author: JUSTICE JOHNSON

text:
    LORENZO REVOAL, Plaintiff-Appellant, v. ILLINOIS HUMAN RIGHTS COMMISSION et al., Defendants-Appellees.
    First District (4th Division)
    No. 83—2465
    Opinion filed October 11, 1984.
    Theodore M. Becker, J. Samuel Tenenbaum, and Alan E. Gitles, all of Becker & Tenenbaum, of Chicago, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Rosalyn B. Kaplan, Assistant Attorney General, of counsel), for appellee Human Rights Commission.
    O’Brien, O’Rourke, Hogan & McNulty, of Chicago (Donald V. O’Brien and Barbara J. Stuetzer, of counsel), for appellee Bongi Cartage Co.
   JUSTICE JOHNSON

delivered the opinion of the court:

Lorenzo Revoal, plaintiff, appeals from the trial court’s order of September 26, 1983, dismissing his complaint against Bongi Cartage Company (Bongi) for employment discrimination. The issue on appeal is whether plaintiff was denied his constitutional right to due process when the Illinois Human Rights Commission (IHRC) dismissed his charge for lack of jurisdiction, which resulted from administrative inaction within the statutory period.

We reverse.

On July 13, 1975, plaintiff Revoal applied for a position as pile driver with defendant Bongi. He was not hired. On November 7, 1975, Revoal filed a complaint with the Fair Employment Practices Commission (FEPC) charging that he had been refused employment on racial grounds in contravention of the Fair Employment Practices Act (Ill. Rev. Stat. 1975, ch. 48, par. 851 et seq.).

On October 19, 1977, approximately two years after Reveal’s complaint had been filed, the FEPC issued a “Notice of Substantial Evidence.” The FEPC determined that there was substantial evidence in support of Revoal’s complaint against Bongi. The record is silent as to what occurred during the intervening months, but on August 17, 1978, the FEPC issued a “Complaint of Unfair Employment Practices” against Bongi. On November 29, 1978, the FEPC notified Revoal of his right to sue Bongi pursuant to Public Act 80 — 1455 (now codified as Ill. Rev. Stat. 1981, ch. 68, par. 9 — 102(B)). The FEPC advised Revoal that pursuant to the legislature’s action he had two years following receipt of the “Notice of Substantial Evidence” in which to file a civil suit against Bongi.

On August 24, 1979, an evidentiary hearing was held on Revoal’s charge against Bongi. On March 21, 1980, Bongi moved to dismiss the charge on jurisdictional grounds. On June 20, 1980, an administrative law judge issued a recommended order and decision, determining that the FEPC had lost jurisdiction over Revoal’s charge because of its failure to issue a timely complaint. The judge recommended dismissal of the charge against Bongi; in so doing, he noted that the dismissal resulted from factors beyond the control of Revoal.

In October 1980, Revoal filed a complaint for declaratory judgment and injunctive and other relief in the Chancery Division of the Circuit Court of Cook County. On December 3, 1980, during the pendency of the chancery action, the Illinois Human Rights Commission (successor to the FEPC) entered an order affirming the recommendation of the administrative law judge and the FEPC’s complaint against Bongi was dismissed. No review of the IHRC’s dismissal order was taken.

On May 12, 1982, Revoal petitioned the IHRC for reconsideration of its December 1980 order dismissing the complaint against Bongi. On July 2, 1982, the IHRC denied the petition, finding it untimely.

On July 30, 1982, Revoal filed a complaint at law (law action) in the circuit court of Cook County. He named as defendants Bongi, the IHRC and the individual commissioners who issued the July 2, 1982, order denying his petition for reconsideration. Count I of the complaint sought administrative review of the IHRC’s denial of his petition for reconsideration (the May 12, 1982, petition); count II purported to be a class action and sought reinstatement and adjudication by the IHRC of all claims it had dismissed because of its own failure to act in a timely manner. The pending chancery action was consolidated with the law action on February 3, 1983, pursuant to an agreement between Revoal and Bongi.

On June 23, 1983, the trial judge dismissed with prejudice count I of the law action, but allowed Revoal 28 days to amend count II. The amended complaint eliminated the class action allegations but named the IHRC as a defendant. The complaint asked the circuit court to order the IHRC to proceed administratively with Revoal’s charge against Bongi.

On September 26, 1983, the circuit court ruled that Revoal’s failure to seek a timely administrative review of the IHRC’s December 3, 1980, order barred the action at law. The circuit court then dismissed Revoal’s consolidated action.

On appeal, both Bongi and the IHRC submitted briefs and argued as appellees. However, the IHRC took the position that although Revoal was not entitled to review of the law action, he should be granted a hearing on the merits of the chancery action.

Bongi urges us to affirm the trial court’s dismissal of Revoal’s consolidated actions because they were an improper collateral attack on the IHRC’s dismissal order of December 3, 1980. Although the complaint purported to seek review of the IHRC’s denial of Revoal’s petition to reconsider, it in fact sought reversal of the prior order of December 3, 1980. Bongi cites section 3 — 102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 102) as expressly barring Revoal’s consolidated action in the circuit court. Bongi points out that section 3 — 102 of the Code mandates that review of the IHRC’s order of December 3, 1980, had to have been sought within 35 days of the issuance of the order.

Defendant IHRC argues that Revoal’s law action was properly dismissed by the circuit court since he did not seek review of the IHRC’s order of December 3, 1980, within the statutorily required period, either before the full IHRC or later by the circuit court. Reveal’s action at law, regardless of the manner in which it is framed, was an attempt to gain judicial review of the IHRC’s order of December 3, 1980. Thus, Reveal’s failure to satisfy the procedural rules barred his action at law.

The IHRC acknowledges that although it was not a party to Reveal’s chancery action, it believes that he is entitled to relief under the holding of three recent Illinois appellate court decisions. The IHRC points out that Revoal commenced the chancery action, pursuant to Public Act 80 — 1455 (Ill. Rev. Stat. 1981, ch. 68, par. 9— 102(B)), within two years of receipt of a statutory notice from the FEPC. Although that statute was later declared unconstitutional (see Wilson v. All-Steel, Inc. (1981), 87 Ill. 2d 28, 428 N.E.2d 489), the IHRC believes that Revoal stands in similar circumstances to other plaintiffs who filed timely suits under the provisions of the repealed statute. Those individuals were afforded relief by our appellate court. Accordingly, the IHRC joins with Revoal in contending that the chancery action should not have been dismissed.

In Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 71 L. Ed. 2d 265, 102 S. Ct. 1148, the United States Supreme Court considered the question of whether the plaintiff was entitled to have the merits of his charge of discrimination considered on the merits by the IHRC although the statutorily required period for such consideration had expired. In that case, plaintiff Logan filed an employment discrimination charge with the IHRC. Under the then-existing statute, the IHRC was required to convene a fact-finding conference within 120 days of Logan’s charge. The IHRC, for reasons beyond Logan’s control, failed to hold the conference within the requisite period. Logan filed a petition with the Illinois Supreme Court for a writ of prohibition; that court held that the statutory period was mandatory and because of the IHRC’s failure to act within 120 days, it lacked jurisdiction to consider Logan’s charge. The United States Supreme Court reversed our supreme court, holding that Logan’s access to the IHRC’s adjudicatory procedures was a protected property interest under the due process clause of the fourteenth amendment to the United States Constitution. Therefore, Logan was entitled to have the IHRC consider the merits of his charge.

This case presents a situation strikingly similar to that in Lo gan. Revoal timely filed a charge of employment discrimination with the FEPC; that charge was not acted upon within the 180 days required by the statute. Revoal’s claim was therefore dismissed. Section 9 — 102(B) of the Illinois Human Rights Act (Ill. Rev. Stat. 1981, ch. 68, par. 9 — 102(b)), which would have preserved the claim, has been declared unconstitutional by our supreme court. (See Wilson v. All-Steel, Inc. (1981), 87 Ill. 2d 28, 428 N.E.2d 489.) Nevertheless, we find that the principles of Logan are clearly applicable here; specifically, that Revoal has a protected property interest in his employment discrimination claim, and inaction of the FEPC and its successor agency cannot deprive him of that right without offending the United States Constitution.

We must, therefore, decide whether Logan should be applied retroactively. In Sauers v. City of Woodstock (1983), 113 Ill. App. 3d 892, 446 N.E.2d 896, the plaintiff was prevented from having her employment discrimination charge disposed of before the FEPC because of its own administrative inaction. She was later denied relief in the trial court because of the unconstitutionality of the statute upon which the court action was based. The appellate court, in Sauers, noted that the plaintiff’s charge of discrimination had been timely filed within the required period following the alleged discrimination. Relying on the principles enunciated in Lott v. Governors State University (1982), 106 Ill. App. 3d 851, 436 N.E.2d 569, the court held that the plaintiff had a protected property interest of which she could not be deprived by inaction of the IHRC.

A similar conclusion was reached by the appellate court in McClandon v. Bell & Howell Schools (1983), 112 Ill. App. 3d 367, 445 N.E.2d 362, cert. denied (1983), 464 U.S. 936, 78 L. Ed. 2d 311, 104 S. Ct. 344.

In a civil case, the criteria for determining prospective or retroactive application are:

(1) a decision to be applied prospectively must establish a new principle of law,

(2) will the purpose and effect of the new decision be best served by retroactive or prospective application? and,

(3) the equities of the situation.

In re Estate of Rudder (1979), 78 Ill. App. 3d 517, 520, 397 N.E.2d 556, 558.

We bejieve that retroactive application of the principles enunciated in Logan is appropriate in this case and, further, that such retroactivity will not be an undue hardship to the parties. Revoal is entitled to have the merits of his charge considered by the IHRC.

Accordingly, the judgment of the circuit court of Cook County is reversed, and the cause is remanded with directions that Revoai be granted a hearing before the IHRC on the merits of his charge.

Reversed and remanded, with directions.

LINN, RJ., and ROMITI, J., concur.

      Prior to the passage of Public Act 80 — 1455, the Illinois Supreme Court, in Springfield-Sangamon County Regional Plan Com. v. FEPC (1978), 71 Ill. 2d 61, 373 N.E.2d 1307, held that once a charge is filed with the FEPC, that body must, within 180 days, either issue a complaint or order that no complaint be issued. Failure to do so would result in dismissal of the charge. In Revoal’s case, the FEPC’s complaint was issued 990 days after the charge was filed.

      The Illinois legislature repealed the Fair Employment Practices Act under which the FEPC functioned (Pub. Act 81 — 1216, amended by Pub. Act 81 — 1267). The Illinois Human Rights Act replaced the FEPA. The FEPC was replaced by two agencies: the Illinois Department of Human Rights (IDHR), which is responsible for investigating charges and issuing complaints when warranted, and the Illinois Human Rights Commission (IHRC), which reviews the IDHR’s findings and conducts hearings on complaints.


source: Caselaw Access Project

author: JUSTICE WHITE

license: Public Domain

text:
      In re S.B., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. S.B., Respondent-Appellant).
    First District (3rd Division)
    No. 83—1031
    Opinion filed October 10, 1984.

      Steven Clark and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, James S. Veldman, and Elizabeth Loredo Rivera, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WHITE

delivered the opinion of the court:

The two-count petition for adjudication of wardship filed in reference to the minor respondent, S.B., alleged that he was delinquent in that he committed the offense of aggravated battery against both Bernie Cleveland and Victoria Cleveland. The first count alleged that respondent shot Bernie Cleveland in the left thigh with a revolver; the second count alleged that he shot Victoria Cleveland in the right arm with a revolver. Pursuant to an agreement with the State, respondent, represented by appointed counsel, entered an admission to the second count of the petition in exchange for the dismissal of the first count and a recommendation by the State of a two-year period of probation. The trial court made a finding of delinquency based upon the admission and found that it was in the best interest of respondent and the public that he be made a ward of the court. After a dispositional hearing, the trial court refused to follow the State’s recommendation of two years’ probation and committed respondent to the Juvenile Division of the Department of Corrections. Subsequently, S.B. filed a motion to withdraw his admission. This motion was denied, and respondent now appeals.

Respondent first raises two issues as to the adequacy of the proceedings in the court below at the time of his “admission.” First, he contends that the trial judge failed to admonish him that he was not bound by the State’s recommendation of probation and that this failure constituted a denial of due process of law. In making this argument, respondent, citing In re Beasley (1977), 66 Ill. 2d 385, 391, 362 N.E.2d 1024, cert. denied (1978), 434 U.S. 1016, 54 L. Ed. 2d 761, 98 S. Ct. 734, concedes that Supreme Rule 402 (87 Ill. 2d R. 402), which sets forth standards governing the acceptance of guilty pleas in criminal proceedings, does not apply to juvenile court actions. He does, however, rely on the following language from our supreme court’s opinion in Beasley:

“Since *** the specific requirements of Rule 402 are not applicable to the peculiar protective procedures granted to juveniles, in the context of the instant case the quoted language from [section 1 — 2(3)(a) of the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 701 — 2(3)(a))] means only that admissions in a Juvenile Court Act proceeding are entitled to protection at least equal to that constitutionally required for the making of guilty pleas in criminal trials. That is, the admission must be made intelligently and voluntarily, though not necessarily in accordance with Rule 402.” (66 Ill. 2d 385, 391, 362 N.E.2d 1024.)

Later, in the same opinion, our supreme court stated:

“It is sufficient to satisfy due process requirements that it be apparent from the record that the minors were aware of the consequences of their admissions; that is, that they understood their rights against self-incrimination, their rights to confront their accusers and their rights to a trial; that by the admissions they waived these rights and that the waiver conferred upon the court the authority to treat them in a manner authorized by the Juvenile Court Act.” 66 Ill. 2d 385, 392, 362 N.E.2d 1024.

In our opinion, it is apparent from the record that the respondent understood his rights and was aware of the consequences of his admission. At the adjudicatory hearing, the court and the respondent engaged in the following colloquy:

“THE COURT: *** I want you *** to understand that if you admit to these charges I have the authority and could commit you to the Juvenile Division of the Department of Corrections which could place you in a program, institution which it considers proper until you reach the age of 21 years; or you could be placed on probation for a period up to five years or until you reach the age of 21 years, whichever comes first; or you could be held in the Audy Home for a period up to 30 days; or as a condition of your probation you could be required to serve up to 30 days in the Audy Home. You understand the possible consequences of making an admission to that charge?

RESPONDENT: Yes.

* * *

THE COURT: I want *** you to further understand you have a right not to enter an admission to this petition and a right to continue your denial of the charges. You understand that, [S.B.]?

RESPONDENT: Yes.

* * *

THE COURT: *** In your case, [S.B.], there is an agreement that you be placed on probation — at least the State would recommend that you be placed on probation for a period of two years if the Court accepts your admission. You understand that?

RESPONDENT: Yes, Your Honor.

* * *

THE COURT: Has anyone made any promises or threats to *** you, your parents, your attorney, any of your friends or anyone else in order to get you to make this admission. What is your answer to that [S.B.]? Has anyone made any promises to you, any threats to you in order to get you to admit to these charges against you?

RESPONDENT: No, Your Honor.”

Thus, the record shows that the trial judge admonished respondent as to possible dispositional orders. These admonishments, which included a statement that respondent could be committed to the Juvenile Division of the Department of Corrections and a statement that the State would recommend probation, lead us to conclude that respondent understood the consequences of his admission. Accordingly, we hold that respondent was not denied due process of law because of the trial court’s failure to admonish him expressly that it was not bound by the agreement between respondent and the State.

We also observe that respondent was represented by counsel who had informed him of his constitutional rights and appeared with him in court. At the hearing on respondent’s motion to withdraw his admission, his attorney, in response to questions posed by the trial judge, stated that he had informed his client that the State had offered probation and did not tell him that the court was going to place him on probation. In Beasley, our supreme court stated, “courts can, to a degree, at least, rely upon the protection which a minor receives through the representation of counsel in assuring that the admissions are voluntary and are not made in ignorance of his rights.” In re Beasley (1977), 66 Ill. 2d 385, 397, 362 N.E.2d 1024.

Respondent’s second contention concerning the adequacy of the proceedings in the court below at the time of his admission is that he was denied due process of law because the record fails to demonstrate the existence of a factual basis for his admission. In response to this contention, the State argues both that there is no need for a factual basis to be established before a court accepts a juvenile’s admission and that even if a factual basis is required, such a basis was adequately established.

The State argues that the requirement of a factual basis is a requirement of Supreme Court Rule 402(c) (87 Ill. 2d R. 402(c)) and that Beasley held that Rule 402 does not apply to juvenile proceedings. The State, relying on In re S.W.C. (1982), 110 Ill. App. 3d 695, 699, 442 N.E.2d 961, further argues that the factual basis requirement of Rule 402(c) is not constitutionally mandated and, therefore, is not applicable to juvenile proceedings.

If we accept the argument with its questionable philosophical underpinnings that Supreme Court Rule 402 protections never apply to a child facing possible incarceration in delinquency proceedings, there remains the question of whether due process of law requires such a showing of a factual basis for a juvenile’s admission. We believe that the record here contains a showing sufficient to satisfy any due process requirement. See In re Haggins (1977), 67 Ill. 2d 102, 364 N.E.2d 54.

During the colloquy referred to earlier between the trial court and respondent, the court asked the following questions of respondent and received the following answers from him:

“THE COURT: Have you *** discussed with your *** [attorney] the case of [S.B.] petition number 82 J 14519 *** count two of [the petition which charges you] with having on or about August 22, 1982, at Cook County, Illinois, committing [sic] the offense of aggravated battery in that you intentionally without legal justification caused bodily harm to Victoria Cleveland by shooting her in the right arm by using a deadly weapon to wit a 22 caliber revolver? Have you discussed that with your [attorney]? Do you understand what they say you did? What is your answer to that [S.B.]?

RESPONDENT: Yes.

* * *

THE COURT: You are making your admission freely and voluntarily because you did in fact commit the acts charged in the petition and are legally responsible for them, is that correct, [S.B.]?

RESPONDENT: Yes, Your Honor.”

After making this response, the trial judge asked respondent what he had done on August 22, 1982, with respect to Victoria Cleveland. Respondent stated that he and another youth walked into a building located at 500 West Oak Street in Chicago; that certain individuals with guns tried to detain them in the building; that these individuals threatened them and then turned their backs and walked away from them; that these individuals did not “pull their gun” on them; and that when these individuals turned their backs and walked away, respondent and the youth with him started shooting. After hearing this explanation, the circuit court entered a finding of delinquency based on respondent’s admission.

We believe that the trial court made adequate inquiry into the circumstances surrounding the offense to satisfy due process. Although “Rule 402 goes beyond the requirements of due process, in that not all its provisions are constitutionally mandated” (In re Beasley (1977), 66 Ill. 2d 385, 391, 362 N.E.2d 1024; People v. Nardi (1971), 48 Ill. 2d 111, 116, 268 N.E.2d 389), our review of decisions of the appellate court in this State suggests that the inquiries by the trial judge also satisfied the requirements of Rule 402(c). (People v. Solesbee (1974), 16 Ill. App. 3d 924, 926, 306 N.E.2d 911 (holding that questions by the court and answers by defendant similar to those quoted above created a sufficient factual basis for the acceptance of defendant’s plea of guilty); People v. Hudson (1972), 7 Ill. App. 3d 800, 803, 288 N.E.2d 533 (“The method which should normally first be employed [to comply with Rule 402(c)] is to ask the defendant if he actually committed the acts with the intent (if any) required as set out in the indictment and as explained by the judge”).) The record discloses sufficient facts to support the conclusions that respondent actually committed the offense as charged in the petition for adjudication of wardship and that respondent understood that his acts constituted the crime admitted. See People v. Solesbee (1974), 16 Ill. App. 3d 924, 926; see also Mc Carthy v. United States (1969), 394 U.S. 459, 467, 22 L. Ed. 2d 418, 426, 89 S. Ct. 1166, 1171.

Respondent argues that the record does not disclose an adequate factual basis because there was no evidence in the record that Victoria Cleveland was present at the scene or that Victoria Cleveland was struck and injured by a bullet. This argument, however, ignores defendant’s statement that he committed the acts charged in the petition. Respondent also argues that his account of the events indicated that he was acting in self-defense and that the trial court should not have accepted his admission. We reject this argument, because respondent’s own statement indicates that he began shooting after the other individuals had turned their backs and walked away.

Since we have found no infirmity in the proceedings in the court below at the time of respondent’s admission, we conclude that the trial court did not err in denying his motion to withdraw his admission.

Respondent also raises two arguments with respect to the dispositional hearing. First, he contends that error was committed because his attorney was never given a copy of the social investigation report prepared by a probation officer, but was merely allowed to read the report immediately prior to the trial court’s decision to commit respondent to the Juvenile Division of the Department of Corrections. According to him, he was denied due process because his attorney was not given an adequate opportunity to controvert the contents of that report.

Section 5 — 1(2) of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 705 — 1(2)) provides:

“Before making an order of disposition the court shall advise the State’s Attorney, the parents, guardian, custodian or responsible relative or their counsel of the factual contents of the reports prepared for the use of the court and considered by it, and afford fair opportunity, if requested, to controvert them. The court may order, however, that the documents containing such reports need not be submitted to inspection, or that sources of confidential information need not be disclosed except to the attorneys for the parties. ***”

Thus, the Juvenile Court Act expressly provided for an opportunity, if requested, to controvert the contents of the social investigation report. We have reviewed the transcript of the dispositional hearing and have found no such request. Moreover, we observe that at the dispositional hearing the probation officer who prepared the social investigation report gave testimony in response to questions by an assistant State’s Attorney and the court, including a summary of the contents of his report. Counsel for respondent was given the opportunity to examine the probation officer but declined to do so. Under these circumstances, we find no violation of section 5 — 1(2) of the Juvenile Court Act or of due process.

Respondent suggests that he should have been given an opportunity to examine the social investigation report three days prior to the imposition of sentence. His argument is based upon section 5— 3 — 4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 3—4(b)) and section 1 — 2(3)(a) of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 701 — 2(3)(a)). Section 5 — 3—4(b) of the Unified Code of Corrections, in relevant part, provides:

“Presentence reports shall be open for inspection only as follows:
* * *
(2) to the state’s attorney and the defendant’s attorney at least 3 days prior to the imposition of sentence, unless such 3 day requirement is waived;
** * >>

Section 1 — 2(3)(a) of the Juvenile Court Act provides:

“The procedural rights assured to the minor shall be the rights of adults unless specifically precluded by laws which enhance the protection of such minors.”

Assuming that section 5 — 3—4(b) is applicable to juveniles by virtue of section 1 — 2(3)(a), we do not think that error was committed. Initially, we observe that respondent’s counsel made an in-court statement three weeks prior to the dispositional hearing which indicated that he may have been familiar at that time with the contents of the social investigation report. We need not, however, rely on this statement. Section 5 — 3—4 does not require that a presentence report be tendered to a defendant’s attorney; rather it only requires that the report be open for inspection. (People v. Grant (1979), 70 Ill. App. 3d 268, 272, 387 N.E.2d 1026.) Respondent has never contended that the report was not available for inspection three days prior to the dispositional hearing. He only contends that he was not given a copy of the report prior to the dispositional hearing. Thus, he has not asserted a violation of section 5 — 3—4 of the Unified Code of Corrections.

In addition, we observe that the plain language of section 5 — 3—4(b)(2) provides that the three-day requirement can be waived. In Grant, the appellate court held that the three-day requirement was waived where neither defendant nor his attorney complained at the sentencing hearing that they had not had sufficient time to inspect the presentence report and defendant did not show the appellate court what further mitigating evidence he could have presented had he had the opportunity to inspect the presentence report three days prior to the hearing or what information in the report was not already known to him. Similarly, in the instant case neither respondent nor his attorney complained at the dispositional hearing that they had not had sufficient time to inspect the social investigation report and defendant has not made a showing similar to the showing described in Grant. Thus, the three-day requirement has been waived.

Secondly, respondent contends that the circuit court abused its discretion in committing respondent to the Juvenile Division of the Department of Corrections, because this was not the least restrictive disposition available. The law is well settled that the choice of a dispositional order in juvenile matters rests within the sound discretion of the trial court (In re G.L.C. (1979), 74 Ill. App. 3d 411, 413, 393 N.E.2d 113), and a reviewing court will not interfere with the trial court’s judgment in the absence of an abuse of discretion. In re Buchanan (1978), 62 Ill. App. 3d 463, 467, 379 N.E.2d 122.

In committing respondent to the Juvenile Division of the Department of Corrections, the trial judge stated:

“The court has heard the arguments of counsel, listened to the evidence, and nothing that has been said here indicated to me that [respondent] realizes the value of human life. This minor was a potential killer. He emptied a gun. I’ve read the social very carefully. Also he feels because he’s a member of a gang he can protect turf and then go out and kill somebody in order to protect that turf. Seems to me he’s completely beyond the control of his parent, she can’t do any better than that. You want me to run him back to the same community and neighborhood where he would likely be involved in the same act. No evidence here that he is not now here a [gang member]. I haven’t anything here to indicate this minor respondent is likely to perform well.
*** Seems to me that here we have a person who is a potential killer. Could have been a murderer on that day. Emptied his gun firing at someone else. I think he has to realize and be accountable.
*** Placement under Section 5 — 7 of the Juvenile Court Act will not serve the best interest of the minor and public. Parents are unfit, unwilling and unable to protect, train, discipline the minor. That was the mother. Father I understand was killed in a gang fight sometime before. So therefore it will be a commitment to Department of Corrections forthwith on the charge of aggravated battery ***.”

Respondent does not dispute these reasons given by the trial judge, and we believe that they support the judge’s determination to commit respondent to the Juvenile Division of the Department of Corrections. Accordingly, we find no abuse of discretion.

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

Affirmed.

RIZZI, RJ., and McNAMARA, J., concur.

      Respondent also argued that his privilege against self-incrimination and his right to counsel were violated by the introduction into evidence at the dispositional hearing of statements made by him to a probation officer during a predisposition interview, because his counsel was not given notice of the interview and he was not warned of his right to remain silent. At oral argument, counsel for respondent, relying on a recent decision of the United States Supreme Court, waived consideration of this issue.


author: PRESIDING JUSTICE BUCKLEY

text:
    THOMAS G. PRENDERGAST, Adm’r of the Estate of John A. Prendergast, Deceased, Plaintiff-Appellant, v. GERALD COX, Adm’r of the Estate of Henry Garrett, Deceased, et al., Defendants-Appellees.
    First District (1st Division)
    No. 83—988
    Opinion filed October 9, 1984.

      John Bernard Cashion, of Chicago, for appellant.
    Jacobs, Williams & Montgomery, Ltd., of Chicago (C. Barry Montgomery and Barry L. Kroll, of counsel), for appellees.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiff, Thomas G. Prendergast, as administrator of the estate of the deceased, John A. Prendergast, brought a wrongful death action to recover damages resulting from the alleged negligence of the defendants. Following a jury trial, the jury rendered a verdict for plaintiff in the sum of $38,000, which was later reduced by the contributory negligence of the plaintiff to $15,200. Plaintiff appeals the verdict, alleging that the trial court erred in: (1) refusing to permit as an element of damages the loss of society and companionship sustained by the mother of the decedent; (2) refusing to allow as an element of damages the loss of society and companionship sustained by the four adult siblings of the decedent; (3) refusing to allow the loss of accumulation to the estate as an element of damages; and (4) sustaining objections to certain comments by plaintiffs counsel in closing argument.

The record reflects that the decedent was 38 years old when he died in an automobile accident on August 6, 1980. A semitrailer operated by defendants struck his auto on Interstate 294, and the decedent died when fire engulfed his vehicle. The decedent was a bachelor, having never married. At the time of his death, his mother resided with him in the house owned by him. Prior to trial and approximately IV2 years after his death, his mother died. The decedent was also survived by two brothers and two sisters, all of whom were adults at the time of the occurrence. The siblings all resided in the Chicago suburbs and were friendly with each other and the decedent. The two sisters testified that decedent gave them occasional gifts, and all four siblings testified as to various services decedent performed for them, such as home maintenance and repair work.

Decedent was an entrepreneur, engaged in various businesses. He left a will devising all of his property to his brothers and sisters. His net assets totalled $82,603.

I

We turn first to the question of whether the loss of society and companionship suffered by a parent upon the death of an adult child is recoverable under Illinois’ Wrongful Death Act. Section 2 of the Wrongful Death Act (Ill. Rev. Stat. 1983, ch. 70, par. 2), which governs all recoveries under the Act, provides in relevant part:

“[I]n every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the surviving spouse and next of kin of such deceased person.” (Emphasis added.)

Recently, in Bullard v. Barnes (1984), 102 Ill. 2d 505, our supreme court addressed the issue of whether the parents of a minor child may recover under section 2 of the Wrongful Death Act for loss of society. There, the supreme court noted that of the 23 jurisdictions with statutes or decisional law limiting wrongful death recoveries to pecuniary loss, 14 now allow parental recovery in a wrongful death action for the loss of society of a child. The court then reviewed its own recent decisions, stating:

“In Illinois, too, the trend in our more recent decisions under the Wrongful Death Act has been to expand the scope of pecuniary injury to encompass nonmonetary losses. In Elliott v. Willis (1982), 92 Ill. 2d 530, this court quite recently unanimously held, based on a broad definition of pecuniary injury, that a widowed spouse had the right to recover damages for loss of consortium under the Wrongful Death Act. We there relied upon Hall v. Gillins (1958), 13 Ill. 2d 26, where the court refused to allow a common law action to recover for ‘destruction of the family unit’ caused by the death of the father because an adequate remedy already existed under the Wrongful Death Act. This court there stated:
‘The term “pecuniary injuries” [found in section 2 of the Wrongful Death Act] has received an interpretation that is broad enough to include most of the items of damage that are claimed by plaintiffs in this case. Each plaintiff alleges deprivation of support as well as deprivation of the companionship, guidance, advice, love and affection of the deceased. ’ (Emphasis added.) 13 Ill. 2d 26, 31.

The supreme court concluded that, in view of its earlier decisions, it would be anomalous to now deny parents recovery for loss of society. The court therefore held that parents are entitled to a presumption of pecuniary injury in the loss of a child’s society. (Bullard v. Barnes (1984), 102 Ill. 2d 505, 515.) In determining the amount of pecuniary injury, however, a setoff is to be applied for projected child rearing expenses.

The court limited its holding in Bullard to the facts before it, stating: “[T]his case does not present, and we therefore need not decide, the question of whether the loss-of-society presumption applies to children who have reached the age of majority.” (102 Ill. 2d 505, 517.) However, in a specially concurring opinion, Justice Clark stated:
“I would not limit this opinion to minor children, since I believe the logic embodied in the majority opinion would dictate a similar result if this case involved a 27-year-old rather than a 17-year-old. In the case at bar, plaintiff’s decedent was at a point in his life where his parents could reasonably anticipate receiving advice, companionship and assistance. This presumption is equally valid for adult and minor children.” Bullard v. Barnes (1984), 102 Ill. 2d 505, 521.

We are in accord with the above reasoning, and do not believe that the age of the child at death should be decisive as to consideration of the loss of society. Nothing in our wrongful death statute suggests such a distinction. The rationale articulated by Justice Clark is particularly appropriate in the instant case where the record reveals that decedent’s mother had been living in decedent’s house and was dependent upon decedent for advice, companionship and assistance. We conclude that where, as here, the decedent was an adult and unmarried at the time of his death, the loss-of-society presumption, as set forth in Bullard, applies. We therefore remand this cause for a new trial as to damages so that the jury can consider as an element of damages the loss of society suffered by the mother of decedent during the period of time she lived following decedent’s death.

II

We next consider whether the adult brothers and sisters of the decedent are entitled to recover damages for loss of society under our Wrongful Death Act. The question of whether such damages are recoverable by siblings was not addressed in Bullard, nor in any other Illinois case to date. Plaintiff cites a number of cases from other jurisdictions (e.g., Jones v. Carvel (Utah 1982), 641 P.2d 105; Fussner v. Andert (1961), 261 Minn. 347, 113 N.W.2d 355). These cases, however, all involve parental recovery for the loss of society of a child, and fail to address the issue now before us.

We are unpersuaded that the current law in Illinois, which allows recovery for loss of society among lineal heirs, should be expanded to permit such recovery among adult siblings or collateral heirs for two basic reasons. First, Illinois courts, in reviewing damages awarded under our Wrongful Death Act, traditionally have recognized that the relationship shared by lineal heirs is special, and have therefore drawn a distinction, for purposes of recovery, between lineal and collateral heirs. The established rule is that if the wrongful death action is brought for a surviving spouse or lineal next of kin, the law presumes substantial pecuniary damages arising from the relationship alone, and it is immaterial whether they received pecuniary assistance from the deceased in the past. Where, however, the next of kin are collateral heirs, their pecuniary damages are only such as are proved. (Howlett v. Doglio (1949), 402 Ill. 311, 83 N.E.2d 708; Hall v. Gillins (1958), 13 Ill. 2d 26, 147 N.E.2d 352; Rusher v. Smith (1979), 70 Ill. App. 3d 889, 388 N.E.2d 906; Illinois Pattern Jury Instructions, Civil, No. 31.06 (2d ed. 1971).) Secondly, our supreme court in Bullard was cautious in expanding recovery in this particular area of the law. The court explicitly limited its holding to the facts before it, declining to even consider whether the loss-of-society presumption should apply to a child who has attained his majority, and it further applied a setoff for projected child rearing expenses. For these reasons, we refuse to expand the holding in Bullard to permit adult siblings to recover for loss of society.

Ill

Plaintiff next argues that the trial court erred in refusing evidence and argument relating to the loss of accumulation to the decedent’s estate. A jury instruction tendered by plaintiff included as an element of damages the “loss of the reasonable value of the accumulation which would have been added to the estate, and left by the decedent, but for his death on August 6, 1980.” The trial court refused the instruction and granted defendants’ motion in limine prohibiting evidence as to this issue.

We find no error in the above rulings. The trial court, in rejecting plaintiff’s argument, relied on Keel v. Compton (1970), 120 Ill. App. 2d 248, 256 N.E.2d 848. There, the jury in a wrongful death case delivered a verdict of $5,000 for the plaintiff. In attempting to justify the small award, the defendant had at trial and on appeal argued, based upon the accumulation or enhancement of the estate theory, that since the decedent had accumulated very little during his lifetime he would not have any money to leave to his heirs and, therefore, the low verdict was justified. This court, in rejecting the defendant’s argument, stated that “[i]t would be sufficient to say that the ‘enhancement of estate test’ is not the measure of damages presently embodied either in our general law or the instruction relating thereto.” 120 Ill. App. 2d 248, 255.

Here, plaintiff, in support of this element of damages, cites the United States Supreme Court case of Illinois Central R.R. Co. v. Barron (1867), 72 U.S. (5 Wall.) 90, 18 L. Ed. 591. Plaintiff’s reliance on Barron is misplaced, given the discussion of that case by our supreme court in Rhoads v. Chicago & Alton R.R. Co. (1907), 227 Ill. 328, 81 N.E. 371. In Rhoads, the court first noted that Barron had been “relied upon *** insistently” by litigants for the proposition that collateral kindred may recover as pecuniary damages the probable accumulations of the estate of the deceased which would have descended to them. (227 Ill. 328, 337.) The Rhoads court then stated, referring to its earlier opinion in North Chicago Street R.R. Co. v. Brodie (1895), 156 Ill. 317, that a similar contention had been made in Brodie and rejected. Defendant in the case at bar maintains, and we agree, that the Rhoads case thus laid to rest the contention made here that potential accumulations to a decedent’s estate that were cut short by the death of the decedent were to be considered as pecuniary loss to decedent’s surviving collateral kindred.

As we recognized in Keel, the current jury instructions do not include probable accumulations to the estate as an element of damages. (See Illinois Pattern Jury Instructions, Civil, No. 31.07 (2d ed. 1971).) We see no reason to alter the existing law to embody this damage element where, as here, collateral heirs are involved. Such damages involve certain contingencies and are too speculative for purposes of ascertaining the pecuniary loss to the beneficiary.

IV

Plaintiff further argues that the trial court erred in sustaining objections to certain comments made by plaintiff’s counsel during closing argument. The first objection went to the following argument:

“***[Y]ou might even consider that he would support them [his adult brothers and sisters] directly, even though in the past he had not specifically done so.”

Defense counsel objected, stating: “There is no evidence of that.” The objection was sustained.

We find no error in sustaining the objection. As we noted previously herein, collateral heirs, unlike lineal heirs, are not entitled to a presumption of substantial pecuniary loss; rather, there must be an evidentiary basis for their claim. (Howlett v. Doglio (1949), 402 Ill. 311, 83 N.E.2d 708.) Here, counsel for plaintiff acknowledged in the argument above that prior to the decedent’s death the decedent had never directly supported any of his brothers and sisters. Given that collaterals are only to be compensated for those pecuniary losses which are proved, plaintiff’s argument was improper, and the above objection was properly sustained.

Finally, plaintiff assigns error to the trial court’s sustaining of an objection to plaintiff’s rebuttal argument urging jurors to take inflation into account in measuring damages. The trial court sustained defendant’s objection on the basis that there was no evidence presented as to inflation. The court’s ruling thus did not go to the propriety of discussing inflation or its effect.

In support of his inflation argument, plaintiff at trial erroneously relied upon Raines v. New York Central R.R. Co. (1972), 51 Ill. 2d 428, 283 N.E.2d 230, cert. denied (1973), 409 U.S. 983, 34 L. Ed. 2d 247, 93 S. Ct. 322. However, as this court recognized in Kapelski v. Alton & Southern R.R. (1976), 36 Ill. App. 3d 37, 343 N.E.2d 207, the supreme court in Raines never even reached the merits of the inflation issue before it. The Kapelski court specifically noted that

“[i]n Raines the appellate court concluded that the use of opinion evidence concerning future inflationary trends and the difficulty in hedging against inflation served to prejudice the jury in its deliberations and should have been excluded. Our Supreme Court reversed the appellate court in Raines v. New York Central Railroad Co., 51 Ill. 2d 428, 283 N.E.2d 230, cert. denied, 409 U.S. 983, 34 L. Ed. 2d 247, 93 S. Ct. 322. It did so without reaching the propriety of the admission of evidence concerning inflation. Instead, the court held that there was 'other proper evidence’ sufficient to support the verdict.” (Emphasis added.) (36 Ill. App. 3d 37, 46-47.)

We further noted in Kapelski that the “other proper evidence” approach in Raines was followed in Meador v. City of Salem (1972), 51 Ill. 2d 572, 284 N.E.2d 266. There, the defendant argued it was error to permit testimony as to future inflationary trends. The supreme court in Meador found sufficient other proper evidence to support the verdict and, thus, as in Raines, declined to discuss the propriety of the admission of evidence as to future inflationary trends.

Plaintiff also cites extensively from Crabtree v. St. Louis-San Francisco Ry. Co. (1980), 89 Ill. App. 3d 35, 411 N.E.2d 19. There, the defendant contended that plaintiff’s counsel committed reversible error in closing argument when he argued, in effect, that the jury should consider future inflationary trends in determining the present cash value of future lost earnings. Citing Kapelski and Raines, this court decided not to set aside the verdict because it was supported by “other proper evidence,” and we did not reach the propriety of the inflation argument. Accord, Twait v. Olson (1982), 104 Ill. App. 3d 191, 198, 432 N.E.2d 1244.

Hence, in each of the cases cited above, the reviewing court refused to hold that evidence or argument relating to future inflation is proper or improper. The difficulty lies in the fact that inflationary trends tend to be speculative. (Twait v. Olson (1982), 104 Ill. App. 3d 191, 198, 432 N.E.2d 1244.) Minimally, we believe that if the inflation issue is to be presented to the jury, there should at least be evidence presented as to future inflation. We cannot conclude that where, as here, no evidence was presented as to future inflation, it was error to sustain the objection to plaintiff’s argument urging jurors to consider inflation.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part, reversed in part, and remanded for a new trial as to damages.

Affirmed in part; reversed in part; and remanded.

McGLOON and GOLDBERG, JJ., concur.

      If the decedent leaves no spouse or descendants, his parents are his lineal heirs for purposes of recovery under the Wrongful Death Act. Jung v. Buelens (1966), 77 Ill. App. 2d 391, 222 N.E.2d 707; 16 Ill. L. & Prac. Death sec. 24 (1971).

      This opinion was adopted as the opinion of the court prior to the retirement of Justice Goldberg.


author: PRESIDING JUSTICE MEJDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PETER A. GORDON, Defendant-Appellant.
    First District (5th Division)
    No. 83—3017
    Opinion filed October 5, 1984.

      Julius Lucius Echeles, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Cuomo, Jane E. Liechty, and Erin J. Jennings, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Defendant, Peter Gordon, following a bench trial, was found guilty of possession of a controlled substance (cocaine) with intent to deliver and was sentenced to a prison term of 12 years. He appeals, contending that: (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court improperly restricted his cross-examination of the only prosecution witness; (3) the trial court erred in denying his motion for a new trial based on the alleged failure of the State to inform him of a Federal investigation concerning the State’s witness; (4) the search warrant authorizing the search of his home was over-broad; and (5) his sentence was excessive. We reverse and remand for a new trial.

Acting pursuant to a search warrant, Chicago police officers entered the first-floor apartment at 3229 North Seminary Street in Chicago, where defendant resided. The warrant directed the police to search the “entire 1st floor apartment at 3229 No. Seminary Ave., Chicago, Illinois.” Detective Thomas Andricopoulos and three other police officers executed the search warrant. Andricopoulos was the only witness called by the prosecution. He testified that the police gained entry to defendant’s apartment by means of a ruse involving two uniformed police officers. These men handcuffed another officer and activated the flashing blue lights on their squad car. The witness rang defendant’s door bell. After defendant answered the door, the witness testified that he told defendant that the police had caught the man in the handcuffs tampering with an automobile in front of the house. Defendant opened the door and the witness identified himself as a police officer and served the warrant on defendant. The witness and three other officers entered the apartment.

At the hearing on defendant’s motion to suppress, Andricopoulos described the building as a two-story brown stone building. At trial, he stated that a flight of stairs leads from the street level to a vestibule outside the front door to the first-floor apartment. A corridor extends from the front door to the rear of the apartment. On the left side of the corridor is a bedroom and on the right side is a washroom. Further down the corridor is a kitchen. Just inside the front door is an open staircase which winds down to a lower level. This lower level consisted of a large room which had been remodeled and furnished with a waterbed, a chest of drawers, a night stand, a television set, and a small bar about six feet long. A washroom was situated to the rear of this room. The other apartment on the top level of the building did not connect to this lower level.

When the officers entered the apartment they searched defendant’s person but found no contraband. Defendant remained on the upper level in the custody of one of the officers while Andricopoulos and another officer searched the lower level. When the police reached the lower level, Andricopoulos observed a young man whom he identified as James Cruz sitting on the bed watching the television. The officers searched Cruz but found nothing illegal on his person. Cruz was brought to the upper level of the apartment and the police proceeded to search the lower level more thoroughly. On an open shelf behind the bar, Andricopoulos found three clear plastic bags. Two of the bags contained a white crystalline substance and the third contained green plant material. The parties stipulated that if called to testify, Mary Fitzgerald, a chemist of the Criminalistics Division of the Chicago police department, would testify that one of the bags contained 740 grams of a substance containing cocaine, that a second bag contained 312 grams of a substance containing cocaine, and that the third bag contained 21.5 grams of marijuana.

Andricopoulos testified that Cruz was 15 years old, was about “five feet six inches” tall, and that there was indication that Cruz lived in the building. Andricopoulos testified that he recovered the following items from the chest of drawers in the lower level: a traffic bureau violation listed in the name of “Peter Dordin, 3700 North Paulina, Chicago, Illinois,” with a change of address sticker marked “Peter Gordin, 3229 North Seminary, first floor”; a check in the name of Peter A. Gordin, 3229 North Seminary, Chicago, Illinois; and a notice of statement for services marked Peter Gordin, 3229 North Seminary, Chicago, Illinois, for $53 for services rendered. Andricopoulos also testified that he found clothes in some closets on the lower level and that the clothes were too large for Cruz.

On cross-examination, defense counsel attempted to question Andricopoulos concerning his reasons for failing to charge Cruz with any crime. Specifically, defense counsel sought to ask the witness whether he had learned that Cruz’ mother was a police officer and whether the witness had allowed Cruz to be released after the witness had talked with his mother. The trial court sustained the prosecution’s objections to these questions on the ground of relevance. On cross-examination, Andricopoulos admitted that his police report did not mention the presence of any person in the apartment other than defendant.

Defendant testified in his own behalf. He stated that he lived at 3229 North Seminary and was employed by an advertising agency at a salary of $650 per week. He testified that shortly before the police arrived at his house, Cruz, whom he had known for several years and whom he described as 19 years old and “six feet six inches” tall, arrived at defendant’s apartment carrying a package wrapped in brown paper. The two men talked for about an hour and then they heard a loud knocking on the door and someone shouted, “[0]pen you, police.” Cruz looked surprised and ran down to the basement with his package. Defendant stated that he then went to the front door and let the police inside. The police went downstairs, brought Cruz back up in handcuffs, made a telephone call and then released Cruz. Defendant denied ever having cocaine in his apartment, denied ever selling or using cocaine, and denied any knowledge of the cocaine found in the apartment.

On rebuttal, Andricopoulos testified that he did not find any brown paper near the contraband or anywhere else in the lower level of the apartment, that he did not hear any furtive movement in the lower level, and that Cruz, though frightened, was not perspiring.

The parties stipulated that defendant was placed on probation in Ohio on December 10, 1976, that probation was revoked on July 21, 1977, and that defendant served 22 months of a 1- to 10-year sentence. After hearing arguments of counsel, the trial court found defendant guilty of possession of a controlled substance with intent to deliver and possession of a controlled substance and entered judgment on the former finding.

Defendant filed a motion for a new trial which alleged, inter alia, that the State’s Attorney had knowingly concealed the pendency of a Federal investigation of Andricopoulos. At the hearing on the motion, the prosecutor denied any knowledge of the investigation. Defense counsel stated that the investigation was a “secret investigation,” which he had learned about from a television news program and whose existence had been corroborated by the United State’s Attorney’s office. The trial court denied the motion.

At the sentencing hearing, both sides presented arguments and a presentence investigation report was received. The trial court sentenced defendant to 12 years for the offense of possession of a controlled substance with intent to deliver. Defendant appeals.

Opinion

We first consider defendant’s argument that the search which resulted in the seizure of the contraband was beyond the scope of the warrant and that therefore the trial court erred in denying defendant’s motion to suppress. The warrant directed the police to search the “entire 1st floor apartment at 3229 No. Seminary Ave., Chicago, Illinois.” Defendant contends that because the warrant specified the “first floor” apartment, the contraband, which was found on the lower level of the apartment, was illegally seized.

The test for determining the validity of a search where a variance is claimed to exist between the area described in the warrant and the area actually searched is whether the warrant set forth as sufficiently as possible a description which would enable a police officer using reasonable efforts to identify the area to be searched with the requisite degree of certainty. (People v. Curry (1973), 56 Ill. 2d 162, 172, 306 N.E.2d 292.) In the instant case, the warrant specified that the “entire” first-floor apartment be searched. Defendant argues that because the warrant specified the first-floor apartment, any areas within that apartment which were not on the first floor were outside the scope of the warrant’s authorization. We reject this contention on several grounds. First, defendant’s argument. ignores the inclusion in the warrant of the word “entire.” From the context of the warrant and the officers’ observation of the building, the lower level of defendant’s apartment was included within the authorized ambit of the search. “The obvious purpose of designating the entire first floor premises in the warrant was not to limit the search literally to the first floor, but to identify the area to be searched and to distinguish it from the separate second-story dwelling. Any reasonable reading of the warrant indicates that it most certainly authorized the search of a structure or portion which was part and parcel of the first floor premises ***.” (Rainey v. State (1976), 74 Wis. 2d 189, 205, 246 N.W.2d 529, 535 (holding that warrant which directed a search of an “entire first floor premises of shoe shine parlor” (74 Wis. 2d 189, 201, 246 N.W.2d 529, 534) also authorized search of appurtenant balcony); see also State v. Kimble (La. 1979), 375 So. 2d 924, 926 (warrant authorizing search of “1124 South Street, Apartment 4 *** together with all approaches and appurtenances thereto” held to justify search of basement accessible through door from indicated apartment); State v. Stevenson (Mo. App. 1979), 589 S.W.2d 44, 47 (warrant directing search of “the two-story, single family, brick constructed residence located at 5233 Raymond Avenue” authorized search of attic area above second story).) We conclude that the only reasonable interpretation of the warrant in the instant case is that the “1st floor” language serves to distinguish the premises to be searched from the premises comprising the second-floor apartment and that the word “entire” justified the police in searching all levels of the first-floor apartment.

The cases on which defendant relies are distinguishable. In United States v. Higgins (7th Cir. 1970), 428 F.2d 232, 234, the search warrant authorized the search of “the premises known as basement apartment building at 4432-38 South Calumet Avenue, Chicago, Illinois.” The search was held illegal because there were three apartments in the basement and the police could not have determined which apartment to search until they had searched all of them. In United States v. Votteller (6th Cir. 1976), 544 F.2d 1355, a warrant was held void which authorized the search of an entire house where probable cause had been established as to only one floor. United States v. Bermudez (2d Cir. 1975), 526 F.2d 89, United States v. Hinton (7th Cir. 1955), 219 F.2d 324, and United States v. Esters (E.D. Mich. 1972), 336 F. Supp. 214, are to the same effect. In the instant case, defendant has not maintained that the lower level was not a part of his living quarters or that it was a common area or that it had been sublet to others. Nor has defendant argued that probable cause was lacking to search any area of his apartment. Accordingly, the cases cited by defendant do not persuade us that the trial court’s ruling was error.

Our conclusion that the search was proper is bolstered by an examination of the rationale underlying the rule that the description must enable the police to identify the place to be searched with certainty. The controlling principle is that where probable cause to search a dwelling has been established, the search must be confined to the area as to which probable cause exists so as to avoid a search of the wrong apartment and an infringement of the rights of others. (See People v. Redmond (1976), 43 Ill. App. 3d 682, 684, 357 N.E.2d 204.) In applying this rationale, some courts have held that a defendant has no standing to assert an illegal search where a warrant is asserted to be vague and the defendant’s home was the only area searched and the rights of others were not infringed by the search. (See generally Annot., 11 A.L.R. 3d 1330 (1967).) Defendant does not contend that probable cause to search the lower level was lacking and, in light of the absence of a violation of the rights of others, the search was proper. Furthermore, it would be an unreasonable requirement to have the officers, upon discovering the lower level of defendant’s apartment, to abandon the search and obtain an additional warrant. (See People v. Thomas (1979), 70 Ill. App. 3d 459, 462, 388 N.E.2d 941.) We conclude that the trial court did not err in failing to suppress the evidence.

Defendant next contends that he was not proved guilty beyond a reasonable doubt because another person was found in proximity to the contraband and that therefore the prosecution was required to prove that “defendant and no one else was responsible for the controlled substance.” Because we conclude on other grounds that the judgment must be reversed and the case remanded for a new trial, it is therefore inappropriate for us to express an opinion as to defendant’s guilt or to analyze the evidence in greater detail than necessary tox resolve the issues hereinafter deemed dispositive. (See People v. Monaghan (1976), 40 Ill. App. 3d 322, 352 N.E.2d 295; also see People v. Lyons (1976), 44 Ill. App. 3d 802, 358 N.E.2d 1183.) The appellate court, however, has a duty to address a defendant’s reasonable-doubt contention so as to avoid placing defendant in double jeopardy upon a retrial. (People v. Taylor (1979), 76 Ill. 2d 289, 309, 391 N.E.2d 366.) Our review of all of the evidence introduced at trial leads us to conclude that there was sufficient evidence introduced to avoid the proscription against double jeopardy. Nevertheless, this conclusion in no way implies that we have made a finding as to defendant’s guilt which would be binding on the circuit court on retrial. On retrial, defendant is entitled to the presumption of innocence. People v. Thompson (1979), 75 Ill. App. 3d 901, 906, 394 N.E.2d 422.

The deferential standard of review which is accorded a trial court’s findings of facts, however, necessitates strict scrutiny of the trial court’s limitation on defendant’s cross-examination of Andricopoulos because the trial court’s determination of credibility should be made in the light of all relevant information. In this context it has been held that cross-examination to show interest, bias, or motive on the part of a witness is a matter of right, subject to the broad discretion of the trial court to preclude repetitive or unduly harassing interrogation and, assuming a proper subject matter, to control the extent of cross-examination. (People v. Thompson (1979), 75 Ill. App. 3d 901, 903, 394 N.E.2d 422.) In the instant case, defense counsel attempted to ascertain whether the witness was aware of the status of Cruz’ mother as a police officer and whether this knowledge had influenced his actions and, perhaps, his testimony. The prosecution’s objections to the line of questioning were sustained and the defense was not allowed to go into the matter at all. Because the defense was completely foreclosed from inquiry, the issue is not determinable merely by reference to the trial court’s discretion which standard would apply to an evaluation of the extent of cross-examination or to repetitive or harassing interrogation. The question before us is whether the proposed cross-examination related to a proper subject matter, i.e., whether the evidence of bias or motive is direct and positive, not remote and uncertain. People v. Lenard (1979), 79 Ill. App. 3d 1046, 1050, 398 N.E.2d 1054.

Defendant’s theory of the case was that Cruz had brought the contraband into defendant’s home without defendant’s knowledge or consent. In support of that theory, defendant sought to cross-examine Andricopoulos as to whether he knew that Cruz’ mother was a police officer and whether that knowledge had influenced his testimony. Further, defense counsel sought to elicit from Andricopoulos whether he had released Cruz after conducting a telephone conversation with the latter’s mother. These areas of inquiry are, in our view, proper, and defendant should have been allowed to explore them. In light of Andricopoulos’ status as the prosecution’s only witness, discrediting his testimony was crucial to defendant’s case. Precluding cross-examination on these areas is prejudicial error (see People v. Thompson (1979), 75 Ill. App. 3d 901, 904, 394 N.E.2d 422), which requires that the judgment of conviction be reversed and the cause remanded for a new trial. In light of the result reached, we need not discuss defendant’s other assertions of error.

For the reasons stated, the judgment of conviction is reversed and the cause remanded for a new trial.

Reversed and remanded.

LORENZ and SULLIVAN, JJ., concur.


text:
      In re A.M. et al., Minors. (The People of the State of Illinois, Plaintiff-Appellee, v. A.M. et al., Respondents-Appellants).
    First District (5th Division)
    Nos. 83—1541 through 83—1543 cons.
    Opinion filed October 12, 1984.
    James J. Doherty, Public Defender, of Chicago (Joann R. Dinneen and Alison Edwards, Assistant Public Defenders, of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Timothy J. Joyce, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

In separate actions, each of the minor respondents, A.M., P.F., and D.H.J., was adjudged in indirect contempt of court for violation of a court order to attend school and received sentence thereon. The separate appeals were consolidated for review. The common issue is whether the trial court initially entered a' valid order against the minor respondent upon which to sustain the contempt of court conviction. We reverse the judgment in each case.

The separate actions were commenced by the filing of a misdemeanor complaint solely against the minor respondent’s mother, as defendant, for the offense of noncompliance with section 26 — 1 of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 26 — 1) for wilfully permitting her minor child, respondent herein, to persist or continue in truancy within the school year. The summons served on each mother commanding her appearance as defendant also contained the following: “(The presence of your daughter [respondent’s name] is requested).” A subpoena was issued and served upon P.F.; none was issued nor served upon the other respondents. At the time of the respective proceedings, A.M. was 15 years of age, P.F. was 13, and D.H.J. was 13.

In each case, both the defendant mother and the minor respondent were present before the court for all hearings. Following a hearing, the minor respondent was ordered to attend school with “no tar-dies, no cut classes, and no unexcused absences,” and the mother and minor respondent were ordered to appear with a status report on a specified date. At the later hearings, the court in each case entered a written rule to show cause which was served upon the minor respondent in open court, and appointed a public defender as guardian ad litem and another to represent her. The rule to show cause was identical in each case and set forth that “the matter of Indirect Contempt of Court by said Respondent is considered by this Court” and found (1) that the respondent’s parent (defendant parent) is charged with the offense of noncompliance, (2) that (minor respondent) was ordered on (date) to resume school attendance, and that since (date) the respondent had (number) unexcused absences from school. The rule ordered that (minor respondent) appear personally and say why an order should not issue finding and adjudging the said (minor respondent) to be in contempt of court.

At the subsequent hearings pursuant to the rule to show cause, the minor respondents’ motions to dismiss the rule were each denied. Each minor respondent was adjudged in wilful contempt of court and hearings in aggravation and mitigation were held. A.M. was sentenced to a conditional discharge for one year upon term that she attend classes full time, enroll in summer school, be detained at the Audy Home for 30 days with mittimus stayed for the summer session, and follow all recommendations of appropriate family counselling. A motion in arrest of judgment and for new trial was denied. Thereafter A.M. was found in violation of conditional discharge, conditional discharge was revoked, and sentence of 60 days in the Audy Home was imposed for contempt of court.

P.F., following denial of a motion to dismiss the rule, was found in wilful contempt and sentenced to a reporting conditional discharge for one year and to be detained for 60 days in the Audy Home and undergo drug and family counselling. D.H.J., following denial of her motion to dismiss, was found guilty of wilful contempt and sentenced to reporting conditional discharge for one year upon terms: (1) 10 days in Audy Home, (2) attend family and drug counselling, and (3) attend school regularly.

Each of the complaints against the defendant mothers was stricken with leave to reinstate. The appeals of the minor respondents have been consolidated for review.

Opinion

The minor respondents contend that the trial court lacked jurisdiction to order them to attend school because they were not made parties to the litigation by service of summons or otherwise and consequently they may not properly be held in contempt of court for violating the order.

Courts have the inherent power to enforce their orders by way of contempt, and this power may not be restricted by the legislature. (In re G.B. (1981), 88 Ill. 2d 36, 41, 430 N.E.2d 1096.) “In testing the validity of a finding of contempt a court may review and should review the validity of the underlying *** orders.” (Armentrout v. Dondanville (1979), 67 Ill. App. 3d 1021, 1028, 385 N.E.2d 829.) As stated in Faris v. Faris (1966), 35 Ill. 2d 305, 309, 220 N.E.2d 210:

“One is justified in refusing to comply with a court order only if such order is utterly void, but it is no defense in a contempt proceeding to show that the order was merely erroneous. [Citations.] If the court had jurisdiction of the subject matter and of the parties to the proceeding, then its order must be obeyed until such time as it is set aside by the issuing or reviewing court.”

Contempt will not lie for disobeying an order which is void for want of subject matter or because the court has no power to decide the particular matter. (Armentrout v. Dondanville (1979), 67 Ill. App. 3d 1021, 1028, 385 N.E.2d 829; see also In re R.R. (1982), 92 Ill. 2d 423, 442 N.E.2d 252 (contempt sentences must be reversed where underlying orders are void).) Generally, a court acquires jurisdiction over a person only after a proper service of summons. (Augsburg v. Frank’s Car Wash, Inc. (1982), 103 Ill. App. 3d 329, 333, 431 N.E.2d 58; see also Knightsbridge Realty Partners, Ltd.-75 v. Rudolph (1982), 106 Ill. App. 3d 354, 357, 435 N.E.2d 1223.) This was not done in any of the cases on appeal.

Moreover, while the subject of each respondent’s truancy was a matter potentially within the subject-matter jurisdiction of the circuit court, the only matter pending before that court was the action against the mothers for wilful noncompliance with the School Code. In an analogous context, our supreme court has observed that “[cjircuit courts have jurisdiction to enter judgment in actions of assumpsit. They have also jurisdiction to sentence men to the penitentiary for larceny. It, however, can not be inferred that by a summons in an action of assumpsit, duly served, a circuit court acquires jurisdiction of the person of the defendant to try and convict him, in his absence, for larceny of the property, for the price of which the action of assumpsit was brought. Such a proceeding would simply be void.” (Munroe v. People (1882), 102 Ill. 406, 411-12.) In each case subjudice the minor respondent was not even served with process nor made a party for any purpose. The orders were entered in an entirely collateral proceeding. The jurisdiction of the circuit court, then, was not invoked for the purpose of ordering the respondents to attend school. (See Munroe v. People (1882), 102 Ill. 406; Hanifan v. Needles (1884), 108 Ill. 403, 411-12; Wackerle v. People (1897), 168 Ill. 250, 255-56, 48 N.E. 123.) Accordingly, the circuit court was without jurisdiction to enter the orders.

Plaintiff argues that the circuit court nonetheless could properly exercise personal jurisdiction over the minor respondents because of their physical presence before the court and the inclusion of their names on the truancy petitions against their mothers. To the extent that these facts constituted notice to the minor respondents of the action pending in the circuit court, they are insufficient to confer jurisdiction. (Augsburg v. Frank’s Car Wash, Inc. (1982), 103 Ill. App. 3d 329, 431 N.E.2d 58.) Plaintiff argues, however, that these facts constitute appearances by the respondents sufficient to vest the circuit court with jurisdiction.

An exception to the rule that a court only acquires personal jurisdiction after proper service of summons is where a defendant or respondent appears or is permitted to intervene. (Augsburg v. Frank’s Car Wash, Inc. (1982), 103 Ill. App. 3d 329, 431 N.E.2d 58.) The instant case does not present a question of intervention, so we will proceed to analyze whether the minor respondents appeared in the trial court. “Appearance” as that word is used in this connection is a technical term meaning more than physical presence. (See Rockdale Cable T.V. Co. v. Spadora (1981), 97 Ill. App. 3d 754, 758, 423 N.E.2d 555; 6 C.J.S. Appearances sec. 21, at 27-28 (1975).) “When the question is presented whether a defendant has appeared to the merits and thus waived the question of jurisdiction over his person, the test is, has the defendant made a defense or taken other steps in the cause the disposition of which involves the exercise of jurisdiction. If the defendant appears and makes a motion or files a plea or takes any other step which the court would have no power to dispose of without jurisdiction of the defendant’s person, such action on the part of the defendant will be a submission of his person to the jurisdiction of the court and will be a waiver of any objections to the jurisdiction.” (Supreme Hive Ladies of the Maccabees of the World v. Harrington (1907), 227 Ill. 511, 525, 81 N.E. 533.) The question before us then is whether the minor respondents in the instant cases did any act which recognized the power of the court to act. (Lord v. Hubert (1957), 12 Ill. 2d 83, 87, 145 N.E.2d 77; Ford v. Continental Illinois National Bank & Trust Co. (1974), 18 Ill. App. 3d 166, 171, 309 N.E.2d 332.) In analyzing this question, we bear in mind that the cases at bar differ from the typical case involving a defendant’s appearance in that the minor respondents in the instant case were not even nominal defendants, but were present in the courtroom in a non-partisan capacity. Compare Supreme Hive Ladies of the Maccabees of the World v. Harrington (1907), 227 Ill. 511, 81 N.E. 533; Brown v. Van Keuren (1930), 340 Ill. 118, 172 N.E. 1; Rockdale Cable T.V. Co. v. Spadora (1981), 97 Ill. App. 3d 754, 423 N.E.2d 555; cf. In re Estate of Brash (1904), 15 Haw. 372 (orders adjudicating insanity and appointing guardian held void when entered in proceeding to probate will of another person).

In the case of A.M., the common law record contains a misdemeanor complaint styled “The People of the State of Illinois v. Mary Montgomery (child [A.M.]).” The complaint charged Mary Montgomery with wilfully permitting her daughter [A.M.] to persist in her truancy. No complaint against the minor respondent herself is in the record. On April 4, 1983, summons was issued and served by mail on Mary Montgomery. This summons stated that “the presence of your daughter *** is requested.” The case was thereafter set for hearing on April 15, 1983. On that date the court entered an order which provided that “[s]tudent [A.M.] must attend school. No tardys. No cut classes. No unexcused absences. No discipline problems. Working to capacity.” The transcript of the hearing on April 15, 1983, indicates that prior to entering the above order, the trial court asked Mary Montgomery a series of questions and then asked A.M. her age. After hearing reports from school officials and further questioning the mother, Mary Montgomery, the court asked A.M. why she missed classes on certain dates. A.M. answered and her mother explained that she, A.M., did nothing around the house such as cleaning her room or washing dishes. The court then ordered A.M. to attend school. Mary Montgomery inquired as to the consequences of her daughter’s failure to comply with the court order and the court explained that “I have just entered an order. If you violate that order, you will be in contempt of court. If I have to find you in contempt of court on April 29, for violating that order, I will send you to jail. There’s no if’s, and and’s or but’s about it. *** I will add Defendant, that’s you, and student, that’s you, must appear at nine o’clock on April 29. *** If the evidence warrants a finding of contempt, next stop will be jail. Clear?” A.M. answered affirmatively.

The record in the proceedings against D.H.J. indicates the same pattern as in the case against A.M.: the mother was named in the complaint and served with the summons and the daughter was ordered to attend school. In the case against P.F., the mother was named in the complaint and served with summons and the daughter was subpoenaed to testify. On April 22, 1983, P.F. was ordered to attend school full time. The court asked P.F. if she understood the order, and P.F. indicated that she did.

Our review of these proceedings fails to indicate any act on the part of any of the minor respondents which could fairly be characterized as an appearance. None of them made a motion, filed a pleading, entered an express appearance, or otherwise recognized the power of the court to act. (Compare Lord v. Hubert (1957), 12 Ill. 2d 83, 145 N.E.2d 77; Thilman & Co. v. Esposito (1980), 87 Ill. App. 3d 289, 408 N.E.2d 1014.) We conclude that the minor respondents did not “appear” and that consequently they have not waived their objections to the court’s exercise of jurisdiction. We note that the minor respondents’ subsequent participation in the contempt proceedings does not operate to validate the prior orders. (See Mason v. Freeman Na tional Printing Equipment Co. (1977), 51 Ill. App. 3d 581, 586-87, 366 N.E.2d 1015.) As we have already decided, the trial court lacked jurisdiction over the minor respondents. The orders directing them to attend school were therefore void. (Armentrout v. Dondanville (1979), 67 Ill. App. 3d 1021, 1028, 385 N.E.2d 829.) Because a contempt sanction cannot be predicated on the violation of such a void order (Faris v. Faris (1966), 35 Ill. 2d 305, 309, 220 N.E.2d 210), the contempt sanctions must be reversed.

The prosecution argues that People v. Graves (1979), 74 Ill. 2d 279, 384 N.E.2d 1311, and People v. Kennedy (1963), 43 Ill. App. 2d 299, 193 N.E.2d 464, are authority for the trial court’s disposition. We find these cases to be inapposite to the case at bar. Graves involved a direct criminal contempt of court by an attorney who persisted in a line of questioning specifically prohibited by the trial court. The supreme court stated that in such case, the sanctions are based on conduct calculated to embarrass, hinder, or obstruct the court’s administration of justice. Such sanctions for a direct contempt are not based on the failure to comply with a court order, but instead are rooted in the court’s inherent power to proceed in an orderly fashion. (See 12 Ill. L. & Prac. Contempt sec. 4 (1983); Sunset Travel, Inc. v. Lovecchio (1983), 113 Ill. App. 3d 669, 674-75, 447 N.E.2d 891.) The instant case does not present a question involving contempt sanctions for the disruption of court proceedings or otherwise hindering the administration of justice, and we therefore find Graves distinguishable.

In Kennedy, the issue of personal jurisdiction was not presented to the court, and the propriety of the underlying order was questioned only insofar as it was orally pronounced rather than written as a record entry. The court’s broad statement that “persons who hear or are apprised of oral decisions and violate their provisions are liable to contempt proceedings” (People v. Kennedy (1963), 43 Ill. App. 2d 299, 302) must be interpreted in light of the legal question presented to the court. (Community Renewal Society v. Department of Labor (1982), 108 Ill. App. 3d 773, 779, 439 N.E.2d 975.) Because there was no question that the circuit court in Kennedy had jurisdiction to enter the order, we do not find that case controlling.

In summary, we find that the orders entered by the trial court which ordered the minor respondents to attend school were void and the minor respondents’ failure to comply with the orders cannot be the basis for contempt sanctions. Accordingly, the judgment in each case is reversed.

Reversed.

LORENZ and SULLIVAN, JJ., concur.

      This is not really an exception so much as a waiver of the right to challenge jurisdiction. See Supreme Hive Ladies of the Maccabees of the World v. Harrington (1907), 227 Ill. 511, 525, 81 N.E. 533.