author: JUSTICE DOWNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. DONALD LANG, Respondent-Appellant.
    First District (2nd Division)
    Nos. 82—429, 82—2302, 83—2218, 84—1238, 84—1341 cons.
    Opinion filed September 4, 1984.

      James J. Doherty, Public Defender, of Chicago (Marilyn Martin, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey, Henry A. Hauser, Mark R. Davis, and Jude Wiener, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DOWNING

delivered the opinion of the court:

Nearly two decades have passed, yet the interesting as well as perplexing case of respondent Donald Lang, a visually impaired, illiterate deaf-mute, endures — stubbornly evading efforts of finality on the part of the Illinois judiciary.

In November 1965, respondent was indicted for the murder of a woman. (Ill. Rev. Stat. 1965, ch. 38, par. 9—1.) He was civilly committed to the Department of Mental Health after being found unfit to stand trial. (People v. Lang (1967), 37 Ill. 2d 75, 80-81, 224 N.E.2d 838.) On appeal from the circuit court’s denial of respondent’s petition for a writ of habeas corpus, the supreme court ordered the cause reinstated and expedited for trial. (People ex rel. Myers v. Briggs (1970), 46 Ill. 2d 281, 288, 263 N.E.2d 109.) The State, however, dismissed the indictment due to the death of a principal witness. Respondent was thereupon released from confinement in February 1971.

Approximately five months later, in July 1971, respondent was again indicted for the murder of a second woman. (Ill. Rev. Stat. 1969, ch. 38, par. 9—1.) Following a jury trial, he was found guilty as charged, convicted and sentenced to a term of 14 to 20 years’ imprisonment. This court reversed in February 1975, holding that respondent’s conviction had been secured in the absence of trial procedures which could effectively compensate for his disabilities; accordingly, the cause was remanded for a determination of respondent’s fitness to stand trial. People v. Lang (1975), 26 Ill. App. 3d 648, 655, 325 N.E.2d 305, appeal dismissed (1976), 423 U.S. 1070, 47 L. Ed. 2d 80, 96 S. Ct. 851, cert, denied (1976), 423 U.S. 1079, 47 L. Ed. 2d 90, 96 S. Ct. 866.

After a March 1976 fitness hearing, the trial court found respondent unfit and remanded him to the Illinois Department of Mental Health and Developmental Disabilities (Department) for a hearing into his need for hospitalization. (Ill. Rev. Stat. 1975, ch. 38, par. 1005—2—2.) The lower court, in December 1976, ruled that respondent was not mentally retarded, that he was not in need of mental treatment and that, pending further order of court, he was to continue his residency at the security unit of the Illinois State Psychiatric Institute (ISPI), a Department facility.

In March 1977, the circuit court vacated its order requiring the Department to hold respondent. Pursuant to the conservator’s application for voluntary or informal admission, respondent remained at ISPI until October 1977, at which time the court allowed the Department to discharge him to the Cook County jail. However, it was also the trial court’s directive, by virtue of a writ of mandamus, that the Department create and implement an adequate and humane care and treatment program. This court vacated the mandamus order, but affirmed the denial of respondent’s petition for a writ of habeas corpus. People v. Lang (1978), 62 Ill. App. 3d 688, 712, 378 N.E.2d 1106, rev’d on other grounds (1979), 76 Ill. 2d 311.

On appeal, the supreme court remanded the cause to the circuit court for a hearing to determine whether respondent was still unfit to stand trial and, if so, whether respondent possessed the characteristics of dangerousness required for involuntary admission under sections 1—119 and 3—700 et seq. of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat., 1978 Supp., ch. 911/2, pars. 1—119 and 3—700 et seq.) (hereinafter referred to by section number as the MHDD Code). People v. Lang (1979), 76 Ill. 2d 311, 331, 391 N.E.2d 350, cert, denied (1979), 444 U.S. 954, 62 L. Ed. 2d 326, 100 S. Ct. 433.

On March 23, 1981, the trial court entered an order finding respondent to be unfit to stand trial or to otherwise plead to the 1971 murder charge then pending against him. (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 104—16(d).) It was further found that no substantial probability existed that respondent would attain fitness within one year. A commitment hearing was thereupon held in May 1981. Testimony was heard from five psychologists, three psychiatrists, one social worker, respondent’s brother, and civilian workers as well as correctional officers employed by the Cook County Department of Corrections. At the conclusion of this hearing, respondent moved for a directed finding that his basic condition was that of an organic physical illness and, as a result thereof, he was developmentally disabled and not subject to involuntary commitment. This motion was denied.

On August 28, 1981, the circuit court entered an order finding that respondent met the criteria for involuntary admission into a mental health facility designated by the Department. It was further ordered that the 1971 murder charge against respondent be dismissed with leave to reinstate. In accordance with the statutory periodic review provision (section 3—813 of the MHDD Code (1979)), the trial court has subsequently made six redeterminations of respondent’s status as a person subject to involuntary commitment. On April 25, 1984, following the sixth redetermination, respondent filed a petition for a formal hearing into his fitness to stand trial for the 1971 murder charge. This petition was denied on May 17, 1984.

The present appeals, which have been consolidated in the interest of expediting a final disposition of this protracted matter, question the constitutionality of the term “mental illness” as used in section 1— 119 of the MHDD Code and contest the propriety of four of the six recommitment orders, as well as the order denying respondent’s petition for a formal fitness hearing. In view of the alternative nature of relief sought by respondent on these appeals, we shall defer consideration of the challenged redeterminations of involuntary admission and, at this time, will proceed to resolve only the question of respondent’s right to a readjudication of his fitness to stand trial.

I

Based on the record of this case, we have determined that the immediate question to resolve concerns the issue of a current fitness hearing. Therefore, the threshold issue for resolution is whether the lower court’s denial of the petition for such a hearing constituted an appealable order.

In Illinois, it is established law that the appealability of an order is to be determined by its substance as opposed to its form. (Branch v. European Autohaus, Ltd. (1981), 97 Ill. App. 3d 949, 951, 424 N.E.2d 6.) For a judgment to be appealable, “[i]t need not dispose of all the issues presented by the pleadings, but it must be final in the sense that it disposes of the rights of the parties, either upon the entire controversy or some definite part thereof.” People v. Nordstrom (1966), 73 Ill. App. 2d 168, 176, 219 N.E.2d 151, appeal dismissed (1967), 37 Ill. 2d 270.

It is our opinion that availability of appellate review exists where an individual such as respondent, who is faced with indefinite, involuntary civil commitment, has been denied a current readjudication of his fitness to stand trial. Although the lower court’s ruling here was in no way terminative of the entire case on its merits, the fact remains that once such a ruling was made, respondent was entitled to determine if the court had, in fact, erred. The instant order was dispositive of a definite and separate part of the controversy; indeed, the only manner in which respondent’s rights in this regard could have been vindicated or protected was through the appeal process. (See People v. Ealy (1977), 49 Ill. App. 3d 922, 936-37, 365 N.E.2d 149.) Because of the unusual nature of this case, we refuse to sanction any technical niceties involving jurisdiction in favor of attempting to move the case along the judicial path of resolution. We therefore reject the State’s jurisdictional challenge.

II

Respondent argues that the term “mental illness,” as used in section 1—119 of the MHDD Code, is unconstitutionally vague. Our supreme court, however, has repeatedly emphasized that nonjurisdictional issues which have not been properly presented at trial or in post-trial motions are not adequately preserved for review and, thus, cannot be considered on appeal. (People v. Lykins (1979), 77 Ill. 2d 35, 38, 394 N.E.2d 1182, cert, denied (1980), 445 U.S. 952, 63 L. Ed. 2d 787, 100 S. Ct. 1602; People v. Amerman (1971), 50 Ill. 2d 196, 197, 279 N.E.2d 353.) As for questions of constitutional dimension, “[i]t is fundamental that the question of the constitutionality of a statute cannot be properly raised for the first time in a court of review, but must have been presented to the trial court and ruled upon by it, and the person challenging its validity must have preserved proper exceptions to such ruling.” People v. Brand (1953), 415 Ill. 329, 337, 114 N.E.2d 370, cert, denied (1954), 347 U.S. 959, 98 L. Ed. 1103, 74 S. Ct. 709; see also People v. Myers (1981), 85 Ill. 2d 281, 290-91, 426 N.E.2d 535.

Regarding the case at bar, the constitutional propriety of the term “mental illness” as used in section 1—119 of the MHDD Code was neither raised in, nor ruled upon by, the trial court during the several hearings on involuntary commitment and recommitment. Moreover, no reason has been advanced as to why respondent failed to plead this issue during any stage of the proceedings below. Since a challenge to the constitutional validity of a legislative enactment cannot be raised for the first time on appeal, we consider respondent’s argument with regard to this matter as having been waived for purposes of review.

Ill

It is respondent’s contention that the trial court erroneously denied his petition for a formal hearing into his fitness to stand trial for the 1971 murder charge. We agree.

A

The sole purpose of a civil commitment hearing in Illinois is to determine whether a person requires mental treatment or hospitalization. (People v. Patterson (1977), 54 Ill. App. 3d 931, 935, 370 N.E.2d 819, appeal denied (1978), 71 Ill. 2d 600.) “The outcome of such a hearing does not necessarily indicate whether an individual possesses the mental capacity to stand trial on criminal charges.” People v. Chambers (1976), 36 Ill. App. 3d 838, 843, 345 N.E.2d 119; see also People v. Patterson (1977), 54 Ill. App. 3d 931, 935.

On the other hand, the issue of fitness for trial involves an accused’s ability to function within the context of a legal proceeding, i.e., understanding the nature and purpose of the proceedings against him and being able to assist in his defense (Ill. Rev. Stat. 1983, ch. 38, par. 104—10); it does not refer to psychiatric capacity in other areas. A defendant may have a physical or mental problem, or a combination of both, yet he may actually meet the fitness standards. (People v. Kessler (1983), 113 Ill. App. 3d 354, 357, 447 N.E.2d 495, appeal denied, (1983), 96 Ill. 2d 546.) Consequently, “[a] person may be fit to stand trial,’’although upon other subjects his mind may be unsound or deranged.” (People v. Lang (1979), 76 Ill. 2d 311, 327, citing Withers v. People (1961), 23 Ill. 2d 131, 177 N.E.2d 203.) And although he may have certain organic physical problems, he still may meet the fitness requirements.

Regarding the case at bar, the most recent determination of respondent’s fitness for trial was made on March 23, 1981. At that time, the trial court indicated that there was not a substantial probability that respondent would attain fitness within one year. As of April 25, 1984, when the public defender petitioned for the impanelment of a jury to inquire into respondent’s fitness, over three years had passed since the previous adjudication. In view of the principles of law cited above, none of the civil commitment hearings held between May 1981 and April 1984 adequately substituted for a formal hearing into respondent’s fitness to stand trial for the 1971 murder charge. We are therefore of the opinion that for the reasons set forth herein, the lower court’s refusal to conduct such a hearing was improper.

In support of a contrary conclusion, the State argues that since it has not yet reinstated the 1971 charge, respondent is a “former defendant” under section 104 — 23(b)(3) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 104—23(b)(3)). As a result of this status, it is contended that the lower court properly recognized that respondent was not entitled to a formal fitness hearing. This contention must fail.

First, we note that section 104—23(b)(3) is devoid of any language concerning hearings into an individual’s fitness to stand trial. Rather, the provision merely states that upon commitment to the Department, “[a] former defendant *** shall be treated in the same manner as any other civilly committed patient for all purposes including admission, selection of the place of treatment and the treatment modalities, entitlement to rights and privileges, transfer, and discharge.” Respondent, without a doubt, is a former defendant in the sense that his 1971 criminal charge has been dismissed with leave to reinstate. However, we simply cannot agree with, nor are we able to find any support for, the proposition that such a status necessarily precludes respondent’s entitlement to a formal fitness inquiry during the dormancy of his criminal charge. To hold otherwise would, in our opinion, be tantamount to the fallacious assertion that a “former defendant[’s]” entitlement to a fitness hearing is totally contingent on the State’s decision to reinstate the prosecution of the dormant charge. We refuse to countenance such a capricious disposition of the fitness-adjudication issue. Under such a theory, defendant’s status could be likened to riding a merry-go-round. Around, around, defendant goes, but where he stops nobody knows.

Second, it is settled law in Illinois that once a defendant has been adjudicated unfit to stand trial, a presumption of incompetence is raised and continues until it is rebutted by evidence that the accused understands the nature and purpose of the proceedings brought against him, and that he is able to assist counsel in his defense. (See People v. Andson (1979), 73 Ill. App. 3d 700, 705-06, 392 N.E.2d 358; People v. Gravot (1974), 19 Ill. App. 3d 486, 490, 311 N.E.2d 699.) In Jackson v. Indiana (1972), 406 U.S. 715, 32 L. Ed. 2d 435, 92 S. Ct. 1845, the Supreme Court limited the ability of a State to hold an accused, who is found unfit to stand trial, in the mental illness or penal facilities of the State indefinitely:

“[A] person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future.” Jackson v. Indiana (1972), 406 U.S. 715, 738, 32 L. Ed. 2d 435, 451, 92 S. Ct. 1845, 1858.

We are aware that approximately five months prior to respondent’s commitment in August 1981 the trial court had, in fact, found that there was not a substantial probability that respondent would attain fitness within one year. Moreover, it is to be noted that under Illinois statutory law, a defendant’s right to a speedy trial is held in abeyance during the continuance of his condition of unfitness for trial. (Ill. Rev. Stat. 1983, ch. 38, pars. 103—5(a), 104—23(c).) It is our opinion, however, that respondent is entitled to rebut the presumption of his incompetency that was raised, and has continued, since March 1981. We again stress that as of April 25, 1984, over three years had passed since the previous adjudication of respondent’s unfitness. During this time period, it is uncontroverted that respondent has made definite progress toward becoming fit to stand trial. On August 24, 1983, following the sixth consecutive involuntary commitment hearing, the trial judge even acknowledged that: “I read the reports when they come in and I see that [respondent] has been making substantial progress in terms of communication.” (Emphasis supplied.)

During the seventh consecutive involuntary commitment hearing held on April 24, 1984, it was the opinion of Dr. Robert Donoghue, a deaf psychologist who has been working with respondent since 1980, that respondent is “bright” and that “[h]e has been an excellent student when it comes to sign language. He picks up everything first try out.” When asked if respondent was better able to communicate at the time of the seventh commitment hearing, as compared to the time Dr. Donoghue first began training him, the psychologist responded: “By a highly significant degree. No question at all about that.” In essence, with respect to respondent’s improvement at acquiring formal communicative skills, Dr. Donoghue indicated that: “I consider it a miracle the progress he has made in the last two years.”

In view of the foregoing, we believe that it is now the time to re-examine respondent’s condition so as to determine whether or not such progress has reached the point of fruition. We reach this determination particularly in light of the well-recognized fact that the results of civil commitment hearings, no matter how many in number, are not indicative of a person’s mental capacity to stand trial on criminal charges. People v. Patterson (1977), 54 Ill. App. 3d 931, 935; People v. Chambers (1976), 36 Ill. App. 3d 838, 843.

We express no opinion regarding respondent’s condition to stand trial. A realistic reading of the entire record suggests the necessity to separate respondent’s physical condition (which includes problems of hearing, inability to talk, his recent alleged impairment of vision), his recent training, the record of the case, and his background (see Ill. Rev. Stat. 1983, ch. 38, par. 104—16), from matters pertaining to mental disability. The trial court, in 1981, found that respondent could reasonably be expected to inflict serious physical harm upon himself or another. Since that time, such finding has not changed. However, that does not mean that respondent is presently unfit to stand trial. And if found fit to stand trial, the present statutory scheme provides the appropriate action for such a person, whether he is found guilty or innocent. Ill. Rev. Stat. 1983, ch. 38, pars. 104-22, 104-26.

Section 104—23(b)(3) of the Code of Criminal Procedure of 1963 provides that upon commitment of a defendant to the Department, the court having jurisdiction over the criminal charge “shall dismiss the charges against the defendant, with the leave to reinstate.” Without question, “[t]he striking of a charge with leave to reinstate does not discharge [a] defendant from the indictment or terminate the proceedings against him and prosecution of the charge may be reinstated on the State’s motion.” People v. Rodgers (1982), 106 Ill. App. 3d 741, 745, 435 N.E.2d 963, appeal denied (1982), 91 Ill. 2d 578, citing People v. Bryant (1951), 409 Ill. 467, 100 N.E.2d 598.

It is our conclusion, therefore, that respondent, handicapped as he is and facing indefinite, involuntary civil commitment, should be accorded a reasonable opportunity to obtain a trial in order that he may possibly clear his name and record of an alleged murder for which he was indicted over 14 years ago. By virtue of this opinion, the State shall take the necessary action to reinstate the 1971 charge against respondent in order that a fitness hearing may proceed.

B

In view of our holding above, we also deem it appropriate to briefly address respondent’s contention in his opening brief that the trial court should have dismissed the 1971 murder charge “with prejudice.” We note that as respondent has conceded in his reply brief, People v. Rink (1983), 97 Ill. 2d 533, 455 N.E.2d 64, is dispositive of this issue. In Rink, the supreme court held that the dismissal of an indictment within the meaning of section 104—28(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1980 Supp., ch. 38, par. 104—28(a)) is to be “with leave to reinstate.” 97 Ill. 2d 533, 539-41.

C

Furthermore, we find it necessary to dispose of respondent’s contention that he has been denied the statutory right to a discharge hearing, often referred to as an “innocent only” hearing (People v. Lang (1979), 76 Ill. 2d 311, 329-30), as set forth in sections 104 — 23(a) and 104—25 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., 1980 Supp., ch. 38, pars. 104—23(a), 104—25). On January 24, 1972, the circuit court of Cook County entered a judgment of conviction on a jury verdict finding respondent guilty of murder as charged in the 1971 indictment. In its 1979 Lang decision, our supreme court held that: “Although the appellate court reversed the conviction as a violation of due process of law because of Lang’s apparent unfitness, nonetheless, the trial afforded an opportunity to determine from the evidence whether or not he should be released as an innocent person.” (76 Ill. 2d 311, 330.) It was the supreme court’s conclusion, therefore, that the due process issue inherent in holding pending charges over indefinitely was not present in this case.

In essence, the Illinois Supreme Court has already determined that respondent’s 1972 criminal trial did, in fact, provide him with the one “innocent only” hearing to which he was entitled. Since only the supreme court can overrule or modify its previous decisions (Super Liquors, Inc. v. Illinois Liquor Control Com. (1983), 113 Ill. App. 3d 229, 232, 446 N.E.2d 945, appeal denied (1983), 94 Ill. 2d 558), we reject respondent’s assertion that the 1972 proceeding was not an adequate substitute for a discharge hearing.

Conclusion

For the reasons set out herein, the order of the circuit court denying respondent’s petition for a readjudication of his fitness is reversed, and the cause is remanded with directions that the court conduct a formal hearing into respondent’s fitness to stand trial.

Reversed and remanded with directions.

STAMOS and O’CONNOR, JJ., concur.

       According to the record, respondent is now legally blind in his left eye and suffers restricted vision in his right eye.

       Section 1—119 of the MHDD Code prescribes the following requirements for involuntary commitment:
      “(1) A person who is mentally ill and who because of his illness is reasonably expected to inflict serious physical harm upon himself or another in the near future; or
      (2) A person who is mentally ill and who because of his illness is unable to provide for his basic physical needs so as to guard himself from serious harm.” Ill. Rev. Stat. 1979, ch. 911/2, par. 1-119.

       Section 104—28(a) provides that:
      “Disposition of Defendants Pound Unfit Prior to this Article, (a) Upon reviewing the report, the court shall determine whether the defendant has been in the custody of the Department of Mental Health and Developmental Disabilities for a period of time equal to the length of time that the defendant would have been required to serve, less good time, before becoming eligible for parole or mandatory supervised release had he been convicted of the most serious offense charged and had he received the maximum sentence therefor. If the court so finds, it shall dismiss the charges against the defendant.” (Emphasis added.) Ill. Rev. Stat., 1980 Supp., ch. 38, par. 104—28(a).


source: Caselaw Access Project

author: JUSTICE ROMITI

license: Public Domain

text:
    WEYERHAEUSER COMPANY, Plaintiff-Appellant, v. THE DEPARTMENT OF REVENUE, Defendant-Appellee.
    First District (4th Division)
    No. 81—2936
    Opinion filed September 13, 1984.
    David J. Creagan, Jr., and Paul V. Esposito, both of Chicago (Lewis, Overbeck & Furman, of counsel), for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Paul J. Bargiel, Special Assistant Attorney General, and Doss, Puchalski, Keenan & Bargiel, Ltd., of counsel), for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

Plaintiff-appellant Weyerhaeuser Company appeals from an order of the circuit court of Cook County upholding the determination of defendant-appellee, the Department of Revenue of the State of Illinois, that Weyerhaeuser owed $102,349 in additional income taxes. This additional tax liability resulted from the department’s disallowance of a claimed valuation limitation amount of $147,035,792.

We affirm.

In Thorpe v. Mahin (1969), 43 Ill. 2d 36, 250 N.E.2d 633, the Illinois Supreme Court upheld the validity of the Illinois Income Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 1—101 et seq.). In so doing, that court found that the legislature intended an August 1, 1969 (the effective date of the Act), valuation limitation in computing taxable gain on property. The court explained the valuation limitation as follows:

“*** in computing taxable gain on property acquired prior to August 1, 1969, the basis is date of acquisition value or the August 1, 1969, value, whichever is greater; in computing a deductible loss on property acquired prior to August 1, 1969, the basis is the date of acquisition value or the August 1, 1969, value, whichever is less.” (Thorpe v. Mahin (1969), 43 Ill. 2d 36, 54, 250 N.E.2d 633, 642.)

The Illinois legislature then expressly adopted this valuation limitation for individuals, trusts, and estates but excluded corporations. (Ill. Rev. Stat. 1973, ch. 120, pars. 2—203(a)(2)(F) and 2—203(c)(2)(F); see pars. 2—203(b) and 2—203(g).) These amendments were made applicable to all taxable years beginning after December 31, 1970.

Pursuant to Federal income tax law Weyerhaeuser has elected to utilize a taxable year which varies from 52 to 53 weeks and ends on the last Sunday in December. (26 U.S.C.A. sec. 441(f)(1978).) The taxable year at issue here began on December 28, 1970, and ended December 26, 1971.

When Weyerhaeuser filed its Illinois income tax return, it took the position that the amended statute eliminating the valuation limitation did not apply since its taxable year began on December 28, 1970, and the statutory amendment applied to taxable years beginning after December 31, 1970. The department disallowed the valuation limitation, finding that the following provisions of the Federal statute dealing with 52-53 week accounting periods were applicable:

“(f) Election of year consisting of 52-53 weeks.
(1) General rule. A taxpayer who, in keeping his books, regularly computes his income on the basis of an annual period which varies from 52 to 53 weeks and ends always on the same day of the week and ends always—
(A) on whatever date such same day of the week last occurs in a calendar month, or
(B) on whatever date such same day of the week falls which is nearest to the last day of a calendar month,
may *** elect to compute his taxable income for purposes of this subtitle on the basis of such annual period. ***
(2) Special rules for 52-53 week year.
(A) Effective dates. In any case in which the effective date or the applicability of any provision of this title is expressed in terms of taxable years beginning, including, or ending with reference to a specified date which is the first or last day of a month, a taxable year described in paragraph (1) shall (except for purposes of the computation under section 21) be treated—
(i) as beginning with the first day of the calendar month beginning nearest to the first day of such taxable year, or
(ii) as ending with the last day of the calendar month ending nearest to the last day of such taxable year, as the case may be.” (26 U.S.C.A. sec. 441(f)(1978).)

Application of this section transformed Weyerhaeuser’s taxable year to one beginning January 1, 1971, and thus invalidated its deduction of the valuation limitation amount in computing its capital gains. On administrative review of the department’s determination, the circuit court affirmed the department’s position and also rejected certain constitutional objections raised by Weyerhaeuser in relation to the elimination of the valuation limitation for use by corporations.

The principal issue before us is the applicability of section 441(f)(2)(A) in determining what constitutes Weyerhaeuser’s taxable year for purposes of determining the applicability of the statutory elimination of the valuation limitation for corporations. Section 1 — 102 of the Illinois Income Tax Code (Ill. Rev. Stat. 1983, ch. 120, par. 1—102) provides:

“Except as otherwise expressly provided or clearly appearing from the context, any term used in this Act shall have the same meaning as when used in a comparable context in the United States Internal Revenue Code ***.”

Thus, as a rule of construction, terms are to be given the same meaning for purposes of both State and Federal tax statutes. (Bodine Electric Co. v. Allphin (1980), 81 Ill. 2d 502, 410 N.E.2d 828.) Section 4-410(a) of the Illinois Income Tax Code (Ill. Rev. Stat. 1983, ch. 120, par. 4—401(a)) provides:

“(a) In general. For purposes of the tax imposed by this Act, the taxable year of a person shall be the same as the taxable year of such person for federal income tax purposes ***.”

As we have noted, section 441(f)(2)(A) allows a taxpayer to select a 52-53 week fiscal year but also limits that right by providing that for purposes of determining the applicability of statutes which become effective on the first day of a month such 52-53 week fiscal years will be treated as beginning with the first day of the calendar month beginning nearest to the first day of that taxable year. We find no basis for concluding that in determining what constitutes a 52-53 week fiscal year as defined in the Federal statute we should be limited to only the first, permissive, portion of that statute. The second portion is applicable because the Illinois statute setting out the effective date for abolition of the deduction is expressed in terms of a taxable year beginning with the first day of a month, namely January 1, 1971. Thus, we conclude that the department was justified in determining that Weyerhaeuser was not entitled to the valuation limitation deduction.

This conclusion is supported by an analogous Connecticut case, Eastman Kodak Co. v. Sullivan (1975), 32 Conn. Supp. 127, 342 A.2d 913. There the applicable Connecticut statute specifically permitted a taxpayer to elect a 52-53 week fiscal year in accordance with the provisions of the Federal internal revenue code. The court examined the same Federal statute at issue here and determined that the provisions relating to special rules for applying the effective dates of statutes to 52-53 week fiscal years were incorporated by reference into the State law, not just that portion of the Federal statute permitting the adoption of such a fiscal year.

Weyerhaeuser relies on Allentown Wholesale Grocery Co. v. Commonwealth (1972), 5 Pa. Comm. 426, 291 A.2d 336, in which the court held that a corporate taxpayer with a 52-53 week fiscal year beginning December 29, 1968, was not liable for increased tax rates statutorily applicable to fiscal years beginning in 1969 or for calendar years 1969 and thereafter. Nothing in that opinion indicates that the Pennsylvania statute incorporated or even referred to Federal tax definitions. Although the court referred to the definition of a fiscal year contained in the Federal statute at issue here, this was only to reinforce its determination that the taxpayer was not using a calendar year, a crucial distinction under the Pennsylvania statute. Thus, that case was decided solely under Pennsylvania statutes and has no applicability to this cause. We are also not persuaded by an Idaho Tax Court decision cited by Weyerhaeuser, In the Matter of the Protest of Weyerhaeuser Co. (1974), Docket C — 462. There, a capital gains deduction abolition effective January 1, 1971, was held to be still available to the taxpayer, which had adopted a 52-53 week fiscal year beginning December 28, 1970. Although the Idaho court referred to the Federal provision allowing the use of 52-53 week fiscal years, there is no indication in its one-page opinion that the court was even cognizant of the special rules also contained in the statute which would apply in determining the applicability of effective dates of statutes to 52-53 week fiscal years.

In its brief Weyerhaeuser has also incorporated by reference (with the express permission of this court) certain constitutional challenges to the statutory abolition of the valuation limitation for corporations which were contained in a case then pending before the Third Division of the First District of this court, Chapman v. Department of Revenue (1982), 110 Ill. App. 3d 82, 441 N.E.2d 1156. In pertinent part the appellants in Chapman contended that the statute denied to corporate taxpayers the equal protection of the laws and due process. Chapman has since been decided, with the court holding that the legislature acted reasonably in denying this deduction to corporations because of differences in the manner in which corporations are taxed. (Chapman v. Department of Revenue (1982), 110 Ill. App. 3d 82, 441 N.E.2d 1156; see Brown v. Illinois Department of Revenue (1980), 89 Ill. App. 3d 238, 411 N.E.2d 882; Thorpe v. Mahin (1969), 43 Ill. 2d 36, 250 N.E.2d 633.) We find no basis for differing with the holding of the Chapman court.

For the foregoing reasons the judgment of the trial court is affirmed.

Judgment affirmed.

LINN, P.J., and JIGANTI, J., concur.


author: JUSTICE SULLIVAN

text:
    THE CITY OF CHICAGO, Plaintiff-Appellee, v. STATE & MUNICIPAL TEAMSTERS et al., Defendants-Appellants (State & Municipal Teamsters et al., Plaintiffs-Appellants, v. Harold Washington, Mayor, et al., Defendants-Appellees (American Federation of State, County & Municipal Employees Union, Council 31, AFL-CIO, Intervenor)).
    First District (5th Division)
    No. 84—1433
    Opinion filed August 31, 1984.

      Sherman Carmell, of Carmell, Charone & Widmer, Ltd., and Jack P. Cerone, of Erbacci, Syracuse & Cerone, Ltd., both of Chicago, for appellants.
    James D. Montgomery, Corporation Counsel, of Chicago (Jerome A. Siegan, Mary K. Rochford, and Anthony E. Dombrow, Assistant Corporation Counsel, of counsel), for appellee City of Chicago.
    Gilbert A. Cornfield and Stephen A. Yokich, both of Cornfield and Feldman, of Chicago, for appellee American Federation of State, County & Municipal Employees Union.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This appeal is from a judgment in a consolidated action which declared lawful the city employee representation elections held pursuant to the election rules promulgated by the city of Chicago commissioner of personnel. The newly enacted Illinois Public Labor Relations Act (Public Labor Relations Act) (Ill. Ann. Stat., ch. 48, par. 1601 et seq. (Smith-Hurd 1984 Supp.)) took effect July 1, 1984, and totally preempts the field of collective bargaining for public employees. However, prior to the effective date of the Act, the city — through its department of personnel — divided the city employees into five bargaining units and, as a result, the American Federation of State, County & Municipal Employees Union, Council 31, AFL-CIO (AFSCME), became the exclusive representative of the city employees in all but one of the five bargaining units.

Appellant unions State & Municipal Teamsters, Chauffeurs & Helpers, Local 726; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Teamsters); and Laborers International Union of North America, Locals 1001 and 1092 (Laborers), contend here that (1) the power of the city to conduct the elections was preempted by the Public Labor Relations Act; (2) the Personnel Code did not authorize the commissioner to enact election rules and conduct the elections; and (3) the rule-making procedure was deficient.

On February 28, 1984, the commissioner sent a letter to the Teamsters, the Laborers, and various other labor organizations, informing them that the city intended to conduct union representation elections for unrepresented city employees and had placed employees in five bargaining units for purposes of the election. Those units were:

Unit 1 — Administrative and Clerical Employees
Unit 2 — Public Safety Employees
Unit 3 — Human Services and Inspection Employees
Unit 4 — Professional Employees
Unit 5 — Library Employees

The letter stated that rules for the elections would be available on March 1, 1984, through the department of personnel, and that the city would accept valid and timely petitions for representation and requests to intervene by unions in a particular election. The city received a number of responses to its announcement. AFSCME filed petitions for representation in Units 1, 3, 4, and 5 and intervened in Unit 2. The Chicago Crossing Guards Association, AFL-CIO (Crossing Guards); Local 165, International Brotherhood of Electrical Workers, AFL-CIO (IBEW); and Local 46, Service Employees International Union (SEIU), filed a joint petition for representation in Unit 2. Local 112(L) of the International Brotherhood of Carpenters Union (Local 112) threatened to pursue judicial remedies unless the city recognized Local 112 as the historical collective bargaining representative of certain city employees in Unit 3. The Teamsters and Laborers, in a letter from the Teamsters’ attorneys dated April 5, 1984, demanded that the city rescind the February 28, 1984, notice and the elections rules. The letter raised essentially the same issues presented in this appeal. The Teamsters and Laborers, however, did not file a petition for representation or a request to intervene in any of the five units. After receiving the responses from the unions, the city scheduled elections in Units 1, 3, and 5 for May 3, 1984.

On April 18, the city filed a complaint against the above-mentioned unions and the Chicago Federation of Labor seeking a declaration as to the rights of the parties and the legality of the city’s actions in establishing and conducting the representation elections. Motions to dismiss filed by the Chicago Federation of Labor, the Crossing Guards, SEIU, and IBEW, were allowed. Local 112 was also dismissed as a defendant, and its counterclaim and motion for injunctive relief were withdrawn after the city recognized Local 112 as the historical representative of certain employees. The Teamsters and Laborers filed answers and a joint motion for summary judgment. Edward M. Burke (Burke), an alderman of the city, was granted leave to intervene, and he also filed a motion for summary judgment.

The Teamsters and Laborers filed a separate action on April 18, seeking injunctive and declaratory relief against the mayor of the city and the commissioner. Alleging that the commissioner had exceeded his authority and that the elections would deprive the Teamsters and Laborers of their rights under the new Public Labor Relations Act, the Teamsters and Laborers requested the court to enjoin the representation elections scheduled for May 3. On April 27, AFSCME was permitted to intervene as a party defendant in the case filed by the Teamsters and Laborers, and the two actions were then consolidated.

On April 30, the motion of the Teamsters and Laborers for a temporary restraining order was denied, as were the motions for summary judgment. The trial court also held that the Public Labor Relations Act did not preempt the area until the effective date of the Act — July 1, 1984 — and that the commissioner’s actions were impliedly authorized by chapter 25.1 of the Municipal Code. The city’s motion for declaratory relief was denied on the basis that the department of personnel had failed to give proper notice of the proposed rules. The court then granted the motion of the Teamsters to impound the ballots.

On May 1, after the commissioner announced his decision to republish the election rules and to reschedule the elections for a later date in order to comply with the publication requirement of section 25.1 — 5 of the Municipal Code, the trial court vacated its order impounding the ballots. The Teamsters and Laborers sent a letter to the commissioner containing their views on the appropriate determination of the bargaining units. After the commissioner responded to their comments, the elections in all five bargaining units were scheduled for June 5 and 6.

The Teamsters and Laborers then filed a petition for preliminary injunction, challenging the rule-making procedures followed by the commissioner. Prior thereto and after the dismissal in this court of their interlocutory appeal of the denial of their motion for a temporary restraining order, the Teamsters and Laborers filed — on June 1— an amended petition for a preliminary injunction which reasserted their earlier objections concerning the commissioner’s authority. On June 4, the trial court denied the requests of the Teamsters and Laborers to enjoin the election, but did enjoin certification of the results until further order. The elections were then held on June 5 and 6.

On June 8, the trial court ordered the election results in Units 2 and 5 certified, since the Teamsters and Laborers did not object to the composition of those particular units. On June 11, it held that the commissioner’s rule-making procedure was lawful, and a final order was entered which dismissed the complaint of the Teamsters and Laborers, denied its amended petition for preliminary injunction, granted the city’s complaint for declaratory relief, and directed that the election results be certified. This appeal followed.

Opinion

I

The Teamsters and Laborers first contend that the Public Labor Relations Act precluded the city from holding the representation elections by preempting the area of collective bargaining by public employees. The State legislature does have the power to preempt the exercise of certain home rule powers by providing for the exclusive exercise of such powers by the State. (Ill. Const. 1970, art. VII, sec. 6.) The parties agree that the Public Labor Relations Act included express language of preemption.

“It is the public policy of this State, pursuant to paragraphs (h) and (i) of Section 6 of Article VII of the Illinois Constitution, that the provisions of this Act are the exclusive exercise by the State of powers and functions which might otherwise be exercised by home rule units. Such powers and functions may not be exercised concurrently, either directly or indirectly, by any unit of local government, including any home rule unit, except as otherwise authorized by this Act.” Ill. Ann. Stat., ch. 48, par. 1615(c) (Smith-Hurd 1984 Supp.).

The Teamsters and Laborers maintain that the trial court erred in holding the Public Labor Relations Act’s effective date of July 1, 1984, precludes the application of the preemption doctrine before that date. In support thereof, they cite much authority on the rules of statutory construction used to determine legislative intent. In particular, they argue that the Illinois Educational Labor Relations Act (Educational Labor Relations Act) (Ill. Ann. Stat., ch. 48, par. 1701 et seq. (Smith-Hurd 1984 Supp.)), effective January 1, 1984, and the Public Labor Relations Act, effective July 1, 1984, are in pari materia and should be construed together as one statute.

We reject this argument because rules of construction, including the rule of in pari materia, are not applicable. Initially, we note that such rules are not invoked unless the provision to be construed is ambiguous (Kozak v. Retirement Board of Firemen’s Annuity & Benefit Fund (1983), 95 Ill. 2d 211, 447 N.E.2d 394), and it appears clear that the effective date of the Public Labor Relations Act is unambiguous. Where the legislative intent can be ascertained, it must prevail and be given effect (People ex rel. Mayfield v. City of Springfield (1959), 16 Ill. 2d 609, 158 N.E.2d 582), and there is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of a statute imports. City of Decatur v. German (1923), 310 Ill. 591, 142 N.E. 252.

Moreover, the Illinois Constitution requires the General Assembly to “provide specifically by law” (emphasis added) when it wishes to effect exclusive preemption of a home rule power or function (Ill. Const. 1970, art. VII, sec. 6(h)), and section 7 of “An Act to revise the law in relation to the construction of the statutes” provides:

“No law enacted after January 12, 1977, denies or limits any power or function of a home rule unit, pursuant to paragraphs (g), (h), (i), (j), or (k) of Section 6 of Article VII of the Illinois Constitution, unless there is specific language limiting or denying the power or function and the language specifically sets forth in what manner and to what extent it is a limitation or denial of the power or function of a home rule unit.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 1, par. 1106.)

We cannot find an intent on the part of the legislature that the Public Labor Relations Act had preemptive effect as of January 1, 1984, as argued here, where no such intent was expressed in specific language. The city was therefore not precluded from holding the representation elections.

We also note that the Teamsters and Laborers argue that the above result will “countenance the infliction of great injury on noneducational employees.” This harm is speculative to say the least. It is also worth noting that the result desired by the Teamsters and Laborers would have a much more tangible effect on the city employees. The employees could not even have begun the process of unionization until the State act became effective, a delay of over six months. It is therefore somewhat disingenuous of the Teamsters and Laborers to attempt to bolster their argument by referring to the “infliction of great injury on non-educational employees.”

II

A. Implied Authority

The Teamsters and Laborers next contend the commissioner was acting beyond the authority granted to him by the Personnel Code when he promulgated rules for and conducted the elections. They argue that section 25.1 — 2 of the Personnel Code lists the duties of the commissioner, and that section does not expressly authorize the commissioner to engage in collective bargaining. (Chicago, Ill., Municipal Code, ch. 25.1, par. 2 (1982).) Absent such an express authorization, the Teamsters and Laborers maintain that it is highly unlikely that the city council intended to delegate the power to promulgate election rules to the commissioner. In support of this position, they refer us to proposed ordinances pending in the city council when the Personnel Code was passed, and to the fact that the legislative history of that code gives no indication of an intent to delegate rule-making authority to the commissioner. However, they do not inform us, and we fail to see, how the existence of proposed ordinances, which in some unspecified way refer to collective bargaining, or the nonexistence of legislative history give indication of a lack of intent on the part of the city council to have the commissioner perform the administrative type of functions at issue here.

We believe that a better indication of legislative intent can be found in a closer examination of the various sections of the Personnel Code. It is not necessary to find an express provision in the Personnel Code which authorizes the commissioner to set up the mechanics for the representation elections. “[A]n express legislative grant of power or authority to an administrative body or officer includes the grant of power to do all that is reasonably necessary to execute that power or authority.” (Parliament Insurance Co. v. Department of Revenue (1977), 50 Ill. App. 3d 341, 347, 365 N.E.2d 667, 671.) It includes the authority which is incident to and included in the power expressly conferred for the purpose of effectively accomplishing the objectives for which the agency was created. (Parliament Insurance Co. v. Department of Revenue (1977), 50 Ill. App. 3d 341, 365 N.E.2d 667.) Thus, rather than focus on the express duties of the commissioner, we must also examine the purpose and objectives of the ordinance which created the department of personnel. In this regard, the Personnel Code states:

“It is the general purpose of this ordinance, and it is necessary in the public interest, to establish a system of personnel administration that meets the social, economic, and program needs of the people of the City of Chicago, to provide for a professional and progressive merit system for employment and to insure flexible career service within the City of Chicago.” (Chicago, Ill., Municipal Code, ch. 25.1, par. 1 (1982).)

The implementation of rules for representation elections is the type of function which would necessarily be performed by an administrative agency which is charged with establishing a system of personnel administration. In the Federal sector, the President established a labor management-relations system for Federal employees by executive order. The United States Supreme Court found statutory authorization for the executive order in 5 U.S.C. sec. 7301 (1982), which is a very general grant of authority. It provides that “[t]he President may prescribe regulations for the conduct of employees in the executive branch.” (5 U.S.C. sec. 7301 (1982).) The court held that the executive order was “plainly a reasonable exercise of the President’s responsibility for the efficient operation of the Executive Branch.” (Old Dominion Branch No. 496, National Association of Letter Carriers v. Austin (1974), 418 U.S. 264, 273 n.5, 41 L. Ed. 2d 745, 755 n.5, 94 S. Ct. 2770, 2776 n.5.) Here, the commissioner was authorized by the grant of power to establish an effective and efficient system of personnel administration. We hold that this grant of authority included the implied authority to establish rules and procedures for the representation elections.

Although analysis of the Personnel Code is not limited to the express duties of the commissioner, those express duties do refer to some of the same issues and problems covered by collective bargaining agreements. Among his other duties, the commissioner is specifically charged with fostering and developing programs “for the improvement of employee effectiveness including but not limited to position classification, salary administration, recruitment, selection, promotion, performance ratings, probationary periods, training, employee communications, employee benefits, affirmative action, safety and health.” (Emphasis added.) (Chicago, Ill., Municipal Code, ch. 25.1, par. 2(3) (1982).) A system of personnel administration could be made more effective and employee effectiveness improved by the existence of a collective bargaining agreement which would deal with some of these concerns. The mere development of procedures for selection of a collective bargaining representative and the selection of bargaining units for purposes of the election is not beyond the implied power of the commissioner.

Additionally, the commissioner may also “perform any other lawful acts which may be necessary or desirable to carry out the purposes and provisions of this ordinance.” (Emphasis added.) (Chicago, Ill., Municipal Code, ch. 25.1, par. 2(8) (1982).) The Teamsters and Laborers argue that this section refers only to the duties enumerated in section 25.1-2(1) through (7). However, we believe that section 25.1— 2(8) refers specifically to the purpose of the ordinance and should therefore be read as a broad grant of authority to the commissioner, since it specifically grants to him the power to do what is desirable to establish an effective system of personnel administration. Such a reading of the grant of power is particularly appropriate here, since the ordinance refers not only to what is necessary but also to what is merely desirable.

Various other sections of the Personnel Code lend further support to the implied authority of the commissioner. The ordinance also created the Personnel Board. The Board is to provide advice and counsel to the Mayor and to the commissioner on “all aspects of public personnel administration including, but not limited to, manpower utilization, manpower training, employee grievances and employee salaries.” (Emphasis added.) (Chicago, Ill., Municipal Code, ch. 25.1, par. 4 (1982).) This section again indicates that some of the very areas of concern in a collective-bargaining agreement are express areas of responsibility for the commissioner under this ordinance.

Furthermore, the commissioner is directed by the ordinance to issue rules on various aspects of personnel administration, including employee safety, health, discipline, and relations in general. He may also issue personnel rules which provide “[f]or such other policies and administrative regulations, not inconsistent with this law, as may be proper and necessary for its enforcement.” (Chicago, Ill., Municipal Code, ch. 25.1, par. 5(15) (1982).) This general provision for rules also supports a finding of implied authority on the part of the commissioner to enact the election rules.

Where a legislative body uses language such as “all aspects of public personnel administration” and where the ordinance being interpreted was amended as recently as 1982, it is difficult to imagine that the city council did not contemplate the eventual institution of collective bargaining for public employees. With this perspective in mind, and in the absence of an express limitation on the commissioner’s power, it is reasonable to conclude that the city council intended the commissioner to handle the necessary administrative details and procedures. Indeed, the rule of construction which extends a grant of power by implication is most often applied where powers are delegated to public officers or administrative agencies, because those implied powers may involve many functions which are discoverable only through practical experience. 2A A. Sutherland, Statutory Construction sec. 55.04 (1972).

After considering the ordinance as a whole, we find that the acts of the commissioner were within limits relevant to the purpose of the ordinance — the establishment of an effective system of personnel administration. We therefore hold that the acts of the commissioner were lawful and within the authority granted to him by Chapter 25.1 of the Municipal Code.

B. Delegation

The Teamsters and Laborers also argue that the implied power to promulgate the election rules is an unconstitutional delegation of legislative power. We hold that no delegation problem exists, for two reasons.

First, a distinction must be made between the delegation of true legislative power and delegation to a subordinate of the authority to execute the law. (Hill v. Relyea (1966), 34 Ill. 2d 552, 216 N.E.2d 795.) Although the Illinois Supreme Court has also expressed concern that mere characterization of action as administrative is not sufficient to eliminate a delegation problem, this concern was expressed in the context of administrative promulgation of regulations which prescribed rights and duties in a comprehensive regulatory scheme. (Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill. 2d 361, 369 N.E.2d 875.) The enactment of the rules which established the procedures for the representation elections must be characterized as the exercise of a purely administrative function. Government would cease to function if nothing could be left to the discretion of administrative officers. Mister Softee of Illinois, Inc. v. City of Chicago (1963), 42 Ill. App. 2d 414, 192 N.E.2d 424.

Even where standards and guidelines are required, however, the precision of the standards “must necessarily vary according to the nature of the ultimate objective and the problems involved.” (Hill v. Relyea (1966), 34 Ill. 2d 552, 555, 216 N.E.2d 795, 797.) In Hill, the legislature gave the superintendent of a State mental hospital the power to discharge patients “as the welfare of such person and of the community may require.” Despite the substantial personal right involved, the court upheld the delegation as supported by adequate guidelines. The mandate here to “establish a system of personnel administration that meets the social, economic, and program needs of the People of the City of Chicago” is sufficient guidance to enable the commissioner to enact rules which are essentially procedural in nature.

Second, this is not true delegation of power. All parties agree that any collective-bargaining agreement must be approved by the city council, and it is therefore that body which actually determines the rights of the employees. Where final control remains in the legislative body, there is no delegation problem. (People ex rel. Gutknecht v. City of Chicago (1954), 3 Ill. 2d 539, 121 N.E.2d 791.) We also note that this court has previously observed the actual process of collective bargaining does not present a delegation problem. As stated in Chicago Division of Illinois Education Association v. Board of Education (1966), 76 Ill. App. 2d 456, 472, 222 N.E.2d 243, 251, quoting Fellows v. LaTronica (1962), 151 Colo. 300, 307, 377 P.2d 547, 551:

“The fact that the municipality engages in collective bargaining does not necessarily mean that it has surrendered its decision making authority with respect to public employment. The final decision as to what terms and conditions of employment the municipality will agree to, or whether it will agree at all, still rests solely with its legislative body.”

If the collective-bargaining process itself is not unconstitutional delegation of power, the power to establish the rules for the elections cannot be unconstitutional delegation.

C. Necessity Of Ordinance

The Teamsters and Laborers next argue that the city council must “provide by ordinance in regard to the relation between all municipal officers and employees in respect to each other, the municipality, and the people.” (Ill. Rev. Stat. (1983, ch. 24, par. 10—4—1.) Thus, they maintain that the type of action taken by the commissioner may only be done when specifically authorized by ordinance, since it affects the relations between the city and its employees.

Initially, the relations between the city and its employees will be changed by the collective-bargaining agreement itself, which must be approved by ordinance. Additionally, the limitation indicated by the Teamsters and Laborers is not applicable to the city. Section 10—4—1 is a general grant of authority to municipalities and was enacted before the 1970 Illinois Constitution. (Redemske v. Village of Romeoville (1980), 85 Ill. App. 3d 286, 406 N.E.2d 602; Ill. Rev. Stat. 1983, ch. 24, par. 10—4—1.) The city, as a home rule unit of government, may now exercise any power and perform any function pertaining to its government and affairs. (Ill. Const. 1970, art. VII, sec. 6(a).) Since the statute was enacted before the 1970 constitution, it cannot be construed as a limitation of home rule power and, indeed, it is subordinate to an ordinance enacted by the city pursuant to its home rule powers. (Aurora Pizza Hut, Inc. v. Hayter (1979), 79 Ill. App. 3d 1102, 398 N.E.2d 1150.) Section 10—4—1, therefore, does not require us to invalidate the election rules.

D. Necessity Of A Prior Appropriation

We find no merit in the further contention that the rules are invalid because the contract with the American Arbitration Association for the conduct of the elections was made without a prior appropriation and is thus null and void, pursuant to section 8—1—7 of the Illinois Municipal Code (Ill. Rev. Stat. 1983, ch. 24, par. 8—1—7). First, the validity or invalidity of the contract with the American Arbitration Association is irrelevant with respect to the issue of implied authority. Additionally, such an expenditure could be taken care of by using the operating budget of the department of personnel and is thus supported by a prior appropriation. Clearly, section 8 — 1 — 7 does not require a separate appropriation for every expenditure by an administrative agency.

Ill

Finally, the Teamsters and Laborers contend that the rule-making procedure used by the commissioner was deficient. In essence, they posit that there should have been rule-making hearings. In this regard, although there was no ordinance requirement for such hearings and there has been no Illinois case dealing precisely with this question, the Teamsters and Laborers nevertheless maintain that the commissioner should have followed the requirement in section 5.01(a) of the Illinois Administrative Procedure Act (IAEA) (Ill. Rev. Stat. 1983, ch. 127, par. 1005.01(a)) that public hearings be held on proposed rule making. This is particularly so, they argue, because the Labor Relations Board, under the new Public Labor Relations Act, must conform its rule-making procedures to the requirements of IAEA. We will not, however, invalidate the rules here for failure to conform to the rule-making standard of IAEA, because (a) it is clear — and the Teamsters and Laborers agree — that IAEA does not cover the commissioner and (b) as pointed out above, the Public Labor Relation Act is not applicable here. Furthermore, we do not believe that due process accorded the right to a hearing on the rule making here. It has long been the general rule that due process does not require a hearing in the context of administrative rule making. (Bi-Metallic Investment Co. v. State Board of Equalization (1915), 239 U.S. 441, 60 L. Ed. 372, 36 S. Ct. 141.) Although the Teamsters and Laborers refer to two cases in which a rule-making procedure did require a hearing, we note that in both cases it was clearly held that no constitutional right to a hearing existed (Alaska Steamship Co. v. Federal Maritime Com. (9th Cir. 1966), 356 F.2d 59; California Citizens Band Association v. United States (9th Cir. 1967), 375 F.2d 43, cert, denied (1967), 389 U.S. 844, 19 L. Ed. 2d 112, 88 S. Ct. 96), and the hearings referred to in those cases were required by the relevant acts, which in Alaska Steamship was the Intercoastal Shipping Act, and in California Citizens Band was the Communications Act of 1934.

Here, the relevant act is the ordinance which does not require such a hearing, providing only for:

“[P]ublic notice in one or more newspapers of general circulation, and in no case shall such publication be less than ten days before the effective date of the proposed rule or amendment to the rule. Such public notice shall include information concerning where the rules can be reviewed and where comments may be directed.” Chicago, Ill, Municipal Code, ch. 25.1, par. 5 (1982).

Although the commissioner initially did not give the notice required by section 25.1 — 5, he later published the proposed rules as required and rescheduled the elections. The Teamsters and Laborers do not now argue noncompliance with the notice provision of the ordinance; in fact, they admit that the commissioner personally responded by letter to the comments sent by the Teamsters.

Thus, considering that the commissioner complied with the provisions of the ordinance, that due process did not require a hearing, and that the Illinois Administrative Procedure Act was not applicable, we find no support for the contention that the rule-making procedure here was deficient.

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

Affirmed.

MEJDA, P.J., and LORENZ, J., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PERVIS REDMON, Defendant-Appellant.
    First District (1st Division)
    No. 82—735
    Opinion filed September 4, 1984.
    Rehearing denied October 10, 1984.

      Robert B. Rosen, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Richard B. Levy, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Following a jury trial, defendant Pervis Redmon was found guilty of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9—1) and attempted armed robbery (Ill. Rev. Stat. 1979, ch. 38, pars. 8—4, 18—2) and was sentenced to 35 years and 15 years respectively, the sentences to run concurrently. On appeal, defendant contends that the trial court erred in refusing to suppress certain alleged oral confessions where the State had failed to satisfy its burden of demonstrating a voluntary, knowing and intelligent waiver of defendant’s constitutional rights. We agree.

The record reveals that the victim, Charles Miller, was employed as a newspaper distributor for the Chicago Sun-Times. On October 11, 1980, Miller was shot and killed during a robbery attempt while he was making collections in a building at 2420 South State Street. The victim was found in the building stairwell alive but seriously wounded. Although he survived for a short period of time, the victim never identified his assailants but did state that he was shot during a robbery attempt. A subsequent autopsy and ballistics report revealed that Miller was shot at close range with a .38-caliber revolver. There were no eyewitnesses to the crime.

At approximately 9:30 p.m. on the day following the murder, police officer Joseph Cooley arrested defendant for the murder of Charles Miller based solely on information provided by an unidentified informant. Cooley advised defendant of his Miranda rights and transported him to the 21st District police station and, later, to Area One Homicide where he briefly questioned defendant alone for three or four minutes. It was approximately 11:30 p.m. when Officer Cooley left defendant. Over the next 19 hours, defendant was successively interrogated by various individuals on four different occasions, the final time in the presence of a court reporter.

Detective Willie Johnson, from Area One Homicide, was the first person to formally interview defendant. Detective Johnson testified that on October 13, at approximately 1 a.m., he advised defendant of his constitutional rights from a preprinted form, after which defendant replied that he understood those rights. He then proceeded to interrogate defendant for approximately 30 to 45 minutes, during which time defendant freely admitted that he and an accomplice named “Slow Boy” had attempted to rob Charles Miller while the victim was making his collections at 2420 South State Street. Defendant stated that during the robbery attempt Slow Boy shot Miller during a struggle, after which both he and Slow Boy fled. Redmon further informed Detective Johnson that he subsequently took the gun used by Slow Boy in the robbery and threw it by the railroad tracks at 2400 South Federal. This area was thoroughly searched by the police, but the gun was never recovered. On cross-examination, Detective Johnson stated that he never took any notes during the conversation, that he never called anyone else to witness defendant’s confession, and that he never submitted any report regarding his conversation with defendant. He further testified that at the time defendant was arrested, defendant had just turned 17 years of age.

Following Detective Johnson’s interview, Detectives Salvatore and Lowrey interrogated defendant a second time later that day at approximately 9:30 a.m. Detective Salvatore testified that before he questioned defendant, his partner, Lowrey, advised defendant of his rights from a standard preprinted form and, after having his rights read to him, defendant stated he understood those rights. Defendant then proceeded to relate substantially the same facts concerning the crime that he had previously given to Detective Johnson. Following this interview of defendant, Detective Salvatore contacted the felony review unit of the Cook County State’s Attorney’s Office.

Assistant State’s Attorney Thomas Gainer testified that he received a telephone call from Detective Salvatore at approximately 11 a.m. on October 13, 1980. Gainer stated that he proceeded to the Area One headquarters and, after advising defendant of his rights, interrogated defendant from 3:30 p.m. to 4:30 p.m. During this interview, defendant repeated the same facts he had previously given to Detectives Johnson and Salvatore.

Shortly after his conversation with Redmon, Gainer summoned a court reporter to take defendant’s statement. With the court reporter present, Gainer again read defendant his constitutional rights from a preprinted form, after which the following colloquy occurred:

“Q. Understanding these rights, do you wish to talk to me now?
A. I don’t know. I don’t really understand.
Q. You don’t understand what, the rights?
A. Yeah.
Q. Okay, let me see if I can explain them to you. We talked earlier today, did we not?
A. Yeah.
Q. Today, did we not?
A. Yeah.
Q. This is the first time anybody, all day long, has suggested I am going to explain your rights to you. I am not just going to read them, I am going to explain them.”

Gainer then elicited from defendant the fact that defendant had been advised of his rights by him and other police officers and that he had responded that he understood his rights. The assistant State’s Attorney then attempted to individually explain each right to defendant. After this explanation, the following conversation ensued:

“[Assistant State’s Attorney Gainer]: Q. Tell me what it is about those four paragraphs you don’t understand, I will be happy to explain it to you.
A. Number four — I mean number three.
Q. Number three. Number three is the paragraph that says you have the right to talk to a lawyer and have him represent you while you are being questioned.
A. Yes.
Q. Well, that is what we have been telling you all day, isn’t it?
A. Yes.
Q. Well, that means, well, what that means is, before anybody talks to you today, you could have asked for a lawyer and he would be present with you while we were talking to you.
A. Yes.
* * *
Q. You are talking about number three, right?
A. Yes, sir. And I understand if I don’t want to talk to you, I can get a lawyer.
Q. And that is the way it has been all day, Pervis, and that is what you have been acknowledging, that you understood all day, isn’t it?
A. Yes.
Q. So you understood it earlier when you were told that, didn’t you?
A. Not quite. I didn’t understand because, you know, I never been too much arrested and really understand.”

Thereafter, when asked by Assistant State’s Attorney Gainer if he wanted to continue the interview, defendant stated he did not and the interrogation ceased. A written waiver of rights was never signed by defendant.

At the hearing on defendant’s motion to suppress statements made while in police custody, defendant presented expert testimony on his mental ability. Dr. Rosenwald, a practicing psychologist, testified that he had administered three different standardized tests to defendant which measured such things as ability to reason, questions of judgment, items of information, ability to recognize objects and understanding of certain social situations. Dr. Rosenwald expressed his opinion that defendant had an IQ of 70 or 71 and fell in the category of borderline mental deficiency, scoring in the lower 10% of the general population. Dr. Rosenwald further testified that a prior psychological evaluation of defendant by Dr. Sabatini indicated an IQ of 73 and a reading ability at a 5.2 grade level. Dr. Rosenwald testified that this prior study was supportive of his own conclusions. His findings were also corroborated by defendant’s performance on standardized achievement tests administered at defendant's high school in 1979. The results demonstrated that defendant, who was at that time 16 years old, received grade equivalent scores ranging from fourth grade, second month, in mathematical skills to fifth grade in reading.

Dr. Rosenwald expressed his opinion that defendant would not understand his rights if they were merely read to him in rote fashion. He also testified that he did not believe defendant would comprehend the meaning of waiving his rights, stating that

“they [defendant’s rights] would have to be enunciated in considerable detail with considerable caution as to what it meant.
Simply reading the rights seems to me that with his general level of intelligence and particular difficulty in reading and writing that he would have grave difficulty in understanding the concept of what his rights were.”

At the conclusion of the hearing, the trial court found that defendant understood his rights and denied defendant’s motion to suppress all statements made while in police custody.

It is axiomatic that prior to custodial interrogation the subject must be adequately informed of his right to remain silent and to have an attorney present. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.) The prophylactic warnings required under Miranda contemplate more than a mere ritualistic recital of words meaningless to the accused. Rather, an intelligent conveyance of the accused’s rights is mandated. (People v. Prim (1972), 53 Ill. 2d 62, 67, 289 N.E.2d 601, cert, denied (1973), 412 U.S. 918, 37 L.Ed. 2d 144, 93 S. Ct. 2731.) Thus, the crucial test is whether the words in the context used, considering the age, background and intelligence of the individual being questioned, impart a clear, understandable warning of all his rights. People v. Baker (1973), 9 Ill. App. 3d 654, 660, 292 N.E.2d 760.

The right to remain silent and to have counsel present can be waived, providing that the waiver is voluntarily, knowingly, and intelligently made. (Miranda v. Arizona (1966), 384 U.S. 436, 475, 16 L. Ed. 2d 694, 724, 86 S. Ct. 1602, 1628.) In demonstrating waiver, the burden rests on the prosecution to show a knowing and intelligent relinquishment of a known right or privilege. (Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880; People v. Smith (1982), 93 Ill. 2d 179, 185-86, 442 N.E.2d 1325.) This is a matter which depends, in each case, upon the particular facts and circumstances surrounding the case, including the background, experience and conduct of the accused. People v. Perez (1983), 113 Ill. App. 3d 143, 147, 446 N.E.2d 1229.

In examining the facts and circumstances surrounding a purported waiver of an individual’s constitutional rights, the courts of this State have long recognized the special care which, should be exercised when evaluating the confessions of youthful or mentally deficient individuals. (See People v. Simmons (1975), 60 Ill. 2d 173, 326 N.E.2d 383; People v. Turner (1973), 56 Ill. 2d 201, 306 N.E.2d 27; People v. Baker (1973), 9 Ill. App. 3d 654, 292 N.E.2d 760.) In People v. Turner (1973), 56 Ill. 2d 201, 306 N.E.2d 27, our supreme court reviewed the confessions obtained from a 25-year-old defendant with an IQ of 70. As in the present case, the defendant in Turner was advised of his Miranda rights on several occasions while in custody. The defendant was sent to a polygraph examiner for an interview and was again advised of his rights by the examiner. In response, the defendant in Turner initially stated he thought he should see a lawyer but then decided he would not need an attorney until the tests were completed. After the polygraph examination, the defendant was again advised of his rights and was told the results of the examination indicated he had killed the individual in question. The defendant subsequently signed two confessions which were used against him at trial.

In addressing the State’s claim of waiver, the Turner court noted:

“The purpose of advising an accused of his rights is to enable him to make an intelligent decision, and to understand the consequences of that decision, and the fact that the advice was iterated and reiterated, and that he said he understood it, is of little consequence unless the defendant was possessed of the intelligence to understand the admonition. Although there is no doubt that defendant was advised of his rights as mandated by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, the question presented by this record is whether he knowingly waived those rights.” (People v. Turner (1973), 56 Ill. 2d 201, 205.)

The court further commented on the role a defendant’s mental ability has in determining whether there was a knowing, intelligent, and voluntary waiver:

“This court has long recognized that the mental capacity of a defendant must be taken into consideration in determining whether his actions were voluntary (People v. Klyczek, 307 Ill. 150, 155) and while mental deficiency, of itself, does not render a confession involuntary (People v. Hester, 39 Ill. 2d 489) it is a factor which must be considered in the totality of the circumstances under which the right to counsel was waived or a statement or confession made. [Citations.]” (56 Ill. 2d 201, 206.)

The court concluded that the defendant had not knowingly and intelligently waived his rights and that the confessions should have been suppressed. 56 Ill. 2d 201, 207.

In People v. Simmons (1975), 60 Ill. 2d 173, 326 N.E.2d 383, our supreme court examined the confession of a 16-year-old defendant with an IQ of 80. There, the court extensively quoted from Turner with approval and further commented on the special care which should be used in scrutinizing statements obtained from a youthful, borderline, mentally retarded individual. Quoting from In re Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428, the court noted:

“ ‘If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.’ 387 U.S. 1, 55, 18 L. Ed. 2d 527, 561, 87 S. Ct. 1428, 1458.” (People v. Simmons (1975), 60 Ill. 2d 173, 180.)

Our supreme court concluded that the trial court had not exercised the “special care in scrutinizing the record” required in the case of a 16-year-old borderline, mentally deficient boy and remanded the case for reconsideration. People v. Simmons (1975), 60 Ill. 2d 173, 181-82; see also People v. Baker (1973), 9 Ill. App. 3d 654, 292 N.E.2d 760 (affirming the trial court’s decision suppressing a confession obtained from a 15-year-old boy with an IQ of 72).

As the State correctly contends, a trial court’s determination on the voluntariness of a confession will not be disturbed unless it is contrary to the manifest weight of the evidence. (People v. Brownell (1980), 79 Ill. 2d 508, 404 N.E.2d 181.) However, based on the record before us, we find the trial court erroneously concluded that the State had met its burden of demonstrating a knowing, intelligent and voluntary waiver.

While the State argues at great length that defendant understood his right to remain silent, it systematically avoids any discussion with regard to defendant’s understanding of his right to consult with an attorney and to have counsel present during interrogation. Defendant’s confusion on his right to counsel is clearly documented in the transcript of defendant’s final interrogation by the assistant State’s Attorney. As in Turner, the fact that defendant was repeatedly read his rights and repeatedly responded that he understood is of little consequence for, here, defendant did not possess the intellectual or verbal skills to comprehend a mere rote reading of his rights. Clearly, none of the interrogating police officers made any attempt to clarify or explain the Miranda warnings, apart from reading defendant his rights from a preprinted form. Although defendant’s interrogators uniformly testified that defendant was responsive and appeared to understand their questioning, there exists no explanation of record as to why defendant, after fully confessing during his first interview, was subsequently questioned over the next 14 hours two additional times before a court reporter was called to take his statement. It was not until defendant’s final interrogation in the presence of the court reporter that Assistant State’s Attorney Gainer attempted to explain the Miranda rights to defendant in a concrete manner. Gainer’s approach is instructive. Rather than describing the right to counsel in abstract terms, Gainer advised defendant that before anybody talked to him that day defendant could have asked for a lawyer and the lawyer would have been present during interrogation. In response, defendant explicitly states that he now understands “if I don’t want to talk to you, I can get a lawyer” and that he previously did not understand his right to counsel.

We find the record, when viewed with due regard given to defendant’s youth, limited mental ability, and obvious confusion concerning his rights, fails to support a finding of a voluntary, knowing and intelligent waiver of defendant’s constitutional rights. The trial court’s findings to the contrary were against the manifest weight of the evidence and require reversal on our part. Accordingly, we hold that defendant’s motion to suppress should have been allowed. The judgment of the trial court is, therefore, reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.

McGLOON and GOLDBERG, JJ., concur.

       IQ was determined by the defendant’s performance on the Wechsler Adult Intelligence Scale and placed the defendant in the lower 10% of the general population.

       IQ was determined by the defendant’s performance on the Wechsler Adult Intelligence Scale and placed defendant in the bottom 20% of the general population.

       On remand, the trial court found the defendant’s confession voluntary and a knowing, intelligent waiver based on the presence of the defendant’s mother and brother during questioning. This result was later affirmed on appeal. People v. Simmons (1978), 58 Ill. App. 3d 1026, 374 N.E.2d 1290.


author: JUSTICE McGLOON JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONELMO GOODUM, Defendant-Appellant.
    First District (1st Division)
    No. 81—2221
    Opinion filed July 30, 1984.
    Supplemental opinion filed on denial of rehearing October 9, 1984.

      Steven Clark and Richard F. Faust, both of State Appellate Defender’s Office, of Chicago, for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jane E. Liechty, and Bernard J. Murray, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

Following a jury trial, defendant Donelmo Goodum was convicted of two counts of armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 18—2), two counts of unlawful restraint (Ill. Rev. Stat. 1983, ch. 38, par. 10—3(a)), and two counts of armed violence (Ill. Rev. Stat. 1983, ch. 38, par. 33A—2) based on the underlying felony of unlawful restraint. The trial court vacated the unlawful restraint convictions and sentenced him to concurrent terms of seven years on the armed robbery convictions and seven years on the armed violence convictions.

On appeal, defendant contends that (1) he was not proved guilty beyond a reasonable doubt; (2) his convictions for armed violence should be vacated because they are based on unlawful restraint; (3) he was denied his fourteenth amendment right to equal protection and his sixth amendment right to an impartial trial because the State used its peremptory challenges to exclude black jurors; and (4) his right to a fair trial was compromised by prosecutorial misconduct.

We affirm in part, reverse in part.

At trial, the crux of the State’s case was the testimony of the complainants, Lendell Collier and Masseo Johnson. They testified that on March 18, 1981, at 10:30 p.m. they were with Michael Miller in C & J Liquors. As they left the tavern they were approached by defendant, who was holding what appeared to be a gun at his waist. Defendant directed them into an adjacent hallway. Once inside the hallway, defendant moved his gun from his waist to his jacket pocket. Thereafter, defendant’s companion, Willie Robinson, entered the hallway. At defendant’s command, Robinson searched the others’ pockets, removed $33 and placed it on a bannister. Defendant seized the money from the bannister. Miller, oblivious to what was happening, entered the hallway and began joking with defendant. The owner of the building entered and ordered everyone to leave. Johnson, Collier and Miller ran out the door followed by defendant and Robinson. As they approached Collier’s home, complainants and Miller noticed defendant and Robinson standing approximately 40 feet away in an alley. Defendant raised his arm and fired a shot in their direction. They then called police from Collier’s home.

Officer Roger Vinge testified that he arrested defendant and Robinson near the alley where the shot was fired. Defendant attempted to discard a .38-caliber revolver which had one bullet discharged. However, Officer Vinge was able to recover it. At the police station, Collier, Johnson and Miller identified defendant and Robinson from three separate lineups.

Assistant State’s Attorney Ditore interviewed all of those involved in the incident. At trial, he testified as to the contents of Robinson’s post-arrest statement. According to Robinson, defendant approached Collier and Johnson with what appeared to be a gun in his pocket. After someone gave defendant marijuana, defendant and Robinson went to a nearby alley where defendant pulled out his gun and fired a shot.

Ditore further testified that defendant gave an oral statement in which he claimed Robinson pulled a gun on complainants and took some marijuana from them.

Defendant’s testimony at trial was inconsistent with his post-arrest statement. At trial, defendant and Robinson testified that they encountered Johnson, Collier and Miller at C & J Liquors and went next door to buy marijuana. Robinson gave $3 to Johnson, who displayed several bags of marijuana. When defendant complained about the quality, he and Johnson began to argue. Eventually everyone left the hallway. In an alley near Robinson’s home, defendant took out the gun he was carrying and fired it to prove that it was real. Defendant discarded the gun when police approached. A police department receipt for personal property introduced at trial indicated that defendant had $2.41 in his possession at the time of his arrest.

Michael Miller testified for the defense. Corroborating defendant and Robinson’s testimony, he testified that no armed robbery occurred. Rather, the entire incident was a dispute over a marijuana transaction.

Defendant was found guilty on all charges.

First, defendant contends that he was not proved guilty beyond a reasonable doubt. In support of this contention, defendant argues that the testimony of Michael Miller corroborated defendant and Robinson’s testimony that no armed robbery occurred. He also relies on the fact that at the time of his arrest, he had only $2.41 in his possession.

Having thoroughly reviewed the record, we find that there was sufficient evidence to support the jury’s verdict. It is well established that the testimony of one witness, if credible and positive, will sustain a conviction even though it is contradicted by the accused. (People v. Novotny (1968), 41 Ill. 2d 401, 244 N.E.2d 182; People v. Flores (1979), 79 Ill. App. 3d 869, 398 N.E.2d 1132.) Testimony may be credible despite minor inconsistencies. (People v. Lutz (1982), 103 Ill. App. 3d 976, 431 N.E.2d 753.) Unless the evidence is so improbable as to raise a reasonable doubt of a defendant’s guilt, a reviewing court will not reverse a conviction based primarily on the trier of fact’s determination that a witness is credible. People v. Flores (1979), 79 Ill. App. 3d 869, 398 N.E.2d 1132.

Defendant’s convictions were based on the testimony of and identifications by the victims of the armed robbery and Michael Miller immediately following the crime. We find Collier’s testimony to be credible and positive. Moreover, it was corroborated by Johnson. Although the proceeds of the armed robbery were not recovered, a conviction may be sustained on circumstantial evidence as well as tangible evidence. (People v. Lutz (1982), 103 Ill. App. 3d 976, 431 N.E.2d 753.) The evidence placed defendant near the scene of the crime and in possession of a revolver with one bullet discharged. Based on the evidence and testimony presented at trial, we find that defendant was proved guilty of armed robbery beyond a reasonable doubt and sustain his convictions and sentences on two counts of armed robbery.

Defendant was also convicted of two counts of armed violence based on unlawful restraint. In People v. Wisslead (1983), 94 Ill. 2d 190, 446 N.E.2d 512, the Illinois Supreme Court declared the armed violence statute, as applied to the unlawful restraint statute, violated the constitutional assurances of proportionate penalties and due process. In so holding, the court determined that a charge of armed violence cannot be founded upon the underlying felony of unlawful restraint. Accordingly, we vacate defendant’s convictions and sentences for armed violence. People v. Wisslead (1983), 94 Ill. 2d 190, 446 N.E.2d 512.

Next, defendant contends that his constitutional right to an impartial jury and right to due process were violated by the State’s use of peremptory challenges to exclude blacks from the jury solely on the basis of race. In Illinois, it is now firmly established that a prosecutor may constitutionally exercise peremptory challenges to eliminate blacks from a jury unless distinctive groups within the community have systematically been excluded from the jury pool. (People v. Williams (1983), 97 Ill. 2d 252, 454 N.E.2d 220, cert, denied (1984), 466 U.S. _, 80 L. Ed. 2d 836, 104 S. Ct. 2364; People v. Pagliuca (1983), 119 Ill. App. 3d 906, 458 N.E.2d 908.) Defendant bears the burden of producing evidence establishing systematic exclusion. (People v. Davis (1983), 95 Ill. 2d 1, 447 N.E.2d 353, cert, denied (1983), 464 U.S. 1001, 78 L. Ed. 2d 697, 104 S. Ct. 507.) In the instant case, defendant did not allege or prove that blacks had been systematically and purposefully excluded from the jury pool. Therefore, we find defendant did not meet his burden. People v. Kendricks (1984), 121 Ill. App. 3d 442, 459 N.E.2d 1137.

Finally defendant contends that the cumulative effect of the prosecutor’s improper remarks made during closing and rebuttal arguments prejudiced defendant and denied him a fair trial. Specifically, defendant complains that the prosecution misstated the evidence, misstated the law, and made prejudicial and inflammatory remarks.

Defendant argues that the prosecutor implied that Michael Miller failed to respond to a subpoena when in fact, he testified that he was unaware that he had been subpoenaed. We agree that the prosecutor’s misstatement of the evidence was improper. However, the trial court immediately sustained defendant’s objection and instructed the jury to disregard the remark. Such admonishment from the court has been held to be sufficient to cure possible prejudice. See People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200, and cases cited therein.

Defendant further argues that the following prosecutorial remarks were misstatements of the law:

“*** The standard is reasonable doubt. Unless you have a reasonable doubt, your duty is to vote guilty. ***
And a final factor, I want to emphasize, regarding credibility, is prior inconsistent statements. It’s a point so important, you’ll get a special instruction dealing only with that.”

Although we believe that these comments were improper and that the State should be criticized for making such remarks, they were not reversible in nature. The jury was properly instructed on burden of proof, and it must be presumed that the jurors followed the court’s instructions. (People v. Bell (1983), 113 Ill. App. 3d 588, 447 N.E.2d 909.) Furthermore, the comment did not negate the instruction or shift the burden of proof to defendant. People v. Bell (1983), 113 Ill. App. 3d 588, 447 N.E.2d 909.

Similarly, the prosecutor’s comment regarding inconsistent statements expressly referred the jurors to the court’s instructions of law. (People v. Bell (1983), 113 Ill. App. 3d 588, 447 N.E.2d 909.) As soon as the defendant objected, the assistant State’s Attorney corrected himself, stating, “*** It [the instruction] is not more special, I didn’t say more special, I said it was on its own separate instruction.” Therefore, we believe that there is no reasonable likelihood that the misstatement could have affected the results of the trial.

We find other statements which defendant alleged were misstatements of law did not substantially prejudice him.

The last assignment of error concerns alleged prejudicial and inflammatory remarks. Specifically, defendant argues the prosecutor insinuated that defendant intimidated the State’s witnesses, that defendant paid for Michael Miller’s testimony and that a not guilty verdict would endanger the community. We agree with defendant that these comments were improper. We recently reminded prosecutors that the frequency with which prosecutorial misconduct occurs is disturbingly high. (People v. Robinson (1984), 125 Ill. App. 3d 1077.) Rather than assuring convictions, such conduct increases the possibility of reversal. However, having reviewed the record in the instant case, we find that the improper comments did not contribute substantially to the verdict. We have already determined that Lendell Collier’s testimony was credible and convincing. It was corroborated by Masseo Johnson. Consequently, considering the comments complained of individually and cumulatively, we find that reversal and a new trial are not warranted.

For the foregoing reasons, we affirm defendant’s convictions and sentences for armed robbery, and vacate the convictions and sentences for armed violence.

Judgment affirmed in part, reversed in part.

BUCKLEY, P.J., and CAMPBELL, J., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant has filed a petition for rehearing in this matter requesting a modification of the opinion in accordance with this court’s recent decision in People v. Frazier (1984), 127 Ill. App. 3d 151. Frazier holds that, on review, the names of prosecutors be cited in those cases where the State has used peremptory challenges to systematically exclude blacks from juries. We are in agreement with Frazier.

Accordingly, the prosecutors representing the State in the selection of the jury in the case at bar were Assistant State’s Attorneys John Mellen and John Lieberman. We pass no judgment and make no further reference in regard to their conduct or motive in the present case or in any other case.

BUCKLEY, P.J., concurs.

McGLOON, J., dissents.