at the hospital that he had been holding the child and had tightened his grip when Sean started to slip from his arm. When he looked down, the child was choking with his eyes rolled back into his head and defendant dropped the child.

Dr. Belber, neurosurgeon, operated on Sean on the night of July 26. Belber opined that the severe brain swelling was caused by a physical trauma delivered to the head. As there was no scalp laceration, area of swelling or softness, or visible skull fracture, he was unable to determine what portion of the head received the trauma. The injury, caused by a “severe blow or blows,” was not consistent with the child’s head being caught by an adult’s arm. Belber estimated that the brain swelling would have taken two to three hours to develop and that the injury occurred between noon and 2 p.m. on July 26.

Dr. Baird testified he had examined Sean at 6:40 p.m. on July 26. At that time, the injury had developed and the pressure within the head was so high that the child’s death was imminent. Baird also observed a series of bruises over the child’s body: (1) a bruise lateral to the left eye between the eye and the ear, two to three days old; (2) a bruise on the right lower eyelid region on the cheek bone, three to four days old; (3) two to three separate bruises on the right forehead, two or three days old; (4) a bruise on the right cheek below the eye, three or four days old; (5) six bruises on the upper half of the back, from 3 to 14 days old; (6) a bruise on the back thigh at least two weeks old; (7) a bruise on the lower right hand portion of the abdomen, 5 to 14 days old; (8) four bruises on the back of the lateral left side of the chest, normally covered by the arm, from two to five days old; (9) two sets of parallel fingerprint bruises on the inner right arm, one set three to four days old and the other set one or two days old; (10) a bruise on the front of the right leg, one day old; and (11) older bruising over the entire lower back. Baird also noted burn scars on the boy’s left hand; a large second degree burn on the front heel of the hand, one or more weeks old; and second or third degree bum scars on the back of the distal joints of the middle and small fingers, several days old. Baird opined that the bruises and injuries on a whole were not self-inflicted and that the overall pattern of bruising and burns were characteristic of child, abuse. He commented: “Someone has been beating the living daylights out of this child for a period of two to three weeks.”

Champaign police officer Kenneth Griffin spoke to defendant at the hospital on July 26. Griffin testified that defendant said he had unintentionally choked Sean with his arm when the child slipped from his hip that afternoon. Defendant also told Griffin that the night before he had thrown Sean across the room at his wife, a distance of about six feet.

Ronald Rasmus, investigator for the Department of Children and Family Services (DCFS), testified that he told defendant he believed something had happened to Sean on July 26 before he was brought to the hospital. Defendant told Griffin he “was hoping that wouldn’t come out, but something did happen on Monday.” Defendant told Ras-mus that when his wife went to work around 12:30 p.m., he went home. He became upset while talking to his wife on the telephone. He hit Sean in the head with the back of his hand, picked him up, carried him into the bedroom, and threw him on the floor. He then returned to the living room and watched television. When he later took Sean to the kitchen to fix a bottle, the child slipped through his arm and defendant compressed Sean against his side until he finished preparing the bottle. When he laid the child down in the bedroom, Sean was having trouble breathing and defendant called the ambulance.

Dr. Jeckel, psychiatrist, testified that he met defendant and his wife the day after the child’s hospitalization. At that time, both parents were overwhelmed by the sudden psychological trauma of the previous day. He opined that it would have been difficult for defendant to give a complete statement of the events in the circumstances. It was deckel’s opinion that defendant did not intend to harm the child as seriously as he did.

Mrs. Mifflin, defendant’s wife, offered various explanations for the bruises over the child’s body but had no explanation for the burns. She said she bathed Sean the morning of July 26 but did not notice bruises under his arm or on his back.

Defendant testified and described tossing the child across the floor at his wife on July 25. He admitted slapping the boy near the top of his head on July 26, demonstrating the blow in court. He also admitted throwing the child at the crib from a distance of three to five feet, with the child striking the guard rail and falling to the floor. Defendant testified that Sean appeared to be fine when he later took the child to the kitchen to fix him a bottle. Defendant stated that when the child reached for something in the sink, he began to slip through defendant’s arm and defendant tightened his grip. When he took the child to the bedroom, the child began having convulsions and he called the ambulance.

Defendant testified that the bruises on the child’s body were not from being hit, but he offered no explanation for the burns. Defendant stated that he had not intended to cause his son great bodily harm or death and had never knowingly performed actions likely to cause great bodily harm or death.

Dr. Baird testified on rebuttal that the child could not have appeared normal at 6 p.m. Baird explained that, if the trauma was caused by defendant’s acts, the stages of coma could occur over a period of 4 to 12 hours, during which time the child could not be moving around, playing or making noises.

Judge Steigmann concluded that the acts of the defendant in the early afternoon of July 26, striking the 14-month-old with a sweeping backhand blow and throwing the child toward the crib, caused the child’s death. The trial judge found the testimony of the expert medical witnesses to be credible, probative and persuasive. He found the testimony of defendant and Mrs. Mifflin was not believable on several matters. The trial court found defendant guilty of the offense of murder and not guilty of the offense of involuntary manslaughter.

Defendant suggests that in order to sustain a conviction of murder under section 9 — 1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(a)(2)) it must be shown that the defendant (1) performed an act which had the direct and natural tendency to destroy another life, and (2) was consciously aware that such a result was practically certain to be caused by his conduct. Defendant urges that a murder conviction cannot be sustained merely upon a showing that the defendant knew his conduct created a strong probability of great bodily harm. Defendant cites People v. Muir (1977), 67 Ill. 2d 86, 365 N.E.2d 332, overruled on other grounds in People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28. Both Muir and Harris considered the distinction between murder and attempt murder. In Harris the court held that it is not sufficient to prove attempt murder to show that the accused intended to cause serious bodily harm. Attempt requires specific intent to kill; murder does not. In Harris, the court stated: “The crime of murder is thus committed not only when a person intends to kill another individual, but also when he intends to do great bodily harm (par. 9 — 1(a)(1)), or when he knows that his acts create a strong probability of death or great bodily harm (par. 9— 1(a)(2)), or when he is attempting or committing a forcible felony (par. 9 — 1(a)(3)).” (Emphasis added.) (72 Ill. 2d 16, 23-24, 377 N.E.2d 28, 31.) To sustain a murder conviction under section 9 — 1(a)(2), there must be evidence from which- the trier of fact could infer that the defendant knew, at minimum, that his acts created a strong probability of great bodily harm to another individual; that the defendant acted; and that the act resulted in the death of another.

To sustain a murder conviction all that need be proved is that the defendant voluntarily and wilfully committed an act, the natural tendency of which was to destroy another’s life or inflict great bodily harm. It is a well-accepted principle that intent can be implied or inferred from the character of the act. (People v. Szerletich (1980), 86 Ill. App. 3d 1121, 408 N.E.2d 1098.) The distinction between murder and involuntary manslaughter rests in the degree to which the acts defendant performed risk death or great bodily harm. Whether the particular acts of the defendant create a “strong probability” of death or great bodily harm or whether they are “likely” to cause death or great bodily harm is a question of fact to be decided under all the circumstances as presented to the trier of fact. People v. Johnson (1975), 33 Ill. App. 3d 168, 337 N.E.2d 240.

Defendant urges that the trial judge employed the wrong standard in determining his guilt, by assuming that the State only needed to prove the defendant knew his acts created a strong probability of great bodily harm “which did not have a tendency to destroy another life.” Defendant contends that there is no indication that the trial judge required or found proof that the acts of the defendant had a direct and natural tendency to destroy life. Defendant further urges that the court did not recognize the principles enunciated in People v. Crenshaw (1921), 298 Ill. 412, 131 N.E. 576, People v. Davis (1966), 35 Ill. 2d 55, 219 N.E.2d 468, or Muir. As previously mentioned, Muir was overruled by Harris. Harris focused on a distinction between attempt murder and murder which is not applicable here. The record in this case reflects that Judge Steigmann discussed several cases distinguishing murder from involuntary manslaughter before reviewing the evidence in this case. (People v. Farmer (1977), 50 Ill. App. 3d 111, 365 N.E.2d 177; People v. Palmer (1979), 76 Ill. App. 3d 1014, 395 N.E.2d 713; People v. Gresham (1979), 78 Ill. App. 3d 1003, 398 N.E.2d 398; People v. Drumheller (1973), 15 Ill. App. 3d 418, 304 N.E.2d 455.) These cases correctly state the law on the sufficiency of the evidence to sustain a charge of murder.

Defendant contends that his murder conviction cannot stand since there was no external evidence of any blunt trauma related to the cerebral edema, i.e., no skull fracture. We disagree. The child sustained a subdural hematoma and brain swelling which ultimately caused his death. The focus of inquiry for the trier of fact is the nature of the acts which lead to the death, not whether doctors are able to show the point of impact. Defendant further argues that his acts did not have a direct and natural tendency to destroy the child’s life because he did not hit his son with a closed fist. Acts other than a closed-fisted blow may support a murder conviction.

Dr. Belber estimated that the injury which caused the brain swelling occurred between noon and 2 p.m. on July 26. He suggested that the injury was caused by a severe blow or blows. The child was in defendant’s custody during that time period. Defendant admitted striking the child on the head and throwing him across the room at the crib. No other explanation for the head injury was advanced. Judge Steigmann heard the testimony and saw defendant demonstrate the blow he delivered to his son’s head. The determination of guilt is supported by the record.

Defendant next contends that he did not receive effective assistance of counsel at trial in that his counsel misunderstood the legal and factual issues in the case and failed to offer an appropriate defense. Defendant’s trial counsel pursued a theory of lack of intent or knowledge. Defendant’s counsel on appeal, when arguing the post-trial motion, acknowledged that intent or knowledge was important. On appeal, he argues that the defense should have focused on medical testimony on the force necessary to produce the resulting injuries and whether defendant’s acts had a tendency to destroy life. To support this argument, defendant presents the affidavit of Dr. Pearson. Judge Steigmann found that testimony in accordance with the affidavit would have been substantially cumulative to medical testimony presented at trial. We agree. Pearson’s affidavit does not suggest that defendant’s acts would not cause the injuries which led to the death in this case. Defendant also urges that the failure of his trial counsel to consult an expert medical witness led to ineffective cross-examination of Dr. Belber. The record indicates there was lengthy cross-examination of Belber by defendant’s trial counsel.

Defendant also contends that his trial attorney failed to interview and call witnesses on issues material to the case, namely his parents and a baby sitter. At the hearing on the post-trial motion, defendant’s counsel was unable to formulate any argument for the relevance of the baby sitter’s testimony. Judge Steigmann found that the failure to call defendant’s parents as witnesses was a matter of trial tactics.

To prevail on a claim of ineffective assistance of counsel the defendant must clearly establish: (1) actual incompetency of counsel, as reflected by the manner of carrying out his duties as a trial attorney; and (2) substantial prejudice resulting therefrom, without which the outcome would probably have been different. (People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203; People v. Stepheny (1970), 46 Ill. 2d 153, 263 N.E.2d 83; People v. Royse (1983), 99 Ill. 2d 163.) The determination of the reviewing court is made based upon the totality of defense counsel’s conduct and the circumstances of the case, not upon isolated incidents. (Greer; People v. Gallardo (1983), 112 Ill. App. 3d 764, 445 N.E.2d 1213.) Errors in judgment or trial strategy do not establish incompetency. (People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677.) The record in this case does not reflect ineffective assistance of counsel.

Finally, defendant contends that the sentence of 25 years’ imprisonment imposed in this case constitutes an abuse of discretion. He asks this court to reduce his punishment to the minimum of 20 years under Supreme Court Rule 615(b)(4) (87 Ill. 2d R. 615(b)(4)). In pronouncing sentence, the trial judge stated that he had considered all the statutory factors in aggravation and mitigation, the nature and circumstances of the offense, the history and character of the defendant, the mitigating evidence offered by defendant, and the arguments of counsel. We have consistently held that it is not our function to serve as a sentencing court, and we will not substitute our judgment for that of the trial court merely because we would have balanced the appropriate factors differently if the task of sentencing had been ours. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882; People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

Affirmed.

GREEN and MILLER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MILLER

license: Public Domain

text:
    LOYAL LINTHICUM, Plaintiff-Appellee and Cross-Appellant, v. BOARD OF COUNTY COMMISSIONERS, CALHOUN COUNTY, Defendant-Appellant and Cross-Appellee.
    Fourth District
    No. 4—83—0269
    Opinion filed January 11, 1984.
    Rehearing denied February 14, 1984.
    Charles H. Burch, State’s Attorney, of Hardin, for appellant.

      Ronald C. Mottaz, of Thomas, Mottaz, Eastman & Sherwood, of Alton, for appellee.
   JUSTICE MILLER

delivered the opinion of the court:

On December 8, 1982, two members of the three-member Board of county Commissioners of Calhoun County (hereinafter the Board) convened a special meeting of the Board. The third member, who held the office of board chairman, did not attend. In the absence of the chairman, the two members in attendance elected one of the two chairman pro tem and then, pursuant to their vote on the matter, gave notice to plaintiff that he would not be reappointed to the post of supervisor of assessments. Plaintiff filed a complaint seeking injunctive relief, declaratory judgment, and mandamus against the Board. On March 29, 1983, the trial court found that the notice of nonreappointment was void for the reason that it had not been issued by the duly elected chairman. The court declared the plaintiff should continue as the supervisor of assessments and enjoined the Board from interfering with plaintiff’s performance of his official duties. Defendant appeals. Although the trial court found that plaintiff’s tenure could not be terminated by the form of notice given, it ordered that the Board chairman could give effective notice of nonreappointment at “any time” in the future. As to this portion of the order, plaintiff cross-appeals.

The essential facts are not disputed. On December 6, 1982, the Calhoun County Board of Commissioners, consisting of Paul Rose, Charles Schlieper and Jerome Sibley, elected Mr. Sibley to the post of Board chairman. Sibley had previously served two terms in this office. All agree that the question of plaintiff’s reappointment to the position of supervisor of assessments was briefly discussed at the December 6 meeting. The matter was not pursued, because no one in attendance knew when plaintiff’s term expired. After the meeting, Rose ascertained the date on which plaintiff’s term would expire, and he apprised Schlieper of the situation. Both Rose and Schlieper believed that in order for valid notice of nonreappointment to be given to plaintiff, such notice would have to be given by December 8. They called a special meeting for December 8 to discuss the question.

On December 7, notice of the special meeting was posted in the circuit clerk’s office. That evening, personnel from the circuit clerk’s office telephoned Sibley’s home to inform him of the meeting. On December 8, at the time designated for the special meeting, Sibley, the Board chairman, did not appear. Rose and Schlieper testified that they had been given no indication that Sibley would not attend. After delaying the meeting 10 to 20 minutes, Rose and Schlieper elected Rose as chairman pro tern in Sibley’s absence. The Board voted on the question of plaintiff’s reappointment and a resolution to give plaintiff notice of nonreappointment was passed. The resolution was signed by Rose in his capacity as chairman pro tem and it was delivered to plaintiff the same day.

Sibley conceded that he had actual notice of the December 8 meeting, but he maintained that he had previously advised the Board that he would probably be out of town on December 7 and 8. He testified that at the meeting of December 6, he gained the impression that his fellow Board members wished to dismiss plaintiff from his position as supervisor of assessments. He suspected that the purpose of the December 8 meeting was to effect this termination, and he did not want to have anything to do with it. Sibley suggested that, had he been present, he would have voted against the resolution, but if the others had voted in favor of the resolution, he would have signed the document. He stated that as chairman he had no special veto power, and it would have been his statutory duty to sign the resolution under the circumstances.

On February 23, 1983, plaintiff filed a complaint against the Board alleging that the notice of nonreappointment was void, because the decision not to reappoint rested solely with the chairman, Jerome Sibley. The complaint sought an injunction prohibiting interference with plaintiff’s incumbency, a declaratory judgment stating that plaintiff was entitled to retain his office, and mandamus to compel expungement of the allegedly void action. By a written order entered March 29, 1983, the trial judge found and declared that the challenged action of the Board was void for the reasons alleged. The court enjoined the Board from interfering with plaintiff’s performance of his official duties, except for reasons of the latter’s misfeasance, malfeasance or nonfea-sance in office. Moreover, the court ordered that the duly elected chairman of the Board was empowered to give effective notice of nonreappointment at “any time,” provided that the date of termination be fixed on a date not less than 90 nor more than 120 days from such notice.

The Board argues that the notice of nonreappointment given by the Board to plaintiff on December 8 was valid, effective, and in compliance with the statutory requirements. We agree. Section 3a of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 484a) sets forth the procedures for the appointment of a supervisor of assessments. The statute provides in pertinent part:

“In counties containing less than 1,000,000 inhabitants and not having an elected board of assessors, the office of supervisor of assessments shall be filled by appointment by the presiding officer of the county board with the advice and consent of the county board, as herein provided.
* * *
If the presiding officer of the county board does not intend to reappoint an incumbent, he shall so notify him not more than 120 nor less than 90 days before the expiration of his term. Upon request of the incumbent, the county board shall grant him a public hearing on the question of why he is not to be reappointed.” Ill. Rev. Stat. 1981, ch. 120, par. 484a.

The trial court found that the notice of nonreappointment given in this case was not effective because Rose, as chairman pro tem, was not the “presiding officer” within the meaning of the statute.

The Board correctly notes that section 45 of “An Act to revise the law in relation to counties” (Ill. Rev. Stat. 1981, ch. 34, par. 804) provides that a provisional chairman may be elected to conduct the business of the county board in the chairman’s absence. Section 3a requires that the presiding officer give notice of nonreappointment. The crucial factor, however, is not the method by which notice of nonreap-pointment is given, but the timely delivery of such notice. When the Board determines not to consent to reappointment, effective notice of that fact may be properly given by the chairman pro tem, in the absence of the presiding officer.

When notice of nonreappointment is delivered by a person other than the presiding officer, the deviation is merely formal, it does not prejudice the recipient of the notice, and it establishes no basis to invalidate the underlying Board action. We deem the position of the Board on appeal to be well taken and find that the trial court erred in declaring the action of the Board void.

Because of the result reached upon consideration of the issues presented on appeal, it is unnecessary that we consider the issue raised on cross-appeal.

The judgment of the trial court declaring that plaintiff should continue as the supervisor of assessments and enjoining the Board from interfering with plaintiff’s performance of his duties as supervisor is reversed; that portion of the judgment granting the Board chairman authority to give notice of nonreappointment at “any time” in the future is vacated and the cross-appeal is dismissed as moot.

Reversed in part, vacated in part, and cross-appeal dismissed.

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


text:
      In re ESTATE OF EDWARD A. HUTCHINS, Deceased (Ruth Rosenthal, Plaintiff-Appellant, v. SHARON SCHWAB et al., Defendants-Appellees).
    Fourth District
    No. 4—83—0358
    Opinion filed January 9, 1984.

      Larry J. Price, of Mt. Olive, for appellant.
    G. Bradley Hantla, Ltd., of Litchfield, for appellees.
   JUSTICE MILLER

delivered the opinion of the court:

This is an appeal from an order of the trial court denying a motion to vacate an order establishing heirship. Ruth Rosenthal, an acknowledged legitimate child of the decedent, filed an objection to the statement of heirship listed in the petition for letters of administration filed by petitioners, Joey Hutchins and Larry Smith.

Petitioners, in seeking letters of administration in the estate of decedent, listed 14 purported sons and daughters as heirs of the decedent. Ruth Rosenthal, one of decedent’s daughters, filed an objection in which she contended that certain purported heirs listed in the petition were not the natural children of Edward Hutchins.

A hearing was held on the petition and the objections thereto. The trial court entered an order granting letters of administration to petitioners on December 1, 1982. Rosenthal filed a motion to vacate on December 29, 1982. On January 6, 1983, the cause was ordered transferred from Judge Hubbard to Judge Simon Friedman because of Judge Hubbard’s impending retirement on January 10, 1983. On January 10, 1983, Judge Hubbard entered an order denying the motion to vacate. The record does not indicate whether counsel was present. Judge Friedman entered an order appointing Larry Smith and Joey Hutchins legal representatives of decedent’s estate and directed the parties to submit briefs on the question of Judge Hubbard’s jurisdiction to enter the order of January 10, 1983. On April 10, 1983, Judge Friedman entered an order confirming that the order of January 10, 1983, was valid and in full force and effect.

Plaintiff raises two issues on appeal: (1) whether certain purported heirs of the decedent were competent to testify concerning the heirship of the decedent under the Dead Man’s Act (Ill. Rev. Stat. 1981, eh. 110, par. 8 — 201); and (2) whether the heirship of the purported illegitimate children was established by clear and convincing evidence.

Before considering the merits of this appeal, we must decide whether this appeal is properly before the appellate court. Supreme Court Rule 304(b)(1) (87 Ill. 2d R. 304(b)(1)) provides that a judgment or order entered in the administration of an estate which finally determines the status of a party is appealable without a finding that there is no just reason for delaying enforcement or appeal. It has been established that an order in an estate proceeding which finally determines the status of a party must be appealed within 30 days from the entry of that order. (In re Estate of Kime (1981), 95 Ill. App. 3d 262, 419 N.E.2d 1246.) In the case at bar, the order of December 1, 1982, overruling the objection to the petition was immediately appealable. Appellant filed a timely post-trial motion on December 29, 1982, which was denied by Judge Hubbard on January 10, 1983. Appellant then had 30 days to file her notice of appeal. (87 III. 2d R. 303(a).) Instead she filed a motion objecting to the jurisdiction of Judge Hubbard to enter the order of January 10, 1983, after the cause had been transferred and assigned to Judge Friedman. Her notice of appeal was not filed until May 10, 1983.

Although the notice of appeal was not timely filed, we have jurisdiction of the appeal under the rule of People v. Kaeding (1983), 98 Ill. 2d 237. In Kaeding, the supreme court held that where the parties actively participate without objection in proceedings held after the 30-day period following final judgment which are inconsistent with the merits of the prior judgment, the circuit court is revested with jurisdiction to rule on those subsequent proceedings. A subsequent appeal filed within 30 days of those proceedings is timely and not subject to a motion to strike filed by the appellee. In the case at bar, the parties actively participated in the proceedings without objection after the 30-day period had run and defendants have made no objection to this court’s jurisdiction on appeal.

Plaintiff contends that the trial court erred in allowing testimony from the purported illegitimate children of the decedent on the issue of the heirship of the decedent. She maintains that an heir is competent, under the Dead Man’s Act, to testify in a proceeding to establish the heirship of her ancestor only where the proceedings are not contested and the establishment of the heirship is routine. (Laurence v. Laurence (1896), 164 Ill. 367, 45 N.E. 1071; In re Estate of Diak (1966), 70 Ill. App. 2d 1, 217 N.E.2d 106.) We disagree.

The Dead Man’s Act (Ill. Rev. Stat. 1981, ch. 110, par. 8 — 201)

was amended in 1973 and now provides, in pertinent part:

“In the trial of any action in which any party sues or defends as the representative of a deceased person or person under a legal disability, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability, except in the following instances:
* * *
(d) No person shall be barred from testifying as to any fact relating to the heirship of a decedent.”

In In re Estate of Bailey (1981), 97 Ill. App. 3d 781, 423 N.E.2d 488, the appellate court had an opportunity to consider the effect of subsection (d) quoted above. The court held that the language of subsection (d) was clearly intended by the General Assembly to change the rule of Laurence, which the court termed “harsh,” and held that the petitioner should have been allowed to testify as to her marriage to the decedenfyBailey. We agree with the reasoning of the court in Bailey and hold that the trial court properly admitted the testimony of which appellant complains.

Defendant also contends that the finding of the trial court concerning the heirship of appellees was not proved by clear and convincing evidence. Clear and convincing evidence is proof which leaves no reasonable doubt in the mind of the trier of fact. (In re Estate of Larimore (1978), 64 Ill. App. 3d 470, 381 N.E.2d 76.) A finding of paternity in a proceeding to establish heirship will not be overturned on appeal unless contrary to the manifest weight of the evidence. Larimore.

Certain facts were not in dispute below. Edward Hutchins was married twice. He had seven children by his first wife, Clara. Those children are Joey Hutchins, Jerry Hutchins, Laura Hutchins Keener, June Hutchins Moberly, Jim Hutchins, Ruth Hutchins Rosenthal, and Kay Hutchins Shaw. Clara Hutchins divorced decedent in 1956.

Decedent married Ida Smith in December 1960. She was divorced from Delmar Smith in November 1960 on the ground of adultery. Delmar Smith’s complaint charged that decedent had engaged in an adulterous relationship with Ida. Nine children were born to Ida during her marriage to Delmar. Seven of those children, Sharon Schwab, Robert Smith, Edward Smith, Donna Briggs, Gary Smith, Dennis Smith, and Larry Smith, were named in the petition for letters of administration in this cause and claim to be the illegitimate children of decedent. Decedent and Ida were divorced in 1965.

At the hearing held on the petition, the following testimony was heard by the court: Joey Hutchins testified that decedent referred to the seven Smiths as his children. Larry Smith testified that he often took decedent to the doctor and repaired decedent’s house. In the years following decedent’s divorce from Smith’s mother, Larry purchased decedent’s trailer so that decedent could purchase a house next door to Smith’s mother. Larry Smith testified that decedent told Smith that he and the other Smith children were his natural children. When decedent would send one of the Smith children a birthday card, he would sign the card “Dad.” Smith said that he and his brothers and sisters cared for decedent during the last five years of decedent’s life.

On cross-examination, Smith admitted that the purported illegitimate children were born during the marriage of Ida and Delmar Smith; Larry Smith’s birth certificate lists Delmar Smith as the father. Smith’s mother received child support from Delmar Smith for the benefit of the children. A letter from the Department of Health and Human Services stating that the Smith children had received social security benefits from decedent’s account was identified by Smith and admitted into evidence over appellant’s objection.

Sharon Schwab testified that she is Larry Smith’s sister. She identified a picture of decedent, Ida Hutchins, and herself taken in 1949, containing the inscription “Dad, Mom and Sharon.” She also identified a letter from decedent to her, in which decedent sent her new baby “its first dollar.” The letter was signed “Dad.”

On cross-examination, Sharon admitted that her birth certificate lists Delmar Smith as her father. She told the court that during Delmar and Ida’s marriage, the children did not refer to Delmar ■ Smith as their father. She testified that decedent would come to the Smith house during Delmar and Ida’s marriage after Delmar went to work. The picture and letter identified by Sharon Schwab were admitted into evidence over objection.

Ruth Rosenthal testified that decedent was evasive with her concerning the paternity of the Smith children. He told her that he was not sure whether he was the father of Ida Hutchins’ children. She admitted writing a letter to Sharon Schwab following decedent’s death in which she stated that she never denied that decedent was Sharon’s father.

The court took judicial notice of the decree of divorce between Delmar and Ida Smith, dated November 7, 1960. The decree states that four children were born to the parties during the marriage, in-eluding Sharon and Robert. The decree also states that five children were born to Ida during the marriage: Edward, Donna, Gary, Larry, and Dennis.

The court also took judicial notice of the complaint of Ida Hut-chins, filed in the divorce proceedings between Ida and Edward Hut-chins, which states that “no children were born as an issue of this marriage.”

In Illinois, a strong presumption exists that a child born to a married woman is legitimate. (People ex rel. Davis v. Clark (1981), 99 Ill. App. 3d 979, 426 N.E.2d 294; People ex rel. Adams v. Mitchell (1980), 89 Ill. App. 3d 1023, 412 N.E.2d 678.) This presumption is rebuttable. In this case, the divorce decree between Delmar and Ida Smith indicates that four children, two of whom were Sharon and Robert, were born to Delmar and Ida during their marriage. The decree also indicates that five children were born to Ida during the marriage, but no mention is made of the children’s father. While the decree supports the presumption of the legitimacy of Sharon and Robert, it calls into question the legitimacy of the other five children born during the marriage.

The recitals contained in the Smiths’ divorce decree coupled with the other evidence presented at the hearing was, in our opinion, sufficient to overcome the presumption of legitimacy as to Edward, Donna, Gary, Larry, and Dennis. That presumption having been overcome, we hold that clear and convincing evidence was presented to establish their heirship to the decedent. While the evidence tends to show that Sharon and Robert were also decedent’s children, the recitals contained in the Smiths’ divorce decree along with the payment of child support for their care by Delmar Smith, causes sufficient doubt to be present that we cannot say that heirship between Sharon, Robert, and the decedent was shown by clear and convincing evidence.

For the reasons indicated, the judgment of the circuit court is reversed insofar as it found Sharon Schwab and Robert Smith to be heirs of the decedent. In all other respects the judgment of the circuit court of Macoupin County is affirmed, and the cause is remanded for further proceedings.

Reversed in part, affirmed in part, and remanded for further proceedings.

MILLS, P.J., and TRAPP, J., concur.


author: PRESIDING JUSTICE MILLS

text:
    A. CURRIE MAIMON, M.D., Plaintiff-Appellee, v. THE SISTERS OF THE THIRD ORDER OF ST. FRANCIS, Defendant-Appellant.
    Fourth District
    No. 4—83—0359
    Opinion filed December 30, 1983.

      Stephen T. Moore, of Thomas, Thomas, Keeling & Moore, of Rockford, for appellant.
    John M. Bowlus, of Chicago, and John C. Mulgrew, Jr., of Davis & Morgan, of Peoria, for appellee.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

Dr. Maimón was expelled from hospital staff privileges.

He sought — and obtained — a permanent injunction against the hospital from carrying out that expulsion.

The injunction was improvidently granted.

We reverse and remand.

The order below granted Dr. Maimón summary judgment and permanently enjoined the religious order from expelling him from admitting privileges at St. Anthony’s Hospital based upon the charges which make up the facts of this appeal.

Facts

On March 17, 1982, the board of managers of St. Anthony’s Hospital in Rockford, Illinois, voted to affirm the expulsion of Dr. Currie Maimón, M.D., from staff privileges. The recommendation had been formulated and approved following two committee meetings held by the hospital staff, both recommending that Dr. Maimón be expelled.

The expulsion followed IV2 years of confrontations between Dr. Maimón and various members of the hospital administration. The culmination of the prior IV2 years occurred on May 1, 1981, when Dr. John Tillis, secretary of St. Anthony’s ad hoc obstetrics/gynecological (OB/GYN) executive committee, sent a letter to Dr. Joseph Perez, chairman of St. Anthony’s credentials committee, indicating that Dr. Maimón may have been involved in improper conduct in an obstetrical case. The gist of the complaint was that Dr. Maimón had attempted to induce labor in a pregnant patient in an effort to convenience himself rather than in the best interests of his patient. Dr. Tillis’ letter prompted Douglas Bruce, the administrator and chief executive officer of the hospital — in consultation with Dr. Harold Zenisek, the hospital chief of staff — to request the credentials committee to take corrective action against Dr. Maimón.

The credentials committee met on May 7, 1981, to consider the request for expulsion. Pursuant to St. Anthony’s bylaws, Dr. Zenisek sat as a member ex officio of the committee, without vote. The committee voted to recommend the expulsion of Dr. Maimón.

Dr. Maimón appealed the credentials committee’s adverse recommendation pursuant to St. Anthony’s bylaws. The appeal took the form of a full hearing before an ad hoc committee selected from the entire medical staff. The first hearing was convened August 4, 1981. Just prior to the taking of testimony on that day, the parties settled on four specific charges which were to be preferred. The charges were:

“a. That during the time when he was allegedly suspended from admitting patients to the hospital he made entries on a patient’s charge and removed an EKG strip from the hospital in violation of hospital rules.
b. That during the same period of suspension he admitted a patient to the hospital and participated in the patient’s treatment.
c. That he failed to cooperate with the Professional Services Review Organization (PSRO) in four cases.
d. That he administered a drug to a pregnant patient to induce labor in violation of hospital rules.”

On December 4, 1981, the ad hoe committee made a written report to the board of managers of the hospital recommending that Dr. Maimón be expelled. The vote was six in favor of expulsion, two opposed. On March 17, 1982, the board of managers affirmed the recommendation of expulsion effective April 1,1982.

On March 30, 1982, Dr. Maimón filed a complaint in circuit court seeking injunctive and other relief accompanied by a motion for a temporary restraining order or preliminary injunction. A temporary restraining order was entered on March 31, 1982, and formalized April 5, 1982. A preliminary injunction was issued on April 30, 1982. The cause was heard in the lower court on cross-motions for summary judgment. On February 7, 1983, the court below granted Dr. Maimon’s motion for summary judgment and ordered that the hospital be permanently enjoined from expelling him, or interfering in any way with his staff privileges, based upon matters presented to the ad hoc committee. The hospital filed a motion for rehearing which was denied May 2, 1983.

General Rule

Before discussing the procedures involved in this case, we note the general rule in cases such as this is that a court should not act to annul expulsions from hospitals unless unfairness is demonstrated by the fact that the procedures followed violated the constitution or bylaws of the hospital. (See Jain v. Northwest Community Hospital (1978), 67 Ill. App. 3d 420, 385 N.E.2d 108.) Our supreme court has carved out one narrow exception to what we view as the general rule of nonreview. In Van Daele v. Vinci (1972), 51 Ill. 2d 389, 282 N.E.2d 728, the court found that the record of the proceedings clearly demonstrated partiality or bias on the part of the body which actually expelled the plaintiff. In Van Daele, several members of the board were named defendants in a derivative suit brought by the expellees. In this suit there is no question about any potential bias or impartiality of any of the members of the board of governors or the Sisters of the Third Order of St. Francis which was the body which actually expelled Dr. Maimón. Under these circumstances we find that Van Daele has no application to the case before us. We are left with the problem of determining whether the procedures followed by the hospital in recommending Dr. Maimón’s expulsion were in accordance with bylaws. If the procedures were in accordance with hospital bylaws, the circuit court should not have passed on this case in the first instance.

Bylaws

We turn now to the asserted bylaw violations. In the trial court, Dr. Maimón asserted that his expulsion was void based on two alleged violations of hospital bylaws which resulted in prejudice. The first violation occurred when Dr. Zenisek, the hospital chief of staff, sat on the credentials committee which first recommended Dr. Maimón’s expulsion and also sat on the ad hoc committee which reviewed the recommendation. This alleged violation was cited as a ground in the trial court’s order granting Dr. Maimón summary judgment and enjoining the hospital from undertaking any other disciplinary proceedings based on the matters raised before the ad hoc committee. The second alleged violation occurred when the ad hoc committee ruled that Dr. Maimón’s case was properly before it, without it first having been heard by a committee of members of the family practice department, where the doctor held staff privileges. Dr. Maimón claimed that hospital bylaws required such a procedure.

A. DR. ZENISEK’S DUAL PARTICIPATION

Before we can decide whether Dr. Zenisek’s participation on both the credentials and ad hoc committees violated the bylaws of the hospital, we must first decide whether there was a bylaw to violate.

Article VIII of St. Anthony’s bylaws establishes procedures for hearings. Section 4 of article VIII states:

“All hearings shall be held in accordance with procedural safeguards such as those outlined in pages 22 to 26 of ‘Guidelines for the Formulation of Medical Staff Bylaws, Rules, and Regulations 1971,’ by the Joint Commission on Accreditation of Hospitals [JCAH].” (Emphasis added.)

The pertinent portion of the JCAH guidelines states:

“Section 4. Composition of the hearing committee,
a. When a hearing relates to an adverse recommendation of the executive committee, such hearing shall be conducted by the Ad Hoc Hearing Committee of not less than_mem-bers of the medical staff appointed by the president of the medical staff in consultation with the executive committee and one of the members so appointed shall be designated as chairman. No staff member who has actively participated in the con sideration of the adverse recommendation shall be appointed a member of this hearing committee unless it is otherwise impossible to select a representative group due to the size of the medical staff” (Emphasis added.)

Both parties join issue as to whether the bylaws effectively adopted the guidelines and whether Dr. Zenisek’s actions violated them. The hospital argues that the guidelines were not adopted, citing the case of Settler v. Hopedale Medical Foundation (1980), 80 Ill. App. 3d 1074, 400 N.E.2d 577. The doctor has offered no cases in support of his view that the bylaws, by their plain language, adopt the guidelines.

Although we find it very difficult to determine from the opinion, Settler appears to be distinguishable from the case at the bench. Written in 1980, Settler was most likely dealing with a different publication of JCAH than is present in the instant case. The 1971 guidelines to which St. Anthony’s bylaws refer were superseded in 1978 by what are now called the JCAH Model By-Laws. Settler concluded that in light of specific language in the JCAH publication before it, each hospital had to formally adopt the model bylaws to make" them effective. The court there refused to find that the bylaws were effective based solely on the fact that the hospital was a participating JCAH member. By similar reasoning, defendant here argues that the 1971 guidelines cannot be adopted by reference as was apparently sought to be done in the bylaws.

Several pages of the 1971 publication to which St. Anthony’s bylaws refer were part of the record in the case before this court. The language upon which the Settler court relied was not. Under these circumstances we cannot conclude that the 1971 guidelines required specific adoption in order to be effectively made part of the hospital bylaws. This leaves only the language of the bylaws themselves with which to determine whether the guidelines were actually adopted.

The rule in Illinois is that words of corporate bylaws are to be interpreted in their ordinary, popular sense. (Nelson v. Board of Trade (1895), 58 Ill. App. 399.) Looking at the relevant portion of St. Anthony’s bylaws, it seems more likely than not that the drafters were seeking to incorporate by reference all the procedural safeguards found in the 1971 JCAH guidelines despite the inartful (inept may be more precise) drafting. At oral argument, the point was made that the term “such as” has little or no contextual meaning if it does not mean the guidelines were being adopted in toto. We decline to render such an affirmative expression of intent nugatory and find that the bylaws adopted the 1971 JCAH guidelines.

As previously noted, the guidelines exclude participation on a hearing committee by any staff member who has “actively participated” in the formulation of the charges against the individual sought to be discharged. So it seems that if Dr. Zenisek did not “actively participate” on the credentials committee, no violation of the bylaws occurred. The lower court made no finding on the extent of Dr. Zenisek’s participation, finding instead that his participation without more created such a probability of bias or prejudice that it was a per se violation of the bylaws. We do not agree.

As chief of staff, Dr. Zenisek was a member ex officio of the credentials committee without vote. Our review of the record of the hearings before the credentials committee reveals six instances of participation by Dr. Zenisek. The first was a direct reply to a question posed by another member of the committee. The second was his expression that he thought he had seconded a prior motion which was before the committee and his indication that he was willing to withdraw his second. The third was a question concerning the presence of legal representatives at further committee meetings. In the fourth instance, Dr. Zenisek asked if the committee was ready to move the question before it. The fifth instance was an expression of his opinion that Dr. Maimón had a right to appeal the decision of the credentials committee. The last instance of participation was Dr. Zenisek’s expression of his opinion that the committee was bound to protect both the interest of Dr. Maimón and the hospital. We further note that by virtue of his position as chief of staff, Dr. Zenisek cast no vote at the credentials committee hearings.

Under these circumstances, we find that Dr. Zenisek’s participation on the credentials committee could hardly be termed “active” and that no violation of the bylaws occurred. We note incidentally that Dr. Zenisek’s participation on the ad hoc committee was also innocuous but that according to the bylaws a member who had not actively participated on the first committee could become Torquemada reincarnate on the second committee and not violate the bylaws. Viewed as a whole, we find that Dr. Zenisek’s participation was neither unfair nor violative of the bylaws and afforded inadequate ground upon which the lower court might stand in order to entertain this case.

B. REQUEST FOR CORRECTIVE ACTION

The second ground upon which the court relied for its decision to overturn and enjoin the attempt to expel Dr. Maimón from the staff at St. Anthony’s was that there had been a conscious violation of St. Anthony’s bylaws pertaining to the various staff bodies which could or should have heard the charges against him. The pertinent portions of the bylaws state:

“ARTICLE VII: CORRECTIVE ACTION
Section 1. Procedure * * *
b. Whenever the corrective action could be a reduction or suspension of clinical privileges, the credentials committee shall forward such request to the chairman of the department wherein the practitioner has such privileges. Upon receipt of such request, the chairman of the department shall immediately appoint an ad hoc committee to investigate the matter.
c. Within seven days after the department’s receipt of the request for corrective action, the chairman of the department shall make a report of its investigation to the credentials committee. Prior to the making of such report, the practitioner against whom corrective action has been requested shall have an opportunity offered in writing by certified mail, return receipt requested for an interview with the departmental ad hoc investigating committee. At such interview, he shall be informed of the general nature of the charges against him, and shall be invited to discuss, explain or refute them. This interview shall not constitute a hearing, shall be preliminary in nature, and shall be information gathering in its scope. A record of such interview shall be made by the chairman of the department and included with its report to the credentials committee, and a copy sent to the affected practitioner.
d. Within seven days following the receipt of a request for corrective action, or following receipt of a report from a department chairman following the department’s investigation of a request for corrective action involving reduction or suspension of clinical privileges, the credentials committee shall take action upon the request. If the corrective action could involve a reduction or suspension of clinical privileges, or a suspension or expulsion from the medical staff, the affected practitioner shall be informed by certified mail, return receipt requested, that he is required to make an appearance before the credentials committee prior to its taking action on such a request. This appearance shall not constitute a hearing, and shall be preliminary in nature. A record of such appearance shall be made by the credentials committee.
e. The action of the credentials committee on a request for corrective action may be to reject or modify the request for corrective action, to issue a warning, a letter of admonition, or a letter of reprimand, to impose terms of probation or a requirement for consultation, to recommend reduction, suspension or revocation of clinical privileges, to recommend that an already imposed summary suspension of clinical privileges be terminated, modified or sustained, or to recommend that the practitioner’s staff membership be suspended or revoked. Whatever action the credentials committee recommends shall be transmitted to the practitioner in writing, by certified mail, return receipt requested.
f. Any recommendation by the credentials committee for reduction, suspension or revocation of clinical privileges, or for suspension or expulsion from the medical staff shall entitle the affected practitioner to procedural rights provided in Article VIII of these bylaws.” (Emphasis added.)

In this appeal, the hospital argues that the bylaws provide for direct action by the credentials committee where expulsion of a staff member is sought. This is distinguished from situations where the corrective action sought is a reduction or suspension of clinical privileges.

There is no dispute that where suspension or reduction of privileges is sought, the case must first go to committees from each of the departments where a physician holds staff privileges. The hospital asserts that it would be wasteful to have hearings in every department when the request is that a physician be expelled from all departments. Dr. Maimón responds that all requests for corrective action of any nature must first go to the departments where privileges áre held for a first level decision. He argues that if the department of family practice (where Dr. Maimón held staff privileges) had conducted a preliminary investigation, it was entirely possible that the entire proceedings would never have gotten off the ground. In what manner the departmental investigation could have prevented the proceedings from getting off the ground is unclear since the bylaws provide only that the department make a report to the credentials committee. The credentials committee is apparently not bound in any way by the report. The issue before the court, therefore, is the interpretation of the bylaw previously quoted — especially the meaning and interrelationship of the terms “reduction or suspension of clinical privileges, or a suspension or expulsion from the medical staff” found in article VII, section 1(d).

As we proceed along the litany of the procedure section, it is clear that all requests for corrective action must be taken to the credentials committee per article VII, section 1(a). It is equally clear that where the corrective action sought is potentially a reduction or suspension of clinical privileges, the credentials committee must forward the charges to the appropriate department involved for hearings. Article VII, sections 1(b) and (c) set out the procedures to be followed by the departments. At this point it would appear rather obvious that by virtue of the common sense, plain meaning of “expulsion” it would easily come within the purview of a “reduction in clinical privileges.” After all, how much further can privileges be reduced completely than by the act of expulsion? This is essentially the argument made by Dr. Maimón.

Unfortunately, the problem is not amenable to such a ready solution. In the next section of the same article, the bylaws provide that following the receipt of a request for corrective action or the receipt of a departmental report where a reduction of clinical privileges is at stake, the credentials committee shall take action. The paragraph then goes on to establish procedural requirements which must be followed “[i]f the corrective action could involve a reduction or suspension of clinical privileges, or a suspension or expulsion from the medical staff.” From the fact that paragraph (d) is the first place in the bylaws where expulsion from the medical staff is contemplated, the hospital argues that paragraphs (b) and (c) are rendered inapplicable to such situations and that only paragraph (d) applies. The hospital supports this view with a policy argument which involves the dis-economy which might result if every department in which an expellee held privileges had to hold an ad hoc committee meeting. While the hypothetical presents interesting questions, it is not at issue in this case since plaintiff only held staff privileges in one department.

Dr. Maimón counters this argument with the linguistic argument previously alluded to (reduction of clinical privileges equals expulsion), citing Nagib v. St. Therese Hospital, Inc. (1976), 41 Ill. App. 3d 970, 355 N.E.2d 211, as a case where a court flatly rejected the argument that expulsion does not involve a reduction in staff privileges. The hospital replies that the language of the bylaws in Nagib was unlike that in the instant case and that it does not torture the principles of set theory to state that reductions are within the parameters of the set of expulsions but that expulsions are not within the parameters of the set of reductions.

The Nagib case is illustrative of the problems courts face in the interpretation of hospital bylaws. Dr. Nagib appealed his dismissal from St. Therese Hospital alleging that he had not been allowed an appeal to the full medical staff. The hospital replied that the appeal procedures were not applicable to staff dismissals. The bylaws contained the following provisions relating to dismissals:

“ ‘Dismissal from the Medical Staff may be initiated either by the Medical Staff or by the Governing Board. Before taking action, the Governing Board shall consult -with the Executive Credentials Committee. The physician in question shall be given the opportunity of presenting his explanation of the incident or incidents concerning which complaints may have arisen. Action by the Medical Executive Committee recommending dismissal of a member shall be subject to review by the Governing Board before final action is taken.’ ” (41 Ill. App. 3d 970, 972, 355 N.E.2d 211, 213.)

The bylaws in Nagib also contained a section on appeal which read thusly:

“ ‘In any case where the Executive Credentials Committee does not recommend reappointment, or where reduction of privileges is recommended, the administrator shall notify the physician concerned and he shall be given an opportunity of appearing before the Executive Credentials Committee. He may request an open hearing before the Medical Staff. After a hearing as outlined above, the Executive Credentials Committee shall make final recommendation to the Governing Board. This recommendation of dismissal or changes in privileges as recommended by the Executive Committee shall be subject to approval by a two-thirds majority of the staff voting at the next duly convened regular staff meeting with a quorum of the staff present.’ ” 41 Ill. App. 3d 970, 972, 355 N.E.2d 211, 213.

Faced with arguments similar to those presented in this case, the court in Nagib found that a reduction of privileges was recommended when the committee recommended a dismissal from the medical staff. The court relied on language, of our supreme court in the case of Bishop v. Bucklen (1945), 390 Ill. 176, 60 N.E.2d 872, which stated an analogous proposition that a reduction of liability can include a lessening of liability to the point of complete extinction. The court reasoned that in the same manner a reduction of privileges can be considered a lessening of privileges to zero by dismissal.

In our opinion, examination of the two sections of the bylaws in Nagib reveals that the reference to “dismissals” in the section on appeals only makes contextual sense if “dismissal” is read to mean refusal to recommend reappointment at the end of a year. The first sentence of the paragraph speaks only of a refusal to recommend reappointment or decision to reduce privileges. The last sentence places appeals, of decisions to recommend dismissal or changes in privileges, before the medical staff. To come to the desired disposition of the case, the court was forced to stretch logic to the point of finding that a dismissal during the year was a reduction in privileges, which triggered the applicability of the appeals section in toto. In so doing, the court glossed over (or perhaps rejected) Dr. Nagib’s theory that review of dismissals was covered by the plain language of the section concerning dismissals. The court failed to note that the appeals section speaks first of a refusal to recommend reappointment, or a recommendation of reduction in privileges. These two concepts become “recommendation of dismissal or changes in privileges” in the last portion of the same paragraph. The section on dismissals provides its own review mechanism and deals with different committees.

On balance it seems that the bylaws in Nagib make best sense when read as separate, unrelated sections applying to unrelated actions by unrelated committees. The medical executive committee is empowered to recommend dismissal of physicians during their term. The executive credentials committee is empowered to review physicians’ work records at the end of each one-year term of employment and recommend retention or nonretention (“dismissal” in the appeals section). Dividing the duties between two committees makes sense since different inquiries and machinery are appropriate for the different operations. Similarly, different machinery for appeal are also appropriate. The court in Nagib found it illogical that the decision to dismiss a doctor in midterm would be subject to a different appeals process than the decision not to reappoint at the end of a year— but gives no reasons why.

We do not find it illogical at all! The decision to dismiss during a term is more likely to be based on potentially volatile personal issues or patient endangerment, whereas a decision to not reappoint at the end of a given year may be based on numerous mundane staffing decisions of the hospital. It might be very important to adopt streamlined procedures where potentially injurious situations require quick conciliation. Under these circumstances, the inconvenience of gathering the entire staff to hear the case would counter the need for effective action. (We note that in Dr. Maimon’s case it took four months for the ad hoc committee to come to a decision even though only eight doctors were involved.)

Since we find the result in Nagib to be based on faulty reasoning, we decline to adopt its conclusion that a reduction in privileges necessarily equals an expulsion from the medical staff.

We now undertake an independent examination of the bylaws in the instant case. We note first that section (b) of the bylaws contains no mention of staff expulsions whatsoever. On the other hand, section (d) specifically speaks to “*** a reduction or suspension of clinical privileges, or a suspension or expulsion from the medical staff ***” and then details the procedures which must be followed prior to appearing before the credentials committee, not departmental committees. Were we to adopt Dr. Maimon’s suggested reading of section (b) (that a reduction of privileges included an expulsion from staff), we would be forced to recognize a logical redundancy in section (d) which addresses both concepts. This we spurn. To our view, section (d) shows that the drafters of the bylaws recognized a distinction between staff expulsions and reductions in staff privileges. This view is consistent with the principle of plain meaning interpretation noted above. Despite the view of our supreme court in Bishop that a reduction of liability may include the exclusion of liability, we find that by using the term “reduction” in the procedural recipe here, the drafters of the bylaws must have contemplated a residue or essence, not the dry pot which expulsion would bring forth.

We note also that the bylaws are cast entirely in the disjunctive. Section (d) contemplates the receipt by the credentials committee of either a general request for corrective action or a report from a department, and then sets forth procedures which must be followed, specifically mentioning for the first time the possibility for expulsion from the medical staff but again using the disjunctive “or.” The use of the disjunctive ordinarily signals a situation wherein one of several possible solutions will satisfy selective criteria. Here, a request for expulsion from staff privileges satisfies the selective criteria channeling such requests to the credentials committee. To the contrary, the selective criteria set forth by the disjunctive construction of section (b) is satisfied by either a request for reduction or suspension of staff but not, by its plain language, by a request for expulsion from the staff.

If the drafters had intended that questions of expulsions were to be referred to the departments in which physicians held privileges, it seems more likely than not that such actions would have been mentioned in section (b). They were not. Since they were not, we feel the hospital acted within the bylaws by referring Dr. Maimon’s case first to the credentials committee. Review was then properly had before an ad hoc committee of staff members per Dr. Maimon’s request.

We further find that such a procedure is fundamentally fair. Since there was no bylaw violation and no inequitable treatment of Dr. Maimón, the trial court acted improvidentaly in entering this case, since, as previously mentioned, courts should not do so unless fundamental unfairness is manifested by bylaw violations. We therefore reverse the trial court in order that Dr. Maimon’s expulsion be reinstated. Our disposition of the case renders moot several other questions raised by the parties in their briefs and arguments before this court.

We reverse and remand with directions to the trial court to enter summary judgment for Sisters of the Third Order of St. Francis, defendant-appellant.

Reversed and remanded with directions.

TRAPP and GREEN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEITH G. KETTLER, Defendant-Appellant.
    Fourth District
    No. 4—83—0079
    Opinion filed January 5, 1984.

      Daniel D. Yuhas and Jane Raley, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Anthony B. Cameron, State’s Attorney, of Quincy (Robert J. Biderman and Thomas W. Lacy, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Following a jury trial in the circuit court of Adams County, defendant Keith Kettler was convicted of two counts of aggravated assault (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 2(a)(6)) and acquitted of one count of aggravated battery (Ill. Rev. Stat. 1981, ch. 38, par. 12— 4(b)(7)). In this appeal, defendant argues, inter alia, that the State failed to prove him guilty of the crime of aggravated assault beyond a reasonable doubt. We agree and reverse.

On May 31, 1982, defendant was discharged from a sentence of periodic imprisonment he was serving at the Adams County jail on unrelated charges. That evening, defendant and another companion went to a local bar to celebrate defendant’s release and following a few drinks, defendant left the bar and proceeded to his home in Quincy. Before defendant arrived at home, however, he was arrested by the Quincy police department for driving under the influence of alcohol and taken back to jail. At approximately 1:30 a.m., defendant was released on bail and taken home by his brother, Gerry Kettler.

Defendant and his brother returned home around 2 a.m., had a short exchange with their mother, and then defendant went to his bedroom. Gerry and Mrs. Kettler remained downstairs in the living room until they heard the defendant gagging in the bathroom. Upon investigation, an empty bottle of Librium was found in the bathroom waste can and, fearing an overdose, Gerry Kettler called the Adams County ambulance service for assistance. In the meantime, defendant had returned to his bedroom and was apparently unconscious, as the testimony of Gerry Kettler indicates that he was not able to awaken him.

Two paramedics arrived at the Kettler residence shortly thereafter but were initially unsuccessful in waking the defendant. One of the paramedics finally broke an ammonia capsule under the defendant’s nose and seconds later the defendant reacted violently. Defendant attacked one of the paramedics, using karate-type blows and mumbling unintelligible sounds, while the other paramedic radioed for police assistance. Within minutes, several Quincy policy officers arrived at the Kettler residence but, by the time the police had arrived, the paramedics had wrestled the defendant to the ground. Defendant was then handcuffed, placed face down on a stretcher, and transported to St. Mary’s Hospital in Quincy.

The diagnosis under which defendant was admitted to the hospital was an acute overdose from a combination of Librium, an anti-anxiety drug, and alcohol. At the hospital, defendant was strapped to a bed with restraints and some of the Quincy police officers were asked to remain with the hospital personnel while the defendant’s stomach was pumped. Officers Ronald Grant and Ed Moon remained with the personnel and both testified that the defendant was restrained with straps across his arms and legs.

Prior to the stomach pumping procedure, defendant regained partial consciousness and noted “high powered lights all around and people, you know, grabbing on me, around my head.” According to Officer Moon, who is 6 feet 7 inches tall, defendant looked up and stated, “Moon, I’m going to kill you, you dirty son of a bitch.” Moon testified that this made him feel apprehensive. (Defendant is 5 feet 7 inches tall and weighs 160 pounds.) Next, the defendant told 5 foot 5 inch tall officer Ron Grant that “I’ll kill you, you little son of a bitch.” Grant testified he was sure that defendant meant what he was saying.

On June 1, 1982, defendant was charged by information with one count of aggravated battery for an alleged biting of one of the paramedics, and two counts of aggravated assault for the threats to Officers Moon and Grant. Defendant was tried by a jury, and, as indicated, was acquitted of the battery charge but convicted of the assault charges. During the course of the jury deliberations, the jury foreman sent a note to the trial judge asking whether “the apprehension of the officers have to be at the time of the alleged violation or can it be in the future.” After conferring with opposing counsel, the trial judge brought the jury back into the courtroom and acknowledged the receipt of the communication but refused further instructions. The jury later returned guilty verdicts on the assault charges and defendant was sentenced to one year’s probation with conditions of public service work and payment of court costs.

Defendant’s primary argument on appeal is that the State failed to prove him guilty of the crime of aggravated assault beyond a reasonable doubt because his actions could not have placed the officers in a reasonable apprehension of receiving a battery since he did not have the present ability to commit a battery. The State responds that the requirement of “present ability” is not an element of the offense of assault and further that there is ample testimony regarding the nature of the restraints that could allow the jury to conclude the victim’s apprehension was reasonable. Although we note that the defendant’s post-trial motion was stricken by the trial court as not timely filed, the question of whether he was convicted of the crime of aggravated assault beyond a reasonable doubt is a clear exception to the general waiver rule. People v. Koss (1977), 52 Ill. App. 3d 605, 367 N.E.2d 1040.

In Illinois, prior to 1961, the crime of assault was defined as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (Ill. Rev. Stat. 1961, ch. 38, par. 55.) This definition of assault was similar to the common law offense of assault which was defined as an attempt to commit a battery. (Perkins, Criminal Law 114 (2d.ed. 1969).) In 1961, the legislature redefined the crime of assault by substituting in place of the prior definition, a definition of assault similar to the common law tort of assault. At common law, the tort of assault was defined as an intentional act wrongfully placing another in apprehension of receiving an immediate battery. (Perkins, Criminal Law 114 (2d ed. 1969).) Similar to the common law definition, section 12 — 1(a) of the Criminal Code of 1961 defines assault as follows:

“A person commits an assault when, without lawful authority, he engages in conduct which places another in reasonable apprehension of receiving a battery.” Ill. Rev. Stat. 1981, ch. 38, par. 12 — 1(a).

The committee comments to section 12 — 1 indicate that there were three fundamental changes in the definition of assault: section 12 — 1 eliminated the “attempt” requirement, the “present ability requirement,” and added the tort concept that the victim reasonably apprehend a battery. (Ill. Ann. Stat., ch. 38, par. 12 — 1, Committee Comments, at 406 (Smith-Hurd 1979).) The comments to this section explain the reasons for the second and third changes:

“The third change in Illinois law made by section 12 — 1 is the addition of the element '*** which places another in reasonable apprehension of receiving a battery.’ This is a traditional element of assault (borrowed from the law of torts). At common law an assault could be either an attempted battery, or an unlawful act which placed another in reasonable apprehension of receiving a battery even though no intent to commit a battery, and therefore no attempt, was involved. It is the intent of sections 8 — 4 (Attempt) and 12 — 1 (Assault) to identify attempted batteries as attempts, governed by the same rules that govern all attempts, and conduct which is without lawful authority and which places another in reasonable apprehension of receiving a battery as an assault, without regard to present ability or specific intent to commit a battery except as they may bear on the reasonableness of the apprehension. If the conduct is performed under any one of the three circumstances listed in section 12— 2, it is aggravated assault.” Ill. Ann. Stat., ch. 38, par. 12 — 1, Committee Comments, at 406 (Smith-Hurd 1979).

From our review of the record, we conclude that the evidence of the officers’ apprehension of a battery was insufficient, as a matter of law, to convict the defendant of the crime of aggravated assault. Although the officers did testify that they were apprehensive, we believe the evidence of defendant’s physical restraint belies any conclusion that their apprehension was reasonable.

The decisions to which we have been referred discussing the crime of assault involve factual situations, unlike the present, where the apprehension of harm was both imminent and reasonable. (See People v. Preis (1963), 27 Ill. 2d 315, 189 N.E.2d 254; People v. Rynberk (1980), 92 Ill. App. 3d 112, 415 N.E.2d 1087; People v. Chrisopulos (1980), 82 Ill. App. 3d 581, 402 N.E.2d 912; People v. Harkey (1979), 69 Ill. App; 3d 94, 386 N.E.2d 1151; People v. White (1978), 57 Ill. App. 3d 414, 373 N.E.2d 109.) In our view, the only way defendant’s conviction for aggravated assault could stand is if we read the statute as making criminal a threat of a future battery, as distinguished from a threat of an immediate battery; that is, if the officers believed that there was a possibility defendant would carry out the threat after he was released from the hospital. We have discovered no authority holding that a threat of future violence is sufficient to constitute an assault and, in fact, we find the weight of authority to the contrary.

In Perkins, Criminal Law 132 (2d ed. 1969), it is stated that “[a] threat of future violence is obviously insufficient for an assault, because it is neither an attempt to commit a battery nor an act placing the other in apprehension of receiving an immediate battery.” See also C. Torcía, 2 Wharton’s Criminal Law sec. 180, at 302 (14th ed. 1979): “the apprehended contact must be imminent;” Restatement (Second) of Torts sec. 29 (1965): “To make the actor liable for an assault he must put the other in apprehension of an imminent contact.”

By well-settled principles of law, a criminal statute is to be strictly construed in favor of the accused, and nothing is to be taken by intendment or implication beyond the obvious or literal meaning of the statute. (People v. Lutz (1978), 73 Ill. 2d 204, 383 N.E.2d 171; People v. Eagle Food Centers, Inc. (1964), 31 Ill. 2d 535, 202 N.E.2d 473.) Applying these rules, we hold that section 12 — 2(a)(6) of the Criminal Code of 1961 does not reach the apprehension of a battery as a result of some threat of harm at an unspecified future date and that, under the circumstances, no reasonable person would have felt apprehensive of an immediate battery as a result of a threat made from a person who was strapped to a hospital bed and about to have his stomach pumped.

Reversed.

GREEN and MILLER, JJ., concur.


text:
      In re RONALD EUGENE GARDNER (The People of the State of Illinois, Petitioner-Appellee, v. Ronald Eugene Gardner et al., Respondents-Appellants).
    Fourth District
    No. 4—82—0337
    Opinion filed January 12, 1984.
    Jeff M. Plesko and Ann E. Hymowitz, both of Guardianship & Advocacy Commission, of Champaign, for appellants.
    Basil G. Greanias, State’s Attorney, of Decatur (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLER

delivered the opinion of the court:

This action arose on a petition for involuntary commitment of the respondent to a mental health facility. Respondent was alleged to be subject to involuntary admission under the Mental Health and Developmental Disabilities Code (MHDDC) (Ill. Rev. Stat. 1981, ch. 911/2, par. 3 — 700 et seq.). During the hearing, the court determined that the Illinois Office of State Guardian had been appointed plenary guardian of the respondent in a prior proceeding. The court then recessed the case, ordered the Illinois Office of State Guardian made a party and, after further hearing, ordered the Office of State Guardian to execute an application to admit respondent as a voluntary patient to the mental health facility. The court relied on the guardian’s authority under the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. lKP/a, par. 11a — 1 et seq.). The guardian appealed, alleging that the trial court lacked authority to enter such an order. We agree with the guardian and reverse.

On April 22, 1982, a petition was filed in the circuit court of Macon County alleging that respondent was mentally ill and as a result was unable to provide for his basic needs so as to protect himself from serious harm. Two certificates of examination were filed along with the petition. In these certificates, a physician and a social worker on the staff at Meyer Mental Health Center detailed their observations which lead them to conclude that respondent was mentally ill and subject to involuntary admission. A hearing was held on the petition. Dr. Thomas Radecki, the staff physician at Meyer who filed the certificate in this case, testified regarding respondent’s mental condition. In Radecki’s opinion, respondent is mentally ill. Respondent has been diagnosed as having a chronic low-level psychosis; he is not immediately dangerous to himself or others, but he would be unable to fend for himself in society. He is totally lacking in judgment and understanding about the “outside” world. He has no rational discharge plans and has not done well on home visits.

Dr. Radecki also testified that respondent suffers from delusions. He makes frequent paranoid statements, which can be summarized as a belief that staff members at Meyer are going to kill him and raise him from the dead. He repeats these statements constantly during the day; however, Radecki does not consider respondent to be “acutely suicidal.” Radecki further testified that repetition of such bizarre statements is a sign of some organic abnormality in the nervous system. Radecki stated that the prognosis for respondent is not very good; Radecki was not optimistic regarding respondent’s chances of returning to a normal mental state in the near future.

Lawrence Melka, social worker at Meyer, echoed Dr. Radecki’s findings. Shirley Paceley, a mental health worker at Meyer, advised the court that the Office of State Guardian (OSG) is respondent’s guardian, having been appointed in an earlier proceeding. Paceley indicated that OSG refused to sign the forms necessary to recommit respondent as a voluntary admittee. She stated that she was informed that OSG had a policy of refusing to apply for voluntary admission of its ward to Meyer if the ward refused to cooperate.

Judge Davis then ordered that OSG be added as a party respondent and that the remainder of the hearing be postponed until April 30. During the April 30 hearing, OSG stipulated that it was the plenary guardian of the respondent, Ronald Gardner. On its own motion, the trial court ordered OSG to consent to the voluntary admission of respondent to the Department of Mental Health. Ann Hymowitz, attorney for OSG, objected to the trial court’s order, contending that OSG did not have authority under the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 110%, par. 1 — 1 et seq.) and the MHDDC (Ill. Rev. Stat. 1981, ch. 91%, par. 1 — 100 et seq.) to consent to a voluntary admission of its ward. Judge Davis disagreed, likening this situation to the ability of the guardian to consent to medical treatment for the ward and held that his order did not contravene the protections of the MHDDC.

Respondent contends that a plenary guardian appointed pursuant to the adult guardianship provisions of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 110%, par. 11a — 1 et seq.) lacks the power to execute an application for voluntary admission to a mental health facility. Respondent maintains that a grant of such power would contravene the involuntary commitment provisions of the MHDDC (Ill. Rev. Stat. 1981, ch. 91%, par. 3 — 700 et seq.). The State contends that OSG, as respondent’s plenary guardian, has the power, pursuant to court order, to execute an application for voluntary admission on respondent’s behalf. The State relies heavily on section 11a — 17 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 110%, par. 11a — 17). Section 11a — 17 outlines the duties of a court-appointed personal guardian. Section 11a — 17 provides in pertinent part:

“To the extent ordered by the court and under the direction of the court, the guardian of the person shall have custody of the ward and his minor and adult dependent children; shall procure for. them and shall make provision for their support, care, comfort, health, education and maintenance and such professional services as are appropriate ***.”

OSG’s counsel conceded at trial that, under this provision, a guardian may order medical treatment for the disabled party without that party’s consent.

The power of a plenary guardian to procure psychiatric treatment for a mentally ill ward has never been the subject of a published opinion in Illinois. In fact, the only reported consent case decided under section 11a — 17 is In re Adoption of Savory (1981), 102 Ill. App. 3d 276, 430 N.E.2d 301. In Savory, petitioner sought to adopt a disabled adult whose plenary guardian was OSG. OSG refused to consent and the trial court dismissed the petition. The issue presented upon appeal was whether the refusal of OSG to consent to the adoption of a disabled person under its control negated the trial court’s jurisdiction over the petition to adopt.

The Third District reversed and remanded for a new hearing. The court held that, in the case of a disabled person, the power to consent to adoption rests in that person’s guardian. The court based its decision on the broad language of the Probate Act of 1975 empowering the plenary guardian to make all necessary decisions concerning the ward’s development toward self-reliance and independence. Given that authority, the trial court agreed that the adult’s consent to adoption proceedings vested in the guardian upon appointment. The court concluded that the guardian’s refusal to consent to the adoption petition will not summarily divest the circuit court of jurisdiction to review the State Guardian’s decision not to consent.

The State argues that if a plenary guardian has the power to consent to open-heart surgery to save the ward’s life and has the power to consent to the adoption of its wards, then it seems logical that a guardian should, subject to court approval, have the authority to seek psychiatric care and treatment for a mentally ill ward. The State argues that such power can easily be inferred from the broad language of section 11a — 17 placing upon the guardian the duty of providing for the health and care of the ward and providing professional services where such services would be appropriate.

Construing section 11a — 17 in that manner would place it into conflict with the MHDDC (Ill. Rev. Stat. 1981, ch. 91V2, par. 3 — 100 et seq.). Section 3 — 200 of the MHDDC provides that a person may be admitted as an in-patient to a mental health facility only as provided in the Code. By enacting section 3 — 200 the legislature has clearly provided that the MHDDC is to be the exclusive means by which a mentally ill person is admitted to a mental health facility. The Code contains an elaborate and complex system of procedures designed to protect the rights of the mentally ill. By bypassing the procedures for involuntary commitment set forth in the Code, the trial court has denied respondent the rights guaranteed under those provisions.

It is not clear from the record why the court, sua sponte, ordered OSG to execute a voluntary application for admission. An inference may be drawn, however, that the State’s evidence was insufficient to meet the standard of proof necessary to justify an involuntary commitment. However, the inability of the State to meet its burden of proof for an involuntary commitment does not empower the court to disregard the legislative scheme contained in the MHDDC.

Petitioner argues that section 11a — 14.1 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. llOVa, par. 11a — 14.1) allows the trial court to enter the order which was entered in the case at bar. We disagree. Section 11a — 14.1 prohibits placement of a ward in a “residential facility” without prior authorization by the trial court. To expand the definition of “residential facility” to include mental health facilities, in view of section 3 — 200 of the MHDDC, would bring the Probate Act of 1975 into conflict with that provision of the Code. Furthermore, such a construction would be contrary to the purpose of section 11a — 14.1, which is to prevent the warehousing of disabled adults in substandard conditions when they do not qualify for entry into a mental health facility under the direct control of the State. See Jost, The Illinois Guardianship for Disabled Adults Legislation of 1978 and 1979: Protecting the Disabled from Their Zealous Protectors, 56 Chi. Kent L. Rev. 1087,1101 (1980).

A similar situation was presented in In re Limited Guardianship of Anderson (1977), 17 Wash. App. 690, 564 P.2d 1190. In that case, the court was presented with the narrow question of whether a guardian appointed under the Washington Probate Act could obtain “voluntary” residential mental health care for a nonconsenting ward under the Public and Private Facilities for the Mentally 111 Act rather than under the State Mental Health Code.

The Washington Mental Health Code provided that a ward may be committed if he is gravely disabled or dangerous to himself or others. The guardian twice sought to have the ward involuntarily committed pursuant to the Mental Health Code, but was unsuccessful because he had not demonstrated that the ward presented a likelihood of harm to herself or others.

The appellate court, however, found that the Mental Health Code prescribed the exclusive procedures and standards for an initial detention of a mentally disabled person and therefore, placement by a guardian under a voluntary placement statute when the ward did not consent was precluded. The court found that the interest of the State in the commitment of nondangerous persons was less than compelling when weighed against the fundamental liberties at stake in commitment proceedings. While the statute under which the guardian sought placement permitted public or private health facilities to accept any persons suitable for care or treatment as mentally ill who applied for admission individually or through the court-appointed guardian, the court refused to expand the reach of that statute to permit involuntary incarcerations.

We find the reasoning of the Washington court in Anderson to be sound. Therefore, we hold that a guardian appointed under the Probate Act of 1975 does not have the power to admit a nonconsenting ward to a mental health facility for treatment as a voluntary patient. To grant such a power to the guardian would contravene the exclusivity provided in section 3 — 200 of the MHDDC. The trial court’s order requiring OSG to execute a voluntary application for mental health treatment on respondent’s behalf was clearly erroneous.

The judgment of the circuit court of Macon County is reversed.

Reversed.

MILLS, P.J., and TRAPP, J., concur.