Judicial Rulings

Illinois Supreme Court

If your victim doesn't believe you, you can't be guilty of theft by deception

THEFT by deception received its first consideration by the Illinois Supreme Court, but the surrounding facts in the case raise other issues than the decision on the law. The decision was written by Justice Daniel P. Ward and handed down April 4 in the case, People v. Davis (112 111. 2d 55).

The question of law raised in the case was whether a conviction of theft by deception was proper without proof that the victim was relying on the defendant's deceptive conduct when transferring the property to the accused, according to Ward. The court said that the plain language in the state criminal code "makes clear that an accused must create or confirm a false impression in his victim in order to satisfy the legislative definition of deception" (Ill. Rev. Stat. 1983, ch. 38, sec. 15-4(a)). The court said that the proof was necessary, just as it had been under Illinois' precursor statute that defined the offense of obtaining property by false pretenses. Ward also cited other states where the same test is applied: The victim's reliance on the deception must be proved.

The "victim" said that she thought the defendant was a phony when he told her by phone that he could get her friend released early from Sheridan Correctional Center. She told her inmate friend and the Department of Law Enforcement about the phone calls, and with state police agents, concealed microphones and videotape equipment all arranged, Davis was arrested at a meeting in Rockford where he misrepresented connections to the bench and to the governor and accepted marked money in payment for his promise to arrange the early release of an inmate at Sheridan.

The court concluded there was no guilt of theft by deception. Since the defendant had conceded that he had been proved guilty of attempted theft beyond a reasonable doubt, the Supreme Court acted under Rule 615(b)(3) to change the charge of the guilty conviction to attempted theft by deception. Winnebago County circuit court, where the original guilty verdict was made by jury, will get the case for sentencing on the lesser offense substituted by the Supreme Court.

What Ward included in the opinion that was not directly related to the point of law is intriguing. In setting out the "undisputed evidence" in the case, Ward explains that Curtis Lee Cottrell, a counselor at Sheridan Correctional Center, told the defendant, Larry Davis, who was an inmate at the time, that he could use his influence to secure Davis' early release under the "forced release" program. Ward interjected parenthetically: "An official of the Department of Corrections explained the defendant's early release. He testified that the defendant was released through the 'forced release' program through which eligible inmates are released before completing their sentences in order to relieve overcrowding at the institution."

Ward continues outlining the evidence. In sum, it shows that on the day Davis was released, Cottrell called Davis demanding payment of $2,000. Davis could not pay, but he agreed to contact other inmates at Sheridan, offering early release for a specific payment. Davis wrote to inmate Kenneth Sanders, making the early release payment proposal. Ward interjected, again in parenthesis: "The record makes no mention of censorship of mail of inmates." Ward's evidence summary goes on to explain that Sanders turned the letter over to prison authorities but apparently told Davis to contact Ethel Roberts, a friend. Roberts said Davis called her at least three times, telling her that Sanders wanted her to pay $4,000 to the defendant for Sander's release. She told Sanders about the calls and notified the Department of Law Enforcement. The meeting with Davis was arranged, and an agent of the Department of Law Enforcement posing as a relative accompanied her. Roberts wore a concealed microphone to permit recording of the conversation, and the meeting was videotaped by agents in a van nearby. Cottrell drove Davis to the meeting, but Cottrell stayed in the car while Davis had the meeting in a parking lot with Roberts and the agent.

Ward interjects parenthetically: "Cottrell remained in his car and did not participate in the meeting. He subsequently resigned from the Department of Corrections after he was suspended and recommended for discharge. The record does not disclose the criminal proceedings, if any, brought against Cottrell."

Since justices never comment on the court decisions they write, the meaning of Ward's interjections is subject to interpretation. It appears that Ward felt strongly enough about this information to include it in the official public record of the court. The question left hanging from this opinion is whether any further actions on the bribery aspects of the case were taken or are currently underway.

Caroline A. Gherardini

Court clarifies law governing child custody conflicts

CONDITIONS controlling custody of a minor were clarified in the Illinois Supreme Court's first examination of section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, sec. 101 et seq.). In the case, In re Custody of Lynette Peterson (112 111. 2d 48), both the father and maternal grandparents of the child sought modification of a 1983 order awarding custody to the child's mother; the mother had died. The mother and child had lived with the maternal grandparents, who took on much of the care of the child during the mother's debilitating illness. The father, who had been judged fit in 1983 to have custody, had exercised his visitation rights regularly. After the mother's death the father sought to have the child turned over to him, but the grandparents refused. Both parties filed petitions for modification of custody.

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The Supreme Court's decision, handed down April 4 and written by Judge Daniel P. Ward, affirmed the circuit court's ruling that the grandparents had no standing to petition for custody. Ward pointed out that, under the Juvenile Court Act, natural parents must be judged "unfit" in order for custody to be awarded to a third party and that the Adoption Act requires consent of the natural parents unless found "unfit." There is thus an assumption of a superior claim of a natural parent.

The controlling condition in this case, section 601(b)(2), permits third parties to file for custody of a child "only if he is not in the physical custody of one of his parents." Ward points out that "physical custody" does not mean "physical possession" since "to hold differently would be to encourage abductions of minors."

Because mother and child lived together until the mother's death, the mother had retained custody. Ward says: "Within the meaning of section 601(b)(2) Lynette must be considered to have been, upon her mother's death, in the physical custody of her father." The grandparents merely had posession: "Lynette was in the sole care of the [grandparents] only through the fortuitous occurrence of [the mother's] death." F. Mark Siebert

City zoning prevails in dispute with park district over lights

CONFLICT between local units of government with overlapping responsibilities or competing interests "cannot be reduced to a rigid mathematical formula," according to the Illinois Supreme Court. Chief Justice William G. Clark wrote the opinion for the court's unanimous ruling that a park district is not exempt from the zoning ordinances of its host municipality. The ruling was handed down March 19 in the case of Wilmette Park District v. Village of Wilmette (112 Ill. 2d 6).

What had begun as a cooperative plan had progressed to disagreement and ended in the highest court.

In 1983 the Wilmette Park District and the Village of Wilmette entered into a lease agreement for two adjacent land parcels, one a park and one a former school site; the agreement included general improvements to be made by the district. In following the plan, the district removed existing lights on an athletic field and obtained a permit to install replacements. The village asserts that the district proposed lights no stronger, more glaring, nor taller than those replaced. The district installed more and taller light towers. Installation was nearly completed a week before a hearing on the village's application to its zoning board of appeals for a special use permit, changing the one area from public school to recreational area.

Although residents near the park objected to the lights at the hearing, the chair ruled that the matter could not be considered at the hearing. The zoning board recommended that the special use permit be granted. The village board of trustees then decided that the entire area, including both parcels, should be subject of an application for special use so that it could consider the lights. The park district announced that it would not participate in the hearing; the trustees revoked the permit to install the lights, and the district filed suit.

Justice Clark recognized that the installation of lights "is a proper purpose under the Park District Code," while "the Illinois Municipal Code authorizes all municipalities, home rule or otherwise, to adopt zoning ordinances which divide the entire municipality into zoning districts." He summarized: "Absent an explicit statutory grant of immunity, the mere fact that the park district . . . has a statutory duty to operate its park cannot be extended to support the inference that it can exercise its authority without regard to the zoning ordinances of its host community."

In Wilmette the village and the district have cooperated for 75 years. The court identified the special use hearing, with the district participating, as a proper forum for resolving such local conflicts, with the proviso: "Should the village administer its zoning ordinance in an unreasonable, arbitrary, or discriminatory manner in denying the park district a special use permit or otherwise abuse its zoning power to thwart or frustrate the park district's statutory duties, its actions will be subject to further judicial review."

F. Mark Siebert

IlCC can consider alternative information

ADDITIONAL clarification about the sometimes cloudy authority of state commissions emerged from the decision of the Illinois Supreme Court in Illinois Power Company et al. v. The Illinois Commerce Commission et al. (111 Ill. 2d 505). Justice Daniel P. Ward wrote the opinion handed down March 19.

Illinois Power had sought a merger of its wholly owned subsidiary, LP. Inc., with the Mt. Carmel Public Utility Co. The Illinois Commerce Commission (I1CC) allowed Central Illinois Public Service Co. (CIPS) to intervene. CIPS claimed that it was prepared to offer a merger proposal more favorable for Mt. Carmel's customers than that proposed by Illinois Power. It had not done so because Mt. Carmel was unwilling to negotiate with any company but Illinois Power.

CIPS already had working arrangements with Mt. Carmel, and it demonstrated that if the merger were concluded, its rates for electricity and gas would be lower than those of Illinois Power, partly because of the high cost of Illinois Power's nuclear plant at Clinton. For these reasons the IlCC denied Illinois Power's merger petition.

In upholding the commission Justice Ward said: "It is reasonable and desirable that the Commission should be allowed to consider the comparative advantages of service provided by a utility other than the petitioning utility, and the respective costs to customers, when weighing the question of public convenience."

F.Mark Siebert

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