{ "id": 3312663, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BUFFALO CONFECTIONERY COMPANY et al., Defendants-Appellees; THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. LAWRENCE LIEBERMAN et al., Defendants-Appellees", "name_abbreviation": "People v. Buffalo Confectionery Co.", "decision_date": "1978-08-25", "docket_number": "Nos. 76-1629, 77-111 cons.", "first_page": "112", "last_page": "118", "citations": [ { "type": "official", "cite": "67 Ill. App. 3d 112" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "353 N.E.2d 326", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "328" } ], "opinion_index": 0 }, { "cite": "40 Ill. App. 3d 966", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2965037 ], "pin_cites": [ { "page": "967" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/40/0966-01" ] }, { "cite": "273 N.E.2d 380", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "391" }, { "page": "392" } ], "opinion_index": 0 }, { "cite": "537 S.W.2d 145", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10123787 ], "pin_cites": [ { "page": "153" } ], "opinion_index": 0, "case_paths": [ "/sw2d/537/0145-01" ] }, { "cite": "49 Ill. 2d 14", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2911062 ], "weight": 4, "pin_cites": [ { "page": "28" }, { "page": "35" }, { "page": "36" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/49/0014-01" ] }, { "cite": "382 N.E.2d 262", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "266" }, { "page": "266" }, { "page": "266" } ], "opinion_index": 0 }, { "cite": "72 Ill. 2d 531", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5443370 ], "weight": 4, "pin_cites": [ { "page": "539" }, { "page": "539" }, { "page": "539" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/72/0531-01" ] }, { "cite": "150 N.E. 280", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "319 Ill. 596", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5156055 ], "opinion_index": 0, "case_paths": [ "/ill/319/0596-01" ] }, { "cite": "31 N.E.2d 591", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1925, "opinion_index": 0 }, { "cite": "375 Ill. 366", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2536727 ], "year": 1925, "opinion_index": 0, "case_paths": [ "/ill/375/0366-01" ] } ], "analysis": { "cardinality": 619, "char_count": 14783, "ocr_confidence": 0.9, "pagerank": { "raw": 5.916146141896101e-08, "percentile": 0.36970128374279737 }, "sha256": "5be2dac1cecda6ceba30c90a4318c80a9bbd322a50405a560b04faa26ef2540c", "simhash": "1:0805c47037f2c490", "word_count": 2407 }, "last_updated": "2023-07-14T17:17:27.014484+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BUFFALO CONFECTIONERY COMPANY et al., Defendants-Appellees.\u2014THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. LAWRENCE LIEBERMAN et al., Defendants-Appellees." ], "opinions": [ { "text": "Mr. JUSTICE MEJDA\ndelivered the opinion of the court:\nAfter two separate presentations to the Cook County grand jury by Assistant Attorneys General of the State of Illinois, indictments were returned against defendants, Buffalo Confectionery Company, Peter Nichols, L & S Foods, Inc., and Lawrence Lieberman. The indictments charged each defendant with the offense of theft (Ill. Rev. Stat. 1975, ch. 38, par. 16 \u2014 1(a)(1)) in exerting unauthorized control over State use tax money. In addition, Lieberman was indicted for signing and filing fraudulent retailers\u2019 occupation tax returns in which gross receipts were understated, and L & S Foods, Inc., was indicted for filing fraudulent retailers\u2019 occupation tax returns. (Ill. Rev. Stat. 1973, ch. 120, par. 452.) Upon arraignment Nichols, a partner in Buffalo Confectionery Company, pleaded not guilty to the charges against him individually, and to the charges against the company. At a separate arraignment, Lieberman, a corporate officer of L & S Foods, Inc., entered a plea of not guilty on his own behalf and on behalf of the corporation. The two cases proceeded to separate hearings. The State appeals from orders of the trial court entered in each case granting defendants\u2019 motion to dismiss the indictments. The two cases were consolidated for review.\nOn appeal, the State contends that: (1) the indictments should not have been dismissed because the Attorney General had the power to initiate the criminal proceedings before the grand jury; and (2) a party whose acts violate the Retailers\u2019 Occupation Tax Act may also be charged with theft under the provisions of the Criminal Code. We affirm. The pertinent facts follow.\nIn each case, defendants attached a copy of the minutes of the grand jury to their motions to dismiss. The report of proceedings before the grand jury in the matter involving Nichols and Buffalo Confectionery Company shows that the presentation was made by an Assistant Attorney General unaccompanied by the State\u2019s Attorney or an assistant. In introducing herself to the grand jury, the Assistant Attorney General asserted that she was \u201cassisting\u201d a named Assistant State\u2019s Attorney in this particular case. In argument before the trial court on the motion to dismiss the indictments, the Assistant Attorney General stated that the State\u2019s Attorney was \u201cabsent by his own choice\u201d when this matter was before the grand jury.\nIn the case involving Lieberman and L & S Foods, Inc., another Assistant Attorney General, again unaccompanied by an Assistant State\u2019s Attorney, introduced himself to the grand jury as \u201cassisting\u201d a named Assistant State\u2019s Attorney, and added: \u201cI am here at his request.\u201d\nAn Assistant State\u2019s Attorney appeared at each defendant\u2019s arraignment. However, the record concerning Nichols and the Buffalo Confectionery Company shows that it was the Attorney General\u2019s office alone which responded to defendants\u2019 motions for discovery and a bill of particulars.- Similarly, in both cases it was an Assistant Attorney General who, unaccompanied by personnel from the State\u2019s Attorney\u2019s office, appeared before the trial court to argue defendants\u2019 motions to dismiss the indictments. Finally, it is the Attorney General\u2019s office alone which is pursuing this appeal.\nOpinion\nPrior to considering whether the trial court properly dismissed the indictments, we must preliminarily note our total disagreement with the State\u2019s contention that defendants have no standing to challenge the Attorney General\u2019s power in this regard. The presence of an unauthorized person during grand jury proceedings is a valid basis upon which to attack an indictment. (See Ill. Rev. Stat. 1975, ch. 38, pars. 112 \u2014 6(a) and 114 \u2014 1(a)(5); People v. Flynn (1940), 375 Ill. 366, 31 N.E.2d 591; People v. Munson (1925), 319 Ill. 596, 150 N.E. 280.) Certainly, therefore, if the Attorney General improperly appeared before the grand jury and initiated and obtained the instant indictments, defendants would have suffered substantial prejudice and would have standing to challenge such appearance via a motion to dismiss. The standing of a defendant to challenge the Attorney General\u2019s power to initiate the prosecution of a case before the grand jury was implicitly recognized in the recently decided case of People v. Massarella (1978), 72 Ill. 2d 531, 382 N.E.2d 262, in which our supreme court proceeded directly to the issue of whether the Attorney General in that case properly appeared before the grand jury.\nIn his petition for rehearing, the Attorney General maintains that Massarella, which was decided subsequent to our original opinion, supports his contention that his appearance before the grand jury was not improper. We disagree. In Massarella, as in the matter before us, the Attorney General initiated proceedings before the grand jury unaccompanied by the State\u2019s Attorney. At the arraignment, the court there was told by Assistant State\u2019s Attorneys that the Attorney General would be handling the case, and the State was represented by the Attorney General at all subsequent proceedings. The supreme court examined the development of the common law regarding the powers of the Attorney General and held that the Attorney General may initiate proceedings before the grand jury where the State\u2019s Attorney makes no objection. Finding that the State\u2019s Attorney had not been excluded from the proceedings by the Attorney General and that the record reflected the State\u2019s Attorney\u2019s acquiescence to the Attorney General\u2019s actions, the court concluded that the Attorney General acted within the scope of his statutory duties.\nThe supreme court then went on to consider the appellate court\u2019s construction of section 112 \u2014 6(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 112 \u2014 6(a)). That section provided:\n\u201cOnly the State\u2019s Attorney, his reporter and any other person authorized by the court may attend the sessions of the Grand Jury. Only the grand jurors shall be present during the deliberations and vote of the Grand Jury. If no reporter is assigned by the State\u2019s Attorney to attend the sessions of the Grand Jury, the court, on petition of the foreman and 11 other grand jurors, may for good cause appoint such reporter.\u201d\nThe court saw no conflict between section 112 \u2014 6(a) and its finding that the Attorney General could present cases to the grand jury and went on to say that it did not \u201cbelieve the grand jury provisions can be so narrowly construed\u201d as to nullify the Attorney General\u2019s power to initiate and prosecute cases where that power had been granted to him exclusively, e.g., under section 16 of the Cigarette Tax Act (Ill. Rev. Stat. 1973, ch. 120, par. 453.16). Massarella, 72 Ill. 2d 531, 539, 382 N.E.2d 262, 266.\nFinally, the court pointed out that section 112 \u2014 6(a) allowed \u201cany other person authorized by the court\u201d to attend the grand jury proceedings and that such authority had been granted in the prosecution of the Massarella case, stating:\n\u201cThe court here implicitly authorized the Attorney General to attend; otherwise it would have quashed the indictment, since it has supervisory power over the grand jury in order to prevent abuse of its process. People v. Sears (1971), 49 Ill. 2d 14, 28.\u201d 72 Ill. 2d 531, 539, 382 N.E.2d 262, 266.\nWe conclude that, under Massarella, the Attorney General may properly initiate a case by appearing before the grand jury only if the State\u2019s Attorney approves and the Attorney General\u2019s appearance has been authorized as provided in section 112 \u2014 6(a) of the Code of Criminal Procedure of 1963. Section 112 \u2014 6(a) was amended in 1975 by Public Act 79-669 and Public Act 79-670 to read in pertinent part: \u201cOnly the State\u2019s Attorney, his reporter and any other person authorized by the court or by law may attend the sessions of the Grand Jury.\u201d (Ill. Rev. Stat. 1975, ch. 38, par. 112 \u2014 6(a).) While it appears from the record in the case before us that the State\u2019s Attorney acquiesced in the action of the Attorney General, we find that the Attorney General\u2019s solo appearances before the grand jury were authorized neither by law nor by the court and that the trial court therefore properly dismissed the indictments.\nThe Attorney General has no specific statutory authority, exclusive or otherwise, to independently initiate and prosecute the criminal charges brought in this case. On the contrary, the Attorney General has made several unsuccessful attempts to obtain the legislature\u2019s authorization to pursue revenue cases such as this before the grand jury. (See H.B. 2063, S.B. 976, 79th Ill. G.A. (1975); H.B. 2425, 78th Ill. G.A. (1974).) Unsuccessful legislative attempts to confer upon the Attorney General the statutory authority to directly prosecute tax cases, while not controlling, suggest the legislative intent that the Attorney General is not statutorily authorized to prosecute this case. 82 C.J.S. Statutes \u00a7360, at 790-91 (1953); City of Ingleside v. Johnson (Tex. Civ. App. 1976), 537 S.W.2d 145, 153.\nNor can we say that the Attorney General was authorized by the court to appear before the grand jury in the instant case. There was clearly no specific authorization sought from or granted by the trial court and the court gave no \u201cimplicit authorization\u201d by refusing to dismiss the indictments as did the court in Massarella. Rather, by dismissing the indictments in the cases before us, the trial court implicitly registered its disapproval of the Attorney General\u2019s grand jury appearance in the precise manner contemplated by the supreme court in Massarella.\nThe supreme court in Massarella acknowledged the supervisory power of the court over the grand jury, citing People v. Sears (1971), 49 Ill. 2d 14, 273 N.E.2d 380. In Sears, the relationship between the court and the grand jury was discussed at length, the supreme court stating that the trial court possesses \u201cinherent power to supervise the grand jury so as to prevent the perversion of its process.\u201d (49 Ill. 2d 14, 35, 273 N.E.2d 380, 391.) The court further stated: \u201c[T]he grand jury is an integral part of the court and not the tool of the prosecutor and neither the prosecutor nor the grand jury is vested with power to proceed without regard to due process.\u201d (49 Ill. 2d 14, 36, 273 N.E.2d 380, 392.) It is thus the province of the court to control the process of the grand jury. We conclude that, unlike the trial court in Massarella, the trial court here, in the exercise of its supervisory power, did not grant the Attorney General the authority to conduct the grand jury proceedings on his own. The dismissal of the indictments was therefore proper.\nWe are not persuaded by the State\u2019s contention that the cases before must be remanded to consider the application of Massarella because Massarella involved section 112 \u2014 6(a) of the Code of Criminal Procedure while the motions to dismiss in the instant cases cited section 112 \u2014 4(a) (Ill. Rev. Stat. 1975, ch. 38, par. 112 \u2014 4(a)). The dismissal of the indictments does not rest solely on a particular section of article 112 of the Code of Criminal Procedure (Ill. Rev. Stat. 1975, ch. 38, par. 114\u2014 1(a)(5)). As the court stated in Massarella, the dismissal of the indictments is also based on the fact that the court \u201chas supervisory power over the grand jury in order to prevent abuse of its process.\u201d (72 Ill. 2d 531, 539, 382 N.E.2d 262, 266.) In the cases before us, the lack of authorization of the Attorney General, while implicit, is as real as the implicit authorization found in Massarella.\nFurthermore, the records do not reflect that the basis of the dismissal of the indictments was the trial court\u2019s belief that the Attorney General had absolutely no power to appear before the grand jury. In the case involving Nichols and the Buffalo Confectionery Company, the trial court stated that \u201cthere has to be assistance here,\u201d limiting itself to the case before it rather than announcing a broad principle regarding the Attorney General\u2019s power. In the case involving Lieberman and L & S Foods, Inc., the trial court dismissed the indictments \u201cfor the reasons in defendant\u2019s motion.\u201d The motion does not appear in the record, however, and the burden being upon the State to present that record to us, we will resolve the question as to the exact grounds in the motions of Lieberman and L & S Foods, Inc., against the State. People v. Fochs (1976), 40 Ill. App. 3d 966, 967, 353 N.E.2d 326, 328, and cases therein cited.\nLastly, in holding that the Attorney General did not properly initiate the grand jury proceedings against defendants, we recognize that allowing an after-the-fact determination of the Attorney General\u2019s authority to appear before the grand jury may cause some inconvenience in future attempts by the Attorney General to prosecute a case from its inception. However, we note that the delay in considering the Attorney General\u2019s authorization was caused by the State, and the court made its determination at the first opportunity presented to it. Moreover, to hold that the court is precluded from authorizing the Attorney General to conduct grand jury proceedings merely because the State\u2019s Attorney and Attorney General sought no authorization from the court before the proceedings began would be to allow others than the court to decide who may attend grand jury proceedings. Such a result would be a derogation of the court\u2019s inherent supervisory power and would render meaningless section 112 \u2014 6(a) which states that persons other than the State\u2019s Attorney may attend grand jury proceedings only if \u201cauthorized by the court or by law.\u201d Ill. Rev. Stat. 1975, ch. 38, par. 112 \u2014 6(a).\nIn light of our conclusion that the trial court did not authorize the Attorney General to appear before the grand jury, we need not consider the remaining issue raised by the State.\nFor the foregoing reasons, the orders of the circuit court of Cook County dismissing the indictments against defendants are affirmed.\nAffirmed.\nSULLIVAN, P. J., and LORENZ, J., concur.", "type": "majority", "author": "Mr. JUSTICE MEJDA" } ], "attorneys": [ "William J. Scott, Attorney General, of Chicago (Anne Taylor, John F. Podliska, and Fred Montgomery, Assistant Attorneys General, of counsel), for the People.", "Joseph V. Roddy and Michael J. Madden, both of Chicago, for appellees Buffalo Confectionery Company and Peter Nichols.", "George J. Cotsirilos and S. Jack Micheletto, both of Chicago, for appellees Lawrence Lieberman and L & S Foods, Inc." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BUFFALO CONFECTIONERY COMPANY et al., Defendants-Appellees.\u2014THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. LAWRENCE LIEBERMAN et al., Defendants-Appellees.\nFirst District (5th Division)\nNos. 76-1629, 77-111 cons.\nOpinion filed August 25, 1978.\nModified on denial of rehearing February 2, 1979.\nWilliam J. Scott, Attorney General, of Chicago (Anne Taylor, John F. Podliska, and Fred Montgomery, Assistant Attorneys General, of counsel), for the People.\nJoseph V. Roddy and Michael J. Madden, both of Chicago, for appellees Buffalo Confectionery Company and Peter Nichols.\nGeorge J. Cotsirilos and S. Jack Micheletto, both of Chicago, for appellees Lawrence Lieberman and L & S Foods, Inc." }, "file_name": "0112-01", "first_page_order": 134, "last_page_order": 140 }