author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT CLICHE, Defendant-Appellant.
    First District (1st Division)
    No. 81—2009
    Opinion filed December 27, 1982.

      James J. Doherty, Public Defender, of Chicago (Mary T. Woodward, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and David A. Shapiro, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant, Robert Cliche, was found guilty after a bench trial of four counts of illegal delivery of controlled substances in violation of section 401 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56V2, par. 1401) and sentenced to 30 months’ probation and fined costs of $1185. He appeals, contending that he was not proved guilty of the illegal delivery of controlled substances because he was a licensed medical doctor authorized to dispense prescriptions and was, therefore, exempt from prosecution under that section of the Illinois Controlled Substances Act.

We disagree and affirm.

The record discloses:

Special Agent Investigator Clem Ferguson of the Illinois Department of Law Enforcement (IDLE) testified that he was assigned to the drug diversion unit of the IDLE. He described his job as entailing the investigation of doctors, pharmacists and anyone who would have contact with controlled substances legally.

He visited the offices of defendant, Dr. Robert Cliche, at the Monitor Clinic, 5834 West Roosevelt Road, Chicago, about 3 p.m. on August 24, 1979. He first saw Dr. Cliche in the hallway outside one of the examination rooms. Ferguson was introduced to the doctor by a receptionist and then Cliche and Ferguson entered an examination room where they had a further conversation alone. Cliche asked Ferguson what strength and amount of Valium he wanted and Ferguson asked for 50 tablets of five milligram strength. Ferguson then returned to the reception area and, after a brief delay, Cliche walked to the front of the waiting room with a white index card and a slip of paper which he put on the receptionist’s desk. The receptionist called out Ferguson’s undercover name of Frank Deacon and Ferguson approached the desk where he was given a prescription form for 30 tablets of five milligram strength of Valium. The receptionist told Ferguson the form would cost $15. Ferguson paid her in cash and was given a receipt for a $15 office visit.

On September 6, 1979, Ferguson returned to the Monitor Clinic. He saw Cliche alone in an examination room. Ferguson told Cliche he needed the Valium prescription refilled for 60 rather than 30 tablets. Cliche said “fine” and asked Ferguson how many pills he took a day. Ferguson said he took three to four. Then Ferguson got up and returned to the reception area. Cliche walked out after a brief time and handed a white slip of paper to the receptionist, who called out the name of Frank Deacon. Ferguson then paid the receptionist $15 and was given an office visit receipt and prescription form.

On September 26, 1979, Ferguson again visited the Monitor Clinic. He was accompanied by Osborne Curtis, another IDLE agent who was using the undercover name of Osborne Curby. Ferguson greeted Cliche alone in one of the examination rooms and asked for 90 tablets of Valium and some Preludin. Cliche told Ferguson that he would have to raise the price of the Preludin prescription to $50 because people were starting to come in there like flies for Preludin. Ferguson said he had a partner outside who also wanted a prescription for Preludin. He then returned to the reception area. The receptionist called Ferguson’s undercover name and he received two prescription forms — one for 90 tablets of five milligram Valium and one for 30 tablets of 75 milligram strength Preludin. Ferguson handed the receptionist $50 for his prescription and $50 for Curtis’ prescription.

Ferguson testified that on all his visits the only information he supplied to the clinic was his name and address. He gave no medical information on present treatment or medication, no past medical history and was given no medical examination. On cross-examination, he stated that he had given someone at Monitor Clinic information on his current medication; he had told the receptionist on one of his earlier visits that he had just gotten out of Cook County jail and had been on Valium. He also testified that the index card that had been prepared on him at the clinic contained only his name and address as of his September 6, 1979, visit. He did not know what information was contained on it afterward, nor did he ever ask to see any information about himself other that card. He further testified that, during his investigation of the doctor, defendant was licensed to practice medicine in Illinois in all branches and forms.

The parties then stipulated that Robin Kunze, a forensic scientist with the IDLE, would testify that she was a handwriting expert and that from her examination of exemplars of defendant’s handwriting and the handwriting on the prescriptions and the office visit receipts she concluded that the prescriptions and the receipts were in the handwriting of defendant.

Dr. Marshall B. Segal, M.D., J.D., testified that he was a practicing emergency physician; that, based on his duties as an instructor and the offices and affiliations he holds, he has had occasion to come into contact with the use of prescriptions and controlled substances. He testified that there are certain standards of medical practice for prescribing controlled substances which were implicit in the practice of medicine: Prescriptions must be issued in the “due practice” or “due course of medicine.” A doctor cannot prescribe medication without having a patient’s problem and a medical history. With reference to Valium, he stated that he never prescribes Valium without conducting a medical examination, although it is prescribed without examinations. Segal was asked three hypothetical questions over defense objection concerning the circumstances under which Ferguson had met Cliche and had been prescribed Valium and Preludin on the three visits. In his opinion, none of the hypothetical situations constituted conduct within the regular course of medical treatment or were they in the practice of medicine.

Defendant did not present any evidence.

The sole issue before us is whether a physician who is registered under the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 561/2, par. 1100 et seq.) can be prosecuted under section 401 of that act for delivering controlled substances. We answer this question affirmatively.

Section 401 provides (Ill. Rev. Stat. 1979, ch. 561/2, par. 1401):

“Sec. 401. Except as authorized by this Act, it is unlawful for any person knowingly to manufacture or deliver, or possess with intent to manufacture or deliver, a controlled substance.

“Deliver” is defined in section 102 as “the actual, constructive or attempted transfer of possession of a controlled substance, with or without consideration, whether or not there is an agency relationship.” Ill. Rev. Stat. 1979, ch. 56x/2, par. 1102(i).

Subparagraph (h) of section 312 provides (Ill. Rev. Stat. 1979, ch. 561/2, par. 1312(h)):

“*** An order purporting to be a prescription issued to any individual, which is not in the regular course of professional treatment *** and which is intended to provide that individual with controlled substances sufficient to maintain that individual’s or any other individual’s physical or psychological addiction, habitual or customary use, dependence, or diversion of that controlled substance is not a prescription within the meaning and intent of this Act; and the person issuing it, shall be subject to the penalties provided for violations of the law relating to controlled substances.”

Thus, it is clear that the delivery of possession of a controlled substance by what purports to be a legitimate prescription, but which is not, is not an authorized delivery “[ejxcept as authorized by this Act” within the exception in section 401.

Section 401(a)(1) of the Federal Controlled Substances Act (21 U.S.C. sec. 841(a)(1) (1976)), parallel in substance to section 401 of the Illinois Act, provides:

“Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance ***.”

In United States v. Moore (1975), 423 U.S. 122, 46 L. Ed. 2d 333, 96 S. Ct. 335, the Supreme Court held that registered physicians can be prosecuted under section 841(a)(1) when their activities fall outside the usual course of professional practice. The court said (423 U.S. 122, 131-32, 46 L. Ed. 2d 333, 341-42, 96 S. Ct. 335, 340):

“Section 841(a)(1) makes distribution and dispensing of drugs unlawful ‘[ejxcept as authorized by this subchapter . . . .’ Relying on this language, the Court of Appeals held that a physician registered under the Act is per se exempted from prosecution under §841 because of his status as a registrant. We take a different view and hold that only the lawful acts of registrants are exempted. By its terms §841 reaches ‘any person.’ It does not exempt (as it could have) ‘all registrants’ or ‘all persons registered under this Act.’
*** We think the statutory language cannot fairly be read to support the view that all activities of registered physicians are exempted from the reach of §841 simply because of their status.”

The court also said (423 U.S. 122, 134, 46 L. Ed. 2d 333, 343, 96 S. Ct. 335, 342):

“The legislative history indicates that Congress was concerned with the nature of the drug transaction, rather than with the status of the defendant.”

The court in summary said (423 U.S. 122, 142-43, 46 L. Ed. 2d 333, 348, 96 S. Ct. 335, 345):

“The evidence presented at trial was sufficient for the jury to find that respondent’s conduct exceeded the bounds of ‘professional practice.’ As detailed above, he gave inadequate physical examinations or none at all. He ignored the results of the tests he did make. He did not give methadone at the clinic and took no precautions against its misuse and diversion. He did not regulate the dosage at all, prescribing as much and as frequently as the patient demanded. He did not charge for medical services rendered, but graduated his fee according to the number of tablets desired. In practical effect, he acted as a large-scale ‘pusher’ — not as a physician.”

The record here shows that Special Agent Ferguson of the Illinois Department of Law Enforcement testified that on three occasions he visited the defendant’s clinic and received “prescriptions” for controlled substances without having been examined by defendant. In essence, Agent Ferguson bought the “prescriptions,” although the receipts from the defendant indicated “office visits.” Dr. Segal was a practicing emergency physician who testified to the implicit standards of medical practice in dispensing controlled substances. In Dr. Segal’s opinion, the complained-of actions of defendant were outside the regular course of professional medical treatment.

In the instant appeal, defendant does not challenge the sufficiency of the evidence that resulted in his conviction. Defendant argues, however, that he can be prosecuted only under section 312. We disagree.

In Moore, the court rejected a similar argument, stating (423 U.S. 122, 138, 46 L. Ed. 2d 333, 345, 96 S. Ct. 335, 343):

“But we think it immaterial whether Dr. Moore also could have been prosecuted for his violation of statutory provisions relating to dispensing procedures. There is nothing in the statutory scheme or the legislative history that justifies a conclusion that a registrant who may be prosecuted for the relatively minor offense of violating §829 is thereby exempted from prosecution under §841 for the significantly greater offense of acting as a drug ‘pusher.* “

So in the case before us, there is nothing in the statutory scheme to prohibit a physician who may be prosecuted for the relatively minor technical violation of section 312 from being prosecuted under section 401 for the significantly greater offense of acting as a “drug pusher.” See the legislative intent as specifically stated in section 100. Ill. Rev. Stat. 1979, ch. 561/2, par. 1100.

In United States v. Green (7th Cir.1975), 511 F.2d 1062, cert. denied (1975), 423 U.S. 1031, 46 L. Ed. 2d 404, 96 S. Ct. 561, the Seventh Circuit had earlier reached the same conclusion as the Supreme Court did in Moore. The court found that the proof showed, as here, that the defendant wrote and sold prescriptions to individuals outside the scope of his professional duties. The court said (511 F.2d 1062, 1070):

“*** Thus, it is clear that the prescriptions involved in the present cases were not effective because they were not issued for a legitimate medical purpose. The exemption from section 841(a) is applicable only if the action of the practitioners is authorized. Since there was no lawful prescription ever written, it follows that section 829 has not been complied with and the dispensing of the controlled substances in these cases has not been authorized. This interpretation does not expand the meaning of section 841(a), but rather seeks to define the exemption clause of that section”

and in footnote 20 (511 F.2d 1062, 1070):

“*** Section 841(a) makes it illegal to dispense controlled substances except as authorized. The term dispense is defined so as to include the prescribing of a controlled substance by a practitioner which is defined to include a registrant (physician or pharmacist) who acts within the course of professional practice. 21 U.S.C. §802(10), (20). Since the wholesale selling of prescriptions for controlled substances is beyond the scope of professional practice, a physician (or pharmacist who participates in such a scheme) is not acting as a practitioner. Thus, if such an individual’s actions are not that of a practitioner they are not authorized under the subchapter and the exception clause of section 841 does not apply.”

The court in that case also stated (511 F.2d 1062, 1067):

“Section 841 makes it ‘unlawful for any person ... to distribute or dispense controlled substances . . .’ That prohibition is absolute unless otherwise ‘authorized by [the] subchapter.’ We deem it to be significant that the exception refers only to a distributing or dispensing that is authorized by the subchapter rather than a broader exception which would totally exempt all registrants.”

As we have found above, the writing of prescriptions under the facts before us does not bring those prescriptions within the exception of “[ejxcept as authorized by this Act.”

The conviction and sentence are affirmed.

Affirmed.

GOLDBERG and McGLOON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HARTMAN

license: Public Domain

text:
    BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT NO. 508, COUNTY OF COOK, Plaintiff-Appellant, v. COOK COUNTY COLLEGE TEACHERS UNION, LOCAL 1600, AMERICAN FEDERATION OF TEACHERS, AFL-CIO, et al., Defendants-Appellees.
    First District (2nd Division)
    No. 81—3044
    Opinion filed December 28, 1982.
    R. Theodore Clark, Jr., of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for appellant.
    Gilbert Feldman, of Cornfield and Feldman, of Chicago, for appellees.
   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff, Board of Trustees of Community College District No. 508 (Board), filed a verified complaint to vacate an arbitration award which granted retroactive teacher promotions and for a declaratory judgment that the duty to make promotional decisions and fix their effective dates are not arbitrable matters. The Board moved for summary judgment, which was denied, and defendant, Cook County College Teachers Union, Local 1600 (Union) moved to dismiss the complaint for failure to state a cause of action, which was allowed. The principal issues raised on appeal are whether the arbitrator’s award interfered with the nondelegable duties of the Board to make promotion decisions and to control its budget, and whether the circuit court should have so held.

For the reasons which follow, we affirm.

The Board and Union were parties to a collective bargaining agreement effective August 21, 1978, and in full force through July 15, 1981. The agreement set forth four salary lanes similar to traditional faculty ranks and the procedure to be followed for advancement or promotion. The disputed paragraph (Article VI 3d) provided:

“Changes in salary lane shall take place on the anniversary date of the faculty member. For the purposes of determining eligibility for advancement to a higher lane, only graduate degrees granted and graduate semester hours earned before the faculty member’s anniversary date shall be applicable. The faculty member is responsible for requesting the university or college in which he has earned degrees or graduate credits to send an approved transcript directly to the College in which he is employed.” (Emphasis added.)

Five faculty members filed separate grievances, which were consolidated by the parties for hearing before an arbitrator. The parties agreed that the issues contained in the grievance filed by Agnes Vidovic were representative of the basic issues raised by the other four. Vidovic, a college faculty member whose “anniversary date” was September 1, applied for a lane promotion on October 15, 1978. She had completed the requirements for the lane advance prior to September 1, 1978, but was awarded the lane advance effective September 1, 1979. She filed a grievance, and on May 17, 1979, the chancellor upheld her grievance and granted her application for lane promotion retroactively effective September 1, 1978. The next day the chancellor withdrew his decision and denied the grievance based on certain Illinois cases, in part discussed below. The effective date of the promotion thereby reverted to September 1, 1979, which triggered the resort to arbitration.

Following the hearing, the arbitrator found:

“The contract, in Article VI 3d, refers only to the time of qualifications and it seems quite clear that the reference to anniversary date must be the anniversary date immediately following the earning of the requisite aligibility [sic] requirements; I cannot agree with the Board that 3d. is equivocal on the question as to whether the anniversary date is the one next following the earning of qualifications or next following the application for the lane placement. There is nothing in the clause which could lead to the latter interpretation.”

This litigation then ensued in the circuit court.

The Board contends that the arbitrator’s award interfered with its nondelegable duty to grant promotions, a duty which the Union recognizes. Among other cases, the Board cites Board of Trustees v. Cook County College Teachers Union (1976), 62 Ill. 2d 470, 343 N.E.2d 473. In Board of Trustees, the supreme court held that the matter of faculty promotions was a nondelegable power of the Board under section 3 — 42 of the Public Community College Act (Ill. Rev. Stat. 1973, ch. 122, par. 103—42) and therefore the Board could not be limited by the terms of a collective bargaining agreement or be compelled to submit to arbitration. (62 Ill. 2d 470, 477-79.) In accord is Board of Trustees v. Cook County College Teachers Union (1980), 87 Ill. App. 3d 246, 408 N.E.2d 1026, a case involving the same parties and the same lane advancement provisions. In neither case, however, was the teacher found to be qualified for the requested promotion. In Hagopian v. Board of Education (1978), 56 Ill. App. 3d 940, 372 N.E.2d 990, also relied upon by the Board, the teacher was not qualified for the job reinstatement at the time he received notice of dismissal. The foregoing cases are inapposite here, however, since the Board found Vidovic entitled to the lane advancement.

At issue in the controvery instanter is not whether the Board can delegate its responsibility for promotions or determining a faculty member’s qualifications. This dispute involves the much more limited question of whether the Board may permissibly agree to a fixed date in a collective bargaining agreement establishing when the promotion will take effect, to the benefit of the faculty members whom the Board has found qualified. The Board contractually agreed here that lane advancement would take effect on a fixed date, namely, the anniversary date following the earning of the requirements.

The class of issues not subject to arbitration is limited to those areas specifically reserved to the Board by statute. (Board of Education v. Ballweber (1982), 105 Ill. App. 3d 412, 416, 434 N.E.2d 448.) The issue involved here has not been so reserved to the Board. It is an arbitrable matter which may be enforced through the courts. See Board of Trustees v. Cook County College Teachers Union (1976), 62 Ill. 2d 470, 480 (disputes involving the rotational assignment of extra work among qualified teachers were arbitrable provided that the school board retained authority both to select extra courses and to offer the extra work only to teachers it had determined to be qualified); and Board of Education v. Ballweber (1982), 105 Ill. App. 3d 412, 417 (dispute involving Board’s sick leave policy was arbitrable).

The Board stresses that the result of the arbitrator’s holding makes the promotion effective prior to the time Vidovic applied for the promotion and prior to the time the Board took action to award her the promotion in question. The Board argues that Vidovic was not qualified for promotion on her September 1, 1978, anniversary date, simply because it had not yet approved her application. This argument must be rejected. The Board confuses the issue of the substantive qualifications of a faculty member with the question of when a promotion of a qualified faculty member will be effective. The Board’s position, furthermore, is contrary to Article VI 3d of the agreement which only refers to when the requirements are earned rather than approved. Cf. Board of Education v. Schmidt (1978), 64 Ill. App. 3d 513, 515, 381 N.E.2d 400.

The Board’s final contention is that the arbitrator’s award interferes with the Board’s nondelegable duty to control its budget by determining the timing of salary adjustments that are necessarily linked to promotion decisions. The Board primarily relies upon Board of Education v. Chicago Teachers Union (1981), 88 Ill. 2d 63, 430 N.E.2d 1111, a case which is inapposite. There, the supreme court held that the Board’s act of closing schools one day early was in compliance with its statutory powers and constituted a lawful exercise of its discretionary power under the difficult economic circumstances involved therein. (88 Ill. 2d 63, 72-73.) The Board’s discretionary power to control budgetary considerations (Board of Education v. Chicago Teachers Union (1981), 88 Ill. 2d 63, 72; see Bond v. Board of Education (1980), 81 Ill. 2d 242, 248, 408 N.E.2d 714) in no way precludes enforcement of back pay as a remedy for breach of a valid contract. (See Bessler v. Board of Education (1977), 69 Ill. 2d 191, 198-99, 370 N.E.2d 1050; Board of Trustees v. Cook County College Teachers Union (1976), 62 Ill. 2d 470, 480-82.) The principle of nondelegability of public authority simply does not apply in the case at bar. We conclude that the provisions of Article VI 3d, a paragraph freely bargained for and negotiated by the parties, are arbitrable and judicially enforceable. The decisions of the arbitrator and the circuit court, that the fixed date of promotion agreed to by the parties was when the credit is earned, is in accord with the contract language and therefore must be upheld.

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

Affirmed.

STAMOS, P.J., and DOWNING, J., concur.

      The arbitrator also stated, “If the Board is concerned that faculty members who have earned qualifications may delay the filing of their application for lane advancement for intolerable periods of time, that situation can be handled by the parties on the defense'Of laches.”

      The Board suggests that if it had granted Vidovic a promotion but made the effective date later than her next anniversary date, September 1, 1979, an arbitrator would have the necessary authority to award back pay. The Board appears to concede, therefore, at least under certain circumstances, that the question of when a promotion will become effective is different than the question of qualifications.


author: JUSTICE MEJDA

text:
      In re CUSTODY OF BOBBY KRAUSE (Donald Byrnes, Appellant, v. Robert Krause, Appellee).
    First District (5th Division)
    No. 82—754
    Opinion filed December 23, 1982.
    Stanley F. Kaplan, P.C., of Chicago (Stanley F. Kaplan and Claire Adair, of counsel), for appellant.
    George B. Collins, of Collins & Amos, of Chicago, for appellee.
   JUSTICE MEJDA

delivered the opinion of the court:

Separate petitions for custody of a nine-year-old boy were filed by Donald Byrnes, his stepfather, and by Robert Krause, his natural father, following the death of his mother to whom his custody had been awarded in an earlier judgment of divorce. The trial court awarded custody to the natural father. The stepfather appeals.

The sole issue presented is whether the circuit court’s decision awarding custody of Bobby Krause to Robert Krause, his natural father, was contrary to the manifest weight of the evidence and was an abuse of discretion.

Robert (hereinafter Krause) and Marie Krause were married in 1967. They had one child, Bobby, born in 1972. Marie filed suit for divorce in June 1973 but, in order to maintain health insurance coverage for Marie, the divorce was not finalized until February 1976. Marie had custody of Bobby prior to the divorce and was awarded custody in the divorce judgment although the court made a specific finding that Krause was “a fit person” to have custody of Bobby.

Donald Byrnes (hereinafter Byrnes) and Marie began dating in late 1973 when Bobby was about 16 months old. In 1975, when Bobby was three years old, Byrnes and Marie rented an apartment where they lived together with Bobby. Byrnes and Marie were married in the spring of 1976, shortly after Marie’s divorce was final. Byrnes participated in child-care activities from the time Bobby was 16 months old, and later attended parent-teacher conferences and Little League games and involved Bobby in Cub Scouts and in Byrnes’ church. Byrnes is employed as a district manager for a publishing company and is required to travel three days of the month. He owns a home in Northbrook, Illinois. Marie and Byrnes had a daughter, Katie, born in 1980. Marie’s mother has been the babysitter for Bobby and Katie since the recurrence of Marie’s illness in 1981. She testified that she will continue that arrangement if Byrnes is awarded custody of Bobby.

Until Bobby was about 3^2 years old, Krause visited him twice a month for approximately two hours at a time. After the divorce judgment was entered in 1976, Krause saw Bobby every weekend, usually all day Saturday. Krause and Bobby often spent their time together on activities related to pets and animals, interests they share. Krause did not attend Bobby’s Little League games or parent-teacher conferenees and did not take Bobby to church services on weekends of visitation. Krause testified that the timing and length of his visits were controlled by Marie and that the extent of his participation in Bobby’s activities often reflected his desire to cooperate with her regarding Bobby’s upbringing. Krause continued paying child support and alimony to Marie until her death and made support payments until he obtained custody of Bobby.

Krause has remarried. He and his wife have a daughter and, at the time of trial, were expecting another child. They reside in their own home located on 13 acres in Wayne, Illinois. Mrs. Krause is not employed outside the home. Krause is employed by a chain of 20 pet stores which he owns with other members of his family.

After Marie’s death in August 1981, both Byrnes and Krause petitioned for custody of Bobby. At trial, the foregoing evidence was presented, along with the testimony of Dr. Leonard Elkun, a licensed psychiatrist. Dr. Elkun interviewed Byrnes and Bobby approximately two months after Marie’s death but did not interview Krause. On direct examination, in response to a hypothetical modeled after the facts presented herein, Dr. Elkun testified that at that time a change of custody or change of environment would be “completely unconscionable and absolutely contraindicated.” When questioned on cross-examination about the relationship between Bobby and Krause, Dr. Elkun said, “There was absolutely no animosity, and I found nothing to suggest that Mr. Krause was in any way contraindicated as an adequate or decent individual. And the child cares about him and cares for him.”

When questioned, Bobby said that he wanted to stay in Northbrook with Byrnes and visit Krause on weekends. He said that he had friends in Northbrook and elsewhere, that he gets along “pretty good” with Krause’s wife, and that he does not feel shy with Krause but is more comfortable with Byrnes.

On March 30, 1982, the court awarded custody of Bobby to Krause. Byrnes appeals.

Opinion

The sole issue raised in this appeal is whether the award of custody to Krause was contrary to the manifest weight of the evidence and was an abuse of discretion. Although it is accepted in Illinois courts that a natural parent has a superior right to the custody of his or her minor child as against a claim made by a nonparent (Eaton v. Eaton (1977), 50 Ill. App. 3d 306, 365 N.E.2d 647), that right is not absolute and must yield to the best interest of the child. (Giacopelli v. Florence Crittenton Home (1959), 16 Ill. 2d 556, 158 N.E.2d 613.) The superior right of the natural parent serves only as one of several factors used by the courts in resolving the ultimately controlling question of where the best interests of the child lie. In re Custody of Townsend (1981), 86 Ill. 2d 502, 427 N.E.2d 1231; In re Custody of Piccirilli (1980), 88 Ill. App. 3d 621, 410 N.E.2d 1086.

In determining the best interest of the child, the court must consider the particular facts and circumstances of each case. (People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, 247 N.E.2d 417; Eaton.) Section 602(a) of the Illinois Marriage and Dissolution of Marriage Act directs the court to consider all relevant factors in a child-custody determination and lists six such factors. (Ill. Rev. Stat. 1981, ch. 40, par. 602(a).) Subsection (1) thereof states that the wishes of the child’s parent or parents as to his custody is one of the relevant factors. The evidence shows clearly that Bobby’s natural father wishes to have custody of his son.

Subsection (2) directs the court to consider the wishes of the child as to his custodian. Although Bobby stated that he would rather stay with Byrnes and only visit Krause on the weekends, we find that the record shows that Bobby was expressing a preference for his life to continue as it had been. It would not be unusual for a nine-year-old boy who has recently undergone the death of his mother to want his life to continue in a familiar pattern. Although Bobby’s stated preference is for Byrnes as custodian, the evidence shows that Bobby wants to continue visitation with Krause and enjoys a good relationship with him.

The third factor listed for consideration, subsection (3), is the interaction and interrelationship of the child with his parent or parents, siblings, and any other person who may significantly affect his best interest. The record shows that Bobby has a good relationship with both Byrnes and Krause. He calls both men “Dad” and believes that they both love him. Since his mother’s death, Bobby’s nuclear family has consisted of Byrnes and Katie. In addition, since 1981 Bobby has had almost daily contact with his maternal grandmother. The record shows that Bobby plays with Katie and also helps take care of her and that Byrnes and Bobby are involved in many activities together. Bobby is also an integral part of the Krause family. He has visited Krause regularly throughout his childhood, usually spending a whole day with him and, sometimes, a weekend. Krause’s wife, Linda, has known Bobby all of his life. Bobby gets along well with Linda and with Lisa, Linda and Krause’s daughter. Bobby stated that he believes Linda loves him. Although Krause is not involved in Bobby’s organized activities, they share many interests and often spend their time together on outdoor activities and sports. We conclude that Bobby’s interaction with members of both families is very good.

Subsection (4) lists the child’s adjustment to his home, school and community as a relevant factor for consideration. Although Bobby stated that he prefers to stay in Northbrook because that’s where many of his friends are, weekly visits to Krause’s home have enabled him to familiarize himself with that community. Although Bobby prefers the more familiar environment where he has lived for most of his life, nothing in the record indicates that Bobby would not be equally comfortable in Krause’s community.

Subsection (5) directs the court to consider the mental and physical health of all the individuals involved. The only evidence on this issue, in addition to the court’s own observations of the parties and witnesses, was the testimony of Dr. Elkun. Dr. Elkun recommended against a change of custody and environment for a nine-year-old child who had lost his mother two months earlier. The doctor advised maintaining as much stability as possible in the child’s life, where there has already been a major disruption. Although avoiding further disruption in the child’s life may be desirable, we note that our standard, the best interest of the child, requires an appraisal which considers the long-term effects of certain actions upon the situation of the child. The short-term remedy of maintaining the child’s present situation does not necessarily meet this standard.

Subsection (6) was not considered as there were no allegations or threats of physical violence in the instant case.

In custody cases the trial court is vested with great discretion because it has the superior opportunity to observe the witnesses, evaluate the evidence, and determine the best interests of the child. (Cebrzynski v. Cebrzynski (1978), 63 Ill. App. 3d 66, 379 N.E.2d 713.) The trial court’s determination of custody will not be reversed unless it has clearly abused its discretion or the decision was contrary to the manifest weight of the evidence. (In re Custody of Piccirilli (1980), 88 Ill. App. 3d 621, 410 N.E.2d 1086; Cebrzynski.) It is our opinion that the decision of the trial court is not contrary to the manifest weight of the evidence and is not an abuse of discretion.

Byrnes argues that the court’s order represents an abuse of discretion and cites cases wherein custody of a minor child or children was awarded to a third party over the claim of a natural parent. (In re Adoption of Markham (1981), 91 Ill. App. 3d 1122, 414 N.E.2d 1351; Lloyd v. Lloyd (1980), 92 Ill. App. 3d 124, 415 N.E.2d 1105; In re Custody of Piccirilli; Cebrzynski.) We note that in each of these cases the court properly considered all the relevant factors and based its decision on what would serve the best interests of the child or children involved. The fact that one of the parties seeking custody was the child’s natural parent was only one of the factors considered; it was not controlling. In the instant case the court considered all the relevant factors and found that an award of custody to the natural father was in the best interests of the child. This finding is supported by the evidence and is not an abuse of discretion.

In a custody dispute a court should give great weight to the claim of a third person who has had actual or legal custody of the child for a substantial period of time, especially if the evidence shows that the child has become an integral member of a true family unit. (In re Custody of Townsend (1981), 86 Ill. 2d 502, 427 N.E.2d 1231; In re Custody of Piccirilli (1980), 88 Ill. App. 3d 621, 410 N.E.2d 1086.) In Townsend, the Illinois Supreme Court stated, however, that although this may be an important factor, it does not rise to the level of a presumption so as to neutralize the superior right doctrine and does not transfer the superior right from the natural parent to the third person. Prior long-term actual or legal custody is not controlling; it remains simply a factor to consider in ascertaining what will best serve the interests of the child. By virtue of his relationship with Marie, Byrnes had actual custody of Bobby for most of his life. This is not controlling, however, but is only one of the factors to be considered in determining what will serve Bobby’s best interests.

We disagree with Byrnes’ contention that the court gave improper consideration to the superior right doctrine in awarding Bobby’s custody to his natural father. A careful review of the record and briefs reveals that such award comports with the best interest of the child standard, which standard is the law of Illinois. See Ill. Rev. Stat. 1981, ch. 40, par. 602(a).

The law presumes that it is in the best interest of a child to be raised by the natural parent. (Lloyd v. Lloyd (1980), 92 Ill. App. 3d 124, 415 N.E.2d 1105; In re Custody of Piccirilli (1980), 88 Ill. App. 3d 621, 410 N.E.2d 1086.) Ordinarily the right of a natural parent will prevail over the claim of a third party where both parties are equally fit. The record shows that Bobby was raised in a home wherein he received a great deal of attention and affection. The record also shows that Krause was a conscientious father, despite the fact that he lived apart from his son. It is our opinion that the decision of the lower court awarding custody of Bobby to his natural father is well supported by the evidence.

Appellant Byrnes has filed a motion in this court requesting that a portion of appellee’s brief relating to an alleged violation of constitutional rights be stricken for the reason that the issues were first raised on appeal. The motion was taken with the case for decision. Because we affirm the ruling of the lower court on the basis of its factual determination, we do not reach the constitutional issues. We note, however, that constitutional issues not presented to the trial court cannot be raised initially on appeal. (In re Adoption of MeFadyen (1982), 108 Ill. App. 3d 329.) Therefore, we dismiss the motion as moot.

For the reasons stated, the order of the trial court is affirmed.

Motion dismissed; order affirmed.

LORENZ and WILSON, JJ., concur.


author: PRESIDING JUSTICE WHITE

text:
    THE VILLAGE OF ROSEMONT, Petitioner-Appellee, v. CHICAGO TITLE AND TRUST COMPANY, Trustee, Defendant-Appellee.—(Rick Kwasinski, Defendant-Appellant.)
    First District (3rd Division)
    Nos. 80—2446, 81—0088 cons.
    Opinion filed December 22, 1982.

      Paul E. Peldyak and Michael Schiessle, both of Park Ridge, for appellant.
    Burke and Ryan, of Chicago (Thomas T. Burke, William E. Ryan, and Barry A. Springer, of counsel), for appellee Village of Rosemont.
    Bernard Bruno, of Bruno and Orvino, of Melrose Park (Sidney Z. Karasik, of counsel), for appellee Chicago Title and Trust Company.
   PRESIDING JUSTICE WHITE

delivered the opinion of the court:

This is a consolidated appeal from two orders of the circuit court of Cook County. The first order, entered on a motion for declaratory judgment and forcible detainer, found that Rick Kwasinski, a contract purchaser, had forfeited his interest in certain real estate, and entered judgment for possession in favor of Chicago Title and Trust (hereinafter Chicago Title) as trustee. The second order, entered in a condemnation action, established $100,000 as the amount to be paid by the village of Rosemont as just compensation for this real estate.

The record on appeal shows that on June 12, 1979, the village of Rosemont filed a condemnation action naming Rick Kwasinski and Chicago Title, among others, as defendants. Subsequently, on December 26, 1979, Chicago Title filed in that action its motion for a declaratory judgment and forcible detainer. The motion, which was verified, alleged: that title to the subject real estate was held in a land trust by Chicago Title, as trustee; that Theodore J. Joncha was the sole beneficiary of that trust; that on July 24, 1974, Kwasinski and Joncha entered into articles of agreement for trustee’s deed in which Kwasinski agreed to make described monthly payments, the last on September 1, 1979; that Kwasinski was in default in making these payments and in paying real estate taxes on the property; that Joncha served Kwa-

sinski, on or about September 27, 1979, with a “Notice of Intention to Declare Forfeiture of All Rights Under Articles of Agreement for Trustee’s Deed and Notice of Intention to File Forcible Detainer Suit”; that Kwasinski failed to comply with the requests recited in the notice; that on or about November 16, 1979, Kwasinski was served with a “Declaration of Forfeiture and Extinguishment of All Rights of Purchaser under a Certain Real Estate Contract and Articles of Agreement for Trustee’s Deed”; and that by reason of Kwasinski’s defaults, there was a forfeiture and extinguishment of the agreement. The first count prayed that the contract and agreement be declared cancelled, that all rights of Kwasinski be declared forfeited and extinguished, and that Chicago Title be declared to have all and any title, right and interest in the real estate. In the second count, Chicago Title prayed for a judgment for possession. By court order, this motion was severed from the condemnation proceedings.

On March 19, 1980, Kwasinski filed his verified answer to the motion for a declaratory judgment and forcible detainer in which he alleged the existence of an agreement to modify the articles of agreement. Chicago Title filed a verified reply to Kwasinski’s answer in which Joncha denied the existence of any such agreement with Kwasinski, and which stated that any extension agreement, if any, was not reduced to writing as required by the articles of agreement.

Thereafter, Chicago Title moved for judgment on the pleadings. The pleadings showed Kwasinski in default, but the parties differed as to the amount due on the contract. On June 9, 1980, the circuit court entered the first order from which Kwasinski appeals. The order contained findings that Kwasinski was in default, that the articles of agreement had expired, and that the real estate was owned in fee simple by Chicago Title free and clear of any and all claims of Kwasinski. The order also entered judgment for possession of the real estate in favor of Chicago Title and against Kwasinski, and provided for a stay of enforcement of the judgment for 60 days.

On December 8, 1980, the village of Rosemont obtained, over Kwasinski’s objections, a judgment establishing $100,000 as just compensation to all parties having an interest in the real estate. Kwasinski also appeals from the order entering this judgment.

Kwasinski first contends that the circuit court erred by entering the order of June 9, 1980, without holding an evidentiary hearing to determine the amount due under the contract. He relies on section 13 of the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1979, ch. 57, par. 13), repealed and superseded by section 9 — 110 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 9—110), which provided in relevant part:

“If it appears on the trial that the plaintiff is entitled to the possession of the whole of the premises claimed, he shall have judgment for the possession thereof and for his costs. However, if the action is based upon a breach of a contract entered into on or after July 1, 1962 for the purchase of such premises, the court, by order, may stay the enforcement of the judgment for a period not to exceed 60 days from the date of the judgment, or if the court finds that the amount unpaid on said contract is less than 75% of the original purchase price, then the court shall stay the enforcement of the judgment for a period of 180 days from the date of the judgment. The court may order a stay of less than 180 days (but in no event less than 60 days) if it be shown that the plaintiff, prior to the institution of the proceeding under this Act, granted the defendant previous extensions of time to pay the amounts due under the contract, or for other good cause shown. If during such period of stay defendant pays the entire amount then due and payable under the terms of the contract other than such portion of the principal balance due under the contract as would not be due had no default occurred plus costs and, if the contract provides therefor, reasonable attorney’s fees as fixed by the court, and cures all other defaults then existing, the contract shall remain in force the same as if no default had occurred. *** Whenever defendant cures the default under the contract pursuant to this Section defendant may within said period of stay file a motion to vacate the judgment in the court in which the judgment was entered, and, if the court, upon the hearing of such motion, is satisfied that such default has been cured, such judgment shall be vacated. Unless defendant files such motion to vacate in such court or the judgment is otherwise stayed, enforcement of the judgment may proceed immediately upon expiration of such period of stay and all rights of the defendant in and to the premises and in and to the real estate described in the contract shall cease and determine.”

The Forcible Entry and Detainer Act provided that an action for possession of land may be maintained against a contract purchaser who has failed to comply with his agreement and withholds possession of the land after receiving a written demand from the person entitled to possession. (Ill. Rev. Stat. 1979, ch. 57, par. 2, repealed and superseded by Ill. Rev. Stat. 1981, ch. 110, par. 9—102.) It is not contested that Kwasinski failed to make some of the monthly payments required by his agreement. The amount owed was contested. Kwasinski maintains that the trial court erred when it awarded possession to Chicago Title without first having an evidentiary hearing to determine the amount of the delinquency. Support for this argument is sought in that part of the statute which provided that “if the court finds the amount unpaid on said contract is less than 75% of the original purchase price, then the court shall stay the enforcement of the judgment for a period of 180 days from the date of the judgment.” It is clear from the record that the trial court made no such finding. It is also clear that Kwasinski did not request one. There was an objection to the entry of the judgment for possession on the ground that the amount of Kwasinski’s overdue monthly payments had not been fixed. This is not the equivalent of requesting the court to find that the amount unpaid on the contract was less than 75% of the total contract price and on that basis requesting a stay of the enforcement of the judgment. In the trial court, and repeated in this court, Kwasinski’s argument is that it was error to enter judgment before making a finding as to the unpaid balance. This argument overlooks the words and the purpose of the provision. The statutory finding is not a condition precedent to the entry of the judgment but rather is a basis for staying the enforcement of the judgment. Therefore, this provision does not aid Kwasinski.

Kwasinski also relies upon the provisions of the statute which permit a defendant during the period of the stay to pay the “entire amount then due and payable.” His position is that a defendant is entitled to a prejudgment hearing on the amount due so that he will know how much he is required to pay within the period of the stay to cure his default. However, the words of the statute contain no such requirement. Moreover, section 13 specifically provided for a post-judgment hearing in which the court can determine whether the default has been cured. Such a post-judgment hearing would be unnecessary if the court had already determined the amount due in a prejudgment hearing.

We recognize that “[t]he legislative purpose in permitting a contract purchaser to cure a default before permitting the seller to take possession of the real estate is *** to afford the contract purchaser an opportunity to avoid a loss of money previously paid and to avoid a forfeiture of all rights under the contract.” (Mallin v. Najarian (1979), 76 Ill. App. 3d 441, 443-44, 395 N.E.2d 172.) However, such a policy does not mandate a prejudgment hearing to determine the amount due under the contract, and we will not read such a requirement in to section 13. Having reached this conclusion, we need not address the argument of appellees, Chicago Title and the village of Rosemont, that the Forcible Entry and Detainer Act is not applicable to this case.

Kwasinski’s second contention is that the trial court erred in granting Chicago Title’s motion for judgment on the pleadings because unresolved issues of fact remained. See Pied Piper Yacht Charters Corp. v. Corbel (1974), 17 Ill. App. 3d 281, 283, 308 N.E.2d 35; Ill. Rev. Stat. 1979, ch. 110, par. 45(5), repealed and superseded by Ill. Rev. Stat. 1981, ch.110, par. 2—615(5).

Kwasinski argues that he was entitled to a determination of the following questions of fact: (1) whether the amount unpaid on Kwasinski’s contract was less than 75% of the original contract price; (2) whether Chicago Title granted prior extensions to Kwasinski; (3) the amount due under the contract to cure the default; and (4) the circumstances of defendant’s default as they may be relevant to the length of any stay authorized by statute. Chicago Title responds that these purported issues of fact pertain only to the question of whether the trial court may stay enforcement of a judgment for possession and did not affect the power of the court to enter the judgment itself. Moreover, it does not appear from the record on appeal that there were any questions of fact before the trial court as to the first, second, and fourth alleged questions of fact. As to the third alleged fact question, the amount due under contract to cure the default, we have already determined that the statute does not require a prejudgment hearing on this issue.

Kwasinski also argues that an issue of fact was presented by his answer and by Chicago Title’s reply to that answer. In his answer Kwasinski alleged that he and Joncha agreed that Joncha would accept the balance due him on the contract, with interest, out of the condemnation monies to be paid by the village of Rosemont. Chicago Title’s reply states that Joncha denied the existence of an agreement. According to Kwasinski’s reply brief, “the factual question [presented by these pleadings] is not whether the representations of Theodore Joncha constituted a contract, but it is sufficient that such conduct induced Rick Kwasinski to stop payments on the contract in reliance on the statements of Theodore Joncha. Consequently, Rick Kwasinski relied on the statements to his detriment, and, under the law, it is a factual determination as to whether or not an estoppel can be raised.”

Illinois courts hold that equitable estoppel precludes a party from asserting a right which might otherwise have existed as against another person when the other person relies in good faith on the party’s conduct and is led thereby to change his position to his detriment. (Hartford Accident & Indemnity Co. v. D. F. Bast, Inc. (1977), 56 Ill. App. 3d 960, 962, 372 N.E.2d 829.) And the facts constituting an affirmative defense such as estoppel must be plainly set forth in a party’s answer or reply. (Ill. Rev. Stat. 1979, ch. 110, par. 43, repealed and superseded by Ill. Rev. Stat. 1981, ch. 110, par. 2—613; Hartford Accident & Indemnity Co. v. D. F. Bast, Inc. (1977), 56 Ill. App. 3d 960, 962.) Here, the answer merely pleaded the existence of an agreement and stated: “For that reason no payments were made by respondent [Kwasinski] since on or about the date of that Agreement.” Even assuming that this was sufficient to plead reliance, we observe that there is no allegation that Kwasinski changed his position to his detriment. He did not plead that but for Joncha’s representation he would or could have made the monthly payments. In short, facts constituting an estoppel were not plainly set forth in Kwasinski’s answer. Accordingly, the trial court did not err in granting judgment on the pleadings in favor of Chicago Title.

Kwasinski’s third contention is that pursuant to section 14.1 of the Eminent Domain Act (Ill. Rev. Stat. 1979, ch. 47, par. 14.1), repealed and superseded by section 7 — 127 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 7—127), he was entitled to participate in any condemnation award as a matter of law. Section 14.1 provided:

“The amount of just compensation shall be distributed among all persons having an interest in the property according to the fair value of their legal or equitable interests. If there is a contract for deed to the property, the contract shall be abrogated and the amount of just compensation distributed by allowing to the purchaser on the contract for deed *** [distribution described] and by allowing to the seller on the contract for deed *** [distribution described]. However, the contract purchaser may pay to the contract seller, the amount to be paid on such contract, and shall then be entitled to the amount of just compensation paid by the condemnor either through negotiation or awarded in judicial proceedings.”

It is Kwasinski’s position that this section operated to abrogate the contract between him and Chicago Title as of the time the condemnation petition was filed. Thus, according to him, once the petition to condemn was filed, his right to share in the condemnation award vested.

However, cases hold that when a party’s interest in land terminates between the filing of the condemnation petition and the taking by the condemnor, that party is not entitled to any compensation. Indeed, he loses nothing by the taking. (City of Lake Forest v. First National Bank (1977), 52 Ill. App. 3d 893, 895, 368 N.E.2d 156; see Schreiber v. Chicago & Evanston R.R. Co. (1885), 115 Ill. 340, 3 N.E. 427.) In other words, a condemnation award is effective upon the date of payment. (City of Chicago v. American National Bank (1980), 86 Ill. App. 3d 960, 962 n.2, 408 N.E.2d 379; see Bohne v. Bauer (1959), 21 Ill. App. 2d 133, 135, 157 N.E.2d 545.) And the person who is the owner of the property when possession is taken or the payment of damages is made is the person who is entitled to receive the condemnation award, even if the property has been sold to another subsequent to the filing of the condemnation petition. (In re Application of County Collector (1978), 63 Ill. App. 3d 506, 508, 377 N.E.2d 1230.) On the basis of these authorities, we conclude that under section 14.1 of the Eminent Domain Act, a contract for deed to property is not abrogated on the date the petition to condemn is filed, but rather on the date the condemnation award is paid.

Since Kwasinski’s interest in the property expired prior to the effective date of payment of the condemnation award, his claim for compensation through apportionment of that award cannot be sustained. See City of Chicago v. American National Bank (1980), 86 Ill. App. 3d 960, 963-64.

Kwasinski attempts to distinguish American National Bank because it involved the termination of a leasehold interest, as opposed to the termination of an ownership interest. However, such a distinction would not be significant because Kwasinski’s interest in the property, like that of the petitioners in American National Bank, had terminated prior to the date of payment of the condemnation award.

Lastly, Kwasinski contends that the trial court erred in entering its order of December 8, 1980, which overruled his objections to a proposed condemnation award and entered a proposed judgment order. We, however, agree with the appellees’ argument that the trial court correctly overruled Kwasinski’s objections, because on December 8, 1980, he no longer had an interest in the property or in the award. Accordingly, he lacked standing to object.

Kwasinski argues that the language of the circuit court’s order of June 9, 1980, specifically authorized his participation in the condemnation award. That order stated:

“That this order is without prejudice to any claims, if any, by the Respondent, Kwasinski, to any portion of the award in the aforementioned case.”

This order also contained a finding that Kwasinski’s interest in the property was terminated, and it stayed enforcement of the judgment for 60 days. Kwasinski, during the period of the stay, was, therefore, in a position to cure his default. The language quoted from the order merely recognized the fact that if Kwasinski cured his default during the stay he could preserve his right to share in any condemnation award as a contract purchaser under section 14.1 of the Eminent Domain Act. These words did not amount to a determination that Kwasinski, as of the time of the order, had any further interest in the real estate or the condemnation award.

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

McNAMARA and RIZZI, JJ., concur.


author: JUSTICE JIGANTI JOHNSON, P.J.,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLAUDE ROUSH et al., Defendants.—(Bernard Thiem et al., Petitioners-Appellants.)
    First District (4th Division)
    No. 82—2238
    Opinion filed December 23, 1982.

      JOHNSON, P.J., dissenting.
    Mark J. Heyrman, of Mandel Legal Aid Clinic, of Chicago, and Charles D. Weisselberg, law student, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Dean P. Karlos, and Louis F. Stalzer, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JIGANTI

delivered the opinion of the court:

Contempt proceedings were brought against Dr. Claude Roush and the Manteno Mental Health Center. As a result of these proceedings, the circuit court of Cook County ordered Roush and Manteno to take certain specific actions regarding patients who had been found not guilty by reason of insanity (NGRIs) and had been committed to the Department of Mental Health under the appropriate statute. The NGRIs sought to intervene in the contempt proceedings because they were affected by the court’s order. The trial court denied the motion to intervene and also denied a petition for reconsideration of the underlying order. The NGRIs appeal from both of these orders.

The facts upon which this appeal is based are not in dispute. On July 17, 1981, Dr. Claude Roush, Facility Director of Manteno Mental Health Center, and Manteno were served with a rule to show cause why they should not be held in criminal contempt of court for negligently allowing an individual named Gary McConnell to escape from their custody twice in a two-month period. Gary McConnell, like the instant petitioners, had been placed at Manteno by the Illinois Department of Mental Health and Developmental Disabilities (DMHDD) after being committed to the custody of DMHDD following acquittal of a felony by reason on insanity. Roush and Manteno were further charged with impeding the orderly administration of justice under section 5 — 2—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 2—4) by their action or lack of action in the treatment of McConnell.

After a hearing, the trial court found the defendants Roush and Manteno guilty of indirect criminal contempt of court. Roush was fined $1500 and placed under court supervision. This punishment was stayed pending separate appeal.

Then the court on its own initiative, without any such request by the State, issued the following order concerning future procedures to be observed at Manteno.

“1. No NGRI patient be given unsupervised grounds passes by the Manteno Mental Health Center without first giving the Court from which the patient was referred and the State’s Attorney’s Office one week’s notice of its intention. During this time the Court and State’s Attorney may take any appropriate action to oppose the pass.
2. NGRI patients at Manteno Mental Health Center will be confined in a secure area.
3. No NGRI patient at Manteno Mental Health Center will be allowed in any unsecure area on. the above premises without giving one week’s notice of such action to the Court from which the patient was referred, the State’s Attorney’s Office, and the victim, if any, on the charge the patient had been found NGRI.
4. The containment of all NGRI patients at Manteno Mental Health Center shall be deemed a priority equal to the rehabilitation of such patients.”

The above order was entered verbally on September 1, 1981. That same day, Roush and Manteno complied with the order and transferred all the petitioners as NGRIs to the maximum security unit at Manteno. The petitioners were also denied the right to leave that unit unaccompanied.

On September 8, 1981, the formal written order was entered. On that day, counsel for the petitioners appeared before the court and filed their motion to intervene and a motion for reconsideration of the September 1 order. Following oral argument, both the motion to intervene and the petition for reconsideration were denied. The petitioners’ motion for stay pending appeal was also denied. The petitioners then filed this notice of appeal.

In answer to the first issue on appeal, section 26.1(1)(b) of the Illinois Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 26.1(1)(b)) allows intervention as a matter of right “when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant will or may be bound by an order of judgment in the action.” The interest must be direct and substantial and it must also be a specific, enforceable and recognizable right greater than the interest of the general public in the subject matter of this suit. (Adams v. County of Cook (1980), 86 Ill. App. 3d 68, 407 N.E.2d 1018; Caterpillar Tractor Co. v. Lenckos (1979), 77 Ill. App. 3d 90, 395 N.E.2d 1167.) A basic tenet of intervention statutes is that they are remedial and should be liberally construed. Adams v. County of Cook (1980), 86 Ill. App. 3d 68, 407 N.E.2d 1018; University Square, Ltd. v. City of Chicago (1979), 73 Ill. App. 3d 872, 392 N.E.2d 136.

We believe that whether or not the NGRIs interest in this suit is characterized specifically as a right as the NGRIs claim or as a privilege as the State contends, it is recognizable and greater than the interest of the general public in the subject matter of this suit. In addition, their interest is direct and substantial because the outcome of this suit will determine whether they are to be kept under constant lock and key or whether they can have some freedom of the grounds in the facility where they reside. Thus, applying a liberal construction to this interest, we believe that the NGRIs do possess the type of interest that was envisioned in section 26.1(l)(b) and thus they should have been allowed to intervene.

The NGRIs also raise a number of issues to suggest that the court was in error in issuing an injunction that mandated procedures which Roush, his administrators and staff must observe in regard to the NGRIs. We believe that the court had jurisdiction but that it ought not to have exercised that jurisdiction. (See 1 Pomeroy, Equity Jurisprudence sec. 131, at 179 (1941); McClintock, Equity sec. 40, at 98 (2d ed. 1936).) Apparently, the court was motivated to issue the order against the agency of the State because it found that the agency was not being properly administered. At issue, however, is not whether the agency was indeed properly administered but rather what is the proper relationship between the court and an agency under those circumstances.

Sometime ago, the Illinois Supreme Court enunciated the governing law pertaining to the relationship between discretionary acts by public officials and the availability of equity jurisdiction. In Trustees of Schools v. School Directors of District No. 2 (1901), 190 Ill. 390, 60 N.E. 531, the court considered a matter involving the superintendent of schools. The court stated:

“He is vested with discretion to determine what is best for the people and the cause of education. The rule is well established that when public officers are so invested with discretionary powers, a court of equity will not interfere to control or review the exercise of the power unless fraud, corruption, oppression or gross injustice is plainly shown. A court of equity cannot sit as an appellate tribunal to review the exercise of judgment where there is no gross abuse of the power, and the law does not contemplate any supervisory power in the court for the purpose of correcting errors of judgment.” 190 Ill. 390, 393, 60 N.E. 531, 532; see 30 C.J.S. Equity sec. 65 (1965), 21 C.J. Equity sec. 137 (1920).

In Sheridan v. Colvin (1875), 78 Ill. 237, the supreme court said that a court of chancery has no jurisdiction to interfere with the public duties of any department of government, except under special circumstances, and where necessary for the protection of rights of property. These principles have been applied more recently in varying factual situations. See Bongi Cartage, Inc. v. City of Chicago (1961), 33 Ill. App. 2d 433, 179 N.E.2d 463 (the court refused to enjoin the city of Chicago purchasing agent from cancelling subcontracts because it was within his discretion to cancel them); Mister Softee of Illinois, Inc. v. City of Chicago (1963), 42 Ill. App. 2d 414, 192 N.E.2d 424 (the court refused to enjoin enforcement of a city anti-noise ordinance because it was within the discretion of city authorities to determine whether the noise level exceeded the standard of the ordinance); Roche v. County of Cook (1978), 60 Ill. App. 3d 874, 377 N.E.2d 287 (the court refused to enjoin public officials from improving an existing highway because there was no abuse of discretion or oppressive exercise of power).

In the instant cause, no fraud, corruption, oppression, gross injustice or gross abuse of power was alleged. Also, an institution which would allow NGRIs to escape and is alleged to be poorly administered does not equate with the kind of fraud, corruption, oppression, gross injustice or gross abuse of power which is necessary for equity jurisdiction. Therefore, we see no reason for the court to have assumed equity jurisdiction in this matter.

The order of the circuit court of Cook County denying intervention is reversed. The order of the circuit court of Cook County mandating certain action on the part of Roush and Manteno is also reversed.

Reversed.

LINN, J., concurs.

JOHNSON, P.J.,

dissenting:

I respectfully dissent from the ruling of this court.

The majority states: “We believe that the court had jurisdiction but that it ought not to have exercised that jurisdiction.” I believe that the hue and cry from the public over the situation of NGRIs escaping and committing other crimes mandated some action by the court. In my opinion, the action of the court was warranted in this case.

For the foregoing reason, I would affirm the trial court.


author: JUSTICE DOWNING

text:
      In re MARRIAGE OF WILLIAM M. VOIGHT, Petitioner and Counterrespondent-Appellee, and IRENE A. VOIGHT, Respondent and Counterpetitioner-Appellant.
    First District (2nd Division)
    No. 81—3023
    Opinion filed December 28, 1982.

      Arvey, Hodes, Costello & Burman, of Chicago, for appellant.
    Stanley F. Kaplan, P.C., of Chicago, for appellee.
   JUSTICE DOWNING

delivered the opinion of the court:

William M. Voight (William) petitioned for dissolution of his marriage to Irene A. Voight (Irene), who counterpetitioned for the same relief. Dissolution, without cause or provocation, was granted in favor of Irene. Irene filed a post-trial motion contesting the court’s property distribution order. Irene appeals the court’s denial of her request for partition of the couple’s residence and the order requiring Irene to convey by quitclaim deed to William her interest in a house on Pulaski Avenue.

William and Irene, who met through their employment as police officers for the Chicago police department, were married December 10, 1977. Although the parties disagree about the manner in which the events of their lives together came about, there is no dispute that the couple met in July of 1976 and began to see each other socially some time in July of 1977. Both were 29 years old at the beginning of these proceedings and both had previously been married once. The harmony ends here.

A petition for dissolution was filed by William on October 30, 1979. Irene counterpetitioned. Following a hearing on Irene’s counter-petition, dissolution in her favor was granted. After hearings were held, the circuit court ordered the following: (1) the dissolution of the couple’s marriage; (2) that Irene execute a quitclaim deed transferring sole title of the property on Pulaski Avenue to William; (3) the sale of the couple’s Wisconsin property and division of the proceeds, 60% to William and 40% to Irene; (4) that William execute any documents necessary to transfer sole title and interest in a 1977 station wagon to Irene; and (5) that William pay Irene $3,500 in consideration of her interest in the home improvements on Pulaski Avenue and for appliances purchased during the marriage. Each was barred from any interest of the other as to maintenance, attorney fees and a pending personal suit of Irene’s.

The testimony in the property distribution hearings focused on each party’s contribution toward the marital assets and joint funds. Both parties were of equal rank on the police force and earned approximately the same amount of money. William earned slightly more as a result of seniority.

Irene stated that beginning in July of 1977, she contributed portions (ranging from 50% to all) of her paycheck to a joint fund with William in anticipation of their marriage. She was married to her first husband at the time, but expected an early dissolution of that marriage. A joint checking account was opened in January 1978.

William disagreed with Irene regarding the date the account was opened and the amounts and frequency of her contribution. According to William, she contributed six of her checks from the police department to their joint checking account. William attempted to substantiate his claim by offering into evidence Irene’s cancelled paychecks during the time of their marriage, showing that all but six (bearing the joint account number) were cashed at currency exchanges and other banks. Irene said that she stopped contributing to their joint fund in June 1979 when the relationship with William broke down and she moved out.

There is little dispute about the use of the joint funds, which included the following: mortgage payments on the Pulaski property; partial payment for two autos; partial payment for Wisconsin property; improvements and appliances at the Pulaski property; expenses of a dog-grooming business run by Irene; taxes and insurance on the Pulaski property; and normal household expenses.

Although Irene testified that she began to contribute to a joint fund with William in July of 1977, there is no dispute that in October 1977, William provided the down payment for the house on Pulaski Avenue. That down payment was $7,500. William testified that, as he was tired of apartment living, he purchased the house as an investment. Irene’s explanation of her understanding of why William purchased the house was that he purchased the house in anticipation of their pending marriage; however, in her testimony, she agreed that he bought the house as an investment.

William stated that he moved into the house in October of 1977 and that Irene moved in around November 20, 1977. Irene said that the two moved on the same day. On August 16, 1978, the title of the property was changed from William to William and Irene as joint tenants. Irene testified that the transfer occurred in January or February of 1978. William testified that he was pressured into making this transfer by Irene and that the couple had agreed that if he placed the property in joint tenancy, she would have a will drafted granting to him her interests in other property from her first marriage. This was never done. Six months after title was placed in joint tenancy, Irene moved out.

The parties also disagreed about Irene’s contribution to the remodeling of the house and her efforts in cleaning the house, which William claims was a source of continued turmoil and embarrassment. Irene said that she assisted in the house improvements by constant cleaning in addition to normal domestic chores.

The couple purchased property in Wisconsin after they were married. The price of the property was $5,000, of which $3,000 was from a loan secured by an account of William’s with the police credit union, the balance coming from the couple’s joint funds. At the time the petition was filed, $2,200 was still owing on this property. The monthly payment on the loan ($95) came from the joint fund.

Additionally, the couple jointly held title to a 1977 station wagon, purchased with $500 from the joint account and $3,500 from the sale of an auto Irene received as part of the settlement of her first divorce. There was a balance due on the old auto when Irene received it, which was subsequently paid for from joint funds. Title to the 1977 auto was originally taken in Irene’s name. There is conflicting testimony regarding Irene’s knowledge and consent to the transfer of the title from Indiana to Illinois and to joint ownership. Irene denied any knowledge of the transfer or that the signature on the title transfer was hers.

I

Initially, we consider Irene’s argument that if the house on Pulaski Avenue is nonmarital property, the court erred by ordering her to transfer her joint interest to William and in denying her petition for partition of the jointly held property. We agree.

Under section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 503(c), redesignated former section (c) as section (d) by Pub. Act 82—668, sec. 1, eff. Jan. 1, 1982), the trial court must classify all property owned by the parties, regardless of how title is held, as either marital or nonmarital. (In re Marriage of Smith (1981), 86 Ill. 2d 518, 427 N.E.2d 1239.) Section 503(a) contains an exclusive list of nonmarital property. Once classified, the nonmarital property of each spouse is assigned to that spouse and the marital property is equitably divided between them. (In re Marriage of Smith (1981), 86 Ill. 2d 518, 528.) Therefore, when property is found to be nonmarital and held in joint tenancy, the parties’ joint interest should not be affected by the dissolution and property distribution order. Atkinson v. Atkinson (1981), 87 Ill. 2d 174, 181, 429 N.E.2d 465, cert. denied, 456 U.S. 905, 72 L. Ed. 2d 162, 102 S. Ct. 1751.

Here, the trial court erred in ordering Irene to transfer her joint interest in the nonmarital property on Pulaski Avenue. Where the property is nonmarital, the trial court has no general discretion to alter the fixed, separate interests of the parties as it has in the case of marital property held in co-ownership. The order requiring Irene to transfer her joint interest in the property on Pulaski Avenue is reversed and the cause remanded. Upon remand, the trial court must consider an equitable property distribution in light of this order. Additionally, it should be noted that the trial court may, upon remand, entertain Irene’s petition for partition. (Ill. Rev. Stat. 1981, ch. 40, par. 514.) Although the right to partition has been changed by the legislature as it relates to marital property, the right to partition of non-marital property interests continues to be an appropriate action under this Act. (Ill. Ann. Stat., ch. 40, par. 514, Historical and Practice Notes, at 797 (Smith-Hurd 1980).) The trial court should strive to reach a high degree of finality “so that parties can plan their future ■with certainty and are not encouraged to return repeatedly to the courts.” In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 459, 426 N.E.2d 1087.

II

Irene argues that the court erred by finding the residence on Pulaski Avenue to be nonmarital property. We disagree.

While it is true that the affirmative act of transferring title to some form of co-ownership during the marriage will support a presumption of gift to the marriage, this presumption is rebuttable. (In re Marriage of Smith (1981), 86 Ill. 2d 518, 531-32.) The party attempting to rebut the presumption of a gift to the marriage must show that the property was never intended to be a gift to the marriage. (In re Marriage of Uluhogian (1980), 86 Ill. App. 3d 654, 657, 408 N.E.2d 107.) Here, the trial court incorrectly stated in its judgment that no presumption of gift or transmutation exists and found the property on Pulaski Avenue to be nonmarital property. Although the trial court’s statement of the law was erroneous, its conclusion that the property on Pulaski Avenue is nonmarital is supported by the evidence in the record. “If the decision of a court is correct under the circumstances of the case, it will not be reversed on appeal for the reason that an incorrect means was used to arrive at the decision ***; and this is particularly true where reversal and retrial would only result in the -same decision.” (In re Estate of La Rue (1964), 53 Ill. App. 2d 467, 475, 203 N.E.2d 47.) Here, the evidence reveals that William had purchased the house on Pulaski Avenue as an investment prior to his decision to marry Irene and he transferred title into joint ownership to end Irene’s badgering and in reliance upon Irene’s promise to name him as a beneficiary in her will. Additionally, the down payment was furnished by William as well as a majority of the funds used for the mortgage payments. From our review of the record as a whole we find nothing which would require reversal of the trial court’s finding that the property on Pulaski Avenue was nonmarital. Lawson v. G. D. Searle & Co. (1976), 64 Ill. 2d 543, 559, 356 N.E.2d 779.

Ill

Finally, Irene contends that the trial court’s failure to make specific findings of fact as to the value of the principal marital assets was erroneous. We cannot agree.

The trial court need not make specific findings of fact as to the value of the marital assets so long as the evidence of value in the record is sufficient to enable a court of review to analyze the property distribution. In re Marriage of Rothbardt (1981), 99 Ill. App. 3d 561, 565, 425 N.E.2d 1146.

Here the record contains the testimony of the parties regarding the value of the marital assets which included the following: five appraisals ($49,500-$72,000) of the house on Pulaski; the purchase price of the Wisconsin property was $5,000, with a loan balance of $2,200 at the time of the hearings; the 1977 Mercury was purchased with $500 from the joint funds and the sale of a car Irene received from her first marriage to meet the balance of the $4,000 purchase price; and the improvements of the house on Pulaski were valued at between $12,000 and $15,000. There was ample evidence in the record for the court to make its determination and for a court of review to analyze that determination. We find no abuse of discretion.

For the reasons stated above, the judgment of the circuit court of. Cook County is affirmed, except as to that portion of the judgment directing Iréne Voight to execute a quitclaim deed transferring sole title in the property on Pulaski Avenue to William M. Voight which is hereby reversed and the cause is remanded for such action as is consistent with the views expressed herein.

Affirmed in part; reversed and remanded in part.

PERLIN and HARTMAN, JJ., concur.

      The record is not clear as to whether a “joint fund” is the same as a “joint checking account.”


author: JUSTICE McNAMARA

text:
    WILLIAM D. MATVIUW, M.D., Plaintiff-Appellee, v. JEFFREY B. JOHNSON, M.D., Defendant-Appellant.—(Alexian Brothers Medical Center, Intervenor-Appellant; Illinois Hospital Association, Amicus Curiae.)

    First District (3rd Division)
    No. 82—663
    Opinion filed December 22, 1982.
    Tenney & Bentley, of Chicago (Richard J. Cochran and Marc D. Ginsberg, of counsel), for appellant Jeffrey B. Johnson.
    Hopkins & Sutter, of Chicago (Thomas C. Shields, Peter B. Freeman, and Rebecca R. Pallmeyer, of counsel), for appellant Alexian Brothers Medical Center.
    Katten, Muchin, Zavis, Pearl & Galler, of Chicago (Michael A. Reiter and Steven M. Rasher, of counsel), for appellee William D. Matviuw.
    McLaughlin, Kinser & Bryant, of Chicago (Harry L. Kinser and Kenneth C. Robbins, of counsel), for amicus curiae Illinois Hospital Association.
   JUSTICE McNAMARA

delivered the opinion of the court:

As we shall set forth below, our court has previously considered this matter. Matviuw v. Johnson (1979), 70 Ill. App. 3d 481, 388 N.E.2d 795.

Plaintiff, William D. Matviuw, M.D., filed this defamation action seeking compensatory and punitive damages allegedly resulting from statements made by defendant Jeffrey B. Johnson, M.D., at a 1976 meeting of the Medical Executive Committee of Alexian Brothers Medical Center. Alexian was granted leave to intervene. Defendant and Alexian filed motions to bar discovery and admission into evidence of the statements in question on the grounds that they were privileged pursuant to sections 1, 2 and 3 of the medical studies act (Ill. Rev. Stat. 1981, ch. 51, pars. 101 through 103, as amended subsequent to the filing of this action). The trial court refused to apply the amendments retroactively to the present case and denied the motions. The trial court certified the following questions for interlocutory appeal pursuant to Supreme Court Rule 308:

“A. May the parties introduce into evidence statements made at the November 23, 1976 Alexian Brothers Medical Executive Committee Meeting, or does the Medical Studies Act, as amended, preclude the introduction of said statements?
B. Are the statements made at the November 23, 1976 Alexian Brothers Medical Executive Committee Meeting discoverable or does the Medical Studies Act, as amended, preclude discovery of those statements?”

In November 1976, both parties were members of Alexian’s Department of Obstetrics and Gynecology. Plaintiff alleged in his complaint that as a result of defendant’s defamatory remarks to the committee with regard to his professional capabilities, plaintiff was not reappointed to Alexian’s' medical staff, lost patients and was unable to obtain new patients.

The trial court granted motions to. dismiss filed by defendant and Alexian on the ground that defendant’s statements were privileged pursuant to sections 1, 2 and 3 of the medical studies act, which provided in pertinent part:

“Sec. 1. All information, interviews, reports, statements, memoranda or other data of the Illinois Department of Public Health, Illinois State Medical Society, allied medical societies, or committees of accredited hospitals, including Patient Care Audit Committees, Medical Care Evaluation Committees, Utilization Review Committees, Credential Committees and Executive Committees, but not the original medical records pertaining to the patient, used in the course of internal quality control or of medical study for the purpose of reducing morbidity or mortality, or for improving patient care, shall be strictly confidential and shall be used only for medical research, the evaluation and improvement of quality care, or granting, limiting or revoking staff privileges, except that the claim of confidentiality shall not be invoked to deny a physician access to or use of data upon which a decision regarding his staff privileges was based.
Sec. 2. Such information, records, reports, statements, notes, memoranda, or other data, shall not be admissible as evidence in any action of any kind in any court or before any tribunal, board, agency or person.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 51, pars. 101, 102.

Finding that the statements, having caused plaintiff to be denied staff privileges, fell within the staff privileges exception set forth in section 1, this court reversed that dismissal. (Matviuw v. Johnson (1979), 70 Ill. App. 3d 481, 388 N.E.2d 795.) We further found that section 2, prohibiting the admission of such statements as evidence in court, was inapplicable to statements, as those in the present case, which fell within the staff privileges exception.

Subsequent to our decision, the legislature twice amended the medical studies act. The first amendment, effective September 7, 1979 (Ill. Rev. Stat. 1979, ch. 51, pars. 101, 102), explicitly limited the staff privileges exception to situations where a physician seeks otherwise privileged information for use in a hospital proceeding reviewing a determination with regard to his staff privileges, or judicial review of such hospital proceeding. Defendant and Alexian thereafter filed new motions to dismiss the same complaint alleging that the statements no longer fell within the staff privileges exception. The trial court refused to apply the amendment retroactively and denied the motions.

A second amendment, effective September 16, 1981 (Ill. Rev. Stat. 1981, ch. 51, pars. 101, 102), specifically characterized the protection afforded by the act as privileged and barred discovery or admission into evidence of material so protected. Relying on the act, as amended, defendant filed a motion in limine and an alternative motion for a protective order to preclude admission into evidence of defendant’s statement before the committee. Alexian filed a motion to quash and bar discovery and admission into evidence of the statements. Refusing to apply the amendments retroactively, the trial court denied both motions. Defendant and Alexian appeal.

We agree that the act as amended, if applicable to the present case, would render privileged the statements in question. We find, however, that the trial court properly refused to apply the amendments retroactively to the present pending case.

Statutes and amendatory acts are generally presumed to operate prospectively absent clear statutory language to the contrary. (Country Mutual Insurance Co. v. Knight (1968), 40 Ill. 2d 423, 240 N.E.2d 612.) One exception to this general rule allows retroactive application even absent such statutory language where the statute or amendment in question relates only to procedural matters. (Orlicki v. McCarthy (1954), 4 Ill. 2d 342, 122 N.E.2d 513.) This exception is inapplicable, however, when the operation of a procedural rule affects the assertion of a substantive right or destroys that right. Golden v. Holaday (1978), 59 Ill. App. 3d 866, 376 N.E.2d 92.

The amendments in question here do not contain language specifically requiring retrospective application to pending cases. Although rules pertaining to discovery and the admissibility of evidence would generally be characterized as procedural, we find the exception to be inapplicable under the circumstances of the present case. Since plaintiff’s cause of action is based primarily on the statements in question, application of the amendments to bar this discovery and admissibility would in effect prevent plaintiff from proceeding with this action and would take on substantive dimensions.

Defendant urges that the amendments constitute ¿ response by the legislature to our decision in Matviuw in an effort at clarifying legislative intent that these statements should be unavailable for use by a physician in a defamation acton., Defendant urges further that the amendatory language requiring the amendments to “take effect upon becoming law” mandates application to pending cases. Even if we were so to interpret this language, however, it would be improper, in light of our decision in Matviuw, for the legislature to require retrospective application of the amendments in question to the present case.

The General Assembly has the power to amend statutes prospectively in order to correct a prior judicial interpretation at odds with legislative intent. (Mitchell v. Mahin (1972), 51 Ill. 2d 452, 283 N.E.2d 465.) Retroactive application is proper where the amendment does not change the law but merely serves to clarify a previously ambiguous statute. (Commonwealth Edison Co. v. Department of Local Government Affairs (1981), 85 Ill. 2d 495, 426 N.E.2d 817.) The amendments in question, however, were enacted to change the law and not merely to clarify an existing ambiguity. In Matviuw we did not find the act as it then existed to be ambiguous, but rather, we found support for our construction of it in the express statutory language. Our interpretation of the act in effect became a part of the statute until changed by the legislature by the amendments in question. That change, if applied retroactively to the present case, would effectively annul our decision in Matviuw with regard to the question of privilege. It would thereby constitute an invasion by the legislature of the constitutional province of the judiciary to determine what the law is and to apply statutes to cases. Roth v. Yackley (1979), 77 Ill. 2d 423, 396 N.E.2d 520.

For the reasons stated, the order of the circuit court of Cook County denying the motions to bar discovery and admissibility of defendant’s statements is affirmed.

Order affirmed.

WHITE, P.J., and McGILLICUDDY, J., concur.


author: PRESIDING JUSTICE STAMOS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD SCAGGS, Defendant-Appellant.
    First District (2nd Division)
    No. 80—1293
    Opinion filed December 28, 1982.

      George M. Zuhanelis, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Raymond Brogan, and Bryan David Schultz, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Defendant Ronald Scaggs was indicted for aggravated battery, attempted murder and armed violence predicated on the attempted murder count. Following a jury trial, defendant was found guilty on all counts and was sentenced to 10 years’ imprisonment on only the attempted murder verdict. On appeal, defendant contends: (1) that the jury’s verdict was against the manifest weight of the evidence; (2) that defendant was denied a fair trial due to prosecutorial misconduct during the trial; (3) that the trial court’s refusal to grant defendant a continuance on the day trial was scheduled to begin was an abuse of discretion; and (4) that the jury was erroneously instructed as to an offense for which defendant was not charged. Because we find that defendant was denied a fair trial due to prosecutorial misconduct, we need not address the other issues raised in this appeal.

On April 22, 1979, at approximately 7:30 or 8 p.m., Arthur Brown, J. B. Daniels, Harry Gardner, Earnest Brown and Valentino were conversing in a parking lot adjacent to 2515 West Van Burén Street, Chicago, when defendant and Joe Weaver approached the group. Defendant and Gardner began to discuss a proposed drag race which had failed to materialize. The evidence is somewhat conflicting as to what happened next but it appears that defendant became annoyed with Gardner and said to him “get out of my face, old man.” Two of the witnesses testified that at this point, defendant produced a gun. J. B. Daniels pushed Gardner to the ground stating, “Got a gun over here. Get out of the way.” David Ball, the victim, walked up with his Cook County deputy sheriff’s badge in hand and told defendant to drop the gun. All three witnesses who testified at trial stated that Ball did not have a gun in his hand, only the badge. Defendant fired two shots at Ball striking him in the right leg and left buttock. Defendant then turned and ran as Ball pulled out his own handgun, rose to his knees and began shooting at defendant. The other witnesses dove for cover during the shootout. After defendant had fled and the shooting stopped, the police were called. About three hours later, defendant turned himself in.

Defendant testified that Ball was the one who first pulled a gun. Defendant also testified that Ball did not have a badge in his hand as he approached and that he (defendant) was afraid that Ball was going to rob him. Defendant admitted firing the first shot but stated that Ball returned fire immediately.

Defendant contends that prosecutorial misconduct during cross-examination of defendant and during closing arguments served to deny defendant a fair trial. Defendant cites nine alleged points of error in support of this contention. Generally, alleged errors must be objected to at trial and specified in a post-trial motion in order to preserve them for appeal. (See People v. Carlson (1980), 79 Ill. 2d 564, 576, 404 N.E.2d 233; 87 Ill. 2d R. 366(b)(2)(iii); Ill. Rev. Stat. 1981, ch. 110, par. 68.1(2).) In the instant case, defense counsel objected to only one of the alleged errors and he failed to specify these points of error in his post-trial motion. Nonetheless, we elect to review these alleged instances of prosecutorial misconduct under the plain error rule. (87 Ill. 2d R. 615(a).) We find that of the nine alleged points of error raised on appeal, five have merit, and that the cumulative impact of these errors served to deny defendant a fair trial.

Defendant first cites as error the prosecution’s line of questioning regarding the fact that defendant was living with a woman other than his wife. This type of questioning, which is designed to highlight defendant’s sexual immorality is clearly improper. See People v. Liapis (1972), 3 Ill. App. 3d 864, 868, 279 N.E.2d 368.

Defendant next cites as error the prosecution’s repeated questioning concerning the frequency with which defendant carried a gun. This line of inquiry was not relevant to defendant’s assertion of self-defense. A similar line of inquiry in People v. Hicks (1971), 133 Ill. App. 2d 424, 429-31, 273 N.E .2d 450, was held to be so improper and prejudicial as to deprive the defendant of a fair trial.

Defendant next contends that the prosecution improperly questioned defendant about Joe Weaver, a witness who was never called to testify, and improperly commented in closing argument on defendant’s failure to call that witness to testify. Generally, it is improper for the prosecution to comment on defendant’s failure to present witnesses which are as accessible to the State as they are to the defendant. (People v. Puente (1981), 98 Ill. App. 3d 936, 948, 424 N.E.2d 775.).But where, as here, defendant is responsible for injecting the witness into the case and/or referring to efforts on his (defendant’s) part to secure the witness, it appears to be proper to comment on defendant’s failure to produce that witness. See People v. Swift (1925), 319 Ill. 359, 365-66, 15Ó N.E. 263; People v. Mays (1972), 3 Ill. App. 3d 512, 514-16, 277 N.E .2d 547.

The prosecutor, however, went beyond merely commenting on defendant’s failure to call the witness. The prosecutor stated that the witness did not “show” because he would not “lie” for defendant. This comment was based on pure speculation and was extremely prejudicial.

Defendant also contends that the prosecutor misstated the law of self-defense in his closing argument. The test for self-defense is whether, in using the force that he did, defendant acted reasonably under the circumstances that confronted him at the time. (See 111. Rev. Stat. 1979, ch. 38, par. 7 — 1.) The prosecutor stated in his closing argument that:

“[t]he standard is reasonable men. I submit to you what goes on in that man’s mind is it reasonable to begin with? Reasonable men don’t carry guns to visit people in their homes. Reasonable men don’t drag-race on the streets like teenagers. They don’t bet like a teenager and carry guns with them and drink. You’re going to measure it by what is reasonable to that. Reasonable men are the men and women that sit on juries like you, conscious of the community the standard of what you think is reasonable, not what he thinks is reasonable.”

The prosecutor thus sought to divert the jury’s attention from defendant’s actions at the time of the shooting to an evaluation of defendant as a person. The jury was encouraged to consider matters irrelevant to self-defense, to wit: the fact that defendant regularly carried a gun, the fact that defendant drag raced and that defendant gambled and drank while carrying a gun. This argument was highly prejudicial and a clear misstatement of the law of self-defense.

Defendant next contends that the prosecution led the jury to believe that “reasonable doubt” was a mere pro forma detail. In his closing argument, the prosecutor stated:

“Every defendant that has ever been convicted in this building in this country has been convicted beyond a reasonable doubt whether it is stealing a bicycle or committing a murder. It does not put this man on a pedestal. It is not some impossible thing floating up there in the air. It is a burden that is met every day.”

This frequently used argument has been repeatedly held to be improper. See People v. Martinez (1979), 76 Ill. App. 3d 280, 285, 395 N.E.2d 86. See also People v. Ayala (1981), 96 Ill. App. 3d 880, 883-84, 422 N.E.2d 127; People v. Hamilton (1980), 80 Ill. App. 3d 794, 805, 400 N.E.2d 599.

We make no finding as to whether, individually, the instances of prosecutorial misconduct cited above warrant a reversal. We do find, however, that the cumulative impact of these instances of misconduct served to deny defendant a fair trial. See People v. Weinger (1981), 101 Ill. App. 3d 857, 866, 428 N.E.2d 924; People v. Sepka (1977), 51 Ill. App. 3d 244, 255, 367 N.E.2d 138.

For the reasons stated above, we reverse the judgment of the trial court and remand for a new trial.

Reversed and remanded.

PERLIN and HARTMAN, JJ., concur.