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decided: May 25, 1972.
COMMONWEALTHv.BUTLER, APPELLANT
Appeal from judgment of sentence of Court of Common Pleas of Montgomery County, April T., 1968, No. 1, in case of Commonwealth of Pennsylvania v. Freddy Butler.
Thomas E. Waters, Jr. and Horace A. Davenport, with them Waters, Fleer, Cooper & Gallager, and Gerber, Davenport & Wilenzik, for appellant.
William T. Nicholas, First Assistant District Attorney, with him Stewart J. Greenleaf, Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Eagen concurs in the result.
[ 448 Pa. Page 129]
On March 11, 1968, seventy-two year old Concezio Cane was attacked while he was walking on DeKalb Street in the Borough of Norristown. A person on the
[ 448 Pa. Page 130]
opposite side of the street heard Cane's screams and saw four Negro figures bending over Cane's body. The headlights of a passing automobile illuminated the scene, permitting the witness to see the incident clearly.
The police were called, and Mr. Cane was rushed to the hospital, but it was too late. He died on the operating table as a result of the stab wounds and lacerations he suffered in the attack and a severe loss of blood.
The police questioned James Denby, who was identified as one of the four men present at the attack. He identified Willie Stafford, Isaac Thomas, and Freddy Butler, appellant, as the other three men, and stated that Stafford and Butler were the men responsible for the attack. By the nature of the attack on Cane and Cane's wounds, the police suspected that the clothing which Butler had worn during the stabbing would have to be bloodstained if he were, in fact, the man who stabbed Cane. A search warrant was obtained on the basis of Denby's statement, and bloodstained clothing was discovered in Butler's residence. The bloodstains were of the same type as the blood of the victim.
Butler was tried and convicted by a jury of first-degree murder and was sentenced to life imprisonment. After denial of his post-trial motions and entry of the judgment of sentence, Butler brings this appeal.
On appeal, Butler contends that the search warrant authorizing a search of his room for various unspecified items of clothing was issued without probable cause. In raising this contention, Butler emphasizes that Denby admitted at Butler's trial that Denby did not remember how Butler was dressed. From this, Butler concludes that the police were on a fishing expedition. However, the circumstances of the attack, including the nature of the victim's wounds and the large amount of blood lost, gave the authorities probable
[ 448 Pa. Page 131]
cause to suspect that the clothing worn by Butler during the attack would be covered with blood and would thus be evidence of his participation in the attack. There is thus the nexus between the items to be seized and the suspected crime committed which is necessary for the search and seizure of purely evidentiary items. Warden v. Hayden, 387 U.S. 294 (1967). As the United States Supreme Court explained in Warden, ". . . in the case of 'mere evidence,' probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction." (At page 307.)
Appellant also contends that the testimony of Denby and Thomas, both of whom testified at Butler's trial that they saw Butler thrusting something which looked like a knife into the victim, should have been suppressed because the Fifth Amendment rights of Denby and Thomas had been violated. However, it is settled law that appellant lacks standing to assert the alleged deprivation of another's constitutional rights. Alderman v. United States, 394 U.S. 165 (1967). While Alderman deals with Fourth Amendment rights, its rationale is equally applicable to Fifth Amendment rights. United States v. Bruton, 416 F. 2d 310 (8th Cir. 1969), cert. denied, 397 U.S. 1014 (1970).
Appellant's contention that the procedures by which the grand jury which indicted him and the petit jury which tried him were selected were unconstitutional as special legislation is without merit. The statutes permitting all counties which were third class counties in November of 1967 to use the provisions of the Third Class County Jury Selection System until January 1, 1969, rather than being special legislation, as the appellant contends, were designed to case the special transition problems of counties which were in the midst of compiling official jury lists for 1968 in accordance
[ 448 Pa. Page 132]
with the provisions applicable to third class counties when their classification was changed.
Next, appellant challenges the legitimacy of Rule 1104(b) of the Pennsylvania Rules of Criminal Procedure, which provides in part: ". . . [A] challenge to the array shall be made not later than five days before the first day of the week the case is listed for trial of criminal cases for which the jurors have been summoned and not thereafter, and shall be in writing, specifying the facts constituting the ground for the challenge." (Emphasis supplied.)
This rule provided the basis for the court's dismissal of appellant's oral motion challenging Montgomery County's jury-selection procedures but specifying no facts in support of the motion. This motion was made immediately before the jury was selected. The court pointed out that the motion was not made in conformity with the rules, but did not immediately dismiss the motion. After the jury was selected, appellant's counsel repeated his challenge, this time emphasizing that only three of the one hundred forty-nine people on the jury panel were Negro, approximately two percent, while the Negro population of Montgomery County was approximately six to eight percent, and none of the sixty-six prospective jurors examined was under thirty-five. The court then dismissed appellant's motion, refusing to delay the trial for the holding of a hearing to determine the constitutionality of the jury selection procedures.
Appellant argues that Rule 1104(b), as interpreted by the trial court to require pretrial filing and pretrial specification of facts in support of the motion, prevents the defense from ever raising the question because there is no possible way for a defendant to specify the facts constituting the grounds for the challenge until the jury panel is actually seen.
[ 448 Pa. Page 133]
However, the characteristics of one particular panel are not the type of facts which constitute grounds for a challenge. Rather, since the challenge must be to the selection procedures themselves, and not to the composition of a particular panel, the facts must provide evidence indicating either that the procedures as designed or implemented are likely to result in juries unrepresentative of a cross-section of the community, or that the procedures have, in fact, continuously failed to represent certain identifiable population groups over a period of time. Such facts are as available before trial as after the jury has been selected. These are facts concerning the proportion of the county's population represented by various specified population groups, here Negroes and people under thirty-five, the frequency with which persons from these groups appear on the jury lists, and the methods by which these lists are selected. A hearing to determine whether the facts presented constitute sufficient grounds for a successful challenge to the jury selection procedure is by necessity a complex event. If a defendant wishes to delay trial for the holding of such a hearing, Rule 1104(b) requires him to make his request, alleging sufficient grounds therefor, before trial so that prospective jurors and witnesses are not unnecessarily inconvenienced. Since appellant's counsel did not adhere to this rule, appellant cannot now complain.
Appellant makes one more allegation of trial error. He contends that the conduct of the trial judge deprived him of a fair trial by subtly conveying to the jury the court's own views on this case, particularly on the credibility of the witnesses. Appellant emphasizes that although the trial court never questioned any of the Commonwealth's witnesses, it did begin to question an alibi witness for the defense, and at one point made what appellant's brief characterizes as an "extended
[ 448 Pa. Page 134]
grimace of surprise" at one answer made by the witness.
In response to appellant's counsel's motion for a mistrial, the court responded (in a colloquy in chambers): "I am not aware of any facial expressions that I made at all. I did look up when he said that -- because it was so obviously contrary to what Freddy Butler had said."*fn1
The court then went on to explain: "I looked up and looked at him. It is my opinion that the Trial Judge has a right, if people are lying, as he believes, to examine him. I did examine him when I heard this discrepancy. It immediately, obviously indicated to me that he was not telling the truth, that he was there to create an impression which he was seeking to do."
We do not agree with the trial court's interpretation of his powers in the trial of a case. If a judge followed the practice which this judge advocated here, a practice of questioning every witness whom the judge did not believe to be telling the truth, while questioning no other witnesses, it would be tantamount to telling the jury his views of which witnesses were to be believed. Credibility is solely for the jury. Just as a trial judge is not permitted to indicate to the jury his views on the verdict that they should reach in a criminal case, Commonwealth v. Motley, 448 Pa. 110, 289 A.2d 724 (1972), Commonwealth v. Archambault, 448 Pa. 90, 290 A.2d 72 (1972), similarly he is not permitted
[ 448 Pa. Page 135]
to indicate to a jury his views on whether particular witnesses are telling the truth.
What we said in Commonwealth v. Myma, 278 Pa. 505, 123 A. 486 (1924), is still pertinent: "Witnesses should be interrogated by the judge only when he conceives the interest of justice so requires. It is better to permit counsel to bring out the evidence and clear up disputed points on cross-examination unaided by the court; but where an important fact is indefinite or a disputed point needs to be clarified, the court may see that it is done by taking part in the examination. The practice of a judge entering into the trial of a case as an advocate is emphatically disapproved. The judge occupies an exalted and dignified position; he is the one person to whom the jury, with rare exceptions, looks for guidance, and from whom the litigants expect absolute impartiality. An expression indicative of favor or condemnation is quickly reflected in the jury box and at the counsel table. To depart from the clear line of duty through questions, expressions or conduct, contravenes the orderly administration of justice. It has a tendency to take from one of the parties the right to a fair and impartial trial, as guaranteed under our system of jurisprudence." Commonwealth v. Myma, supra, at page 508.
Because of the problems which may stem from too active participation by a judge in trial proceedings, we recommended in Commonwealth v. Myma, supra, and we still recommend, that each trial judge adhere to Canon 15 of the American Bar Association's Canons of Judicial Ethics:
"A judge may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, or to clear up some obscurity, but he should bear in mind that his undue interference, impatience, or participation in the examination of witnesses,
[ 448 Pa. Page 136]
or a severe attitude on his part toward witnesses, especially those who are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto.
"Conversation between the judge and counsel in court is often necessary, but the judge should be studious to avoid controversies which are apt to obscure the merits of the dispute between litigants and lead to its unjust disposition. In addressing counsel, litigants, or witnesses, he should avoid a controversial manner or tone.
"He shall avoid interruptions of counsel in their arguments except to clarify his mind as to their positions, and he should not be tempted to the unnecessary display of learning or a premature judgment."
If the trial court had actually followed the procedures he advocated in chambers, this case would require reversal. However, the record indicates that he did not do so. Instead, the court refrained from any improper intervention during the trial. The alleged "grimace," the existence of which is categorically denied in the record, is not enough to entitle appellant to a new trial.
Judgment of sentence affirmed.
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decided: January 9, 1989.
EDWARD E. HOBSON, PETITIONERv.COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT
Appeal from the Order of the Pennsylvania Board of Probation and Parole in case of Edward E. Hobson, Parole No. 2125-M.
Bruce E. Mattock, Assistant Public Defender, for petitioner.
Timothy P. Wile, Assistant Chief Counsel, with him, Robert Greevy, Chief Counsel, for respondent.
President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Senior Judge Blatt.
[ 125 Pa. Commw. Page 39]
The petitioner, Edward E. Hobson, appeals an order of the Board of Probation and Parole (Board) denying his request for administrative relief from a Board order recommitting him as a technical parole violator. We find the petitioner's appeal to be completely without merit. Accordingly, we affirm the Board's order.
The petitioner was paroled on June 1, 1987. As a condition of parole, he was required to attend out-patient drug abuse therapy and to submit urine samples periodically for drug analysis. On November 4, November 18, and December 2, 1987, he submitted urine samples that subsequently tested positive for cocaine metabolites. He was arrested by parole agents on December 14, 1987, and charged with violating the conditions of parole by using cocaine. At the parole revocation hearing, Parole Agent Kuhn testified that in an interview on December 16, 1987, the petitioner admitted that he used cocaine and that he had submitted urine samples that tested positive for cocaine. The petitioner was recommitted as a technical parole violator. The Board denied the petitioner's
[ 125 Pa. Commw. Page 40]
application for administrative relief by letter mailed July 11, 1988.
On appeal, the petitioner argues (1) that his due process rights were violated at the preliminary hearing because the hearing officer was not impartial and (2) that it was error to admit at the parole revocation hearing Agent Kuhn's testimony as to the December 16 interview.*fn1
The petitioner relies on Morrissey v. Brewer, 408 U.S. 471 (1972), in which the United States Supreme Court held a parolee is entitled to a preliminary hearing before an impartial officer before being detained on a parole violator arrest warrant. The petitioner maintains that the preliminary hearing was deficient because the presiding officer was the supervisor of Agent Kuhn. Morrissey, however, merely requires that the hearing be "conducted by some person other than the one initially dealing with the case." Id. at 485-486. The Court went on to hold, "[I]t will be sufficient . . . if an evaluation of whether reasonable cause exists to believe that conditions of parole have been violated is made by someone such as a parole officer other than the one who has made the report of parole violations or has recommended revocation." Id.
In the instant case, the officer who presided at the petitioner's preliminary hearing was a district director. A district director manages all Board employees in a district; a parole supervisor supervises a parole agent. Section 11 of the Act of August 6, 1941, P.L. 861, as amended, 61 P.S. § 331.11. The petitioner makes no allegation
[ 125 Pa. Commw. Page 41]
that the district director had any part in the report of parole violations. Because the hearing officer at the preliminary hearing was impartial, the petitioner's due process rights were not violated. Moreover, even if the preliminary hearing were defective, the petitioner cannot complain of a deficiency in the preliminary hearing after the final recommitment hearing has been held. See Whittington v. Pennsylvania Board of Probation and Parole, 45 Pa. Commonwealth Ct. 58, 404 A.2d 782 (1979) (failure to challenge delay in holding preliminary hearing before final hearing is held precludes relief); Commonwealth v. Perry, 254 Pa. Superior Ct. 48, 385 A.2d 518 (1978) (parolee not entitled to new revocation hearing even though no preliminary hearing was held because parolee did not raise the issue before the final revocation hearing).
The petitioner also argues that it was error to admit at the parole revocation hearing Agent Kuhn's testimony that the petitioner admitted that he used cocaine. The petitioner argues this testimony is hearsay and must be supported by other indicia of reliability. Since no laboratory reports confirming the petitioner's statements were introduced at the preliminary or recommitment hearing, he argues the Board's order is not supported by substantial evidence. The petitioner's argument lacks merit.
The petitioner's statement to Agent Kuhn that he had used cocaine and had submitted tainted urine samples is admissible as a statement against interest, an exception to the hearsay rule. Falasco v. Pennsylvania Board of Probation and Parole, 104 Pa. Commonwealth Ct. 321, 521 A.2d 991 (1987); Rudisill v. Cordes, 333 Pa. 544, 5 A.2d 217 (1939). Such testimony, if believed, is sufficient evidentiary support for the Board's order. Falasco, at 327, 521 A.2d at 995. We also note that at the recommitment hearing, though the petitioner denied using cocaine, he
[ 125 Pa. Commw. Page 42]
stated, "I submitted positive urines for cocaine at T.A.S.K." Transcript at 8.
Because a parolee's admissions to parole violations constitute substantial evidence to support the Board's recommitment order, Falasco at 327, 521 A.2d at 995, and the officer presiding at the preliminary hearing was impartial, the Board's order denying administrative relief must be affirmed.
And Now, this 9th day of January, 1989, the order of the Board of Probation and Parole mailed July 11, 1988 in the above-captioned matter is affirmed.
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New Jersey Superior Court, Appellate Division
Decided: April 8, 1986.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,v.LOUIS BATTLE, DEFENDANT-APPELLANT
On appeal from the Superior Court, Law Division, Essex County.
Pressler, Bilder and Gruccio. The opinion of the court was delivered by Pressler, P.J.A.D.
[209 NJSuper Page 257] Tried by a jury, defendant Louis Battle was convicted of a charge of second degree robbery in violation of N.J.S.A. 2C:15-1 and a charge of aggravated assault in violation of N.J.S.A. 2C:12-1(b)(1). He was sentenced to consecutive terms of ten years, each subject to a parole ineligibility period of five years.
[209 NJSuper Page 258]
The charges arose out of a sidewalk purse-snatching. The victim, a small and frail woman in her sixties, testified that she was accosted by defendant, who threw her to the ground, grabbed her handbag from her arm, and fled. The victim sustained bruises and other soft tissue injuries. Defendant was indicted for the two crimes of which he was convicted.
Defendant's first ground of appeal challenges the separate conviction for aggravated assault. We agree that that conviction must be vacated. N.J.S.A. 2C:12-1(b)(1) defines that crime as one in which the actor
[a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury. * * *
Serious bodily injury is defined in N.J.S.A. 2C:11-1(b) as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ."
Recognizing that the injuries actually sustained by the victim did not meet the definition of serious bodily injury, the trial judge instructed the jury that it could nevertheless convict defendant of aggravated assault if it found that defendant had attempted to cause serious bodily injury. He then explained "attempt" consistently with N.J.S.A. 2C:5-1(a), which provides as follows:
Definition of attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:
(1) Purposely engages in conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be;
(2) When causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing such result without further conduct on his part; or
(3) Purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
We are satisfied that although the trial judge's understanding of the law was correct, there were no facts adduced at
[209 NJSuper Page 259]
trial which could have warranted a finding by the jury that defendant, beyond a reasonable doubt, was guilty of an attempt to cause his victim serious bodily harm. His intent was not to cause serious bodily harm but to obtain his victim's purse as quickly and with as little resistance as possible. In so doing, he displayed a brutish and reckless indifference to her physical safety. That indifference cannot, however, automatically be equated with the intent, plan, design or purpose which is a requisite element of an attempt to commit a crime. We point out that extreme indifference to another's physical safety may, under N.J.S.A. 2C:12-1(b)(1), itself satisfy the definition of aggravated assault, but it does so only if serious bodily injury ensues. If the extreme indifference characterizing the assault does not result in serious bodily injury, the assault cannot be elevated to the status of an aggravated assault merely by regarding extreme indifference as an attempt to inflict serious bodily injury. These are not synonymous concepts.
The so-called attempt here was, as a matter of this record, nothing different from extreme indifference which fortunately, however, did not result in serious bodily injury. Accordingly, the defendant's conviction for the crime of aggravated assault must be vacated.
Defendant did, of course, physically assault his victim in snatching her purse. But that assault, in the circumstances here, was neither a separate offense nor a lesser included offense of a separate crime of aggravated assault. It was, rather, a constituent element of the second degree robbery of which defendant was convicted. N.J.S.A. 2C:15-1(a)(1) defines a robbery as a theft during the course of which bodily injury is inflicted. Since the simple assault was therefore a necessary element of this robbery, it merged into the robbery and defendant cannot be separately convicted of it. See, e.g., State v. Pyron, 202 N.J. Super. 502, 505 (App.Div.1985), in which we held that the crime of making terroristic threats under N.J.S.A. 2C:12-3(b) is an element of and hence merges with a robbery as
[209 NJSuper Page 260]
defined by N.J.S.A. 2C:15-1(a)(2), namely, a theft during the course of which the actor threatens another with or purposely puts his victim in fear of immediate bodily injury.
The underlying problem here, as we see it, lies in the erroneous concept of the indictment. N.J.S.A. 2C:15-1(b) provides that if, during the course of committing a theft, the actor inflicts or attempts to inflict serious bodily injury on a victim, the robbery is a crime of the first degree. In effect, then, what the Legislature has clearly done in respect of the relationship between N.J.S.A. 2C:12-1 and 2C:15-1 is to designate a theft attended by a simple assault, as defined by N.J.S.A. 2C:12-1(a), as a second-degree robbery and a theft attended by an aggravated assault, as defined by N.J.S.A. 2C:12-1(b), as first-degree robbery. In each case the respective assault is an element of the robbery. It was therefore completely anomalous for this defendant to have been separately charged with second-degree robbery and aggravated assault since, under the circumstances, the aggravated assault, if proved, would have elevated the robbery to a first-degree crime. It is thus only first-degree robbery with which this defendant should have been charged, and that charge would have encompassed all the lesser included offenses, including second-degree robbery, theft, simple assault and aggravated assault. In our view, the failure to charge the most serious crime supported by the probable cause findings and, instead, breaking that crime out into separate charges of a multitude of lesser crimes constitutes a wholly impermissible fractionalization. See State v. Best, 70 N.J. 56, 60-63 (1976). Fortunately, however, we need not here address the validity of a conviction of the two lesser crimes since defendant was, on the facts, entitled to an acquittal of the aggravated assault charge.
Defendant also challenges his conviction on the following grounds:
(1) The court should have declared a mistrial after the highly prejudicial testimony of Officer Saunders.
[209 NJSuper Page 261]
(2) The search of defendant's automobile by Officer Hildebrant was illegal and therefore the evidence seized should have been suppressed.
(3) The in-court identifications of the defendant by the victim should not have been permitted as it was not the product of the victim's independent recollection and was tainted by an impermissibly suggestive photo line-up.
(4) The sentence imposed by the trial court is manifestly excessive and unduly punitive.
We have considered each of these issues in the light of the record and the arguments of counsel thereon, and we are satisfied that each is clearly without merit. R. 2:11-3(e)(2).
The judgment of conviction of aggravated assault is reversed, and the separate consecutive sentence thereon imposed is hereby vacated. The judgment of conviction of second-degree robbery is affirmed. We remand to the trial court for entry of a modified judgment of conviction consistent with this opinion.
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Explore Da Humanidade, Acabou e muito mais!
MM sez: Sooooo love this pic ~ ~ ~ ~ 'nothing like the wind in your mane' - - - one of my favourite things is WIND!!! (as long as it is not blowing a gale - or - a hot'n dusty westerly - or - whipping with rain/hail.......) I just love the feel of wind in my face. It is soooo refreshing and almost like a benison!
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Los primeros copos de nieve! #naturaleza #león #animales


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Bi indicates that there should be free course (in what it denotes). There will be little advantage (however) if it be allowed to advance (and take the lead).彖传: 贲, 亨; 柔来而文刚, 故亨. 分刚上而文柔, 故小利有攸往. 天文也; 文明以止, 人文也. 观乎天文, 以察时变; 观乎人文, 以化成天下. Tuàn zhuàn: Bì, hēng; róu lái ér wén gāng, gù hēng. fēn gāng shàng ér wén róu, gù xiǎo lì yǒu yōu wǎng. tiān wén yě; wén míng yǐ zhǐ, rén wén yě. guān hū tiān wén, yǐ chá shí biàn; guān hū rén wén, yǐ huà chéng tiān xià.
(When it is said that) Bi indicates that there should be free course (in what it denotes): - (We see) the weak line coming and ornamenting the strong lines (of the lower trigram), and hence (it is said that ornament) 'should have free course.' On the other hand, the strong line above ornaments the weak ones (of the upper trigram), and hence (it is said) that 'there will be little advantage, if (ornament) be allowed to advance (and take the lead).' (This is illustrated in the) appearances that ornament the sky. Elegance and intelligence (denoted by the lower trigram) regulated by the arrest (denoted by the upper) suggest the observances that adorn human (society). We look at the ornamental figures of the sky, and thereby ascertain the changes of the seasons. We look at the ornamental observances of society, and understand how the processes of transformation are accomplished all under heaven.象传: 山下有火, 贲; 君子以明庶政, 无敢折狱. Xiàng zhuàn: Shān xià yǒu huǒ, bì; jūn zǐ yǐ míng shù zhèng, wú gǎn zhé yù.
(The trigram representing) a mountain and that for fire under it form Bi. The superior man, in accordance with this, throws a brilliancy around his various processes of government, but does not dare (in a similar way) to decide cases of criminal litigation.
The first 'nine', undivided, shows one adorning (the way of) his feet. He can discard a carriage and walk on foot.象传: 舍车而徒, 义弗乘也. Xiàng zhuàn: Shè chē ér tú, yì fú chéng yě.
'He can discard a carriage and walk on foot:' - righteousness requires that he should not ride.
The second 'six', divided, shows one adorning his beard.象传: 贲其须, 与上兴也. Xiàng zhuàn: Bì qí xū, yǔ shàng xīng yě.
'He adorns his beard:' - he rouses himself to action (only) along with the (subject of the) line above.
The third 'nine', undivided, shows its subject with the appearance of being adorned and sprinkled (with rich favors). But let him ever maintain his firm correctness, and there will be good fortune.象传: 永贞之吉, 终莫之陵也. Xiàng zhuàn: Yǒng zhēn zhī jí, zhōng mò zhī líng yě.
'The good fortune consequent on his ever maintaining firm correctness' is due to this, - that to the end no one will insult him.
The fourth 'six', divided, shows one looking as if adorned, but only in white. As if (mounted on) a white horse, and furnished with wings, (he seeks union with the subject of the first line), while (the intervening third pursues), not as a robber, but intent on a matrimonial alliance.象传: 六四, 当位疑也. 匪寇婚媾, 终无尤也. Xiàng zhuàn: Liù sì, dàng wèi yí yě. fěi kòu hūn gòu, zhōng wú yóu yě.
'The place occupied by the fourth 'six', (divided),' affords ground for doubt (as to its subject); but '(as the subject of the third pursues) not as a robber, but as intent on a matrimonial alliance,' he will in the end have no grudge against him.
The fifth 'six', divided, shows its subject adorned by (the occupants of) the heights and gardens. He bears his roll of silk, small and slight. He may appear stingy; but there will be good fortune in the end.象传: 六五之吉, 有喜也. Xiàng zhuàn: Liù wǔ zhī jí, yǒu xǐ yě.
'The good fortune falling to the fifth 'six', (divided); affords occasion for joy.
The sixth 'nine', undivided, shows one with white as his (only) ornament. There will be no error.象传: 白贲无咎, 上得志也. Xiàng zhuàn: Bái bì wú jiù, shàng dé zhì yě.
'The freedom from error attached to (the subject of) the topmost line, with no ornament but the (simple white),' shows how he has attained his aim.
This translation of the YiJing classic text uses the original Chinese including the 象传 Xiàng zhuàn commentary converted to modern simplified characters and pinyin.
The English translation is based on William Legge (1899) ➚ which is now out of copyright. We have changed some wording and converted to American spelling.
We hope to replace this with a more modern translation.
In the first few paragraphs each gua is described. The name of the gua (hexagram) is followed by the two trigrams that make it up (lake, mountain, fire, water, earth, heaven, thunder and wind). Each gua has a controlling element (earth, fire, water, metal and wood). After this information there are three related guas. The Opposite gua is the one where all yang is changed to yin and yin to yang - it is usually opposite in meaning. The Inverse gua is the gua with the order inverted so first is last and vice versa. The mutual gua is a more complex combination and re-ordering of the internal trigrams making up the gua. Then the association of the gua to the annual cycle is shown - this is the Chinese lunar month number (not Western month). The controlling or host yao is considered the most important line in the gua and is highlighted in the hexagram.
The main description for the hexagram is then followed by a section for each of the six possible changing lines which indicate the transformation into another, related gua. The text uses 'nine' to refer to a yang line and 'six' for a yin line. The pure yin and yang hexagrams have, however, a different text structure as they are so important.
Copyright © Chinasage 2012 to 2016


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Appeal from the Circuit Court of Du Page County; the Hon. S.
Bruce Scidmore, Judge, presiding.
Plaintiff, Thomas Daleanes, a school superintendent for defendant Board of Education of Benjamin Elementary School District 25 (hereinafter the board), appeals the summary judgment of the circuit court of Du Page County against his action in which he claimed that he was improperly dismissed from his employment by the board. Because we view the board's conduct to constitute a valid non-renewal of Daleanes' contract, we affirm.
In February 1981, Daleanes was employed under contract as the superintendent of schools by the board. At its regularly scheduled meeting on February 16, 1981, the board unanimously passed a resolution that contained the following declarations:
"Section 1: That this Board of Education hereby determines that Thomas Daleanes shall not be reemployed as superintendent of this School District for the next ensuing school term, and accordingly that the present contract of employment of Thomas Daleanes shall terminate at the close of the present school term.
Section 2: That the President and Secretary of the Board of Education are hereby authorized and directed to give Thomas Daleanes notice of this Board's decision not to re-employ said superintendent for the next ensuing school term which shall be substantially in the form of Exhibit 1 attached hereto and made a part hereof.
Section 3: That the President and Secretary of this Board of Education are hereby authorized and directed to give Thomas Daleanes a specific Bill of Particulars in connection with the non-renewal of his contract and Mr. Daleanes may request a closed-session hearing within 10 days after receipt of such notice.
Section 4: This resolution shall be in full force and effect from and after its adoption."
The Board, by its president and secretary, subsequently served Daleanes with a letter dated February 16, 1981, stating the following:
"You are hereby notified that the Board of Education of Benjamin School District No. 25, DuPage County, Illinois, have decided it will not re-employ you as superintendent of this School District for the ensuing school term, and your contract of employment will therefore terminate at the close of the present school term.
The specific reasons for the non-renewal of your contract are set out in the attached Exhibit A. Within 10 days you may request a closed-session hearing on this dismissal at which time you have the privilege of presenting evidence, witnesses and defenses on the grounds for dismissal."
Simultaneously with the letter, Daleanes received a four-page document entitled "Bill of Particulars," also dated February 16, 1981, and setting forth 30 reasons for Daleanes' dismissal. At its next regular meeting on March 16, 1981, the board approved its official minutes of the February 16 meeting. Those minutes contained the quoted resolution and letter, but did not include the bill of particulars.
Daleanes formally requested a closed-session hearing on the subject of his non-renewal on February 24, 1981. The board subsequently announced that it would hold a special closed meeting on March 6, 1981, with "Consideration of Employment of a Superintendent" as the sole agendum. The closed-session hearing on Daleanes' non-renewal was held on April 7 and 15 and May 1, 1981. On May 11, 1981, the board by resolution affirmed its determination not to renew Daleanes' contract. Although it did strike 13 of the causes enumerated in the bill of particulars, the board's affirmation was based upon the proof of the remaining 17 enumerated causes.
This action was initiated by Daleanes on May 8, 1981, with a complaint which sought declaratory and injunctive relief and which was amended to seek contract damages, all in redress for the board's allegedly invalid decision not to renew his contract. The procedural history of this action in the trial court has been long and complex and need not be detailed here. Daleanes notes, however, that the dispute over his employment has also given rise to a separate action in the United States District Court for the Northern District of Illinois (No. 82 C 214) and an interlocutory appeal from the present action (No. 81-757), which this court dismissed for lack of jurisdiction. Neither the Federal court action nor the previous appeal to this court is relevant to the issues raised in this appeal. On November 22, 1982, the trial court granted summary judgment in the board's favor, from which Daleanes brings this timely appeal.
We first address a contention by Daleanes that the trial court erred in permitting the board to file a response to his notice to admit facts after the deadline for such response provided in Supreme Court Rule 216 (73 Ill.2d R. 216). Although the notice had been filed on January 29, 1982, the board did not seek leave to respond until after Daleanes' April 13, 1982, motion for judgment on the pleadings, which relied upon the requested admissions. The trial court first denied the board leave to respond, but, upon the board's motion to reconsider, leave was granted. Rule 216(c) provides that requested admissions are admitted unless response is given within 28 days. 73 Ill.2d R. 216(c).
Although some courts> have declined to relieve a tardy litigant from being bound by his failure to respond within the 28-day period (see City of Champaign v. Roseman (1958), 15 Ill.2d 363; Banks v. United Insurance Co. of America (1975), 28 Ill. App.3d 60, 328 N.E.2d 167; Crum v. Golf Oil Corp. (1973), 12 Ill. App.3d 988, 299 N.E.2d 820), a court may in its discretion permit a tardy response to a request to admit. (Bluestein v. Upjohn Co. (1981), 102 Ill. App.3d 672, 430 N.E.2d 580; Redmond v. Central Community Hospital (1978), 65 Ill. App.3d 669, 382 N.E.2d 95.) The Redmond court suggested that permitting the filing of a late response is permissible where the failure to respond in time is the result of circumstances beyond the control of the litigant. (65 Ill. App.3d 669, 678, 382 N.E.2d 95, 102.) More generally, the Supreme Court Rules empower a trial court to extend any time limit created by the rules "for good cause shown." 73 Ill.2d R. 183.
The board's excuse in this case was that it was in the process of changing attorneys. Daleanes sent his request to admit to the board's then-attorneys, Leonard Seraphin and E. Allan Kovar, on January 29, 1982. According to the board's present attorneys, Scariano, Kula & Associates, they examined the court file during the first week of February 1982, immediately after they were asked by the board to handle this case, and found no request to admit because of an alleged gap in the time between the official filing of the document and its appearance in the court files. Because of a fee dispute between the board and its former attorneys, Scariano, Kula & Associates did not receive the client file from the former attorneys before becoming aware of the request to admit for the first time through Daleanes' motion for judgment on the pleadings. In a supporting affidavit, attorney David Kula stated that his firm had no knowledge of the request to admit until April 16, 1982, and that he had on several occasions requested the files on the case from the board's former counsel without success.
• 1 In Bluestein v. Upjohn Co. (1981), 102 Ill. App.3d 672, 430 N.E.2d 580, the trial court's allowance of a late response was affirmed where the facts in the requested admissions involved the central issue of proximate cause and the court stated that it did not choose to deny a party a jury trial due to his lawyer's carelessness. Here, the most significant requested admission, that the board did not vote on the bill of particulars later presented to Daleanes, involves a fact question central to the dispute. While the board or its new attorneys might possibly have taken some different action to avoid their ignorance of pending judicial matters, confusion resulting from the changing of attorneys is an understandable phenomenon. Moreover, Daleanes fails to demonstrate significant prejudice resulting from the delay. Under these circumstances, the trial court could properly have found "good cause" to permit a late response to the request to admit.
Daleanes principally challenges the procedure by which the board dismissed him. He first contends that the board failed to comply with the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 1-1 et seq.) in its determination not to renew his contract by delegating its non-delegable duty to consider the specific reasons for the non-renewal. Daleanes argues that the School Code requires the board as a whole to consider those reasons and that an examination of the official board records shows an improper delegation of that duty. Daleanes further maintains that, because the board's official record is the only proper evidence on the question of delegation, the board erred in considering extrinsic evidence.
The relevant sections of the School Code provide in pertinent part as follows:
"Sec. 10-21. Additional duties of board. Boards of education in addition to the duties enumerated above shall have the additional duties enumerated in sections 10-21.1 through 10-21.6."
"Sec. 10-21.4. Superintendent — Duties. * * * [T]o employ a superintendent who shall have charge of the administration of the schools under the direction of the board of education. * * *
Notice of intent not to renew a contract must be given in writing stating the specific reason therefor by April 1 of the contract year unless the contract specifically provides otherwise. Failure to do so will automatically extend the contract for an additional year. Within 10 days after receipt of notice of intent not to renew a contract, the superintendent may request a closed session hearing on the dismissal. At the hearing the superintendent has the privilege of presenting evidence, witnesses and defenses on the grounds for dismissal." Ill. Rev. Stat. 1979, ch. 122, pars. 10-21, 10-21.4.
Both parties put forth rules of statutory construction favorable to their respective positions. Daleanes notes that statutes which confer powers on a school board must be strictly construed and should be construed not only as a grant of power but also as a limitation thereof. (Wesclin Education Association v. Board of Education (1975), 30 Ill. App.3d 67, 331 N.E.2d 335.) The board points out the rule that, since the statutes governing teacher tenure create liabilities where none would otherwise exist, they must be strictly construed in order not to unduly interfere with the responsibility of local boards to efficiently operate educational systems. (Johnson v. Board of Education (1981), 85 Ill.2d 338.) Both rules are applicable to section 10-21.4 because it both confers upon the school boards the power to hire and fire superintendents and creates new liabilities for the boards if they do not follow proper procedures in determining not to renew a superintendent's contract. However, it is the latter which is more directly applicable here because the privilege not to extend an employment contract would be present even without that statute while the liability for an extended contract is a new one.
With this in mind, we turn to the question of what functions a school board may delegate. The rule is that discretionary functions of school boards cannot be delegated but duties which are ministerial may be delegated. (Sitton v. Gibbs (1979), 73 Ill. App.3d 812, 392 N.E.2d 244; see Board of Education v. Chicago Teachers Union, Local 1 (1981), 88 Ill.2d 63; Illinois Education Association Local Community High School District 218 v. Board of Education (1975), 62 Ill.2d 127.) The hiring and firing of teachers pursuant to different sections of the School Code are discretionary and, therefore, non-delegable powers. (Illinois Education Association Local Community High School District 218; Board of Education v. Cahokia District Council No. 58 (1981), 93 Ill. App.3d 376, 417 N.E.2d 151.) The same must be said for the determination not to renew a superintendent's contract under section 10-21.4.
At issue here is the statutory function of giving a written "notice of intent not to renew * * * stating the specific reason therefor." (Ill. Rev. Stat. 1979, ch. 122, par. 10-21.4.) Appellate court cases have held that delivery to a teacher of a legally required notice relating to dismissal is a ministerial function and may be delegated. (Sitton v. Gibbs (1979), 73 Ill. App.3d 812, 392 N.E.2d 244; Allen v. Thornblad (1976), 42 Ill. App.3d 554, 356 N.E.2d 361; Morelli v. Board of Education (1976), 42 Ill. App.3d 722, 356 N.E.2d 438.) In Sitton, it was held that a superintendent was acting within his statutory authority in notifying the lay supervisors of their dismissal by the school district before the district could properly delegate that task to him. In Allen, a notice signed and sent by the secretary of the school board was sufficient to satisfy the notice requirement of section 24-11 of the School Code (Ill. Rev. Stat. 1973, ch. 122, par. 24-11). The section 24-11 notice requirement is stated in language very similar to that of section 10-21.4. Finally, in Morelli, preparation and submission to the plaintiffs of a bill of particulars by the school board's attorney satisfied the requirement in section 24-12 of the School Code (Ill. Rev. Stat. 1973, ch. 122, par. 24-12) that such a document be delivered to a teacher upon request. While noting that the subject bill of particulars only set out facts upon which the school board's decision to dismiss was actually based, the appellate court found no statutory requirement that the school board pass upon the precise content of the bill or formerly take part in its drafting. 42 Ill. App.3d 722, 727, 356 N.E.2d 438, 442.
The court in Paprocki v. Board of Education (1975), 31 Ill. App.3d 112, 115, 334 N.E.2d 841, 844, upon which Daleanes relies, stated that "* * * the duty to send notice of remediable cause [pursuant to section 24-12 of the School Code] lies solely with the Board, and is a non-delegable responsibility." The court held, therefore, that such a notice sent to the plaintiff-teacher by the school principal could not satisfy the statutory notice of requirement. A close reading of the Paprocki case, however, reveals that the appellate court found fault with the school board in not timely determining that remediable cause existed and sending the plaintiff notice of that determination. There is no indication in the opinion that the principal's letter was sent at the school board's behest. We read Paprocki to prohibit the delegation of the duties to determine the existence of cause to discharge and to determine that a notice is to be sent, without prohibiting the delegation of the drafting and delivery function. Thus, Paprocki is consistent with the other cases discussed. Moreover, our reading is not contrary to Daleanes' position; rather, he urges that the non-delegable duty improperly delegated here was the board's responsibility to determine the cause for dismissing him.
There is another appellate court case which more clearly distinguishes the discretionary giving of notice from the ministerial giving of notice. In Bessler v. Board of Education (1973), 11 Ill. App.3d 210, 296 N.E.2d 89, the plaintiff-teacher was notified that she would not be re-employed by the personnel director of the school district before the deadline for such notification, but the school board did not take official action to discharge her until after that deadline. The court stated that it did "not quarrel with the proposition that some member of the administrative staff may communicate the Board's action to a teacher under the terms of the statute [Ill. Rev. Stat. 1971, ch. 122, par. 24-11]." (11 Ill. App.3d 210, 213, 296 N.E.2d 89, 91.) However, because the school board's action did not take place until after the notice was sent and after the statutory deadline, it could not be reasonably inferred that the personnel director was merely conveying the action of the school board. Rather, the personnel director had himself, in effect, determined the dismissal and notified the plaintiff thereof and that action was held to be without legal effect. (11 Ill. App.3d 210, 213, 296 N.E.2d 89, 91.) In two similar cases notice sent by a principal or superintendent prior to any action by the school board could not serve as notice from the school board as required by statute. Litin v. Board of Education (1979), 72 Ill. App.3d 889, 391 N.E.2d 62; Provus v. Board of Education (1973), 11 Ill. App.3d 1058, 298 N.E.2d 405.
• 2 After reviewing these cases, we conclude that a school board may not delegate the responsibilities to determine the existence of cause to discharge a superintendent and to determine that notice of the board's intent not to renew the superintendent's contract should be given. However, the functions of drafting the written notice and the reasons for non-renewal and of delivering that notice are ministerial and, therefore, delegable.
Besides the question of which school board functions are non-delegable, the delegation issue raises the question of what evidence may be considered in determining the nature of the delegation. Daleanes argues that only the official records of the board are competent evidence on this issue, while the board maintains that extrinsic evidence is proper. At issue are the affidavits of two board members which were submitted by the board in support of their successful motion for summary judgment.
Affiant Patrick Baldwin averred that the entire membership of the board, meeting in executive session on February 9, 1981, "did deliberate on, discuss, and compile the reasons for non-renewal which would comprise the bill of particulars," directed its attorney to have those reasons "typed into a bill of particulars format," and, at another executive session on February 16, 1981, "again agreed on the bill of particulars." Walter Meyers' affidavit contains the same allegations almost verbatim. If admissible, these uncontroverted affidavits would establish without question that the board did not delegate any of its non-delegable functions.
However, the admissibility of evidence of board conduct extrinsic to the official board record is uncertain. Daleanes relies upon the cases that have held that where public officials are required to keep a record of their proceedings (see Ill. Rev. Stat. 1979, ch. 122, par. 10-7), that record constitutes the only lawful evidence of action taken, and cannot be contradicted, added to or supplemented by parol. (See, e.g., People ex rel. Prindable v. New York Central R.R. Co. (1948), 400 Ill. 507; People ex rel. Toman v. Chicago Heights Terminal Transfer R.R. Co. (1941), 375 Ill. 590; Schroeder v. Community Unit School District No. 2 (1966), 75 Ill. App.2d 352, 220 N.E.2d 505; Lingle v. Slifer (1956), 8 Ill. App.2d 489, 131 N.E.2d 822; People ex rel. Anderson v. Community Unit School District No. 201 (1955), 7 Ill. App.2d 32, 129 N.E.2d 28; all involving school boards.) The board on the other hand, relies upon Hankenson v. Board of Education (1957), 10 Ill.2d 560, 564-65, for its statement that the official minutes of school boards "are not conclusive and must be considered with other portions of the record in order to determine the true facts and happenings." Accord, Compton v. School Directors (1955), 8 Ill. App.2d 243, 131 N.E.2d 544.
We need not determine whether these cases are reconcilable, however, because we are convinced that examination of the official board record alone, even without the affidavits, fails to show improper delegation. Paragraph 3 of the board's February 16 resolution authorizes the president and secretary of the board to "give Thomas Daleanes a specific Bill of Particulars * * *." We agree with Daleanes' argument that the use of the indefinite article "a" and the fact that the bill of particulars, unlike the letter of intent, was not attached to the resolution in the official board record, signifies that the bill of particulars was not yet in existence at the time of the board's formal action and that paragraph 3 was meant to authorize not only the delivery of that document but also its physical drafting. However, neither of these functions is equivalent to the function of determining the grounds of dismissal to be stated in the bill of particulars. As we have already concluded, only the latter is non-delegable.
In Paprocki v. Board of Education (1975), 31 Ill. App.3d 112, 334 N.E.2d 841, Bessler v. Board of Education (1973), 11 Ill. App.3d 210, 296 N.E.2d 89, Litin v. Board of Education (1979), 72 Ill. App.3d 889, 391 N.E.2d 62, and Provus v. Board of Education (1973), 11 Ill. App.3d 1058, 298 N.E.2d 405, four cases relied upon by Daleanes and discussed earlier, a requirement of notice to be given by a school board could not have been satisfied by notice from a principal, personnel director, or superintendent given before school board action. The fact that the school officer's action predated the school board's action compelled the conclusion that the officer's action did not merely reflect that of the school board.
• 3 Here, the bill of particulars was provided after the board's formal action. Neither the minutes nor the board's resolution recite whether the board considered the grounds for dismissal. However, the letter of notice sent to Daleanes, a copy of which is part of the official record of the board, states, "The specific reasons for the non-renewal of your contract are set out in the attached Exhibit A." Exhibit A is the bill of particulars. Since it was the board which decided to dismiss Daleanes and not renew his contract, it is a reasonable inference that the reasons for the non-renewal were those of the board. The persons authorized to prepare the bill of particulars were board members and were inferentially privy to any reasons considered by the board before voting to dismiss. There appears no language anywhere which would imply that the grounds for dismissal stated in the bill of particulars were not considered by the board, but were wholly conceived of by the preparers of that document. We hold that the board's record fails to support Daleanes' allegation of improper delegation by the board of a discretionary function.
Daleanes also contends with regard to the dismissal procedure that the notice relating to the non-renewal of his contract was statutorily faulty. He points to the language of the letter of notice that the board "has decided" not to re-employ him and to the language of the February 16 resolution both that the board "hereby determines" that he will not be re-employed and that authorization is given for sending him notice of the board's "decision not to re-employ." Daleanes argues that this language does not constitute "notice of intent" as required by section 10-21.4 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 10-21.4), but rather indicates that the board has already taken what it considers to be a final action.
• 4 School boards are not required to maintain the highest degree of accuracy or formality in the discharge of their duties on the principle that to do so would result in injury to the public. (Lingle v. Slifer (1956), 8 Ill. App.2d 489, 131 N.E.2d 822; Goldman v. Zimmer (1965), 64 Ill. App.2d 277, 212 N.E.2d 132, rev'd on other grounds sub nom. Goldman v. Moore (1966), 35 Ill.2d 450.) Nevertheless, they must exercise power in the manner provided by statute. (Goldman.) The question here is whether the board's use of the words "decided" and "determines" instead of a form of the word "intent" is merely imprecise usage or so qualitatively different as to fail to satisfy the prescription of the School Code.
We find the board's argument on this question persuasive: the statutory scheme of section 10-21.4 is such that, whatever semantic difference might exist between "intent" and "determination," no legal difference could have resulted for Daleanes. That is because following the receipt by the superintendent of the notice, no further action is required by a school board in order to cause his dismissal. Without the statute, a school board's inaction (i.e., failure to renew a superintendent's contract) would result in non-renewal. Section 10-21.4 only adds the requirements of timely notice of intent not to renew and a hearing if one is requested. The statute specifically provides that failure to send notice automatically extends the contract for an additional year. Section 10-21.4 does not specifically mandate any further action by a school board. Since the provisions of this section create a liability which would otherwise not exist, we construe it strictly, under the policy of Johnson v. Board of Decatur School District No. 61 (1981), 85 Ill.2d 338, so as not to imply the creation of a liability upon the school board should it fail to take an action not explicitly mandated.
Davis v. Board of Education (1978), 63 Ill. App.3d 495, 380 N.E.2d 58, which Daleanes cites for the proposition that notice of intent not to renew is not the final determination necessary to dismiss a superintendent, is distinguishable. The Davis court held that, for the purposes of the Open Meetings Act (Ill. Rev. Stat. 1977, ch. 102, par. 42), which prohibits "final actions" at closed sessions, a school board's closed-session decision not to rehire its superintendent was not a "final action." However, the Davis school board by its own terms, not the statute's, indicated that its decision was "tentative."
• 5 Since we read section 10-21.4 not to require any further action by the board in order to terminate Daleanes' employment as superintendent, notice to him by the board of its "determination" not to rehire him causes no different legal result than a notice of "intent" not to rehire him. After giving notice, the board was required to grant Daleanes a hearing if requested. It recognized that requirement in its resolution and did, in fact, grant a hearing. We hold that the board's notice in this case served the purposes of the notice of intent required by section 10-21.4.
Daleanes contends finally that he was denied his due process right to a fair hearing. He argues that his hearing was not fair because the board members had already predetermined its outcome as evidenced by their notice of "decision" instead of "intent."
However, Daleanes has not demonstrated a constitutional due process right to a fair hearing before the board determined not to renew the contract. The requirements of procedural due process apply only to the deprivation of an interest encompassed by the fourteenth amendment protection of liberty and property. (Board of Regents v. Roth (1972), 408 U.S. 564, 33 L.Ed.2d 548, 92 S.Ct. 2701; Perry v. Sindermann (1972), 408 U.S. 593, 33 L.Ed.2d 570, 92 S.Ct. 2694.) To have a protectable property interest in public employment, a person must have more than an abstract need or desire for it; he must have a legitimate claim of entitlement. (Sullivan v. Board of Fire & Police Commissioners (1981), 103 Ill. App.3d 167, 430 N.E.2d 636.) Not every public employee has a property right to continued employment, but a public employee can have such a right depending upon the surrounding circumstances including rules and understandings. Powell v. Jones (1973), 56 Ill.2d 70.
• 6 Here, Daleanes provides no argument that he has shown a protectable property interest in his continued employment. The mere fact that section 10-21.4 requires the giving of notice of non-renewal does not create a sufficient property interest to bring the due process clause into play. (See Shirck v. Thomas (7th Cir. 1973), 486 F.2d 691.) Without that showing, the due process clause cannot be said to require a formal hearing before a school district employee may be discharged. See Blackmore v. Jasper County Community Unit School District No. 1 (1974), 21 Ill. App.3d 122, 314 N.E.2d 677.
Section 10-21.4 does, however, grant Daleanes a statutory right to a hearing. The statute provides that "[a]t the hearing the superintendent has the privilege of presenting evidence, witnesses and defenses on the grounds for dismissal." (Ill. Rev. Stat. 1979, ch. 122, par. 10-21.4.) Daleanes does not argue that a hearing was not granted or that he was prevented from presenting evidence, witnesses or defenses. Rather, he maintains that the hearing was not a fair one because its outcome was predetermined.
• 7 The hearing provided for under the statutory scheme of section 10-21.4 only takes place after a school board has notified a superintendent of its intent not to renew his contract. Therefore, for the school board after the hearing to then renew the superintendent's contract, the collective intent of the board must be changed. In other words, the statute itself already provides for a hearing before a school board which has made an initial judgment on a superintendent's status. There appears no legal difference for a superintendent between a hearing before a board which has already expressed an "intent" not to rehire him and a hearing before a board which has already expressed a "determination" not to rehire him. In either case, the superintendent carries a burden of changing the minds of enough board members to alter the board's purpose. This is the only sort of hearing provided for in the statute and was in fact the sort of hearing Daleanes received. To read section 10-21.4 otherwise would be to fail to construe a statute creating new liabilities for a school board strictly, contrary to the policy of Johnson v. Board of Education (1981), 85 Ill.2d 338.
Accordingly, we affirm the judgment of the circuit court of Du Page County.
REINHARD and VAN DEUSEN, JJ., concur.
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Actor David Hasselhoff is going to star in 'Baywatch' movie, which also features Dwayne Johnson and Bollywood actress Priyanka Chopra.
Syed Ammar Alavi - is Lahore (Pakistan) based journalist & writer with 25-year experience in print, wire and broadcast forms of journalism. His major fields of interest are politics, film,tv,sports, climate change and technology


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Jennifer Lee Pryor told The Root that her husband would probably like to be remembered as much for his comedy as for his social activism. Pryor was not a civil rights leader in the traditional sense, but he enunciated the spirit of the movement. He joked about police brutality, stop and frisk and other social issues long before they were mainstream.
Pryor also used the n-word religiously. His album That Nigger's Crazy won the Grammy for best comedy album for 1974. Then, in 1979, he visited Africa for the first time and had an epiphany. Jennifer Lee Pryor, who was with him, says he looked around and did not see any "niggers," so he stopped using the word. It's a moment he shared in the 1982 comedy film and album Richard Pryor: Live on the Sunset Strip.
Comedian Wyatt Cenac, who was also on the panel at the film festival, told The Root that it was an interesting dynamic that "there are comics who will say Pryor's such a big influence but don't remember that part of it and will say 'nigger' without context." He added that Pryor was such a "nuanced comedian, which is rare."
While Cenac said that Pryor influenced his comedy as a young man, Morgan also recalled being influenced as a young boy growing up in Brooklyn, N.Y., listening to Pryor's routines. Now, he says, "I'm trying to bring back to the game what he took with him." Morgan and Pryor share quite a bit — both had NBC shows, raunchy comedy routines and addiction problems — but, Morgan told the audience, the difference is that "he sacrificed for me to be here."
Panel member and author Walter Mosley said to the audience, "[Pryor] saw the world in a certain way, and he loved that world in a certain way, and he acted that out … he lived in effigy for all of us."
Dave Chappelle, Robin Williams, Whoopi Goldberg, Mel Brooks and Pryor collaborator Paul Mooney appear in the film, as do many other famous comedians who were influenced by Pryor. But the film is just as notable for who is left out. Zenovich said that Bill Cosby; Eddie Murphy, who starred with Pryor in 1989's Harlem Nights; and Pam Grier, whom Pryor dated, did not want to be interviewed for the documentary. Zenovich would not elaborate on why.
Cosby and Murphy do appear in Goldberg's documentary Moms Mabley: I Got Somethin' to Tell You, which also screened at the Tribeca Film Festival. Of Cosby and Pryor's relationship, Jennifer Lee Pryor said, "It was a little awkward … but full of love," and of Murphy, she was quite blunt: "He's gotta f–kin' hate him on some level, because he's never gonna be Pryor."
While the 90-minute documentary may leave many of Pryor's devoted fans wanting more depth and insight into his life and comedy, Jennifer Lee Pryor saw the film as a way to keep his legacy alive while introducing him to a new generation. She also told The Root that she would like to produce another documentary.
She said that plans for a Pryor biopic, which Forest Whitaker has signed on to produce, are coming along. When the subject of who would play Richard Pryor came up during the panel discussion, Jennifer Lee Pryor nudged Morgan, who was sitting next to her onstage. But in the world that is Hollywood, that role remains a guessing game — the names of Murphy, Marlon Wayans and Mike Epps have been bandied about.
Richard Pryor: Omit the Logic will air on Showtime on May 31. Watch a promo for the film here.
Julie Walker is a New York-based freelance journalist. Follow her on Twitter.


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November is Native American Heritage Month.
What the heck does that mean?
In part, it means this:
November 18, 2011 at 5:19 pm (creative writing, culture, education, entertainment, exploring interconnectedness, history, Independent film, Indigenous People, Lakota, life, Native Americans, poetry, politics, random, Uncategorized, Writing)
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text: Trumpeter Ambrose Akinmusire is a forward-thinking musician with a bent toward atmospheric post-bop. Born in Oakland, California, Akinmusire showed early promise by his teens, and gigged professionally while also playing in the Berkeley High School Jazz Ensemble. Early encounters with such luminaries as saxophonists Joe Henderson and Steve Coleman pushed Akinmusire to focus a keen eye on his own development. He earned his bachelor's degree from the Manhattan School of Music and ... Read more


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Empty chair technique
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Empty-chair technique or chairwork is a psychotherapeutic technique typically used in Gestalt therapy to explore patients' relationships with themselves, with aspects of their personality, their concepts, ideas, feelings etc., or other people in their lives.
The technique involves the client addressing the empty chair as if another person, or aspects of their personality, or a certain feeling etc. was in it.[1] They may also move between chairs and act out two or more sides of a discussion, typically involving the patient and persons significant to them. A form of role-playing, the technique focuses on exploration of self and is utilized by therapists to help patients self-adjust. Gestalt techniques were originally a form of psychotherapy, but are now often used in counseling, for instance, by encouraging clients to act out their feelings helping them prepare for a new job.[2]