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New Jersey Superior Court, Appellate Division
Decided As Amended February 28 1989.: February 3, 1989.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,v.JOSEPH CLAY, DEFENDANT-APPELLANT
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.
King, Ashbey and Skillman. The opinion of the court was delivered by King, P.J.A.D.
[230 NJSuper Page 511]
The issue in this case is whether a participant in the Intensive Supervision Program who fails to abide by the rules and leaves New Jersey is guilty of the crime of escape. N.J.S.A. 2C:29-5 defines the crime of escape:
a. Escape. A person commits an offense if he without lawful authority removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period. "Official detention" means arrest, detention in any facility for custody of persons under charge or conviction of a crime or offense, or committed pursuant to chapter 4 [mental illness] of this Title, or alleged or found to be delinquent, detention for extradition or deportation, or any other detention for law enforcement purposes; but "official detention" does not include supervision of probation or parole, or constraint incidental to release on bail. [Explanation added.]
This penal statute became effective September 1, 1979 as part of the Code of Criminal Justice. L. 1978, c. 95.
[230 NJSuper Page 512]
The Intensive Supervision Program (ISP or Program) was added to R. 3:21-10(e) by amendment adopted effective September 1983, in implementation of R. 3:21-10(b)(5) then adopted. Pressler, Current New Jersey Court Rules, Comment R. 3:21-10(e) (1988). R. 3:21-10(e) provides:
Intensive Supervision. Motions for change of custodial sentence and entry into the Intensive Supervision Program, as provided for in paragraph (b) of this rule, shall be addressed entirely to the sound discretion of the three-judge panel assigned to hear them. Because of the nature of the program, there shall be no administrative or judicial review at the several levels of eligibility established under the program. No further appellate review of the panel's substantive decision shall be afforded. The three-judge panel shall have the authority to resentence offenders, in accordance with applicable statutes, in the event they fail to perform satisfactorily following entry into the program. [Emphasis supplied.]
The ISP is essentially a post-sentence, post-incarceration program of judicial intervention and diversion back to the community. In discussing "the inherent power to dismiss an indictment in appropriate circumstances," State v. Abbati, 99 N.J. 418, 432-433 (1985), our Supreme Court collaterally described ISP several years ago:
This Court's authorization and the subsequent implementation of pretrial intervention programs, R. 3:28, is illustrative of that judicial responsibility. See State v. Leonardis, 71 N.J. 85, 89 (1976) (Leonardis I). See N.J.S.A. 2C:43-12 to 22 (Criminal Code codifies pretrial intervention program). The judicially-created Intensive Supervision Program is another example of the courts' inherent responsibility and power to manage efficiently the criminal justice system. In response to the overcrowding of our prisons, the judiciary proposed and subsequently authorized a program of conditional release from custody -- a form of intermediate punishment between incarceration and probation -- for certain carefully screened non-violent offenders. See Judicial Conference Planning Committee Final Report 85 (1982); R. 3:21-10(e). We note that this program was endorsed by the Executive branch. See Office of the Governor, Prison Overcrowding: A Plan of Action 9-10 (1982).
In May 1983 the Administrative Office of the Courts issued an informational pamphlet describing ISP. The program operates independently from the customary probation and parole programs. The traditional probation program operates as an arm of the courts in lieu of a custodial sentence. N.J.S.A. 2C:45-1 to -4. The traditional parole program, an exclusively executive function operated by the Parole Board, is implemented
[230 NJSuper Page 513]
post-custodially. N.J.S.A. 30:4-123.45 to -123.69. ISP rests between traditional probation and parole but is definitely a product of the judiciary. In that sense it is more like probation. In the sense that the convicted participant is taken out of prison, it is more like parole.
The ISP pamphlet's "Preface" described the reasons and purpose behind ISP:
In response to the prison over-crowding crisis the legislature funded an intensive supervision program to be operated by the Administrative Office of the Courts on an experimental basis. This program is designed to test whether an intermediate form of punishment, one which would be less costly than prison, but much more onerous than traditional probation, will achieve the criminal justice objective of deterrence -- general and specific -- as well as rehabilitation. This experiment is frankly innovative since it has never been tried before in New Jersey. While success of any social program cannot be assured, particularly one that attempts to deal positively and constructively with persons who have not succeeded elsewhere and which also intends to guard society against future criminality, nevertheless, this program has been carefully designed to present a realistic and tough-minded approach to one of the most difficult problems facing society today. [ Intensive Supervision Program, at iii (1983).]
The ISP thus was funded by the Legislature ($1,000,000), endorsed by the Executive branch, and operated by the Judiciary. In a certain sense it functioned as a concert of traditionally separated powers. No specific legislation or court rules have formalized the operation's structure. The 1983 ISP pamphlet and its 1986 supplement seemingly embody the Program's operational standards.
The "Executive Summary" in the 1983 pamphlet contained the following descriptive summary of ISP:
The program provides a structure within which certain offenders sentenced to state penal institutions in the traditional fashion are afforded an opportunity to work their way back into the community under intensive supervision provided they present a plan which gives full assurance to a Screening Board and a Resentencing Panel of judges that their return will result in a positive social adjustment and will not jeopardize the public's safety.
Features of the program include:
The pamphlet's "Introduction" section explains the application procedure. The program is open to "inmates serving state prison sentences for nonviolent offenses, whose participation in the program will not be repugnant to public sensibilities, and for whom there is a reasonable probability of success." Intensive Supervision Program at 1. An inmate can apply for admission only after serving "a minimum of 30 days in custody and . . . no later than 60 days after the execution of sentence." Ibid. The applicant must develop a plan upon release including provisions for living accommodations, meeting financial obligations, counseling, vocational and educational needs, and restitution. A Community Sponsor is necessary. The program is described as "an intermediate form of punishment, less onerous than incarceration but more restrictive than standard probation supervision." "Continuous monitoring" is promised and "compliance" must be absolute. The applicant is warned that " failure will result in immediate reincarceration." Ibid. [Emphasis
[230 NJSuper Page 515]
supplied.] The section entitled "program philosophy" again warns the applicant that failure will result in " immediate return to the institution." [Emphasis supplied.]
The information pamphlet describes the program's actual mechanics as follows:
If the applicant is deemed eligible for the program, his application will be forwarded to a 3 judge Resentencing Panel. The Panel will review the application for resentence to determine if the applicant is eligible for entry into ISP. If the Panel determines that the applicant is eligible, it will grant the application for resentencing and adjourn the hearing for 90 days, place the applicant on recognizance to the Community Sponsor and require adherence to the applicant's plan and conditions of ISP. During this trial period his behavior will be closely monitored.
At the conclusion of this period, the participant may reapply to the Panel for another 90 day release period. The Panel will assess the applicant's continuing motivation and commitment. If the Panel members conclude that he remains dedicated to his goals, they will continue his release pending resentence for a second 90 day period. Successful completion of this period will trigger a resentencing hearing at which the applicant will be resentenced pursuant to R. 3:21-10(b) to the original term of incarceration less the time served. Sentence will be suspended in accordance with N.J.S.A. 2C:45-1 et seq., subject to the program participant's continuing compliance with his plan and conditions of ISP. The maximum period of suspension will be the maximum term which was initially imposed or 5 years, whichever is less, minus time served. There will be periodic continuation hearings to assess compliance throughout the period of release. Failure to continue to aggressively fulfill the plan's obligations will result in a referral back to the Resentencing Panel for a violation hearing and reincarceration.
All ISP participants must successfully complete a minimum of one year of intensive supervision. Thereafter, they may be transferred from intensive supervision to regular probation supervision or be discharged entirely, at the discretion of the Resentencing Panel. [ Intensive Supervision Program at 5-6; emphasis supplied.]
In May 1983 Chief Justice Wilentz formally implemented ISP by order. The order, contained in Intensive Supervision Program at 8-9, stated:
Order BY CHIEF JUSTICE SUPREME COURT OF NEW JERSEY
Ordered, pursuant to N.J.Const. (1947), Art. VI, Sec. II, par. 3 in furtherance of the establishment of the Intensive Supervision Program, that R.
[230 NJSuper Page 516]
3:21-10(b)(1) be relaxed to allow the court, upon motion, to change a custodial sentence to permit entry of the defendant into the Intensive Supervision Program. A motion pursuant to this Order shall be addressed to the sound discretion of the three-judge panel named herein, and shall be made in conformance with, and only when permitted by, the Intensive Supervision Program adopted by the Supreme Court. There shall be no administrative or judicial review at the several levels of eligibility established under the Program, nor any appellate review of the panel's substantive decision.
FURTHER ORDERED that a three-judge panel is hereby established to consider applications, filed by persons under sentence of imprisonment, for conditional release for purposes of entry into the Intensive Supervision Program. The panel shall also have the authority, pursuant to the Program, to resentence offenders in accordance with law in the event they fail to perform satisfactorily following entry into the Program.
FURTHER ORDERED that said three-judge panel shall consist of Superior Court Judges, Theodore Z. Davis, William F. Harth and John A. Marzulli, which panel shall hear all such applications.
This Order is effective immediately until further Order of the Court.
DATED: May [26], 1983 [Emphasis supplied.]
The pamphlet's final portion, entitled ISP "Resentencing Procedure," treats the subject of the applicant's failure in this way:
If during the suspension the participant fails in his obligation to live up to the plan and ISP conditions, he will be brought back before the Resentencing Panel for review as to why he should not be returned to prison to serve his custodial sentence. If needed, a continuation hearing shall be scheduled to consider modifying the terms of ISP or withdrawing the ISP client from the program.
Violations of any of the intensive supervision conditions will result in the processing of a Violation of Intensive Supervision before the Resentencing Panel. Violations will conform to N.J.S.A. 2C:45-(3), (4) [2C:45-3, 4] and must be approved by the regional supervisor with a copy being forwarded to the director of the program. The Resentencing Panel shall hold a hearing to consider why the participant should not be returned to prison to serve the custodial sentence. [Intensive Supervision Program at 26, 30; emphasis supplied.]
In August 1986 a supplementary informational pamphlet was issued by the Administrative Office of the Courts titled "Supervisory Guidelines." These guidelines did not alter the material discussed above. The ISP informational pamphlets did not
[230 NJSuper Page 517]
mention or warn that failure in ISP will incur any additional criminal liability by prosecution for escape.
By way of further background, an article in the "Newark Star Ledger" of September 27, 1988 quotes Judge Marzulli of the Resentencing Panel concerning ISP's progress since 1983:
ISP was implemented in New Jersey in 1983 as an alternative to lockup in overcrowded prisons for persons convicted of minor crimes.
Marzulli said the New Jersey program is special due to the "unusual alliance" it has formed among judges, supervising probation officers and participants.
Normally, when a judge places someone on probation, it is the last time there will be any contact between the two, unless the defendant violates the terms of probation, Marzulli explained. In ISP, however, the judges take a "pro-active role" in the supervision, Marzulli added. He said monthly assessments and 90-day and 180-day reports are made to the jurists.
The judge said ISP is "truly a prison diversion program." In its five-year history, Marzulli said the program has graduated 465 participants. Since their graduation, Marzulli said six defendants have been convicted of indictable crimes and 18 others were convicted of disorderly persons offenses.
The 1987 Annual Report of the Administrative Office of the Courts contained the following summary on ISP:
The Intensive Supervision Program (ISP) continued to prove its effectiveness at supervising offenders released from prison. The figure below shows the outcome of supervision for all participants at the end of 1987. About one-quarter of those admitted into the program were returned to incarceration, but most of those returned had only programmatic violations rather than a new arrest. Only 7% of the persons admitted into the program were arrested or detained by a law enforcement officer. [7-4.]
Against this background, we reach this case's facts, related chronologically. Defendant originally pled guilty to a burglary offense in Atlantic County and on April 13, 1984 was sentenced to a five-year indeterminate term at Yardville, the Youth Reception and Correction Center. He got 42 days credit against this sentence for pretrial detention. He also received a consecutive 18-month sentence for violation of a two-year probation term he had received for theft in 1983. He had been serving that probation term when he committed the burglary to which he pled guilty in April 1984.
Defendant promptly applied for ISP while serving the five-year indeterminate term for burglary. On July 31, 1984 he was
[230 NJSuper Page 518]
admitted and resentenced to ISP by Judges Davis and Harth. No particular features of defendant's ISP regime are provided to us in this record. We imagine they were similar to those recently described in State v. Jiminez, 229 N.J. Super. 256, 258 (App. Div.1988).*fn1
On or about August 30, 1984, while free in the community, the defendant left the State of New Jersey without permission from the ISP program. At the time defendant was a suspect in a burglary of his former employer's home. Because he could not be found in this State a fugitive warrant issued on August 31. He then was arrested for burglary in Colorado on September 22; a Governor's extradition warrant was sent to Colorado; defendant eventually waived extradition and was returned to New Jersey, "at the expense of ISP," as the Prosecutor notes in his brief.
Defendant was convicted of burglary in September 1984 in Boulder, Colorado and sentenced on January 2, 1985 to four years in the Colorado State Prison. Eventually, after an ISP violation hearing on August 30, 1986 before Judges Marzulli, Harth and Bachman, defendant was returned to prison in New Jersey to serve his original sentences for "burglary and violation of probation," five years and a consecutive 18 months, respectively.
[230 NJSuper Page 519]
Meanwhile, on August 15, 1985 the defendant had been indicted in a one-count indictment by an Atlantic County Grand Jury for the offense of escape, N.J.S.A. 2C:29-5(a). The indictment alleged in pertinent part that "on or about the 30th day of August 1984 in the City of Atlantic . . . Joseph Clay did without lawful authority remove himself from the official detention of [the] Intensive Supervision Program following temporary leave granted for a specific purpose of limited period, contrary" to the statute. The indictment was placed on the inactive list on October 22, 1985 because defendant was in custody in Colorado. On November 3, 1986 defendant entered a plea of guilty to the charge of escape, N.J.S.A. 2C:29-5. On December 5, 1986 he was sentenced to a three-year term consecutive to the terms he was then serving after being dismissed from ISP and returned to prison.
On this appeal defendant contends that (1) his guilty plea lacked a sufficient factual basis, (2) his conviction for escape violated the Double Jeopardy Clause, and (3) his sentence was excessive. Since we agree with his first point and reverse, we do not reach the remaining points.
As the Prosecutor observed in his brief, "at the request of ISP, the Atlantic County Prosecutor's Office obtained an indictment for escape against defendant on August 15, 1985." In a letter of December 12, 1984 with the Administrative Office of the Courts' (AOC) letterhead and stationery (Robert D. Lipscher, Administrative Director; Harvey Goldstein, Assistant Director for Probation) with copies to Judges Marzulli, Harth and Davis, an ISP Administrative Assistant, Thomas W. Bartlett, requested the Atlantic County Prosecutor to indict the defendant for escape. He said:
The Intensive Supervision Program is requesting that your office proceed with an indictment charging the above captioned individual with escape. This individual was classified as an ISP absconder on August 30, 1984 and subsequently arrested on September 22, 1984 in Boulder, Colorado. He is scheduled for an extradition hearing in Colorado on December 21, 1984 and will likely be returned soon thereafter since he reported[ly] is not fighting extradition.
[230 NJSuper Page 520]
I have enclosed all of the relevant ISP case material regarding this individual. The regional supervisor to be contacted for any additional or clarifying information would be Ray Crowell, Southern Regional Supervisor (609-757-4752). The Supervising ISP Officer is James Ney (609-757-4754). I would recommend that both individuals be contacted.
If I can be of any further assistance in this matter, please contact me directly. I will forward to you the date and location of this individual upon his return to New Jersey as soon as available. A request has also been made to obtain the transcript of his ISP Resentencing Panel Hearing and will be forwarded upon receipt.
This policy of the ISP and the Resentencing Panel's request for initiation of criminal prosecution is further explained by ISP Director Richard Talty's letter under AOC's letterhead and stationery to the Atlantic County Prosecutor's Office on April 5, 1988:
You recently inquired of Thomas Bartlett of my staff as to when the Intensive Supervision Program Resentencing Panel first implemented the policy of recommending escape indictments against absconders from our program. I would like to review the history of that policy development.
In January 1984, the ISP Resentencing Panel comprised of Honorable John A. Marzulli, A.J.S.C. and Honorable William F. Harth, J.S.C. of Essex County, along with Honorable Theodore Z. Davis, J.S.C. of Camden County, decided that participants in the ISP who absconded from the jurisdiction of the program should be recommended to the appropriate County Prosecutor's Office for the issuance of an escape indictment. The Panel based their decision on the fact that ISP was considered "home detention" and that participants were receiving day for day credit for time spent under supervision of the program identical to the credit they would be receiving if they had remained within the custody of the Department of Corrections.
Since that time, the Resentencing Panel has informed participants on the record that should they abscond from ISP supervision a recommendation for an escape indictment will be recommended to the County Prosecutor when they are apprehended. The Panel also emphasizes that the penalty for escape is up to five years which, upon conviction, could run consecutive to the sentence imposed for a violation of the conditions of ISP.
All participants also sign a waiver of extradition in which it is spelled out that ISP will extradite anyone who absconds from the program. I believe that all participants clearly understand that they risk having an escape indictment returned against them if they abscond while under our supervision.
These two letters were placed in the record before us after we granted the State's "motion to supplement the record." Nothing in the record shows any warnings to defendant-appellant Clay about exposure to criminal escape charges if he left
[230 NJSuper Page 521]
the State. We have permitted the State to supplement the record with these two above-quoted letters. No record of Clay's ISP hearings has been offered to us.
In view of our conclusion that defendant did not commit the crime of escape, N.J.S.A. 2C:29-5, when he failed to comply with ISP regulations, we do not consider constitutional problems which might be raised by the doctrine of separation of powers where the judiciary initiates criminal prosecutions.*fn2 Initiating criminal prosecutions ordinarily is considered an exclusively executive function -- the enforcement of the laws. See Morrison v. Olson, 487 U.S. , 108 S. Ct. 2597, 101 L. Ed. 2d 569 (1988) (Scalia, J., dissenting). In dissent, Justice Scalia wrote, "Government investigation and prosecution of crimes is a quintessentially executive function." 487 U.S. at , 108 S. Ct. at 2626-27. See also Young v. U.S. ex. rel. Vuitton, 481 U.S. 787, 107 S. Ct. 2124, 95 L. Ed. 2d 740 (1987).*fn3
[230 NJSuper Page 522]
Despite defendant's guilty plea he retains "the right on appeal to raise as reversible error the absence of a 'factual basis for the plea.'" State v. Butler, 89 N.J. 220, 224 (1981); R. 3:9-2. See also State v. Taylor, 80 N.J. 353, 362 (1979). Under N.J.S.A. 2C:29-5 a person commits an offense "if he without lawful authority removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period." The term "official detention" is defined as meaning " arrest, detention in any facility for custody of persons under charge or conviction of a crime or offense, or committed pursuant to chapter 4 [mental illness] of this Title, or alleged or found to be delinquent, detention for extradition or deportation, or any other detention for law enforcement purposes." N.J.S.A. 2C:29-5. [Emphasis supplied.] The term "official detention" in the statute does not include "supervision of probation or parole, or constraint incidental to release on bail." Ibid.
The State contends that because defendant left the State without permission and otherwise violated ISP's terms, he committed the crime of escape in violation of N.J.S.A. 2C:29-5. The State urges that ISP is within the scope of the language "any other detention for law enforcement purposes." But the State recognizes that "the statute is not explicit." It contends that the result it seeks, which requires "interpretation" in the light of "a reasoned analysis of the legislative history and an interpretation of the escape statute in conjunction with a careful examination of the purpose and nature of ISP," is necessary to preserve the integrity of the program.
[230 NJSuper Page 523]
We disagree for several reasons. First, the statute provides no textual support for the State's argument. At the very best, the State's argument from the statute's text confronts ambiguity. Second, defendant was not detained in any sense in any particular facility or institution. He was free in the community, albeit under strict probation-type supervision. Third, ISP is obviously a hybrid -- by its own description it is a novel and experimental program which shares traditional qualities of both probation and parole. As the State candidly notes, ISP did not exist conceptually in 1979 when the Criminal Code, including the "escape" statute, was adopted. The judiciary did not propose ISP until the Judicial Conference of 1982. State v. Abbati, 99 N.J. at 433; 1982 Judicial Conference Planning Committee Final Report 85. We can fairly conclude that the Legislature harbored no specific intent on whether failure in ISP was an "escape from official detention" when N.J.S.A. 2C:29-5 was adopted in 1979. The Legislature obviously stuck with the traditional physical detention versus supervised release in the community dichotomy in adopting the escape statute and did not make provision for future novel or experimental hybrids like ISP. In this context, the escape statute is ambiguous on how to treat ISP.
In light of the traditional doctrine that courts must strictly construe criminal statutes, we cannot strain to criminalize by judicial ukase or condone administrative criminalization of defendant's count in failing to comply with ISP. Our Supreme Court recently has observed as much when faced with the ambiguity of a criminal statute as applied to particular facts. State v. Valentin, 105 N.J. 14, 17-18 (1987). "Our most rudimentary guide in this case is the doctrine that penal statutes must be strictly construed." Id. at 17; In re Suspension of DeMarco, 83 N.J. 25, 36 (1980). 3 Sands Sutherland, Statutory Construction (4th ed. 1986), § 59.03 at 11.
Penal laws cannot be extended by implication or intendment. Where more than one reasonable interpretation may be made, or where the language is
[230 NJSuper Page 524]
ambiguous -- and the ambiguity is not manufactured by the defendant -- the construction must be drawn against the state. [ Valentin, 105 N.J. at 18.]
Nor is the result we reach "absurd or impractical," as the Prosecutor suggests. See State v. Quinones, 140 N.J. Super. 237, 241 (App.Div.1976), aff'd 75 N.J. 391 (1978). ISP's integrity is preserved by returning defendant to prison, possibly to serve out his maximum sentence if the parole authority finds a substantial likelihood that rehabilitation has not occurred. N.J.S.A. 30:4-123.53.
Moreover, the record provides no documentation that defendant was warned that failing in the concededly rigid ISP program and leaving the State exposed him to indictment for escape and additional criminal penalties. The most we see in the record before us are declarations that failure triggers a return to prison to serve his term or to be resentenced "in accordance with law." But even if he were warned, the statute does not clearly criminalize failure in this program where defendant is at large in the community under supervision and not at all in physical detention or custody.
The Legislature can amend the statute to clarify the ambiguity. In at least two very specific instances the Legislature has made it clear by statute that failure in a rehabilitation program characterized by a relaxed custodial environment and with a partial degree of freedom in the community was an "escape" from custody or detention for criminal purposes. In the "Comprehensive Drug Reform Act of 1986," N.J.S.A. 2C:35-1 to -23, L. 1987, c. 106, § 1, effective July 9, 1987, the Legislature specifically addressed this issue where a person convicted of a crime is placed in a residential drug treatment program. The statute clearly criminalized unauthorized departure from the residential program. "A person placed into a residential treatment program under this subsection shall be deemed to be subject to official detention for purposes of N.J.S. 2C:29-5 (escape)." N.J.S.A. 2C:35-14. The statute was the legislative response to State v. Reyes, 207 N.J. Super. 126, 141-145 (App.Div.1986), certif. den. 103 N.J. 499 (1986), where
[230 NJSuper Page 525]
we concluded that leaving a residential drug center was not a crime under the existing definition of escape from official detention.
In State v. Walker, 131 N.J. Super. 547, 548 (App.Div.1974), defendant one evening failed to return to custody in the work-release program. We held that the defendant was properly found guilty of escape from penal custody under our former statute, N.J.S.A. 2A:104-6. We read the statute in pari materia with another statute which recently had established work-release programs and which specifically had stated: "Any person admitted to outside labor or vocational training under this act who shall escape or attempt to escape while in such status outside the county institution shall be deemed to have escaped and treated in accordance with the law." Id. at 549-50 (citing N.J.S.A. 30:8-53). New Jersey also has a separate penal offense for "bail jumping," N.J.S.A. 2C:29-7, which specifically does not apply to obligations to appear in court while "on probation or parole." Of similar pertinence was the amendment of N.J.S.A. 2C:29-5 to include escapes from mental health facilities by persons under Title 2C commitments.
Before the effective date of the Code, State v. Kyles [Leo], 166 N.J. Super. 343, 347-350 (App.Div.1979) held that the Code's escape provision (like those in title 2A) did not include persons committed to psychiatric institutions after being found not guilty by reason of insanity. Thereafter, this section was amended to include all persons committed pursuant to Chapter 4 of the Code. Thus, persons committed both as unfit to stand trial (2C:4-6) and as not guilty by reason of insanity (2C:4-8), are now subject to the penalties for escape if they abscond. [Cannel, Title 2C, Comment N.J.S.A. 2C:1-2 at 526.]
That the Legislature has not, in five years since ISP's inception, specifically criminalized conduct such as defendant's may evince some collective intent on its part that sanctions in addition to return to prison on the original sentence are unnecessary to preserve the integrity of ISP. Or it may mean that it has not been asked to act. But we do know from these examples that if the Legislature wants specifically to criminalize conduct in this ambiguous area, it knows precisely how to do it.
[230 NJSuper Page 526]
Our conclusion is reinforced by the Commentary on "Escape" in Volume II: Commentary, Final Report of the New Jersey Criminal Law Revision Commission 287 (October 1971):
2. Escape. Subsection a follows prevailing law in defining escape simply as departure without lawful authority from official detention including departure from certain kinds of constructive custody. See N.J.S. 2A:104-6. It is important, however, that the concept of escape should not be extended to such things as failure of a probationer to report at a specified time to his probation officer, or to a parolee's violation of parole conditions by going outside a specified area. Ordinary administrative sanctions for breach of probation or parole are appropriate for such incident.
This Commentary echoes the comment on "escape" found in Model Penal Code and Commentaries § 242.6 at 261-262 (ALI 1980) which states:
2. Escape. Subsection (1) of this section provides that one commits escape if he "unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period." This provision follows prevailing law at the time it was drafted in defining escape simply as "unlawful departure" from official detention, including departure from certain kinds of "constructive" custody such as work-release programs, furloughs, court appearances, and release to attend funerals or to visit sick relatives. On the other hand, it is important that the concept of escape should not be extended to the failure of a probationer to report at a specified time to his probation officer or to a parolee's violation of parole conditions by going outside a specified area. Ordinary administrative sanctions for breach of probation or parole conditions are appropriate for such incidents. The definition of "official detention," as noted below, is accordingly specific in taking such situations into account. [Footnotes omitted.]
Section 242.6 of the Model Penal Code provides the source for our escape statute, actually verbatim in pertinent part. Id. at 265 n. 24. In agreement is Cannel, Title 2C New Jersey Code of Criminal Justice Comment N.J.S. 2C:29-5 (1988), who states:
Work Release, etc. Absconding while on work release status was held escape under pre-Code law. State v. Walker [Bobby James], 131 N.J. Super. 547 (App.Div.1974). The specific reference to return after leave in the Code makes it clear that this holding is still applicable. Other kinds of restraint, however onerous, which are not tied to a correctional institution, but are in the nature of release on probation, parole, pre-trial intervention, or recognizance pending trial are clearly not within the escape provision. Other penalties are applicable to violation of conditions of those statutes; the specific language of this section requires reliance on them. It would also appear that, except as provided in 2C:35-14, facilities such as drug treatment centers and the like are
[230 NJSuper Page 527]
not covered by the escape section. Persons are not "detained" in them, persons not under criminal process are often present in them, and they were not subjects of escape under pre-Code law. State v. Babcock [Clifford], 157 N.J. Super. 107 (App.Div.1978); State v. Smeen [Thomas], 147 N.J. Super. 229, 233 (App.Div.1977), certif. den. 74 N.J. 263 (1977). And see State v. Reyes [Raymond], 207 N.J. Super. 126, 144 (App.Div.1986), certif. denied 103 N.J. [499] 449 (1986). [ Id. at 527.]
The MPC Comment adds that: "Bail jumping is separately treated in section 242.8, while conditional release on probation or parole carries its own sanctions." Model Penal Code and Commentaries § 242.6 at 264.
The State also argues that because an ISP participant receives "credit for time served against his sentence," he is, in effect, "in custody in the community." This very concept of "in custody in the community" is a logical contradiction. The "credit" argument is valid, the State says, because a conventional offender gets no prison "credit" for serving a traditional probation term. But such an offender has not received a prison term to get credit against. The Resentencing Panel's order returning defendant to State Prison, signed by Judge Bachman on October 20, 1986, stated: "Previous sentence reinstated; no credit August 30, 1984 to September 22, 1986." Defendant thus did receive credit for time served while he stayed and participated in the ISP program (July 31 to August 30, 1984). See State v. Reyes, 207 N.J. Super. at 145 n. 8. But receiving credit against a prison sentence for successful participation in a community program does not by legal alchemy convert that participation in the community-based program to a service of a prison term in custody or detention within the meaning of the criminal escape statute. Indeed, if an ISP participant succeeds in the Program's initial stages he may then be transferred to regularly-supervised probation for a period before his complete discharge into the community. Would failure in such regularly-supervised probation also be an "escape?" We see nothing talismanic about allowing prison credits for success in ISP which correlatively makes failure in the Program by leaving the
[230 NJSuper Page 528]
State an indictable crime. The criminal statute's applicability is at best unclear in the circumstance.
Our Supreme Court has noted that one of the chief purposes behind the New Jersey Penal Code was the Legislature's "deep concern with the common-law development of our criminal law." State v. Tate, 102 N.J. 64, 68 (1986). That legislative revision "found expression in a broad and sweeping codification that had as one of its main objectives the taking away from the courts of much of their discretion." Ibid. The Tate Court supported this conclusion:
The Criminal Law Revision Commission (Commission) adopted the following statement when it submitted its final report:
The time has come to create, for the first time in our history, a systematic, consistent, comprehensive [state] code to replace the hodge-podge that now exists. If criminal law is to be respected, it must be respectable. Important areas of [state] criminal law have never been put in statutory form * * *. It seems clear that such matters should not be left entirely to shifting and contradictory disposition by judges. [ The New Jersey Penal Code, Final Report of New Jersey Criminal Law Revision Commission, Vol. I at ix (1971) (hereinafter Final Report).]
The codification of New Jersey's Criminal law reflected a "change in the basic responsibility for the growth and modernization of the criminal law -- from court to legislature." Final Report, Vol. II: Commentary at 11. There is no question that included in the responsibilities shifted from the courts to the legislature was the responsibility for defining the scope of former common-law defenses.
The Commission would recommend codification of the general part of the criminal law. It is no longer sufficient for our statutes to simply define the elements of offenses. Modernization and rationalization compel enactment of statutory law on topics relating to culpability, excuse, justification, responsibility, etc. While our Supreme Court has done well to keep the common law alive and fluid in these areas, a more adequate job can be done by moving them into the area of legislative responsibility. The court itself has recognized that many changes must come from the Legislature. [ Final Report, Vol. I at ix.]
[ Id. at 69.]
Even the Supreme Court "in the exercise of its rule-making power cannot deprive the Legislature of its right to determine the type of conduct which constitutes a substantive crime." State v. Holroyd, 44 N.J. 259, 265 (1965); see also State v. Naglee, 44 N.J. 209, 226 (1965), reversed on other grounds,
[230 NJSuper Page 529]
Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967); and State v. Ramseur, 106 N.J. 123, 252 (1987).
The Court has observed that "penal consequences cannot rest upon a mere presumption. Such legislative purpose must be expressed, and in clear and direct language." State v. Fair Lawn Service Center, Inc., 20 N.J. 468, 472 (1956). Indeed, even if the Court perceives that its ruling "produces an anomaly the most that this court can do is call the attention of the Legislature to the result." Id. at 474. Again, "the wisdom of a statute is not for the courts. * * * The most we can do is to draw attention to the result." Dacunzo v. Edgye, 19 N.J. 443, 454 (1955). Responding to a contention that the courts should modify the old crime of underage "statutory rape," Judge Kilkenny said, "The crime has been defined by the Legislature. . . . It is for that body, not the courts, to change the law, if it chooses to subscribe to a more liberal pattern of sex behavior with young females." State v. Moore, 105 N.J. Super. 567, 571 (App.Div.1969), certif. den. 54 N.J. 502 (1969). Finally, State v. Roleson, 14 N.J. 403, 410 (1954), involved a situation where the legislative scheme seemed to have overlooked certain sentencing classifications. When asked for judicial relief for this oversight, our Supreme Court responded,
It may be that the Legislature has overlooked cumulative sentences of this particular class in relation to the basic minimum-maximum sentence policy. There would seem to be no discernible ground for excluding from this beneficent policy multiple successive sentences for offenses having a statutory maximum of one year. But that is a question for the Legislature. Supplying a casus omissus is not within the judicial province. [ Ibid. ]
Under our legal system, the Legislature should make the decision to find conduct such as defendant's a crime of escape. We fundamentally disagree with State v. Jiminez, 229 N.J. Super. at 258 (1988), in which another panel of this court ruled to the contrary, saying, "the issue of [ISP as] official detention has been considered by the program designers and administrators to be a settled question." Id. at 260. Leaving this State while at large in the community in ISP is not criminal conduct until the Legislature so states. We hold that the escape statute
[230 NJSuper Page 530]
"is sufficiently ambiguous to preclude its application to this defendant in this context without clarifying amendment." State v. Valentin, 105 N.J. at 23. Because the defendant did not commit the crime of "escape" as the Legislature defined, we vacate the guilty plea and, as a matter of law, reverse the conviction.
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June 30, 1989
541 N.E.2d 1330, 186 Ill. App. 3d 73, 133 Ill. Dec. 892 1989.IL.1057
Appeal from the Circuit Court of Cook County; the Hon. Mary M. Conrad, Judge, presiding.
APPELLATE Judges:
PRESIDING JUSTICE MURRAY delivered the opinion of the court. LORENZ and PINCHAM, JJ., concur.
Defendant Department of Revenue of the State of Illinois (Department) appeals from an order of the trial court reversing its decision denying a charitable tax exemption on certain real estate located in Cook County to plaintiff Community Mental Health Council, Inc. (Council) (appeal No. 88--2991). The Department also filed a notice of appeal from a later order entered by the trial court requiring it to refund $5,827.74 to the Council for taxes it paid on the subject property in 1986 (appeal No. 89--0427). In its first appeal, the Department argues that (1) this court must dismiss the appeal because the Council failed to name the Community Mental Health Foundation (Foundation) as a party defendant in its administrative review action in the trial court and (2) the trial court erred in finding that the Council was entitled to a charitable tax exemption on its property. In its second appeal, the Department did not file a brief and, on an oral motion during argument before this court, it moved to have its brief in the first appeal stand as its brief in the second appeal. We granted the Department's motion. The issue involved therein will be discussed later in this opinion.
The record discloses that the Council was incorporated as a not-for-profit corporation on February 13, 1975. Its purpose is to "promote positive mental health" within a community on the south side of Chicago and, accordingly, it is governed by the Illinois Community Mental Health Act (Ill. Rev. Stat. 1987, ch. 91 1/2, par. 300.1 et seq.). The Council receives 95% of its funding for operation of its services from an annual grant provided by the Department of Mental Health. The Council subsequently created the Foundation as a "holding company," since under the terms of the annual operation grant received from the Department of Mental Health the Council may not, among other things, use it to purchase real estate or make mortgage payments.
On July 14, 1986, the Council entered into a contract with Northwestern University to purchase the property at issue here (a three-story building with a full basement and two parking lots located at 8704 South Constance in Chicago), subject to a lease held by Illinois Bell which was to expire on December 31, 1986. The property was bought to house the Council's headquarters. The Council's $100,000 down payment on the property was made with funds from a reimbursable grant received from the Department of Mental Health. The grant agreement provides that should the building generate any income in excess of the Council's expenses, such excesses are to be remitted to the Department of Mental Health until the $100,000 is repaid. At the time of closing, the Council signed a conveyance nominating the Foundation as "purchaser of the property" and the property was accordingly deeded to the Foundation on September 15, 1986.
At the time of the purchase of the property, Illinois Bell's monthly rental payment on the entire property to Northwestern was $4,382. Based on the real estate sale contract between the Council and Northwestern, the Foundation was required to make a monthly mortgage payment in the amount of $5,999.16, beginning October 1, 1986, plus a monthly $4,000 payment to an escrow account to pay a balloon payment of $246,085.73, which was to be paid at the end of five years.
From September 15 through December 31, 1986, Illinois Bell used only one-third of the building and the two parking lots; two-thirds of the building remained vacant. At that time, Illinois Bell agreed to allow the Council full use of the vacant portion of the building, notwithstanding that it was paying rent on the entire building. The Council then began preparations to renovate the building for its purposes; its development staff, architects, and 12 different contractors frequented and had unfettered access to the vacant two-thirds of the building. In January 1987, Illinois Bell vacated the building. The Council then took possession of the building and parking lots and began paying rent to the Foundation.
The Council subsequently applied to the Board of Tax Appeals for a charitable tax exemption on the property from September 15 to December 31, 1986. The Board granted it a partial exemption, but the Department later reversed the Board. The Council then filed an administrative review action in the circuit court of Cook County. The court reversed the Department's decision and remanded the case back to the Department for a hearing to calculate the amount of the exemption the Council was entitled to on the building and the two parking lots. The Department then filed an appeal from this order (appeal No. 88--2991).
On January 9, 1989, after the agency's hearing on the amount of tax exemption due the Council, the trial court entered an order requiring the Department to refund $5,826.74 to the Council for taxes paid on the property in 1986 pursuant to a stipulation between the parties that the exemption for the building amounted to $5,426.36, for the rear parking lot, $290.70, and for the adjacent parking lot, $109.68. The Department then filed a notice of appeal from the order (appeal No. 89--0427) and subsequently moved to consolidate the appeal with appeal No. 88--2991, which this court granted.
We reject the Department's first argument in appeal No. 88-2991 that the appeal must be dismissed because the Council did not name the Foundation as a party defendant in its administrative action as required by section 3-107 of the Administrative Review Law (Ill. Rev. Stat. 1985, ch. 110, par. 3-107). Section 3-107 provides that an "administrative agency and all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall be made defendants." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 110, par. 3-107.) We first observe that even though the Department now argues that the Foundation was a necessary party in the Council's administrative action, the Department itself did not name the Foundation as a party in the hearing in which it denied the Council an exemption on its property, notwithstanding the fact that it had served the Foundation with notice of the hearing. The Department's argument that the Foundation "participated" in the hearing does not a party of record make; in fact, no witness even appeared solely on behalf of the Foundation. This point is established by reference to the Department's administrative law Judge's statements in his "Recommended Disposition" where, under the caption of "APPEARANCES," he referred to the witnesses and attorneys who appeared before him as appearing "on behalf of the Community Mental Health Council, Inc.," and referred to himself as having appeared on behalf of the "Illinois Department of Revenue." Thus, he did not state that the Foundation was a party of record. Since the Foundation was not a party of record, as the term is used in section 3-107, the Council was not statutorily required to make the Foundation a defendant in its administrative review action.
Secondly, as the Council further points out, the Department's brief is incorrect in stating that "the tax was levied against the Foundation as legal title holder of the property" and, therefore, (1) the Foundation was a necessary party to the administrative review action and (2) the trial court lacked subject matter jurisdiction in the absence of the Foundation as a party to review its decision denying the tax exemption. (See People ex rel. Illinois Department of Human Rights v. Arlington Park Race Track Corp. (1984), 122 Ill. App. 3d 517, 461 N.E.2d 505.) In fact, the face of the tax bill shows the taxpayer to be "COMMUNITY MENTAL HEALTH"; it does not indicate whether the taxpayer is the Council or the Foundation. In addition, the Department's assertion is inconsistent with a notation made by its law Judge who referred to the Council as the taxpayer, i.e., the Department's exhibit 2F was marked at the direction of the Judge as "Taxpayer: COMMUNITY MENTAL HEALTH COUNCIL, INC." Finally, we note that a failure to name a necessary party is not a jurisdictional defect so that the issue will be deemed waived on appeal if not raised in the trial court. (Barnes v. Barbosa (1986), 144 Ill. App. 3d 860, 494 N.E.2d 619.) The Department clearly did not raise this issue in the trial court and it therefore cannot be raised on appeal under the circumstances here.
Thirdly, it would have been absurd for the Council to name the Foundation as a party defendant in the administrative review action because it would in effect be suing itself since the Foundation is merely its alter ego, having no interests in conflict with the Council's. That this is the case, as pointed out by the trial court, we need only look to the similarity of the names of both corporations -- Community Mental Health Council and Community Mental Health Foundation -- as reflecting their close relationship; the Foundation's bylaws provide that it is created solely to hold title to the Council's property and to collect income therefrom and surrender the entire amount, less expenses, to the Council for its exclusive use to terminate the mortgage on the property at issue here; the Foundation's bylaws also provide that only board members of the Council may serve as board members of the Foundation, and they serve at the will of the Council; and any checks written by the Foundation are signed by the president and treasurer of the Council.
In light of the foregoing, the Foundation clearly was not a necessary party to the Council's administrative review action against the Department.
We also reject the Department's second argument that the trial court erred in finding that the Council is entitled to a charitable tax exemption on the subject property. The record discloses that the Department denied the Council's application for an exemption based on its findings that the Foundation, rather than the Council, was the legal titleholder of the property from September 15 through December 31, 1986; the Foundation was not a charitable organization; and that the Foundation did not use the property for charitable purposes but rather leased the property with a view to profit to Illinois Bell during the involved period. On the other hand, contrary to the Department's findings, the trial court based its decision on its determination that the Council qualifies as a charitable institution under section 19.7 of the Revenue Act of 1939 and its use of two-thirds of the building during the taxable period involved was for charitable purposes (renovations to the building in preparation of providing its services to the public), it is entitled to the exemption as the equitable owner of the property, and that since the parking area of the property was not leased out and did not generate any income, that property is also exempt. We agree with the trial court, except as to its exemption on the parking lots.
Section 19.7 of the Revenue Act of 1939 (Ill. Rev. Stat. 1987, ch. 120, par. 500.7) exempts the following property from taxation:
"All property of institutions of public charity, all property of beneficent and charitable organizations, whether incorporated in this or any other state of the United States, . . . when such property is actually and exclusively used for such charitable or beneficent purposes, and not leased or otherwise used with a view to profit . . .."
Implicit in the above statute are the requirements that an organization be a charitable one, that it is the owner of the property sought to be exempted, and that the property is actually being used for charitable purposes.
In the instant case, the Department argues that although it is well settled that our courts look beyond the mere holder of title to determine ownership (see People v. Chicago Title & Trust Co. (1979), 75 Ill. 2d 479, 389 N.E.2d 540) and, therefore, an equitable owner of property may be entitled to a charitable exemption under section 19.7 of the Revenue Act (see Christian Action Ministry v. Department of Local Government Affairs (1978), 74 Ill. 2d 51, 383 N.E.2d 958), "the Council cannot be deemed the equitable owner for exemption purposes where the Council had no connection to the property during the tax period in question." Specifically, the Department asserts that the Council made no rental payments for its use of two-thirds of the building during the tax period involved and the building was being operated by the Foundation with a view to profit from the lease with Illinois Bell, thereby precluding application of a section 19.7 exemption. The Council counters that it is in fact the equitable owner of the property and therefore entitled to the section 19.7 exemption.
We first briefly note that the Department does not assert that the Council is not a charitable organization, nor can it. As the trial court found, "[t]he Council is a comprehensive mental health center for poor and predominantly black families on Chicago's South Side. Its services are offered free of charge to the residents of the community. The Council operates a medical assessment service, a family systems service, an out-patient program for those with long term mental illness and a job placement program for mentally ill adults. Through its services, the Council strives to prevent or shorten hospitalization and enables clients to continue functioning as a part of the community so as to save the community money and result in better and more humanistic treatment. . . . The Council likewise fulfilled all six guidelines for charitable exemption set forth in Methodist Old Peoples Home v. Korzen, 39 Ill. 2d 149 (1968). The Council 1) gives its benefits to an indefinite number of people; 2) derives no profit and has no shareholders or capital stock; 3) receives its funds mainly from public charity in the form of governmental grants and uses such funds exclusively to operate the mental health center; 4) dispenses its services to all people regardless of age, race, religion, national origin or income; 5) places no obstacles in the way of those seeking benefits; and 6) uses the property exclusively (primarily) for charitable purposes as discussed above. The Council qualifies as a charitable institution under 19.7 of the Revenue Act of 1939."
We further observe that Southern Illinois University Foundation v. Booker (1981), 98 Ill. App. 3d 1062, 425 N.E.2d 465, is analogous to the case here relative to whether the Council, as the equitable owner of the subject property, is entitled to a property tax exemption. In Booker, the court granted a tax exemption to Southern University Foundation, which was formed solely to hold title to school housing property and to lease it to Southern Illinois University. The determinative factors relied on by the court in granting the exemption to the university as the equitable owner of the property were: (1) the close relationship between the foundation and the university, reflected in the foundation's name and bylaws; (2) the fact that the foundation acquired title solely as a convenience with regard to long-term financing; (3) the existing identity between the foundation as the bare legal titleholder and the university as the holder of equitable title; and (4) the fact that the university controlled the property and received benefits from it. In the instant case, those factors are present, as we previously discussed in concluding that the Foundation is merely the Council's alter ego, i.e., the similarity of the Foundation's and Council's names; the fact that the Foundation was created solely to hold title to the Council's property and collect the income therefrom and surrender it to the Council, less expenses, for its use to repay the mortgage on the subject property; the fact that the Council enjoyed the right to the benefits of the property; the identity which exists between the Foundation as the bare legal titleholder and the Council as the holder of equitable title as they are composed of many of the same board members and the Foundation's board members are subject to the will of the Council; and the fact that checks written by the Foundation are signed by the president and treasurer of the Council. Accordingly, there is no question that the Council, as the equitable owner of the property, is entitled to the property tax exemption if it was using the property for its charitable purposes.
We have now reached the Department's argument that notwithstanding the fact that the Council is a charitable organization, it was not using the property for charitable purposes because it was not paying rent to the Foundation and the building was being used with a view to profit from the Illinois Bell lease. The Department's argument must fall in light of the simple fact that it cites to no authority, and we know of none, which makes rental payments by an equitable owner on its property a condition in obtaining a charitable tax exemption on the property. What the Department also fails to recognize is that although section 19.7 of the Revenue Act (Ill. Rev. Stat. 1987, ch. 120, par. 500.7) requires that the property be used exclusively for charitable purposes, the word exclusively may be applied to the use of a portion of property for charitable purposes, which the Council was doing with two-thirds of the building by preparing it for its charitable purposes. (See Weslin Properties, Inc. v. Department of Revenue (1987), 157 Ill. App. 3d 580, 510 N.E.2d 564 (exemption allowed for property in the actual process of development and adaptation for exempt use).) We further note that the Council's renovation activities "connected" it with the property, as did its actions in signing the real estate sale contract with Northwestern and obtaining the $100,000 down payment from the Department of Mental Health to purchase the property.
Similarly, we find the Department's argument without merit that because the property was leased to Illinois Bell, and therefore being operated with a view to profit, no exemption on the property is appropriate. Nothing in the record indicates that a profit was being made from the Illinois Bell lease; apparently the Department merely assumed the Council/Foundation was making a profit because it was receiving income in the form of Illinois Bell's monthly rental payment. We believe a review of the required monthly mortgage and escrow payments of the Council and the speculative expenditures for its construction staff dispels such an assumption in any event. For example, although Illinois Bell was paying $4,382 per month on its lease of the property, at nearly the same time the Council was required to pay a $5,599.16 monthly mortgage payment beginning October 1, 1986, it was required to pay an additional $4,000 per month into an escrow account, and it was incurring expenses for the work of its construction staff during the taxable period involved here. We therefore find it highly unlikely that the Council/Foundation was making any profit from the income derived from Illinois Bell's monthly rental payments. We further observe that even if a profit were to be made, by the terms of the Council's reimbursable grant agreement with the Department of Mental Health any profit was required to be remitted to it until the $100,000 grant was repaid. Accordingly, any profit would not technically be a profit made by the Council.
Finally, we note that the lease with Illinois Bell simply was not entered into with a view to profit. The Council/Foundation was forced to honor the lease, which had been in existence since 1955. The Council purchased the property solely to house its headquarters to extend its services to the community. No tax exemption was allowed for the portion of the building used by Illinois Bell during the taxable period involved and the fact that Illinois Bell allowed the Council to use the vacant portion of the building to begin renovation of the building while it nonetheless continued to pay its monthly rental does not change the fact that the two-thirds of the building used by the Council was being used for a charitable purpose. We believe, at most, Illinois Bell's generosity to the Council amounts to a nonmonetary contribution to the Council's objectives, rather than a monetary profit, as asserted by the Department. In other words, the reality of the situation here is that although Illinois Bell technically was paying 100% rent on three-thirds of the property, in effect, and by choice, it was paying 100% for one-third of the building and the two parking lots by allowing two-thirds of the building to be used by the Council for its charitable purposes rent free. To deny the Council an exemption because it was not paying anyone for the privilege of pursuing its charitable purposes at an earlier date it otherwise would have been unable to do is simply unsupportable by law or common sense.
In light of the foregoing, we therefore affirm the trial court's judgment in appeal No. 88--2991.
With respect to appeal No. 89--0427, we affirm in part, reverse in part, and remand with directions. Since the Department did not file a brief in the appeal, and its brief in appeal No. 88--2991 does not address any issue with specificity as to the order appealed from, we address only the issue raised by the Council. The Council concedes that it should not have received an exemption for the subject property parking lots because Illinois Bell, and not it, used the lots, which apparently was not brought to the attention of the trial court or was the result of confusion in the evidence presented. Accordingly, we reverse that portion of the order pertaining to the exemptions for the parking lots and direct that the trial court modify its order by striking that portion of the order allowing exemptions in the amount of $290.70 for the rear parking lot and $109.68 for the adjacent parking lot.
Appeal No. 88--2991, Affirmed.
Appeal No. 89--0427, Affirmed in part; reversed in part and remanded with directions.
Judgment affirmed in 1--88--2991; affirmed in part, and reversed in part and remanded in 1--89--0427.
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Ilse Jurriën : February 21th 2009 - 00:12 CET
Canon SELPHY CP780 photo printer :
Canon announces a new addition to its line of compact photo printers: the SELPHY CP780. Featuring improved image quality and faster print speeds than its predecessor, this cleverly designed SELPHY compact photo printer is ideal for the parent who wants to share images of their children with family and friends. The Canon SELPHY CP780 compact photo printer is designed not only to be easy-to-use and convenient to carry, it is also available in three different color variations. To coincide with the new Canon PowerShot SD1200 IS Digital ELPH camera also announced today, this compact photo printer is available in silver, blue and pink to enable consumers to express their own personal style when printing out memorable moments from a wedding shower or a weekend getaway.
Print high quality photos with the Canon SELPHY CP780
"Canon SELPHY printers have consistently provided consumers with high-quality images at a reasonable price," said Yuichi Ishizuka, senior vice president and general manager, Consumer Imaging Group, Canon U.S.A. "Now with the three different color variations, users will not only be able to share their memorable moments but also their own unique style."
Canon CP780 features Face Detection technology
The new Canon SELPHY compact photo printer will produce images of a higher quality than previous models due to enhancements to the Portrait Image Optimize feature. The Face Detection brightness correction and color cast correction have been vastly improved so that skin tones and faces will be produced with natural and realistic colors. The printing process was also revised so that a 4 x 6-inch print can now be completed in approximately 47 seconds. The easy-to-access card slots allow users to plug in memory cards2 or print straight from the camera with a USB cord.
Canon SELPHY CP780 features a 2.5" LCD screen
Designed with a new wave-shaped top surface, the SELPHY CP780 compact photo printer comes equipped with a 2.5-inch LCD screen, making it easy to review images and navigate through menus from various angles. The buttons have been arranged in an easy-to-understand layout for simplicity and seamless navigation through menus. An optional battery pack is available to allow for printing from almost anywhere while providing hundreds of prints before needing to be recharged. The estimated retail price of the NB-CP2L battery pack is $79.99.
Canon BU-30 Bluetooth Adaptor
Making it even more convenient to print images is the optional Canon BU-30 Bluetooth adaptor. Available for the Canon SELPHY CP780 compact photo printer for an estimated retail price of $49.993, the BU-30 adaptor allows images to be sent from Bluetooth enabled devices, such as cell phones, directly to the SELPHY model to be printed. The Canon SELPHY CP780 compact photo printer carries an estimated retail price of $99.99.
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Canon Pixma iP3600
Tilt-Shift Canon lenses
Nokia 6720 classic
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The Purple Chefs Best Brownie Recipe
Total Time
Prep 20 mins
Cook 30 mins
This is found on the "BAKER'S" brand chocolate box. It is called "BAKER'S One Bowl Brownies". They are entirely LUSH from first bite to after taste. When making the glaze you can substitute the 4 semi-sweet squares with 2/3 cup of semi-sweet chocolate chips. I challenge you...do you have a better recipe???
Ingredients Nutrition
- 4 baker's brand unsweetened chocolate squares
- 3⁄4 cup butter
- 2 cups granulated sugar
- 3 eggs
- 1 teaspoon vanilla
- 1 cup all-purpose flour
- 4 baker's brand semi-sweet chocolate baking squares
- 2 tablespoons butter
- 2 tablespoons water
- Lightly grease a 13 x 9 inch baking pan.
- Melt chocolate and butter in a bowl in microwave on HIGH 2 minutes OR place glass bowl on top of saucepan filled with boiling water.
- When chocolate and butter have melted remove from microwave or saucepan and stir in sugar until well blended; mix in eggs and vanilla.
- Stir in flour, spread in pan.
- Bake in preheated 350F oven for 30-35 minutes or until done. DO NOT OVERBAKE.
- Glaze brownies by melting chocolate, butter and water together, mixing until smooth.
- ENJOY -- these are great when you are depressed!
Most Helpful
Wonderful recipe. I was craving something chocolate and these definitely fit the bill. I baked them in a glass baking dish at exactly 35 minutes. I think next time I make them I will definitely decrease the time to just under 30 minutes as my edges were just a bit crunchy. I also didn't have enough chocolate squares for the topping so I halved it but it was fine. I also didn't have four unsweetened squares just two so I used two of the semi sweet squares instead and it still came out fine. They baked perfectly even and they came out of the pan in perfect squares. I will definitely be making these again. Thanks!
Excellent recipe. Thanks for sharing. I halved the recipe and it came out great. Very moist and delicious.
These are over the top!! I melted the chocolate and butter on the stove rather than in the microwave. Purple Chef, thanks for posting!


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4 bus schedules from Ensenada, B.C. to Guadalajara, Jal.
About Bus - Ensenada x Guadalajara
Bus Buster gather and provide all main needed information for you easy find the best and cheap Ensenada bus ticket to Guadalajara on December 11, 2016.
Here you find a variety of features to help you make the best travel decisions.
Also compare all Ensenada schedules and tickets, bus services and check 39 customers reviews.
This bus route is carried by 2 great bus companies, such as Pacifico, Norte de Sonora with 4 bus schedules to Guadalajara.
The first bus leaves at 09:30 and the last Ensenada departure time is at 20:30.
You'll be able to board at ENSENADA and get off bus at GUADALAJARA.
Traveling by bus from Ensenada to Guadalajara takes around 16h 23m length.
All available Ensenada bus travel tickets to Guadalajara usually costs from $ 1676.00 to $ 1676.00 per seat.
These bus fares can vary from onboard bus services, daily promotions and bus seats availability.
Bus Buster don't sell bus tickets and will easily redirect you to buy online tickets to your bus trip and reserve your seat in advance.
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Most Recent Articles by Carol Krol
Brands go local, get socialMay 01, 2012
Foursquare is a great way for marketers to offer incentives by implementing a discount for check-ins. I'm continuously surprised by the number of brands that don't take advantage of this easy opportunity.
Lighthouse List debuts list that segments by deviceApr 18, 2012
List broker Lighthouse List Co. has made available a new-to-market postal and email list that segments by mobile device consumers that have responded to a direct response email offer, said Mark Traverso, VP of new business and sales at Lighthouse List. The list contains a total of 25 million postal names and 40 million email names.
Purchase technology will assist printMar 01, 2012
Many marketers have suggested print specifically is dead or dying, but I don't buy it.
Where are your customers?Feb 01, 2012
Where are your customers is a provocative question and one many marketers no doubt are asking of themselves. It's more complicated to answer this question when customers have such a wide array of choice and the megaphone of social media through which to communicate with peers and the wider world, yet marketers have to find ways to meet customer demand for highly relevant communications.
'Twas the merry season of mobileJan 01, 2012
As we turn the page on the calendar, put away the garland and box up the pre-lit tree, the dust has just begun to settle on 2011 holiday commerce numbers. Early returns, particularly from Black Friday and Cyber Monday, signaled a major win for mobile commerce.
More Articles by Carol Krol
Car brands raise digital marketing barDec 01,2011
DMA show agenda short on specificsNov 01,2011
Target flop shows need for tech prepOct 01,2011
Tough times are silver lining for directSep 01,2011
Consumers' privacy falls on marketersAug 01,2011
Sign me up: in praise of the daily dealJul 01,2011
Agency mojo rising amid digital shiftJun 01,2011
T3 names Dunleavy creative directorMay 12,2011
Executional excellence sets standardMay 01,2011
Bazaarvoice to launch three products this fallApr 05,2011
Location-based marketing in hot seatApr 01,2011
A refreshing look at creativity's futureMar 01,2011
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Enter today and tell us your marketing story! Entry Deadline is Wednesday, November 30, 2016.


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In delivering exceptional digital voice service to providers across the country, it is imperative that we have trusted partners who deliver a significant value-add in today's hyper-competitive marketplace. Working with LogiSense enables us to avoid costly delays resulting from integration problems and issues with interoperability, as well as operational expenses. LogiSense, which also has extensive experience running BroadSoft's BroadWorks® platform, brings an unparalleled track record to this relationship, and we look forward to working with their team.Kelly Windham, Director of Billing, Momentum
LogiSense empowers its customers with the proven, innovative resources, technical expertise and unmatched support to quickly and cost-effectively design, build, deploy, manage and monetize their respective solutions. The company's flagship software, EngageIP™ has field-proven features and functionality that address every aspect of network usage administration requirements, including billing, cost allocation, customer care, policy management, telecom rating and IP services delivery.
Our true points of differentiation include our methodical approach to transparent customer service, the ability to bill in both wholesale and retail environments, and the consistent high-level of support that our team provides. Momentum is a rising star in the world of digital communications and we are excited to have been selected as the new billing solutions provider as Momentum continues to expand its market footprint.Flavio Gomes, President/CEO, LogiSense
LogiSense will demonstrate EngageIP at BroadSoft® Connections 2011: Crush It! at the JW Marriott Desert Ridge Resort in Phoenix, Arizona, October 16-19. For more information, visit: www.broadsoftconnections.com
About Momentum
Momentum is a leading provider of cloud-based communications solutions. Founded in 2001, Momentum now operates over 100,000 digital voice lines for more than 350 independent cable operators, municipalities, value added resellers, managed service providers and direct subscribers throughout the U.S. Backed by a commitment to quality and customer support, Momentum delivers carrier-grade services using the BroadWorks Platform and is CLEC certified in 45 states. With smart, personalized telephony solutions, Momentum provides its clients with the flexibility and quality services needed from their communications provider. For more information visit www.gomomentum.com
About LogiSense Corporation
LogiSense is a global provider of Rating and Billing software, services and solutions to the Telecommunications, Hosted Communications, Convergent, and Broadband Industries. To win in the connected world, SPs rely on LogiSense' EngageIP® Rating and Billing products to Automate, Optimize, and Simplify their back-office requirements such as billing, order management, rating, provisioning, taxing, invoice presentment, and customer self-care - while staying ahead of their competitors with new service offerings, and improved operational efficiency.
Experience and expertise in voice, video, data and content services, LogiSense offers a broad portfolio of licensed and/or Billing-as-a-Service (BaaS)-based Billing and OSS products and solutions, empowers its customers with proven technology, innovative software, technical expertise and unmatched support to quickly and cost-effectively design, build, deploy, manage, and monetize their respective solutions.
For more information about LogiSense, visit www.logisense.com
Louie Conceicao
Marketing Manager
519-249-0508, ext. 5107


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- Product Details
Congratulate your friends or family on their wedding day with this stylish Personalised Affection Art Wedding Candle.
Our personalised candle allows your own personal message of congratulations to be added to this beautifully designed celebration candle.
The abstract images spell out "Wedding" on the surface of the candle, and with 2 lines of up to 25 characters each to add your own unique words, this candle is perfect for a day of congratulations.
It comes beautifully presented in it's own decorative organza gift bag, and has a burning time of up to 58 hours.
Measures: Height: 13.5 CM Width: 6.8 CM Depth: 6.8 CM
- Delivery & Returns
We are aware of how important it is for you to receive your gifts in time. Therefore, once you place your order we will process straight away and dispatch as soon as they are ready to go. We usually dispatch all items within 1-3 days however, this may be a little longer during special occasions such as Christmas. If multiple items ordered, we may dispatch items separately or all together, depending on the process.
Hassle Free Returns Policy:
We're sure that you will be satisfied with your purchase and we also understand that sometimes you may want to return. We keep this process simple! Just contact us if you wish to return goods. Please note: personalised, made-to-order and perishable items are non-refundable.
- Ask a Question
Ask a Question
Question about: Personalised Affection Art Wedding CandlePlease do not include or disclose any sensitive personal information, password or credit card information in your message. Your personal security is extremely important to us.No questions yet. Be the first to ask the question!
Show more products in Wedding Gifts


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Contains 2 male and 2 female interfaces plus 6 standard screw couplers to facilitate male to male, female to female and female to male configurations. Adapters for BNC, UHF, Mini UHF, N ,TNC, and SMA series feature Nickel plated conductor bodies with gold plated center contacts.
Very good. Easy to order. Prompt delivery.


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From $199 / night
Description from the owner
Description from the owner
Bedrooms: 5/
Bathrooms: 5/
Sleeps: 11/
Type: Villa
Book this 5 bedroom, 5 bathroom villa in Kissimmee today! A total of 11 people can sleep here comfortably. This property has been booked 2 times.
Guests can enjoy a pool, hot tub, and deck among other amenities offered by this rental.
Travelers are sharing their opinions on this property. It has an overall rating of 5/5 thanks to an average of 3 reviews.
Costs vary, with the average weekly rate as low as $1,393.00, depending on travel dates.
The owner responds to 70% of inquiries, which is lower than average, and last updated the property's calendar 8 days ago.
Proximity to TripAdvisor's Top Kissimmee Attractions
Proximity to TripAdvisor's Top Kissimmee Attractions
Reviews (1)
Also consider
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3 vehicles matched;
Now showing page 1 of 1. 25 results per page.
Listed by Vintage Motors Sarasota
1933 Rolls-Royce Phantom II Continental Sport Saloon by Gurney Nutting Chassis: 136PY Maroon Exterior Tan Leather Interior Burled walnut dash and picnic tables Very rare
Listed by Vintage Motor Cars Ohio
The Rolls-Royce Phantom II was the third and last of Rolls-Royce's 40/50 hp models, replacing the New Phantom in 1929.
Listed by Vintage Motor Cars Ohio
On October 18, 1919, Rolls-Royce of America was launched in Springfield, Massachusetts and produced 2,944 Silver Ghost and New Phantom


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Changes related to "Morweena Evangelical Mennonite Church (Arborg, Manitoba, Canada)"
This is a list of changes made recently to pages linked from a specified page (or to members of a specified category). Pages on your watchlist are bold.
1 December 2016
m 17:57 Manitoba (Canada) (diff; hist; +34) RichardThiessen (Added hyperlink.)


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Heliopolis, Cairo, Egypt.
Oscar Market: Freshly Squeezed Orange Juice, A Butcher and Brussels Sprouts-Oh My!
The bakery inside Oscar Market offers inexpensive baked goods that arrive in fresh instalments throughout the day. If you're lucky, they might even be warm when you buy them. Baguettes, croissants and pains saucisses are among their bread choices, which range from 2.5LE to 5LE. Delicious butter cookies with chocolate chips, cinnamon cookies and seasonal baked goods like kahk are also available. Cookies cost about 25LE per kilo and are well worth the money. The men that work at the bakery will happily allow you to sample anything that looks good, so don't be too shy to ask.
The produce section is filled with glorious cherry tomatoes, Brussels sprouts, purple cabbage and radishes, among other vegetables. The fruit section offers the most delicious red pears, peaches, apricots, kiwis, red and white grapes, fresh ginger and three different kinds of apples. Freshly squeezed orange is prepared before your eyes for12LE per litre.
Oscar Market is one of the few places in Cairo where people can sample pork products while the butcher prepares their cuts of salami, bacon and sausages. Bacon is a whopping 74LE per kilo, while sliced ham sells for 47LE per kilo and domestically made sausages are 41LE per kilo.
A wide array of beer and wine are also available at Oscar's. For beer, expect to find decently stocked shelves of Saqqara, Meister, Heineken and Stella. Stella beers are the least expensive, going for around 6.5LE, whereas Heineken sells for just under 10LE. Most domestic wines hover around the 40LE range, including Omar Khayyam and Obelisk. Chateau de Rêves is almost double the price, while the jewel of the wine selection is a Cape Bay South African wine.
Oscar is also a great place to pick up little fix-ins that can add a whole lot to a meal like capers, quesadillas, a variety of pesto sauces, stir-fry sauces, curries, fresh ginger and salad greens. The cheese section has a wide selection of international cheeses such as Frico, Old Amsterdam and President.
Oscar isn't the least expensive grocery store in town; it would be better to head to a smaller, local market for basics that you can buy anywhere. However, if you're prepared to shell out money for items that you'd have a hard time finding anywhere else, head on over to Oscar Market. You won't be disappointed.
We can all agree that cooking is not everyone's cup of tea, despite the fact that making a homemade meal is actually quite easy. But busy work schedules or just general cluelessness when it comes to the kitchen, means that many end up ordering food. Yesterday was one of those days where we just wanted to chill at home and we found out about the frozen food masters, Food Swings.
Food Swings is a one-of-a-kind delivery-based operation providing homemade, frozen food that is either microwaveable, or ready for the fryer, oven, or even the sandwich-maker. The meals can be stored for up to 3 months and to most take between 10 to 30 minutes to heat – something we just had to try. You can make orders via phone or Facebook messaging, with Food Swings delivering to different areas of Cairo on different days – check out the schedule here.
We found only 8 choices from the 'Frozen on Duty' section of the menu and 4 types of pizza from the 'Pizza Madness' section. However, there was a lot of interesting choices like Mexican Hawawshy (54LE) and Shawerma Pizza (49LE) but we decided to go with the Risotto Balls (32LE) as an appetiser, and as our mains, we opted for the Large Lasagna (98LE) and the Mexican Chicken Wraps (41LE).
We were super impressed by how cheerful the packaging was, the clear instructions and the use of vacuum packing, as removing the oxygen extends the life span of food and keep it fresh, while also making it much easier to store in your freezer at home.
The risotto balls - all 17 of them – were filled with a good amount of cheese and the risotto itself was rich and creamy, while still retaining a small bite to it like any perfect al-dente risotto should be. As for the crust, it was well-seasoned with Italian spices and had a perfect golden-brown colour – although that's something we'll take credit for.
Due to technical issues with our oven - which reminded us to buy a new one - we decided use the microwave for the lasagne. Despite this, the layers of the smooth and creamy béchamel sauce mixed with cheese, well-seasoned beef Bolognese bursting with tomato flavour, and of course their homemade lasagne sheets, left us wondering, what kind of sorcery they used to make frozen food taste so fresh?
Just so we're clear, we didn't burn the Mexican chicken wraps; what you see up there are beautiful grill marks. There were 5 wraps to be defrosted in the microwave then heated in a sandwich maker. While the mixture of chicken, red pepper, corn, red beans, green onions, spinach, chilli-pepper and shredded cheddar cheese, looks great on paper, we didn't feel the presence of cheese at all and the chilli-pepper was just overpowered by the other flavours.
We finished our meal with Cinnamon Caramel Roll Jar (22LE) and no, it's not microwaveable and we didn't have to put it in the sandwich maker – this comes readymade. Soft layers of cinnamon rolls are topped with luscious salted caramel sauce, pastry cream and a generous amount of pecans. This dessert would've been flawless if they left the pastry cream out, as it was bland in taste and didn't really belong with the cinnamon and caramel.
Overall, Food Swings is an incredibly practical option and the experience itself is actually pretty fun. The order came on time, the online responses are quick and professional and it's a great concept that will save time and effort for newlyweds, working moms, or bachelors. It's certainly better than most frozen foods found in supermarkets, but if you're looking something more than that, the variety might dissapoint.


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The Hippocritic Oaf
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|Kevin Clash
The Hippocritic Oaf appeared in the "Cliff's Nightmare" episode of The Cosby Show. With a name tag reading "Dr. H. Oaf," the creature pleads with Dr. Huxtable to rush to the hospital for an emergency delivery of a Koozebanian baby.
His name is a play on the Hippocratic Oath taken by physicians pertaining to the ethical practice of medicine.
The puppet appeared in episode 103 of The Jim Henson Hour as a storybook king (and hat sharpener), also performed by Kevin Clash. He is a background Muppet in episode 108, during "All Night Party."


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Party In The Paddock
Party In The Paddock is Burns Creek's annual independent music & art's festival. On rolling hills that showcase northern Tasmania's scenic beauty, a mammoth stage is seated among hay bails and the open summer sky, with a musical line up of some of the best emerging independent artists in Australia. Direct from the charts of Triple J, these hard working, but fun loving, passionate musicians are coming together, in the one paddock, to put on one hell of a party for you.
Live music on Friday night and Saturday throughout the day and night, ticket includes two nights of camping.
BYO Alcohol, underage patrons advised to attend in the company of a parent or guardian.
- Dates
- Contact details
Event Date:
10 Feb 2017 to 12 Feb 2017
0437 858 278
Watery Plains Road, Watery Plains Road, White Hills, Tasmania, 7258