author: JUSTICE HARTMAN

text:
    CELIA M. (PENA-ROQUE) HAMPSON, Plaintiff-Appellant, v. BOARD OF EDUCATION, Thornton Fractional Township High School, District No. 215, Defendant-Appellee (The State Board of Education et al., Judicially Impleaded Third-Party Appellees).
    First District (2nd Division)
    No. 1—88—1569
    Opinion filed May 21, 1991.
    Rehearing denied July 11, 1991.

      Celia M. Hampson, of Ventura, California, appellant pro se.

    Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Chicago (Allen D. Schwartz, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff, Celia M. Hampson, appeals from a circuit court order denying her mandamus relief against defendant, Board of Education, Thornton Fractional Township High School, District No. 215 (Board). The parties are before this court for a second time, following the dismissal of plaintiff’s earlier appeal. (Hampson v. Board of Education, Thornton Fractional Township High School District No. 215 (1st Dist. 1986), No. 82 — 2791 (unpublished order under Supreme Court Rule 23).) (134 Ill. 2d R. 23.) Three dispositive issues for review are presented here, including whether (1) the circuit court’s denial of her action for mandamus relief was contrary to law and void for lack of jurisdiction; (2) the court abused its discretion by overruling an interlocutory order entered by another circuit court judge; and (3) plaintiff’s tenure rights were eliminated in violation of the Illinois School Code (Ill. Rev. Stat. 1977, ch. 122, par. 1 — 1 et seq.) and she is entitled to reinstatement by operation of law. Only those facts needed to facilitate a basic understanding of the long procedural history of this 12-year-old case need be set forth here.

Plaintiff was hired as a teacher of Spanish by Thornton Fractional Township High School (Thornton Fractional) in 1968. Although she received tenure in 1970, she taught less than full time from 1975 to 1979. In December 1977, plaintiff’s attempt to return to a full-time teaching schedule was denied. On March 21, 1979, plaintiff was dismissed as part of a general reduction in teaching staff by the Board. The dismissal letter mistakenly classified plaintiff as a nontenured teacher, apparently due to her part-time status, and cited section 24— 11 of the School Code (Code) as authority. Ill. Rev. Stat. 1977, ch. 122, par. 24 — 11.

Plaintiff challenged the nontenured classification of her dismissal in a grievance filed with the Board on March 24, 1979, noting that she had been granted tenure in 1970 and had never lost any of her tenure rights. The grievances ultimately were denied.

Plaintiff thereafter filed her mandamus action on August 8, 1979, founded upon section 24 — 12 of the Code (Ill. Rev. Stat. 1977, ch. 122, par. 24 — 12), seeking reinstatement and requesting that her dismissal be set aside due to her tenured status. Section 24 — 12 at that time provided that if a teacher in tenured service is removed or dismissed by a school board in order to decrease the number of teachers employed, the board first must remove or dismiss all nontenured teachers.

In its answer, the Board contended that plaintiff had either abandoned her tenure or was not qualified for any available position, and it asserted that the reason for her dismissal was economic in nature. The Board also pleaded several affirmative defenses, including (1) plaintiff’s dismissal due to a decrease in enrollment; (2) plaintiff’s relinquishment of her tenure by seeking part-time status; (3) plaintiff’s lack of “bumping” rights; and (4) plaintiff’s abandonment of her teaching position. An amendment to the affirmative defenses stated that because plaintiff was dismissed for economic reasons the Board did not violate the Code, whether plaintiff was tenured or not.

In an order dated May 10, 1982, the circuit court directed the Board to file charges with the Illinois State Board of Education (State Board), relying upon section 24 — 12. The order also suspended plaintiff “pending the institution and ultimate resolution of dismissal proceedings.” The court limited the hearing only to deciding issues raised in the proceedings by plaintiff’s complaint and the Board’s response. On October 25, 1982, before any administrative proceeding commenced, the court entered a declaratory judgment holding that plaintiff was a tenured teacher since April 21, 1970, and had done nothing to lose that status. The ruling iterated that plaintiff’s discharge was subject to a hearing by the State Board under section 24 — 12.

At the court-ordered administrative proceeding, the hearing officer, Robert L. Agusto, ruled that plaintiff was unqualified to make a claim for any available teaching positions and also noted that he lacked jurisdiction to consider the existence or absence of economic reasons for the discharge since the Code does not afford hearings to tenured teachers dismissed for such causes.

On August 2, 1983, plaintiff filed a “First Amended Complaint-Count II” in the circuit court seeking review of the hearing officer’s administrative decision. Plaintiff also appealed the portion of the circuit court’s order which referred the case to the hearing officer. As noted above, this court dismissed the appeal as premature. Thereafter, the cause was returned to the circuit court, where, on June 12, 1987, Judge Thomas J. O’Brien reconsidered and reversed Judge James Murray’s interlocutory order which sanctioned the administrative hearing. The court ordered further that a de novo review be held, in the form of an evidentiary hearing.

Following the evidentiary hearing, the circuit court found that plaintiff was a tenured teacher within section 24 — 12 at the time of her dismissal. At the close of its findings, the court stated that three issues remained to be resolved, including whether (1) plaintiff was properly discharged for a reduction in force (RIF); (2) the RIF was a pretext for the dismissal; and (3) if the RIF was proper, plaintiff could have “bumped” anyone pursuant to the Code.

Each party then filed cross-motions for summary judgment, supported by affidavits, asserting that there was no genuine issue of material fact and that each movant was entitled to judgment as a matter of law. Plaintiff argued, inter alia, that her notice of termination failed to meet the Code’s requirements because it dismissed her as a nontenured teacher. In its decision of November 30, 1987, the circuit court ruled, among other things, that plaintiff’s notice of termination met the requirements of the Code; the Board had no statutory or contractual duty to terminate employees in reverse order of seniority; and that plaintiff was legally qualified to teach only Spanish. The remainder of the Board’s motion for summary judgment was denied, as was plaintiff’s motion, because the court found the existence of material questions of fact as to whether the Board’s purported reason for discharge was pretextual and whether the Board deprived plaintiff of a position for which she was qualified by misalignment of teaching assignments.

On December 24, 1987, plaintiff filed a motion to vacate the circuit court’s order granting summary judgment, which was orally denied by the court on December 28, 1987. The court thereafter conducted a four-day evidentiary trial, announcing its ruling on January 11, 1988, and finding that plaintiff did not prove by a preponderance of the evidence that the school board honorably discharged her at a time when there was no economic necessity and that there was no evidence of intentional misaligned teaching assignments or rehiring practices designed to prevent plaintiff’s employment as a teacher. Plaintiff’s post-trial motion was denied on April 18,1988.

A timely notice of appeal was then filed, seeking reversal of (1) the portion of the circuit court’s order of October 25, 1982, which held that plaintiff was subject to an administrative hearing; (2) the mandates filed by this court on March 24, 1986, and November 3, 1986; (3) the hearing officer’s decision of June 30, 1983; and (4) the circuit court’s judgment of January 11, 1988, and its subsequent order denying plaintiff’s post-trial motion. Plaintiff’s appeal has proceeded pro se.

I

Plaintiff initially asserts that the circuit court erred in denying her petition for mandamus for reinstatement to her full-time tenured teaching position because the Board improperly eradicated her tenure rights in violation of the Code.

The circuit court actually resolved in her favor the issue of plaintiff’s tenure at the time of the termination as well as her alleged abandonment of that tenure, ruling that her tenure was intact at the time of the termination and that the Board failed to prove abandonment, one of its defenses to the action. The question that remained was whether plaintiff was then entitled to reinstatement.

The notice given plaintiff purported to proceed under section 24— 11 instead of section 24 — 12 of the Code. Section 24 — 12 governed the dismissal of tenured teachers during a RIF. In Board of Education of Bremen Community High School District No. 228 v. Bremen District No. 228 Joint Faculty Association (1984), 101 Ill. 2d 115, 461 N.E.2d 406 (Bremen), the supreme court noted that the purpose of the tenure statutes is to assure continued service by able and experienced teachers and, toward that end, the rule of strict construction applied. The Board’s failure to give proper notice could have resulted in voiding the RIF in this case under Bremen, but for plaintiff’s insistence upon having her contentions heard. Because of her perseverance, her contentions regarding reinstatement were given full consideration, albeit with an unfavorable result. Had proper notice been given, plaintiff could not have received any greater consideration under the law than she did.

Section 24 — 12 imposed upon the Board the obligation of providing those tenured teachers dismissed for economic necessity with a notice which sets forth a statement of honorable dismissal and a reason for the termination. (See also Board of Education of Bremen Community High School District No. 228 v. Bremen District No. 228 Joint Faculty Association (1983), 114 Ill. App. 3d 1051, 1056, 449 N.E.2d 960.) The mislabeled notice given here provided plaintiff with both the statement of honorable dismissal and the reason for the termination, thereby complying with the salient requirements and legislative intent of section 24 — 12, although purporting to proceed under section 24 — 11. Since the statutory objective of the notice was met, the notice complied with the intent of the statute and satisfied its general purpose of informing plaintiff of the Board’s reasons behind the termination action. See Donahoo v. Board of Education, School District Number 303 (1952), 346 Ill. App. 241, 245, 104 N.E.2d 833, rev’d on other grounds (1952), 413 Ill. 422, 109 N.E.2d 787.

Plaintiff also contends that the Board denied her rights under the Code by failing to hold an administrative hearing before taking away her tenure.

As previously noted, although the Board erroneously believed that plaintiff had lost her tenure, the circuit court, through two different judges, specifically found that plaintiff was tenured at the time of her dismissal. Under the Code then in effect, the Board was not required to hold an administrative hearing when it dismissed a tenured teacher for economic necessity (Ill. Rev. Stat. 1977, ch. 122, par. 24— 12; see also Lenard v. Board of Education of Fairfield School District No. 112 (1979), 74 Ill. 2d 260, 263, 384 N.E.2d 1321); such hearings were required only when a teacher was removed or dismissed for any other reason or cause. (Ill. Rev. Stat. 1977, ch. 122, par. 24 — 12.) Here, the instant notice of termination gave economic necessity as the reason for dismissal, as did the Board resolution which authorized the action. No due process rights afforded to plaintiff were violated in this branch of the case.

II

Plaintiff also asserts that her seniority rights were violated by the Board when it failed to first terminate three other tenured teachers who were junior to her seniority.

At the time of plaintiff’s dismissal, the Code did not contain the seniority provision contained in the present statute. (Compare Ill. Rev. Stat. 1977, ch. 122, par. 24 — 12, with Ill. Rev. Stat. 1987, ch. 122, par. 24 — 12.) Public Act 81 — 515 added the seniority provision and became effective September 9, 1979, some six months after plaintiff’s termination. (Pub. Act 81 — 515, eff. Sept. 9, 1979 (amending Ill. Rev. Stat. 1977, ch. 122, par. 24 — 12).) Plaintiff cites no case which addresses or supports this argument; instead, she realleges her contentions that unqualified teachers were given positions for which she was qualified, thereby challenging the circuit court’s finding that she is qualified to teach only Spanish, contrariwise claiming only through her own testimony that she is qualified to teach biological sciences, literature and reading. Even this conclusion fails.

The evidence adduced before Judge O’Brien on this point is contrary to plaintiff’s argument. Michael Drobnak, the then current director of personnel at Thornton Fractional, reviewed plaintiff’s transcripts in an affidavit submitted with the Board’s motion for summary judgment. Drobnak swore that plaintiff was not qualified for any of the positions for which she claimed legal qualification to hold. At the four-day evidentiary hearing, plaintiff again persisted in arguing her qualifications in areas other than Spanish. The Board called Dr. Marvin Feinberg, the previous director of personnel at Thornton Fractional, to address this question. He, too, concluded that she was not so qualified.

Although plaintiff possessed a teacher’s certificate covering grades 6 through 12, that alone does not render her “legally qualified” to teach the above-listed subjects. In Lenard v. Board of Education (74 Ill. 2d at 268-69), the supreme court held that, at the threshold level, a teacher is “legally qualified” within the meaning of the Code only if the teacher meets the State Board semester-hour requirements in addition to possessing a valid teaching certificate. At bar, plaintiff did not fulfill these requirements.

The Board introduced into evidence “The Illinois Program for Evaluation, Supervision, and Recognition of Schools — State Board of Education Document Number 1,” which lists the requirements necessary to qualify as a teacher of any specific subject. Plaintiff, here, first claims that she is qualified to teach biological sciences. State Board requirements to teach biological sciences include completion of 24 semester hours in the field, of which eight must be in botany; eight in zoology; five in laboratory coursework in both sciences or, alternatively, 10 in biology lab work. Plaintiff’s transcripts reveal that only 4 of her 25 semester hours in biology were in botany and none were in zoology. She received no credit for any of the required 10 hours of biology laboratory work.

As to plaintiff’s qualifications to teach literature and reading, which appear to fall under the general heading of “Language Arts,” a candidate must complete 24 semester hours, including six in rhetoric and composition and not more than eight in speech and journalism. Plaintiff fell short of these requirements in having completed only 15 semester hours.

Plaintiff claimed qualification to teach “humanities,” which will be considered as “Social Studies.” State Board requirements necessitated the completion of 24 semester hours in the field, 16 of which must be in history, the latter to include eight hours of world history and five hours of United States history. Plaintiff received credit for only 18 semester hours in this field.

The record, therefore, amply supports the circuit court’s determination that plaintiff was legally qualified to teach only Spanish. Her appellate allegations concerning the hiring of other teachers for these subjects are irrelevant because the Code required that a dismissed teacher be offered a job only if she herself is legally qualified for it. (Ill. Rev. Stat. 1977, ch. 122, par. 24 — 12.) Furthermore, the evidence presented below indicates that those teachers of Spanish who were retained were all fully qualified to hold their respective teaching positions.

Ill

Plaintiff also contends that her teaching position was not eliminated and the Spanish class sizes actually increased, not decreased, as claimed by the Board.

Section 24 — 12 prohibits a bad-faith alignment of teaching assignments to excise a “position” which could be filled by a tenured teacher for whom dismissal is sought, as well as improper teaching assignments made in good faith. (Hayes v. Board of Education of Auburn Community Unit School District (1981), 103 Ill. App. 3d 498, 502, 431 N.E.2d 690.) Although possessing discretion to create and rearrange positions, the Board must act in consonance with the spirit of the tenure laws. (Higgins v. Board of Education of Community Unit School District No. 303 (1981), 101 Ill. App. 3d 1003, 428 N.E.2d 1126.) Neither an improper good-faith alignment nor a bad-faith alignment has been shown in the case sub judice.

The evidence shows that before the RIF, Spanish classes were small; each of the four full-time Spanish teachers was scheduled for at least two hours of planning and supervision periods, and each taught four regularly scheduled academic classes. In contrast, plaintiff taught three classes and had one scheduled planning period. Dr. James Verchota, superintendent of Thornton Fractional at the time of plaintiff’s dismissal, testified that the four full-time teachers’ planning schedules could be reduced and the classes spread out among them, maximizing their time and increasing the average class size, which was the district’s goal in implementing the RIF. The schedule for the semester immediately following the RIF reveals that this goal was met. The two full-time teachers on staff at Thornton Fractional South both increased their schedules to five daily academic classes and reduced their planning sessions to one per day. One full-time teacher from Thornton Fractional North taught one class at the South building before returning to the North building and continuing her full-time schedule. By September 1980, only the two full-time teachers at Thornton Fractional South were teaching Spanish, each conducting five classes daily. The record evidence thereby supports the circuit court’s finding that no transfers were made to deprive plaintiff of her position and that the RIF conducted by the Board was nonpretextual.

IV

Plaintiff further contends that the Board had an administrative remedy for its affirmative defenses which it was required to exhaust before submitting itself for review to the circuit court. She claims that the circuit court exceeded its authority in holding an evidentiary hearing on the Board’s affirmative defenses.

As previously noted, this case was returned to the circuit court following the dismissal of plaintiff’s first appeal due to want of appellate jurisdiction. Upon return to the circuit court docket, the cause was reassigned to Judge O’Brien. After reviewing the file, he ruled that an evidentiary hearing must be held on some limited issues in order to instill some organization into a “disorganized” case, a conclusion well drawn.

Under the Code, the Administrative Review Act then in effect (Ill. Rev. Stat. 1977, ch. 110, par. 264 et seq., now Ill. Rev. Stat. 1989, ch. 110, par. 3 — 101 et seq.) was applicable only to the review of dismissals of tenured teachers after a hearing was held in accordance with the provisions of section 24 — 12, which provided an elaborate procedure for a hearing on the issue of “cause” for the dismissal of tenured teachers (Brown v. Board of Education, Galatia Community Unit School District No. 1 (1976), 38 Ill. App. 3d 403, 409, 347 N.E.2d 791); no such procedure was then prescribed when a tenured teacher was dismissed for economic necessity. (Ill. Rev. Stat. 1977, ch. 122, par. 24 — 12.) Plaintiff’s assertions that the school board failed to exhaust its administrative remedy are without legal foundation since the statutory scheme did not provide for administrative relief where, as here, the faculty reduction was due to economic reasons.

Plaintiff asserts that Judge Murray exceeded his jurisdiction by ordering plaintiff to submit to an administrative hearing in his order of May 10, 1982. Judge Murray’s order was reversed by Judge O’Brien as detailed above; the complained-of administrative hearing was ruled irrelevant and not considered by Judge O’Brien.

V

Plaintiff claims that since the circuit court found she was tenured at the time of her dismissal, it immediately should have granted her mandamus relief. This argument fails because, at that point in the proceedings, plaintiff had not yet established a clear legal right to the remedy she sought as is required by seeking mandamus relief. See People v. Teschner (1980), 81 Ill. 2d 187, 194, 407 N.E.2d 49; Bremen, 101 Ill. 2d at 121-22.

Plaintiff assigns error in Judge O’Brien’s reversal of Judge Murray’s order after the cause was returned to the circuit court from the appellate court, as heretofore noted. In its dismissal of the appeal, this court ruled that Judge Murray’s order was not a final and appeal-able order. Accordingly, Judge O’Brien did not err in reversing the interlocutory order since, before entry of a final order, a trial judge is not bound by an order of a previous judge. See Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 121, 382 N.E.2d 1217; Goldberg v. Goldberg (1981), 103 Ill. App. 3d 584, 587, 431 N.E.2d 1060; Richichi v. City of Chicago (1964), 49 Ill. App. 2d 320, 325, 199 N.E.2d 652.

Plaintiff identifies as error the circuit court’s consideration of “issues not relevant to the rights of a tenured teacher which have been violated.” She maintains that the economic issue was not properly before the court because it was not alleged in her pleadings. She further notes that the court erred in assigning her the burden of proving that the district’s RIF was pretextual. Those issues arose through the Board’s pleadings, however.

In response to plaintiff’s initial complaint, the Board alleged several defenses, one of which was the economic necessity of the termination action undertaken. In its amended answer, filed February 20, 1980, the Board denied violating the Code in terminating plaintiff, and plaintiff, as a complainant seeking mandamus relief, had the burden of proving her clear legal right to the relief sought. (See People v. Teschner, 81 Ill. 2d at 194; People ex rel. Latimer v. Board of Educa tion (1946), 394 Ill. 228, 68 N.E.2d 305; Machinis v. Board of Election Commissioners (1987), 164 Ill. App. 3d 763, 518 N.E.2d 270.) Although the Board steadfastly maintained that plaintiff had abandoned her tenured position, the Board had the burden of proving plaintiff’s “abandonment,” which the circuit court found it failed to meet, as indicated by its ruling on September 23, 1987. The Board claimed a RIF due to its deteriorating financial condition; therefore, the RIF was a proper issue for the court to consider. The Board came forward with evidence intended to support its defenses.

Plaintiff cites several cases of improper dismissals to support her allegations including Brown v. Board of Education (38 Ill. App. 3d 403), Friesel v. Board of Education of Medinah Elementary School, District No. 11 (1979), 79 Ill. App. 3d 460, 398 N.E.2d 637, and Smith v. Board of Education of East St. Louis School District No. 189 (1977), 52 Ill. App. 3d 647, 367 N.E.2d 296. None of these cases, however, are persuasive; all are factually distinguishable and involve different aspects of section 24 — 12. In each case, the teacher was dismissed for a reason other than an economic reduction, and the courts held that in such circumstances, a hearing was required by law. The situations addressed in these cases, therefore, are not implicated in the instant case.

VI

Finally, plaintiff argues that the circuit court erred in denying her reinstatement by operation of law to her tenured teaching position.

Mandamus is an extraordinary remedy used to direct a public official or body to perform a duty which plaintiff has a clear right to have performed and which is ministerial, i.e., a duty which does not involve the exercise of judgment or discretion (Crump v. Illinois Prisoner Review Board (1989), 181 Ill. App. 3d 58, 60, 536 N.E.2d 875; see also Hagopian v. Board of Education (1978), 56 Ill. App. 3d 940, 942, 372 N.E.2d 990). As the record here demonstrates, and as previously discussed above, plaintiff did not have a clear legal right to reinstatement by operation of law irrespective of her tenure at the time of her dismissal. See Bremen, 101 Ill. 2d at 121-22.

Based upon the evidence presented at bar, we cannot say that the circuit court erred in denying plaintiff mandamus relief. For the foregoing reasons, we affirm.

Affirmed.

DiVITO and COCCIA, JJ., concur.

       Plaintiff filed her “complaint to issue writ of mandamus” on August 8, 1979; it should he noted, however, that writs were abolished in Illinois effective January 1, 1979. (See Ill. Rev. Stat. 1987, ch. 110, par. 2—1501.) This order will utilize the modern nomenclature so as to conform with the plaintiff’s party designations.

      Plaintiff also filed two other amendments entitled “First Amended Complaint Count I Part I” and “First Amended Complaint Part II” during 1984. In addition, plaintiff attempted to file a “Second Amended Complaint” on December 1, 1987; however, the circuit court disallowed certain pleadings before granting her leave to file the amendment.

      Judge Murray was the original circuit judge assigned to the case. Upon his ascension to the appellate court, the case was reassigned to Judge O’Brien.


source: Caselaw Access Project

author: JUSTICE DiVITO JUSTICE COCCIA,

license: Public Domain

text:
    CITY OF CHICAGO, Plaintiff-Appellee, v. BERNIE PIOTROWSKI et al., Defendants-Appellants.
    First District (2nd Division)
    Nos. 1—89—3266, 1—89—3357 cons.
    Opinion filed June 4, 1991.
    Rehearing denied July 10, 1991.

      COCCIA, J., specially concurring.
    George P. McAndrews, Robert C. Ryan, and Adrienne B. Naumann, all of McAndrews, Held & Malloy, Ltd., and Thomas J. Murphy, of Thomas J. Murphy, P.C., both of Chicago, for appellants.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Lynn Kristine Mitchell, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiff City of Chicago (the City) filed an ordinance enforcement action in the circuit court of Cook County against the Paxton landfill and other defendants (collectively, Paxton) for operating the Paxton landfill without a permit. The circuit court granted the City’s motion to dismiss Paxton’s affirmative defenses and enjoined Paxton from continuing to operate without a permit. Paxton appeals, presenting as issues whether (1) the circuit court erred in granting the City’s motion to dismiss Paxton’s affirmative defenses after that motion had been denied by another judge; (2) the circuit court erred in dismissing Paxton’s affirmative defenses of selective prosecution and of discrimination in denying Paxton a permit, in violation of Federal and State guarantees of equal protection and due process; and (3) the circuit court erred in enjoining Paxton from operating its landfill without a permit.

The Paxton sanitary landfill is located at 11601 South Stony Island Avenue in Chicago. Located immediately adjacent to the Paxton site are landfills which are operated by Waste Management, Inc. (Waste Management), and Land and Lakes, Inc. (Land and Lakes). Since at least 1979, these three have been the only properly zoned, nonhazardous, nontoxic operators of sanitary landfills permitted in Chicago. The area of their operation has been zoned an “M3 — 3 Heavy Manufacturing District” by the City, thus requiring a special use variance for their operation.

The City has established a two-tiered process for the licensing of landfills. First, an applicant must apply to the Zoning Board of Appeals (ZBA) for a special use variance. Then, if the variance is granted, the applicant may apply to the Department of Consumer Services for a permit. Once a permit is issued, the Department regularly inspects the site to ensure compliance with environmental standards.

In 1983, Paxton applied for renewal of its variance and permit. Prior to that time, Land and Lakes and Waste Management were also required to renew their respective variances and permits. On October 15, 1982, the ZBA approved Land and Lakes’ application for a special use variance and, on August 20, 1982, the ZBA approved Waste Management’s application. The ZBA stated that it would review Land and Lakes’ use again in October 1985 and every 24 months thereafter, and that it would review Waste Management’s use in August 1989 and every 36 months thereafter.

Following a hearing before the ZBA on February 24, 1984, Paxton’s application for a variance was denied. The ZBA found that:

“[the landfill] will be unsuitable for future manufacturing uses; that the applicant and its related entities has [sic] a history with respect to the conduct and operation of landfills which has indicated disregard for environmental concerns; [and] that the applicant and its related entities have shown such disregard for environmental laws and regulations in this and other jurisdictions that there can be no assurance that the public health, safety and welfare will be protected at this site.”

Paxton’s suit for administrative review of the ZBA’s decision resulted in summary judgment in its favor. This court reversed, however, because of Paxton’s failure to comply with the service requirements of the Administrative Review Law (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 103). American National Bank & Trust Co. v. City of Chicago (1985), 132 Ill. App. 3d 570, 478 N.E.2d 1, appeal denied (1985), 108 Ill. 2d 555.

Subsequently, Paxton brought suit in Federal court, alleging that its constitutional rights were denied by the City and the ZBA. The district court dismissed the action, holding that this court’s dismissal constituted a decision on the merits and therefore the action was barred by res judicata. (American National Bank & Trust Co. v. City of Chicago (N.D. Ill. 1986), 636 F. Supp. 374.) The seventh circuit affirmed that decision, and the United States Supreme Court denied Paxton’s petition for certiorari. (American National Bank & Trust Co. v. City of Chicago (7th Cir. 1987), 826 F.2d 1547, cert. denied (1987), 484 U.S. 977, 98 L. Ed. 2d 487, 108 S. Ct. 489.) Despite its failure to obtain proper zoning and the required permit, Paxton continued to operate the landfill.

In February 1984, while Paxton’s suit for administrative review in this case was pending, the Chicago city council passed an ordinance declaring a moratorium on the creation or expansion of sanitary landfills until February 1, 1989. In September 1987, Paxton filed a second application seeking a variance. The ZBA denied the application without holding a hearing, citing as its basis the existing moratorium. A circuit court judge later ordered the ZBA to consider the 1987 application. On February 22, 1989, a hearing was held and the ZBA announced that it would apply a standard of proof which was “pretty close to beyond a reasonable doubt that there would be no impact on the public health, safety, and welfare.” The application was then denied. Administrative review of these proceedings is currently pending in the circuit court of Cook County.

When the ZBA’s earlier decision became final, the Department of Consumer Services attempted to shut down Paxton’s landfill. It filed a complaint in 1987 seeking fines and an injunction to prevent Paxton from operating without a permit. In response, Paxton asserted 11 affirmative defenses.

On October 19, 1988, the City moved to dismiss Paxton’s affirmative defenses pursuant to sections 2 — 615 and 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 615, 2 — 619). The parties extensively briefed and argued the motions. In its July 3, 1989, memorandum opinion and order, a circuit court judge dismissed nine of Paxton’s affirmative defenses, but found that two of them were satisfactorily alleged and therefore denied the City’s motion to dismiss them.

After the case was reassigned to another circuit court judge, the City filed a motion for summary judgment, challenging the legal adequacy of the defenses. The parties submitted briefs and the circuit court heard arguments on the motion on November 8, 1989, treating the motion as a renewed motion to dismiss pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). Finding that the two affirmative defenses were insufficient, the circuit court reversed the prior judge’s ruling and dismissed them. The court then granted summary judgment and entered an injunction prohibiting Paxton’s further operation of the landfill, but granted a stay pending appeal. Paxton appeals from that order, asking this court to reverse the grant of summary judgment for the City and the imposition of the injunction, and to remand the case for trial or other appropriate proceedings.

I

Paxton initially argues that the circuit court erred in revisiting issues already decided by a predecessor judge. Specifically, Paxton contends that the first order denying the City’s motion to dismiss the affirmative defenses constituted the law of the case, and that the circuit court therefore improperly granted the City’s motion for summary judgment. The City maintains that the first ruling was an interlocutory order subject to revision.

Illinois Supreme Court Rule 304(a) provides in pertinent part:

“any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.” (107 Ill. 2d R. 304(a).)

In denying the City’s motion to dismiss, the original circuit judge found that Paxton had sufficiently alleged two affirmative defenses. The effect of this order, however, was not adjudicatory of the claims, rights, or liabilities between the parties; the controversy still existed. The order was therefore interlocutory and subject to modification by the successor court. (Rowe v. State Bank (1988), 125 Ill. 2d 203, 531 N.E.2d 1358; Balciunas v. Duff (1983), 94 Ill. 2d 176, 446 N.E.2d 242; Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 382 N.E.2d 1217.) The circuit court’s modification of the prior judge’s order, therefore, did not constitute error.

II

Paxton next contends that it was selectively prosecuted and that it was discriminated against, in violation of State and Federal guarantees of equal protection and due process. Regarding those contentions, we note that an action for administrative review is currently pending in the circuit court of Cook County.

In Howard v. Lawton (1961), 22 Ill. 2d 331, 175 N.E.2d 556, the supreme court held that constitutional issues may be raised in administrative review proceedings. This appeal, however, is not from administrative review; indeed, as previously indicated, the earlier administrative review in this case resulted in an unfavorable result for Paxton. This appeal arises from an enforcement action and concerns the propriety of the grant of injunctive relief and related rulings which followed administrative review. To allow Paxton to assert constitutional issues at this stage would be contrary to the principle underlying the doctrine of exhaustion of administrative remedies.

Generally, one may not seek judicial relief from an administrative action unless he has first exhausted all administrative remedies available to him. (Phillips v. Graham (1981), 86 Ill. 2d 274, 427 N.E.2d 550.) An exception to the exhaustion of remedies rule exists where a party attacks the constitutionality of a statute on its face. (Phillips, 86 Ill. 2d at 289.) If, however, the complaint is not that the statute is unconstitutional on its face, but that it has been applied in a “discriminatory or arbitrary manner,” the party must first seek relief through the administrative remedies provided. (Phillips, 86 Ill. 2d at 289.) There are well-established reasons for this rule: “(1) it allows full development of the facts before the agency; (2) it allows the agency an opportunity to utilize its expertise; and (3) the aggrieved party may succeed before the agency, rendering judicial review unnecessary.” (Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 358, 326 N.E.2d 737.) The rule also allows administrative agencies to correct their own errors, clarify their policies, and reconcile conflicts before judicial relief is sought. Smith v. Department of Registration & Education (1988), 170 Ill. App. 3d 40, 523 N.E.2d 1271, appeal denied (1988), 122 Ill. 2d 594.

These principles are directly applicable to the instant case. Paxton contends that it has been discriminated against, but has not exhausted its administrative remedies. Pursuant to Howard, Paxton’s constitutional issues may be fully vented in the pending administrative review proceedings. We agree with the circuit court’s conclusion that those issues were not relevant in these proceedings.

Ill

The final issue is whether the circuit court erred in enjoining Paxton from operating its landfill without a permit.

Paxton contends that it was entitled to a hearing on whether its conduct posed a nuisance or threat of irreparable injury in fact. When seeking injunctive relief that is expressly provided for by statute, however, a plaintiff is not required to plead or prove the traditional elements of irreparable harm and an inadequate remedy at law. Sadat v. American Motors Corp. (1984), 104 Ill. 2d 105, 470 N.E.2d 997.

In People v. Keeven (1979), 68 Ill. App. 3d 91, 385 N.E.2d 804, the court held that where a statute authorizes injunctive relief, the plaintiff need show only that there has been a violation of the statute by the defendant and that the plaintiff has standing to bring the action. It was therefore unnecessary for the City to prove irreparable damage or the absence of an adequate remedy at law. Keeven, 68 Ill. App. 3d at 97.

In the instant case, it was clear that Paxton’s continued operation without a license was violative of the applicable ordinances. (Chicago Municipal Code, ch. 17, §6.2 (1983); ch. 99, §4 (1983); ch. 99, §36.1(b) (1986).) The circuit court therefore properly enjoined Paxton from operating its landfill.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

HARTMAN, J., concurs.

JUSTICE COCCIA,

specially concurring:

I concur in the judgment of the majority in dealing with the specific issues in this appeal. However, I find the underlying factual history giving rise to the dispatch of the defendant, Paxton Landfill Corporation, sufficiently suspect that I would, at the very least, stay the enforcement of the injunction prohibiting Paxton from further operation of this landfill until the resolution of all pending litigation, including the administrative review proceedings pending in the circuit court of Cook County.

       The Municipal Code has been recodified since 1983, but the new sections do not materially alter the old ones.


author: PRESIDING JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EARL MOORE, Defendant-Appellant.
    First District (2nd Division)
    No. 1—87—0464
    Opinion filed May 21, 1991.
    Modified on denial of rehearing July 30, 1991.

      Michael J. Pelletier and Karen Daniel, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and David Stabrawa, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

Earl Moore appeals from his jury convictions for attempt (murder) and armed robbery, claiming that his trial was unfair in that: during closing arguments, the State improperly remarked on his failure to testify and argued facts not in evidence; testimony about his criminal background and that the State’s Attorney approved the prosecution against him was wrongfully admitted; the trial judge impermissibly communicated with the jury during its deliberations; and a juror was inappropriately separated from the rest of the jury panel during deliberations. He seeks reversal of his convictions and a remand of his cause for a new trial.

Moore was tried for the July 22, 1985, shooting and robbery of Peter DiVizio. DiVizio testified that he was a messenger for an armored car company at the time of the incident, and that his route included a stop at a grocery store on North Sheridan Road, in Chicago. He and his partner parked in front of the store at around noon.

DiVizio carried a bag of money into the store and dropped it off at the “courtesy counter.” He then received three bags containing cash, checks and food stamps, with a combined worth of about $22,000. He placed the bags containing the cash and checks into a larger “cole” bag, and carried it and the bag containing the food stamps out of the store. As he approached his truck, he heard someone yell, “Hey.” He looked in the direction from which the voice was coming and saw Moore, about 40 feet away by an exit on the east side of the building, clutching something in his hand. DiVizio then heard a “bang,” felt a sharp pain in his abdomen and fell to the ground, dropping the bags as he collapsed. After hearing another shot and someone running up and grabbing the bags, DiVizio crawled under the truck. He did not view the person who grabbed the bags.

Approximately two or three weeks after the shooting, the police showed DiVizio five photographs, from which he identified Moore’s photo as that of someone who resembled his assailant; but he was not positive about his identification, saying that he would “ha[ve] to see him in person.” On August 11, 1985, DiVizio identified Moore in a police lineup, saying that he “thought it was him,” his doubts stemming from Moore’s hair being shorter than he had remembered. DiVizio also testified that he couldn’t see the gunman’s eyes because the assailant was wearing sunglasses, and that the gunman was wearing a white hat, similar to a “navy hat,” with the flaps pulled down and which covered part of the man’s head. At trial, DiVizio also testified that he was “positive” about his identification, asserting that he had “been having flashbacks, dreams and I could just see his face that I remember.”

Kimberly McHugh, a stock clerk for the grocery store, got off work at noon on the day of the incident. After shopping at the store for about 10 minutes, she left with her groceries through the exit on the east side of the building, where she noticed a man about two feet away, wearing a black coat, black pants and black shoes; she took note of the man because he seemed “overly dressed” for a “hot July day.” McHugh testified that the man was black, that he was “fairly young,” wore mirrored, dark sunglasses, was of medium build, between 145 and 160 pounds, wore a hat, and was clean shaven.

The man looked back and forth between the parking lot and the inside of the store. McHugh stated that from his vantage point, he had a direct view of the courtesy booth where “all the money” is kept. After observing the stranger for about a minute, she walked to her car, drove it over to where her cart was and noticed that the man was still there. When he saw her return, the man walked into the store and then back out of the store through the same exit. After the incident, the police showed McHugh several photographs, of which she identified one as that of the man she saw outside the grocery store; that picture, however, was not of Moore. On August 11, 1985, she identified Moore in a police lineup. McHugh identified Moore in court as the man she saw, acknowledging that she did not witness the robbery.

Walter Lewis was working as a bus driver at the time of the robbery. He was speaking with his supervisor on Sheridan Road, just north of and on the same side of the street as the grocery store. He heard two gunshots come from the direction of the store, and while his supervisor walked across Sheridan, Lewis maintained his position and looked in the direction of the store. He saw a man, whom he described as a black male, approximately 5 feet 10 inches to 6 feet tall, wearing a white and black shirt, a white cap, sunglasses and white “utility gloves,” run toward him and across Sheridan, carrying a money sack of the kind “used at banks” in his left hand, and a “nickel plated automatic weapon” in his right hand. The man ran into an alley leading to a parking lot on the opposite side of Sheridan; about a minute to a minute-and-a-half later, Lewis saw the man as a passenger in a white station wagon driven slowly by a black male, shorter and stockier, who was not wearing a cap. The passenger was still wearing his hat and sunglasses, but Lewis could see only his profile, rather than his entire face. Lewis identified Moore in a police lineup on August 12, 1985, and then at trial, as the man he saw leaving the store with the gun and money sack.

Lovelace Coston testified that he owned an auto body shop at the time of the incident and that he knew Moore. During the middle of July 1985, Moore came into his shop and asked him to work on a white station wagon. When confronted with photographs of a white station wagon identified earlier by Lewis as being the one in which he saw Moore, Coston testified that it was “similar.”

John Redmond, an evidence technician for the Chicago police department, testified that he found two .30 caliber cartridge cases near the scene of the crime on the day of the shooting.

Conrad Pagan testified that he was on duty as a Chicago police officer when the shooting took place. After arriving at the crime scene in response to a call about an armed robbery and about a white vehicle heading north from the scene, Pagan discovered a white station wagon in an alley; and from the same photographs as those from which Lewis identified the car as the one he saw being used by Moore, Pagan identified it as the one he found. The vehicle was listed as a stolen car. Robert Dieringer, a crime lab technician for the Chicago police department, examined the car along with his partner and found a .30 caliber cartridge case on the passenger side of the auto and a white glove on the front seat. They also recovered a fingerprint impression from the exterior portion of the passenger-side window. Further, according to John DuShane, an employee of the identification section of the Chicago police department, another fingerprint was found on the driver’s side seat belt; neither, however, was Moore’s.

Philip Mannion, a Chicago police officer, testified that on August 11, 1985, he and his partner were given a photo of Moore and a description of a 1978 Oldsmobile he was alleged to be driving. After locating the vehicle, other officers arrived. When Moore arrived and drove off in the car. Mannion’s car and three other unmarked vehicles followed. When Moore stopped at a traffic light, the other vehicles stopped behind and next to him. When the light changed, Moore drove off “at a high rate of speed.” Employing flashing lights and sirens, the police cars gave chase; the chase ended when Moore lost control of his car and struck another car. He was then arrested.

Lawrence Thezan, a Chicago police officer, testified that he investigated the robbery and shooting. He spoke with Deborah Tucker during the first week of August 1985, after which he began to look for Moore. After Moore’s arrest, Thezan informed him that he was being charged with armed robbery. Moore later asked to speak with him in the “interview room,” and told him “that if he beat this case he would tell me who the second person was that was with him during the robbery.” At the time of his confession, Moore was handcuffed to a wall, and had been so handcuffed for the previous 36 hours, except for the periods during which he was questioned. Moore had been interrogated several times while in such custody, and was also required to participate in some lineups. Thezan further testified that he did not take a written statement from Moore and that he alone heard Moore’s confession.

Janice Vaughns testified that she was a good friend of Debra Tucker and through her met Moore in 1985. On the Sunday after she met Moore, she was speaking with him when he began “talking about, just things in general that people have did or was trying to do or would like to do. And he brought the subject up about hitting an armed car.” The next day, Vaughns heard on the radio about the robbery at the grocery store. Two or three days later, she was at Tucker’s apartment when Moore arrived carrying a brown paper bag. He opened the bag onto Tucker’s kitchen table and poured “money, checks and food stamps” from the bag. A man, whom she tentatively identified as “Zeke,” then came to the apartment and spoke with Moore about the “armored car robbery.” While they spoke, there was a pistol on the table and another on the bed. Vaughns stated that Moore referred to one of the pistols as the one “that he had shot the armored car driver with.” She also heard that “the white station wagon was supposed to have been involved,” and that “some guy was going to get rid of the station wagon and clean it up.” She described one pistol as short, the other as about a foot long, with a brown handle.

On cross-examination, Vaughns testified that she was questioned by the police several weeks after the robbery, but that she said nothing about Moore’s statement about robbing an armored car, or about the conversation between him and “Zeke.” She did, however, tell the police about Moore’s dumping of cash and food stamps on Tucker’s table, about seeing the pistols, and about the plan to clean fingerprints off the white station wagon. Further, she stated that Tucker and Moore had been sexually involved.

Thezan testified that he and his partner interviewed Vaughns around August 12, 1985, and that she told the officers that she heard Moore plan the robbery; she said nothing, however, about his statement about “hitting an armored truck.” Vaughns also told the officers that the day after first meeting Moore, they ate Chinese food together. She saw that he had a gun, asked him what he was doing, and received the reply, “Nothing.” Vaughns also told him that Moore had admitted shooting an armed guard, had dumped cash out on Debra Tucker’s table and had admitted involvement in the robbery. She said nothing to him about the station wagon or about cleaning fingerprints from it.

Norman Anderson was on his rounds as a meter reader for Commonwealth Edison on the day of the crime. After making some phone calls at the grocery store, he proceeded to cross the street, and heard what he thought was the backfire of a car. He then saw a man, whose face he could not see, and who was carrying a handgun, run south on Sheridan, crossing the street as he ran. Anderson then saw another man approximately 20 feet away, who was getting up from the ground. The second man was wearing mirrored glasses, had a green sweatshirt on and was wearing a hat similar to a sailor’s hat. The man had an incompletely grown-in beard, and a mustache. Anderson saw the man run north on Sheridan Road on the side of the street opposite the grocery store. Anderson was unable to identify Moore as the person he saw, testifying that he saw the man’s face for only a second, but that Moore “could have been” the man he saw.

Joseph Christiano testified that he was a private investigator and had been asked by Moore’s defense counsel to measure the distance from the location from which Lewis viewed the perpetrator to the parking lot across Sheridan from the grocery store. By pacing the distance off, he estimated it as being about 160 feet. From Lewis’ location to the spot where the shooting took place, he similarly estimated the distance to be about 305 feet.

Paul Carroll testified that after the robbery, he showed McHugh several photographs. McHugh picked out a picture of a person whom she said “resembled” the perpetrator, except for differences in his hair, in the fullness of his face, and except that the perpetrator did not have a prominent mustache like the man in the photograph.

Moore was convicted by a jury on December 10, 1986, of armed robbery and attempt (murder). He was sentenced to an extended term of 60 years in the custody of the Illinois Department of Corrections.

Moore first contends that the circuit court abused its discretion when it overruled his objections to the following prosecutorial statement during the State’s rebuttal argument:

“Where are the proceeds [of the crime]? Where are the guns?
Well, I’ll tell you, I know one guy who knows where they are, and he is sitting over here in this chair.”

Moore argues that the statement brought to the jury’s attention his failure to testify, violating his right not to be compelled to testify against himself as enunciated in the fifth amendment to the United States Constitution (U.S. Const., amend. V), in section 10 of article I of the Illinois Constitution (Ill. Const. 1970, art. I, §10) and in division 12, section 6, of “An Act to revise the law in relation to criminal jurisprudence” (Ill. Rev. Stat. 1985, ch. 38, par. 155 — 1). The State replies that the comments were not intended to draw the jury’s attention to Moore’s failure to testify; rather, they were a justifiable response to Moore’s argument, during closing, that:

“I told you in opening statement that the police never recovered any of the money and they never recovered any of the proceeds, the stamps. And they never recovered any of the guns that were used in the robbery.
After they arrested Earl Moore, did they go to his apartment? Did they find 11 Thousand Dollars in cash? Did they find food stamps, did they find guns? No.”

Moore’s counsel continued by arguing that the robbery was committed by one “who wanted the money and wanted it then” and that if Moore had stolen the money he would have been spending it and flashing it around.

“The prosecution cannot directly [citation], or indirectly [citation], comment on the defendant’s failure to take the stand in his own defense.” (People v. Lyles (1985), 106 Ill. 2d 373, 390. See also Griffin v. California (1965), 380 U.S. 609, 615, 14 L. Ed. 2d 106, 110, 85 S. Ct. 1229, 1233.) “The test *** of whether the defendant’s fifth amendment guarantees were abridged is whether ‘the reference [was] intended or calculated to direct the attention of the jury to the defendant’s neglect to avail himself of the legal right to testify.’ ” People v. Quinn (1988), 173 Ill. App. 3d 597, 602, quoting Watt v. People (1888), 126 Ill. 9, 32.

For example, in People v. Thomas (1980), 89 Ill. App. 3d 592, 601-02, a prosecutor objected to defense questions which implied that the witness on the stand was the only person who could testify as to what had occurred during a robbery. In objecting, the prosecutor remarked that there was “another person in this courtroom who can tell us what happened.” Even though the remark could have referred to a victim of the crime who had been present for most of the proceedings, the court found error.

Even more oblique references to a defendant’s failure to testify have been found to be improper. In People v. Weinger (1981), 101 Ill. App. 3d 857, 869, the court held that the prosecutor’s comment that “ ‘the evidence that we *** have presented to you is uncontradicted and undenied’ *** was erroneous and improper.” “ ‘Where the State’s case is not in fact unchallenged, *** [t]he only reasonable point to the comment is the defendant’s silence.’ ” Weinger, 101 Ill. App. 3d at 869, quoting People v. Escobar (1979), 77 Ill. App. 3d 169, 178. See also People v. Morgan (1960), 20 Ill. 2d 437, 441 (error resulted from repeated reference to witness as the “only witness for the defense”).

We see no significant difference between the comment in Thomas that “another person in this courtroom *** can tell us what happened” (Thomas, 89 Ill. App. 3d at 601), and the comment in the instant case that “I know one guy who knows where they [the criminal proceeds and the guns] are, and he is sitting over here in this chair.” In both instances, the prosecutor alleged that the defendant had important information, and such allegation called to the jury’s attention the defendant’s failure to testify about whether he actually had that knowledge.

Nevertheless, “a defendant may not claim prejudice from comments by the prosecutor when those comments were invited by defendant’s argument.” (People v. Richardson (1988), 123 Ill. 2d 322, 356. See also People v. Dixon (1982), 91 Ill. 2d 346, 350-51.) In Dixon, the defendant was accused of participating in violence at a jail. Defense counsel asked the jury to keep in mind what was going on in the defendant’s mind regarding racial tensions at the institution, and in rebuttal, the prosecutor asked the jury whether it had heard any testimony about what was transpiring within the defendant’s mind; no error was found. 91 Ill. 2d at 349-50.

In People v. Bunch (1987), 159 Ill. App. 3d 494, the defendants argued in closing, without any support, that the State’s witnesses were lying and had a reason to lie; the prosecutor responded by asking the jury, “has either one of those two gentlemen stepped up here and given you that reason[?].” While the court held that any prejudice was cured by the court’s sustaining of defense counsel’s objection and by its instruction to the jury to ignore the statement, the court also held that the response was nevertheless justifiable and not improper. 159 Ill. App. 3d at 515.

The State also puts forth People v. Johnson (1986), 114 Ill. 2d 170, 201, to support its argument that Moore invited the comment. In Johnson, the prosecutor implied that the defendant had, for several months, hidden evidence of his wrongdoing. Because there was evidence that he had in fact hidden evidence, and because the remarks were considered invited by defense counsel’s suggestion that it was “incredible” that no physical evidence linking defendant to the crimes was discovered until eight months after they occurred, no error was found. In the instant case, there was evidence, most notably Janice Vaughns’ testimony that following the robbery Moore dumped the proceeds onto Debra Tucker’s kitchen table, and that he referred to a pistol in his possession as the one he had used in the crime, from which the jury could easily have inferred that Moore knew where the spoils of the crime and the guns were. Further, as in Johnson, Moore pointed out a weakness in the State’s case by discussing the lack of physical evidence linking him to the crime; the State responded with an explanation of the whereabouts of such evidence. Moreover, in People v. Shum (1987), 117 Ill. 2d 317, 347-48, in which the defendant had argued that the State’s failure to produce the gun used in the crime showed his innocence, the prosecutor argued that the defendant had “ditched” the gun. The court found no impropriety:

“While there was no eyewitness testimony that this defendant concealed the gun in question, it is a legitimate inference based upon that fact that a gun was used in the assault and was not recovered.” 117 Ill. 2d at 347-48.

Accordingly, we hold that despite the similarity of the prosecutorial comments in the instant case to comments which would ordinarily be held to improperly draw attention to the defendant’s failure to testify, the comments were supported by the evidence and were a proper response to Moore’s closing argument. In any event, even if we were to assume, arguendo, that the trial judge abused his discretion in overruling defendant’s objection to the prosecutor’s statement in his rebuttal argument to the jury, the evidence against the defendant in this case was of such massive proportions as to render the error harmless.

Moore raises other alleged errors, to which the State replies that because he failed to preserve the issues by both objecting at trial and raising them in his post-trial motion, his right to their review has been waived.

During Moore’s cross-examination of Detective Thezan concerning the detective’s testimony that Moore had admitted his involvement in the armed robbery, Thezan testified that Moore’s statement was never reduced to writing because, “He wouldn’t have signed a statement.” During the State’s redirect examination, the prosecutor asked, “How do you know he wouldn’t sign the statement?” Thezan replied, “During the course of our conversations that we were having, Mr. Moore was telling me about his background. He had stated to me that once before he told the police officer something —. *** And he said that it wouldn’t come out in court anyway.” Moore avers that the statement was inadmissible because it served as evidence of offenses he committed other than that for which he was on trial.

Next, Moore points out that during Thezan’s testimony, the State asked when Moore was charged in the case. Thezan replied that Moore was not charged until after the police had “contacted the State’s Attorney’s Office, felony review unit to review the case.” Thezan then stated, “He was charged after the state’s attorney reviewed the case.” This testimony, according to Moore, prejudiced the jury by placing an official imprimatur on the filing of charges, leading the jury to believe that someone in authority had reviewed the case and had found it to bear substantial weight.

Next, Moore claims that during closing argument, the State argued that Moore bragged to his girlfriend about robbing the armored car. According to the State, Moore did not anticipate that, “sometime in August Debra Tucker would call Officer Fitzsimmons and Thezan of the Chicago Police Department and say, T know who did the Dominick’s [grocery store].’ ” Moore alleges that there was no evidence to support such an allegation, and that by commenting on the substance of a conversation between the nonwitness Tucker and the police, the State was attempting to introduce evidence that was otherwise inadmissible hearsay.

Finally, Moore claims that during closing arguments the State improperly implied that Moore had threatened possible witnesses against him. The prosecutor stated:

“Earl Moore, at the time he was bragging, was impressed with himself. Did not expect anyone to ever talk about it or he was relying upon these people’s friendship, the fact they would be impressed with his great accomplishment, or he knew he could frighten these people to never talk.”

Moore argues that the statement was improper because there was no evidence that he could frighten possible witnesses from talking.

Moore failed to both object to the aforementioned statements and to preserve them as issues in his post-trial motion; accordingly, because of the strength of the State’s case, the alleged errors could not reasonably have affected the verdict, and he has waived their review. (People v. Mullen (1990), 141 Ill. 2d 394, 401-02.) Moore points out that in Mullen, the court examined a claim that the State had argued to the jury, without supporting evidence, that one of the State’s witnesses had initially been reluctant to testify because he feared getting shot in the back in retribution. The court held that the comment, made despite specific instructions from the trial judge to refrain from commenting on the witness’ initial reluctance, was of “ ‘such magnitude that the commission thereof denie[d] the accused a fair and impartial trial.’ ” 141 Ill. 2d at 404, quoting People v. Carlson (1980), 79 Ill. 2d 564, 576-77.

We hold that the alleged errors neither presumptively denied Moore a fair trial, nor could they reasonably have affected the verdict; accordingly, there is no basis for excepting the aforementioned issues from the impact of the waiver rule. Three eyewitnesses identified Moore as being at the scene of the crime, while other testimony placed him in a getaway car. There was also testimony that he had possession of a gun and of proceeds connected with the crime, and that he confessed to the crime. While much of the evidence was vigorously attacked, most notably the identification of Moore at the crime scene by DiVizio, McHugh and Anderson, as to which there was conflicting testimony about whether the perpetrator had a beard, there was no contradiction about Lewis’ identification of Moore, nor about testimony that Moore confessed to the crime and had a firearm and proceeds from the incident. Finally, Moore’s attempt to discredit Lewis’ testimony by measuring large distances between the crime scene and Lewis’ location were irrelevant, since they did not measure the distance between Lewis’ location and some of the locations where he claimed to have seen Moore.

Further, unlike in Mullen, where the jury was aware of a witness’ reluctance to testify, and could therefore have been prejudiced by the prosecutor’s violation of a specific order by proceeding to explain that reluctance, the comment that Moore thought he could frighten witnesses did not relate to anything the jury had perceived; no witnesses appeared to have been so intimidated, and the effect on Moore’s trial was harmless. The other alleged errors: the implication that Moore had previously given a statement to an officer and the comment that Moore was not charged until after the State’s Attorney reviewed the case, were both sufficiently oblique and ambiguous as to negate any prejudicial effect on the jury. We hold, therefore, that the alleged errors did not deprive Moore of a fair trial.

Moore’s remaining claims of error concern incidents which allegedly occurred during jury deliberations. First, Moore alleges that from about 6:05 to 6:20 in the evening of the final day of jury deliberations, a juror was absent from the jury room. Within 15 minutes after that juror returned, the panel indicated that they had reached a verdict. This separation, argues Moore, violates sections 115 — 4(1) and (m) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, pars. 115 — 4(1), (m)):

“(1) When the jury retires to consider its verdict an officer of the court shall be appointed to keep them together and to prevent conversation between the jurors and others ***.
(m) [A]ny juror *** shall be permitted to separate from other such jurors [of his panel] during every period of adjournment to a later day, until final submission of the cause to the jury for determination ***.”

Moore then claims that at the jury’s request, the trial judge improperly provided the panel with a dictionary which had not been admitted into evidence. He allegedly so acted without the knowledge or presence of Moore or his counsel, thus violating Moore’s right to be present at all stages of his trial.

Finally, Moore contends that during the jury’s deliberations, the trial judge improperly inquired, in the absence of defense counsel, how much longer they needed to deliberate, and that such inquiry allegedly hastened the verdict.

In support of these claims Moore notes the following exchange, which occurred before the jury returned its verdict:

“DEFENSE COUNSEL: Judge, for the record, we have three motions. First motion is, by my watch, from about 6:05 to 6:20, one of the jurors whose name I forget was, I can look it up if necessary, was out of the jury room, and that was about, little less than 15 minutes after that the buzzer rang three times [indicating that a verdict had been reached], I think at that critical stage it was improper for that juror to be let out of the room.
THE COURT: All right. That motion is denied.
DEFENSE COUNSEL: The second motion is, *** the sending back of the question as to how much longer the jury has to go we think was unduly coercive.
THE COURT: All right. That motion is denied.
DEFENSE COUNSEL: Third motion is, giving the jury the dictionary which they requested.
THE COURT: That motion is denied.”

Moore avers that his post-trial motion contained detailed descriptions of these allegations and that during the hearing on the motion, his counsel asked whether “the court has any questions, or wish any clarification on any of the points made in the motion.” The court replied, “No, your motions are very clear,” and denied the motion without farther comment. Moore claims that it is “inconceivable” that the trial judge would not have challenged his allegations if they were false. He points to no other evidence in the record that the alleged improprieties occurred.

“Responsibility for preserving and presenting a sufficient record of the asserted error necessarily falls on the party who makes the assertion of error.” (People v. Smith (1985), 106 Ill. 2d 327, 334-35.) “A court of review must determine the issues before it solely on the basis of the record made in the trial court.” (People v. Reimolds (1982), 92 Ill. 2d 101, 106-07.) “Where the record is insufficient or does not demonstrate the alleged error, the reviewing court must refrain from supposition and decide accordingly.” (People v. Edwards (1978), 74 Ill. 2d 1, 7.) The trial judge’s failure to deny Moore’s allegations no more constitutes proof of their truth than Moore’s failure to deny the charges against him constituted proof thereof. (See discussion above regarding the allegedly improper prosecutorial comments.) Although affidavits or juror testimony could have been proffered to support the allegations (see People v. Schuld (1988), 175 Ill. App. 3d 272, 280; People v. Boyce (1977), 51 Ill. App. 3d 549, 562), we have been offered nothing in the record to assist us in deciding whether the alleged incidents occurred; hence, we decline to review the issues.

For the foregoing reasons, Moore’s conviction is affirmed.

Affirmed.

HARTMAN and DiVITO, JJ., concur.