text:
    AGNES S. KELLY, Plaintiff-Appellee, v. THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, Defendant-Appellant (The State Universities Civil Service Merit Board, Defendant).
    First District (4th Division)
    No. 1-88-2628
    Opinion filed July 26, 1990.
    Rehearing denied August 30, 1990.

      Robert A. Wolf, of Office of University Counsel, of Chicago, for appellant.
    Leonard Karlin, of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, the Board of Trustees of the University of Illinois (hereinafter the University), appeals the decision of the trial court, sitting in administrative review (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 101 et seq.), that set aside the decision of the State Universities Civil Service Merit Board (hereinafter the Board) to discharge plaintiff, Agnes Kelly, from her employment with the University. On appeal, defendant University questions jurisdiction, evidentiary standards, and findings of the trial court. For the reasons that follow, we reverse the judgment of the circuit court.

In 1974, plaintiff became employed with the University of Illinois as a data processing analyst I in the department of information systems. By 1977, plaintiff had advanced to the position of data processing analyst III. In January 1983, plaintiff was placed under the supervision of Marlene Wojcik. On November 12, 1984, plaintiff received a notice of discharge which alleged that her work performance was poor, she was reluctant and unwilling to obey her supervisor’s orders and resisted supervisory direction, and that she conducted herself in a manner unbecoming to a University employee.

The record indicates that the University charged plaintiff with poor work performance; reluctance and unwillingness to obey the rightful order of her supervisor; resistance to supervisory direction; conduct unbecoming a University employee; inability to work without frequent detailed instructions from superior; and inability to determine and adhere to priorities. Specifically, the University alleged that plaintiff disrupted the efficient operation of the workplace; failed to meet deadlines; refused to report to her superior concerning the status of her work; was argumentative with her supervisor; and consistently performed below the expectation level required of a data processing analyst III.

The University alleges that on June 12, 1984, plaintiff incorrectly instructed employees in another department to produce an erroneous report which contained inaccurate information. The University further alleged that plaintiff required special supervision and intervention to insure that routine assignments were properly completed. During August 1984, plaintiff’s supervisor requested that plaintiff correct a report which was needed the following week. Plaintiff was unable to meet the deadline and informed her supervisor that an additional 22 days of “uninterrupted time” were necessary to complete the project. After the supervisor intervened and assigned another employee to the project, it was completed in 11 hours.

The University further alleges that on July 16, 1984, plaintiff was asked to develop a mailing label system. Plaintiff was given until August 2, 1984, to complete this task. Plaintiff was unable to complete the project in a timely fashion and failed to follow her supervisor’s direction for corrections to the system. On April 9, 1984, plaintiff was assigned a project which was to be completed by April 23, 1984. On June 8, 1984, plaintiff submitted a draft of the project to her supervisor, who determined that the draft was unsatisfactory. Plaintiff’s supervisor extended the deadline to August 6, 1984. Plaintiff did not meet the extended deadline. Plaintiff did not advise her supervisor that the project would be delayed further, nor did she provide her supervisor with an estimated completion date. The record indicates several instances of plaintiff’s inability to complete projects in a timely fashion and failure by plaintiff to inform her supervisor that the assigned project would be late. Plaintiff’s time logs indicate that plaintiff read trade journals, cleaned her desk, and organized files rather than working on priority assignments.

Additionally, plaintiff received three letters of warning which cited various inadequacies, including plaintiff’s failure to complete assignments and taking unauthorized breaks and unauthorized departures from the work area. Plaintiff has also been suspended on three occasions for a total of 36 business days for conduct similar to that which was reported above.

After receiving the notice of discharge, plaintiff requested a hearing by the Board concerning the allegations and the notice. After a hearing, a trier of fact recommended plaintiffs discharge from her employment with the University. The Board accepted the recommendation and plaintiff was discharged. The Board’s decision and order were issued on April 23, 1985.

On May 7, 1985, plaintiff filed a petition for administrative review, pursuant to statute (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 101 et seq.), in the circuit court of Cook County and No. 85 — CH—4559 was assigned to the cause. Summonses were issued and served on defendants. The trial court determined that the Board’s decision was against the manifest weight of the evidence and ordered the case returned to the Board for a rehearing. Defendant appealed to the appellate court, and plaintiff filed a cross-appeal, which defendant moved to dismiss. The appellate court dismissed both appeals, finding that the order of the circuit court was not a final appealable order. The case was returned to the circuit court, where defendant moved to dismiss the action. Its motion was granted, and the case was returned to the Board for a rehearing pursuant to the October 15, 1985, and January 20, 1987, orders of the circuit court.

On April 2, 1987, the Board heard the case. Before it could issue a decision, plaintiff appealed the circuit court’s order of January 20. The appeal was dismissed because no final order had been issued. Thereafter, on September 23, 1987, the Board issued a “Rehearing Decision and Order” which again discharged plaintiff. On November 6, 1987, the appellate court issued an order which instructed plaintiff that she had “until November 30, 1987, to file for Administrative Review of the Merit Board’s September 23, 1987, Decision and Order.” On November 23, 1987, plaintiff filed a second complaint for administrative review with the clerk of the circuit court; No. 86 — CH—5658 was assigned to this cause.

Thereafter, the case came before the circuit court on cross-motions for summary judgment and that court found in favor of the plaintiff and against the defendant and ordered that plaintiff be reinstated to a position of employment with the University. Defendant now appeals from this final order of the circuit court and raises the following issues: (1) whether the trial court lacked subject matter jurisdiction over the administrative review actions; (2) whether the trial court held that the Board’s findings were against the manifest weight of evidence; (3) whether the Board’s findings were against the manifest weight of the evidence; and (4) whether the record supports a finding of cause for plaintiff’s discharge.

Initially defendant argues that plaintiff failed to file a timely complaint in the circuit court for review of the Board’s decision; therefore, the circuit court lacked subject matter jurisdiction over the claim. Plaintiff contends that her complaint for administrative review was originally filed on May 7, 1985, after the Board's April 23, 1985, decision and order, in accordance with Illinois statutory law (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 101 et seq.), and that her second complaint for administrative review was filed in response to the November 6, 1987, order of the appellate court which gave her until November 30, 1987, “to file for Administrative Review of the Merit Board’s September 23, 1987 decision and order.” Plaintiff argues that pursuant to that order, she filed the second complaint for administrative review with the clerk of the circuit court, who accepted it and filed it under No. 86 — CH—5658.

The Code of Civil Procedure provides, in pertinent part, as follows:

“Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby.” (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 103.)

This is the statutory procedure required to initiate cases seeking review of the Board’s decision. Once a court acquires jurisdiction to review an administrative agency’s decision, that court shall retain jurisdiction of the action until final disposition. (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 104.) A careful review of the record indicates that plaintiff complied with the statutory requirements when filing the initial complaint for administrative review on May 7, 1985. The complaint was filed with the circuit court, assigned No. 85 — CH—4559, and summons was issued within the time period prescribed by statute. We agree with plaintiff that the power to review the Board’s decision vested with the circuit court pursuant to statute. (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 104.) Defendant has not questioned the circuit court’s jurisdiction to review cause No. 85 — CH—4559 or the procedure followed to commence the administrative review. Rather, defendant questions the circuit court’s jurisdiction based upon defendant’s second complaint for administrative review, which was filed as a response to the November 6, 1987, order of the appellate court. Our order to file for administrative review was a common law order setting time limits for plaintiff if she elected to pursue an administrative review of the Board’s September 23, 1987, order. The jurisdiction of the circuit court had been established pursuant to statute (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 103), when plaintiff filed her initial complaint for administrative review in this action. Therefore, plaintiff was not required to follow the statutory procedure required when initiating an administrative review when she elected to seek review of the Board’s September 23, 1987, decision pursuant to the November 6, 1987, order of the appellate court. Since there had been no final disposition of the cause, the circuit court retained its jurisdiction over the matter. Furthermore, the record indicates that plaintiff acted timely and properly in following the November 6, 1987, order of the appellate court. Accordingly, this appeal is properly before us and we will consider its merits.

Next, defendant questions whether the circuit court determined whether the Board’s findings of fact were against the manifest weight of the evidence. Our careful examination of the record reveals that on October 15, 1985, the circuit court expressly found that “the decision of the Merit Board is against the manifest weight of the evidence.” Therefore, we find that defendant’s argument as to this issue is without merit.

Finally, defendant argues that the record sustains the Board’s findings of cause for discharge and are not against the manifest weight of the evidence. A trial court’s scope of review of an administrative agency’s decision to discharge an employee involves a two-step test. (Williams v. Secretary of State Merit Comm’n (1986), 151 Ill. App. 3d 1014, 1019.) The first step requires the reviewing court to determine whether the administrative agency’s findings of fact are contrary to the manifest weight of the evidence. (Department of Mental Health & Developmental Disabilities v. Civil Service Comm’n (1981), 85 Ill. 2d 547, 550.) “An agency’s findings of fact are contrary to the manifest weight of the evidence only when the opposite conclusion is clearly apparent from the record. [Citation.]” (Williams, 151 Ill. App. 3d at 1019.) The second step requires a trial court which is reviewing an agency’s decision to determine whether the agency’s findings of fact provide sufficient support for the decision that cause for discharge does or does not exist. (Department of Mental Health & Developmental Disabilities, 85 Ill. 2d at 551.) Generally, “cause” is defined as “ ‘some substantial shortcoming which renders the employee’s continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as good cause for his no longer holding the position.’ ” (Kreiser v. Police Board (1977), 69 Ill. 2d 27, 30, quoting Kreiser v. Police Board (1976), 40 Ill. App. 3d 436, 441.) A reviewing court will test the cause element by determining whether the agency’s decision is arbitrary, unreasonable, or unrelated to the requirement of the service. (See Department of Driver Services v. Secretary of State Merit Comm’n (1985), 132 Ill. App. 3d 753.) However, we must note that generally the issue of whether there is sufficient cause for discharge is for the agency to determine and the reviewing court must give substantial deference to the agency’s ruling on the issue of cause. (Department of Mental Health & Developmental Disabilities, 85 Ill. 2d at 551.) Furthermore, the reviewing court is not to reweigh the evidence or make independent determinations of fact, but is limited to a determination of whether the final decision of the agency is just and reasonable in light of the evidence presented. (Davern v. Civil Service Comm’n (1970), 47 Ill. 2d 469, 471.) Our careful review of the record reveals that the Board had sufficient reason for finding cause to discharge plaintiff. The evidence presented to the Board illustrated how plaintiff refused to take supervisory instruction and to perform the orders of her supervisor, allowed her work performance to suffer and acted in an unprofessional manner toward her supervisor. Plaintiff’s misconduct directly affected the requirements of her employment. Based upon this evidence, which the Board found to be credible, we believe that the decision of the Board to discharge plaintiff was just, reasonable and related to the requirement of the service. Accordingly, the Board’s findings of fact were not contrary to the manifest weight of the evidence, and they were sufficient to support its determination that there was cause to discharge plaintiff.

We conclude that the Board’s finding of cause to discharge plaintiff was not arbitrary and unreasonable, nor was it unrelated to the needs of the service. Accordingly, we reverse the judgment of the circuit court.

Reversed.

JIGANTI and LINN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GORDON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BERNARD LOCKHART, Defendant-Appellant.
    First District (5th Division)
    No. 1-87-1999
    Opinion filed July 27, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Michael Halloran and James H. Reddy, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Renee Goldfarb, and Joseph G. Howard, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

Defendant, Bernard Lockhart, was tried by a jury and found guilty of murder (Ill. Rev. Stat. 1983, ch. 38, pars. 9 — 1(a)(1), (a)(2)), but found not guilty of armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 18 — 2(a)). He was sentenced to a term of 30 years’ imprisonment. On appeal, he contends that the trial court erred: (1) in failing to conduct a Batson hearing; and (2) in refusing to give a voluntary manslaughter instruction. For the reasons hereinafter set forth, we remand with directions.

THE VOIR DIRE

On May 8, 1986, the trial court conducted a voir dire examination of prospective jurors. The venire consisted of 60 individuals, but the 12 jurors and 2 alternates were selected from the first 32. During the voir dire, defendant, who is black, exercised his peremptory challenges to excuse seven prospective jurors, each of whom was white. The State, likewise, peremptorily challenged eight prospective jurors. Of those eight, five were black and three were white. Of the selected jurors, one was black while the remaining 11 jurors and two alternates were nonblack. The court discharged two black veniremen for cause. The record does not disclose the racial composition of the remaining 28 venire members.

The black prospective jurors challenged by the State were:

(1) Van Merideth, a male, who was single and was a student at a two-year city college. He had no prior jury service, knew no one who worked in law enforcement or in any law-related field, and had no reservations about the death penalty. He and his friend were “jumped on a[n] ‘L’ ” platform by some gang members. Two gang members were subsequently charged with attempted robbery.

(2) Betty Daniels, a female, who was single and was an employee of Peoples Gas, had never served on a jury. She knew no one who worked in law enforcement and had no reservations about the death penalty. She and members of her immediate family had never been victims of crime.

(3) Gordon Ulishious, a male, who was single and had just completed a “course of study” as a student, had likewise never served as a juror. He had a cousin who was a police officer and his only personal exposure to crime occurred about two years ago when a radio was stolen from his automobile. His sister’s apartment was broken into approximately 11 years ago. He had reservations about the death penalty, but stated that he would consider all the possible penalties, including the death penalty, if the defendant was found guilty.

(4) Harold Williams, a male, who was single and was an employee of U.S. Steel. He had never served as a juror and knew no one who worked in law enforcement. He was involved in a civil lawsuit 15 years ago. He was a victim of crime 15 years ago, when he was robbed at gunpoint. His niece was also robbed on an “L” platform approximately five years ago. He had no reservations about the death penalty.

(5) Charlene Chandlers, a female, who was unemployed, had never served as a juror and knew no one who worked in law enforcement. She had never been a victim of crime, but one of her brothers was once beaten by some assailants.

The white prospective jurors challenged by the State were:

(1) Michelle McCormick, a female, who worked as an interior designer, had not served on a jury before. She knew no one who worked in law enforcement or in law-related fields. Her friend’s car was broken into and she had not formed an opinion on the death penalty.

(2) Deborah Dolinsky, a female, served as a juror in a criminal case in Cleveland, Ohio. A member of her family had once been a party to a civil lawsuit. Her brother-in-law was a lawyer and her stepbrother was a judge in Sonoma, California. She had once been “robbed” and had also been involved in a “hit and run” with a drunken driver in Cleveland. She stated that the police officers investigating the hit-and-run incident never followed up on their investigation. She had “some trouble” with the death penalty, but stated that she would consider all the possible penalties, including the death penalty, if the defendant was found guilty.

(3) Phyllis Hager, a female, had never served as a juror, nor did she know anyone in law enforcement. Her only exposure to crime occurred approximately eight years ago when her purse was stolen. She had “strong feelings” against the death penalty, but stated that she would consider all the possible penalties, including the death penalty, if the defendant was found guilty.

On that same day, three panels, each consisting of four jurors, were separately selected and sworn without objection from the defense, as were two alternate jurors. Four of the selected 11 nonblack jurors had themselves either been victims of crime, or had immediate family members who were victims of crime. They were:

(1) Karen Pedtke, a female, who was an office manager, stated that she had been burglarized 21/2 years ago.

(2) Carolyn Mir, a female, who was a teacher, also stated that she had been burglarized and that the “grill” on her automobile was stolen. No one was ever apprehended for either of those crimes. When she was asked if those experiences would affect her ability to sit as a juror, she responded by saying “possibly.”

(3) Mr. Yu stated that his car was stolen and that he had a friend who was robbed. He also stated that he had once encountered abusive police officers.

(4) Cheryl Wade, a female, who worked in a refinery, stated that her parents’ car was stolen, but that it was subsequently recovered.

Moreover, 3 of those 11 selected nonblack jurors, which included one who was also counted as a crime victim, had some degree of reservation about the death penalty. They were:

(1) Karen Pedtke stated that she had “strong feeling” against the death penalty.

(2) Mary Dugan, who was married, stated that she had reservations about the death penalty.

(3) Judith Everhart, who was married, stated that she had mixed emotions about the death penalty.

On the following day, May 9, before the jury was to be sworn in as a whole, but after three panels and two alternates were separately sworn, defendant first moved for a mistrial on the ground that the State had exercised its peremptory challenges to systematically exclude blacks from the jury. In response, the State argued that defendant had not established a prima facie case of discrimination and, therefore, the burden had not shifted to the State to come forward with race-neutral reasons for its peremptory challenges of black prospective jurors. The State pointed out that of the eight prospective jurors peremptorily challenged, three were white and, also, that a black juror had been selected.

In concluding that a prima facie case of discrimination had not been established, the trial court stated:

“Well, I think Batson says its [sic\ a systematic exclusion here. They stated there were five blacks and three whites excluded, and that’s five-eights [sic] and three-eights [sic]. The defendant excused seven white jurors, and I don’t think you have made out a prima facie case, however, of exclusion. I think that means 100 percent exclusion.”

THE TRIAL

During the trial, several witnesses testified on behalf of the State. Jeanine Dilworth, who lived with the defendant, testified that on September 23, 1984, she saw the victim, Darrette Maxie, who is black, standing outside waiting for the defendant. She then invited him into the apartment which she shared with the defendant. Jeanine testified that the victim was a friend of the defendant whom she had previously met through the defendant. They were together in the apartment for approximately 15 minutes when defendant arrived. Defendant and the victim went into the kitchen to drink and talk. Melvin, another friend of the defendant, came by and then the three men left the apartment together.

The victim returned to the apartment alone 15 minutes later and expressed his concerns to Jeanine about the defendant’s use of narcotics. Defendant returned 45 minutes thereafter. She testified that, upon defendant’s return, he and the victim talked in the kitchen and then in the bathroom for about 10 minutes outside of her hearing. When they reappeared in the kitchen, she heard the victim trying to talk to defendant while defendant pointed to a gold chain around the victim’s neck. She heard the victim offer to give the defendant the chain if he agreed to talk to him. She then saw the victim give defendant the chain, who placed it in a glass jar.

The victim asked to take defendant for a ride in order to talk to him. Defendant agreed. But as the victim stepped outside, defendant attempted to shut the door behind him, while he remained inside. The victim kept thwarting defendant’s attempts to shut him out of the apartment by putting his foot in the door and asking to be let back inside. Defendant acquiesced and, when the victim was allowed back in, they talked about the gold chain. The victim then took his chain back from defendant. At this point, defendant asked the victim to leave, and as he got to the door, defendant pulled on the victim’s jacket, and in response, the victim held the defendant by his arms. The victim then left the apartment, saying he would not come back unless defendant called him, but defendant responded by again asking him to leave. After the victim left, defendant went to his closet, pulled out a gun, and ran after the victim. The victim was about three inches taller and 10 pounds heavier than defendant. Jeanine testified that she heard two gunshots and then went to a neighbor’s house to call the police.

David Eldridge, a neighbor, who lived in apartment 3c, which was immediately adjacent to the defendant’s apartment, testified that on September 23, he heard “some commotion” coming from defendant’s apartment. He testified that he saw a man running out of that apartment, and also saw a hand extending out of the door. In that hand was an object that looked like a gun. He then opened the door to the hallway and saw Jeanine standing with her daughter. He offered some help and tried to comfort her because she appeared to be upset. Eldridge testified that at this point, he heard two gunshots. He then returned to his apartment with Jeanine, called the police, and then went out to look for defendant. When he got to the Saranac Hotel, a janitor directed him to the side of the building. As he was walking, he heard more gunshots. He saw a body lying on the ground and recognized the individual as the same man he saw running out of defendant’s apartment.

Peter Vanvliet, a neighbor of defendant, testified that on September 23, he heard screaming and shouting on the street so he looked out his window. He saw two men running on the street. The shorter of the two men was chasing the other man. Vanvliet further testified that the man who was being pursued fell in the middle of the street. He heard a gunshot.

According to Vanvliet, the man who fell down, got up and ran between some parked cars. The shorter man continued firing shots over the cars. The chase continued into the Saranac Hotel. While those individuals were in the hotel, Vanvliet heard another gunshot. He then saw the shorter man casually walk out of the hotel.

Joseph Bogdalek, a Chicago police detective, testified that following defendant’s arrest, defendant was admonished of his constitutional rights and he gave a statement of the events that occurred on that day. Defendant stated that he believed that Jeanine and the victim had sex prior to his arrival, and that although both were fully clothed, the victim was not wearing his jacket and was perspiring. Defendant also stated that the victim grabbed him by the neck and started choking him. He then chased the victim with his gun. While they were on the street, he fired two shots at the victim, and when they entered the hotel, he fired another shot. Finally, when they got into an alley, he fired two more shots, at which time the victim fell to the ground. David Stoioff, an assistant State’s Attorney, testified that defendant gave essentially the same statement that he had given previously to Detective Bogdalek.

Defendant testified on his own behalf. He stated that he had known the victim for approximately five years and that the victim came to his house frequently. On September 23, he spoke to the victim in the morning and arranged to meet him so that he could pay back a debt. When he arrived home later on in the day, he met the victim in his apartment. He called his friend Melvin, and when Melvin arrived, all three men drank alcoholic beverages and smoked marijuana. Defendant showed both men some gold chains and permitted the victim to try one on. When they were about to leave the apartment, defendant asked the victim to return the gold chain, and after momentarily arguing with defendant, he removed the chain and gave it back to defendant. Defendant put the chain in a glass jar. The victim then informed defendant he was going home, and defendant left the apartment with Melvin to purchase some cocaine.

When defendant returned home, he was surprised to see the victim in the apartment. The victim was then sitting on the couch with his jacket and shoes off. Jeanine was sitting beside him on the same couch. She was fully dressed, but wore her house shoes. Defendant testified that when he approached the victim, he appeared nervous and scared. They began to argue and the victim grabbed defendant by the collar and defendant pushed him away. The victim again grabbed defendant and started to choke him. Thereafter, in response to defendant’s request to leave the apartment, the victim went to the door. Defendant twice attempted to push the victim out of the door, but each time, the victim kept putting his foot in the door. He again ordered the victim to leave the apartment. Defendant testified that he then became very angry because he knew that Jeanine and the victim were doing something, and that he always suspected the victim of “try[ing] to mess with [Jeanine].” Defendant stated that the victim walked towards him, grabbed some gold chains and started to try them on. Defendant again told him to get out of the apartment and at this point ran to the closet and got his gun. The victim ran out of the apartment with defendant in pursuit.

He chased the victim down a street and into a hotel. He continued firing shots at him. In the hotel, the victim jumped over a counter and went through a side door. Defendant followed him into an alley and fired more shots. The victim fell to the ground. Defendant confirmed that the victim was not moving and then reached down and grabbed the chain from his neck. Defendant went back to his apartment.

On cross-examination, defendant testified that he did not see the victim kissing Jeanine but that, although he was intoxicated that night, he surmised what the victim was doing with Jeanine.

At the instruction conference, defendant proffered two voluntary manslaughter instructions, Illinois Pattern Jury Instructions, Criminal, Nos. 7.03 and 7.04 (2d ed. 1981) which were refused by the trial court. Defendant claimed that a voluntary manslaughter instruction was warranted because there was evidence of “serious provocation, to wit, adultery,” a claim supplanted on appeal by the contention that the provocation was “mutual combat.”

The jury found defendant guilty of murder but not guilty of armed robbery. Defendant was sentenced to a term of 30 years’ imprisonment. Defendant appeals.

Defendant first contends that the trial court committed error when it refused to conduct a Batson hearing in that a prima facie case of discrimination had been established. Conversely, the State argues that defendant did not establish a prima facie case and, even if he did, defendant waived that issue when he failed to make a timely objection before the jury was sworn. We first address the State’s waiver argument.

Generally, a defendant’s failure to make a timely objection to the State’s use of peremptory challenges to exclude black venire members, before the jury is sworn, results in a waiver of that claim. (People v. Andrews (1989), 132 Ill. 2d 451, 548 N.E.2d 1025.) The waiver principle, however, applies with equal force to the State in that when the State responds to the merits of a defendant’s Batson motion, rather than objecting to its timeliness, the State itself is deemed to have waived its right to object to the timeliness of that motion. See Andrews, 132 Ill. 2d at 458, 548 N.E.2d at 1028; People v. Harris (1989), 129 Ill. 2d 123, 171, 544 N.E.2d 357, 378.

In the present case, the record discloses that before the jury had been sworn as a whole, but after each of the three panels had been separately sworn, defendant moved for a mistrial on the ground that the State exercised peremptory challenges to exclude blacks from the jury. Rather than objecting to the timeliness of defendant’s motion, the State challenged the motion solely on its factual merits by arguing that defendant had not established a prima facie case. By so doing, the State itself has waived its right to object to the timeliness of defendant’s motion. Moreover, under the holding of People v. McDonald (1988), 125 Ill. 2d 182, 530 N.E.2d 1351, a Batson motion made after jury selection but before the entire jury is sworn is timely. (See McDonald, 125 Ill. 2d at 194, 530 N.E.2d at 1356.) We turn now to defendant’s contention that the trial court should have conducted a Batson hearing.

The United States Supreme Court in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, held that a “defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial.” (Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87, 106 S. Ct. at 1722.) To establish a prima facie case of discrimination, defendant is required to show that: (1) he belongs to a “racial group capable of being singled out for differential treatment”; (2) the State removed members of his race from the venire by using peremptory challenges; and (3) these facts “and any other relevant circumstances raise an inference” of purposeful discrimination because of race. 476 U.S. at 93-96, 90 L. Ed. 2d at 85-88,106 S. Ct. at 1721-23.

In the case at bar, defendant has satisfied the first two requirements of a prima facie case. Defendant is black and the State used peremptory challenges to excuse members of defendant’s race from the venire. Consequently, the remaining question is whether these facts and any “other relevant circumstances” raise an inference of purposeful discrimination.

As elaborated by our supreme court in People v. Evans (1988), 125 Ill. 2d 50, 530 N.E.2d 1360, these “other relevant circumstances” include the following:

“[A] ‘pattern’ of strikes against black jurors; ’the prosecutor’s questions and statements during voir dire examination and in exercising his challenges’ [citation]; the disproportionate use of peremptory challenges against blacks [citations]; the level of black representation in the venire as compared to the jury [citations]; whether the excluded blacks were a heterogeneous group sharing race as their only common characteristic [citation]; the race of the defendant and victim [citations]; and the race of the witnesses [citation].” (Evans, 125 Ill. 2d at 63-64, 530 N.E.2d at 1365.)

In considering these relevant circumstances in view of the facts of the present case, we conclude that the defendant did in fact establish a prima facie case of discrimination. Our ultimate conclusion is based upon our determination that there was a clear pattern of State strikes against black venire members, that there was a markedly disproportionate number of peremptory challenges used against blacks, and that the excluded black prospective jurors were a heterogeneous group, sharing race as their most significant apparent common characteristic. All of these factors in combination warrant a determination which would shift the burden to the State to explain the reasons for its challenges.

There is no question that there was a pattern of strikes against black venire members. The State’s challenge of five out of six black venire members who were reached for voir dire and not excused for cause is enough to establish such a pattern. The exclusion of five of these six venire members does not appear to be random, coincidental or occasional so as to be devoid of possible racial motivation.

The record also clearly reflects a markedly disproportionate number of challenges against prospective black jurors. Although we do not know the racial composition of the entire venire, we do have the number and the racial composition of the 32 venire members reached for voir dire, the number of the peremptory challenges exercised, and the race of the challenged venire members.

In the present case, the record discloses that of the 32 venire members reached for voir dire, eight were black (25% of the venire reached for voir dire). Despite this low black representation, the State still used five peremptory challenges against five of those blacks (approximately 63% of its challenges), with two blacks having been excused for cause, resulting in the selection of only one black juror (approximately 8%).

Conversely, there were 24 nonblack venire members who were examined and who were not excused for cause, yet the State used only three peremptory challenges (approximately 37%) against those 24 nonblack venire members who represented approximately 75% of the venire reached for voir dire. Thus, the disproportionate use of peremptory ■ challenges against prospective black jurors is clearly demonstrated to be a factor which significantly contributed to the racial imbalance of the jury. See People v. Williams (1990), 199 Ill. App. 3d 549.

We acknowledge that in determining whether a prima facie case has been established, courts “should consider more than simply the number of jurors excluded.” (People v. Young (1989), 128 Ill. 2d 1, 19, 538 N.E.2d 453, 457.) However, where the numbers reveal a racial imbalance resulting from the use of a disproportionate number of challenges against blacks, those numbers cannot be ignored and are, along with all the other circumstances, significantly relevant to our determination of whether a prima facie case was established. See People v. Harris (1989), 129 Ill. 2d 123, 172, 544 N.E.2d 357, 378 (State used 15 of 20 peremptory challenges to exclude blacks, 2 blacks were selected as jurors; prima facie case established); People v. McDonald (1988), 125 Ill. 2d 182, 196, 530 N.E.2d 1351, 1357 (16 of 18 blacks excused peremptorily; prima facie case established); People v. Johnson (1990), 199 Ill. App. 3d 798, 805 (six of seven challenges used to excuse blacks; prima facie case established), People v. Freeman (1987), 162 Ill. App. 3d 1080, 1094, 516 N.E.2d 440, 449; (12 of 18 blacks excused; prima facie case established).

In addition to the foregoing, the record reflects that the five black venire members who were peremptorily challenged were heterogeneous in character, with their only common characteristic being their race. The record discloses that the blacks excused were men and women of diverse backgrounds. Two were gainfully employed up to the day of the voir dire; one was a college student and two were unemployed. Four had no reservations about the death penalty, and even the single member who did stated that it would not affect his ability to consider death as an applicable penalty.

The State, however, would have us believe that heterogeneity is absent simply because four of the five excused blacks were either vietims of crime or had immediate family members or friends who themselves were victims of crime. This ostensible common denominator does not apply to the fifth excluded venire member. But, more significantly, when we review the background of the selected jurors, we find that four of the nonblack jurors who were selected had similarly been victims of crime or had immediate family members or friends who were victims of crime, and three had expressed reservations about the death penalty.

The State urges that there was no prima facie showing in the present case because a single black was selected as a juror. Contrary to the State’s assertion, our supreme court has stated that the presence of blacks on the jury does not preclude a finding that defendant has established a prima facie case (Harris, 129 Ill. 2d 123, 544 N.E.2d 357), nor does Batson require complete exclusion of a racial group to establish a prima facie case. See People v. Johnson (1990), 199 Ill. App 3d 798 (where a prima facie case of discrimination was found where six of the seven challenges by the State were against black venire members, although two blacks served on the jury).

The State asserts, presumably to demonstrate the unlikelihood of discrimination, that “many” of the witnesses were black. Notwithstanding the State’s assertion, the record does not disclose the race of the witnesses and, therefore, we cannot speculate as to their racial composition. (See Harris, 129 Ill. 2d 123, 171, 544 N.E.2d 357, 378.) Even assuming, however, that some of the State’s witnesses were in fact black, we do not find their race or the commonality in race between the defendant and the victim to be dispositive. See People v. Johnson, 199 Ill. App. 3d at 804 (wherein the court rejected a similar argument predicated on the fact that the prosecutor was black); People v. Williams (1990), 199 Ill. App. 3d 549, 556 (wherein, under comparable circumstances, the court rejected the contention that commonality of race between the victim and the defendant should be of controlling significance, stating:

“[W]e find the commonality in race between the defendant and victim insufficient basis to destroy the inference of unlawful discrimination presented in the case at bar, given the great disparity in the State’s use of peremptory challenges to exclude black as compared to white jurors, the predominantly white composition of the jury, and the heterogeneity of the excluded black jurors”).

Our analysis of this matter was complicated by the fact that the trial court’s determination that no prima facie case was established was based on an erroneous standard that a prima facie finding required “100 percent exclusion.” The record reflects that the jurors in this case were selected approximately two weeks after the United States Supreme Court’s decision in Batson was handed down and before its thrust was fully developed and disseminated.

Under ordinary circumstances, evidentiary findings of the trial judge in determining whether a prima facie case of discrimination was established are to be given significant deference. In People v. Evans (1988), 125 Ill. 2d 50, 530 N.E.2d 1360, our supreme court stated:

“While reviewing the relevant circumstances of this case, we must keep in mind that the initial determination of whether a prima facie case has been established is left to the judgment of the trial judge, who is in a superior position to determine whether the prosecutor’s exercise of peremptory challenges was motivated by group bias. ‘We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors.’ [Citation.] Trial judges are especially well suited to make this determination because they are familiar with local conditions and prosecutors, and can draw upon their power of observation and judicial experience as a guide in distinguishing a true case of discrimination from a false one.” (Evans, 125 Ill. 2d at 66-67, 530 N.E.2d at 1366-67.)

This logic falters, where, as here, the trial judge followed an erroneous standard, since it cannot be presumed that the court weighed or considered all or any of the other relevant circumstances once he determined that the exclusion of blacks was less than 100%. In this sense, this case is not unlike those cases decided at trial before Bat-son, under pre-Batson standards, but which became subject to Batson while pending on appeal. (See, e.g., People v. Hooper (1987), 118 Ill. 2d 244, 506 N.E.2d 1305 (Ryan, J., specially concurring).) Nevertheless, we acknowledge that the standard of review by which we are bound must apply to the correctness of the trial court’s decision and not to the correctness of its stated reasons. See Dvorson v. City of Chicago (1970), 119 Ill. App. 2d 357, 256 N.E.2d 59.

Accordingly, we conclude that the determination of the trial court that no prima facie case of discrimination was established is contrary to the manifest weight of the evidence.

Lastly, defendant contends that the trial court erred in refusing to instruct the jury on voluntary manslaughter. Defendant now maintains that there was evidence that he was acting under sudden intense passion resulting from “mutual combat.” We disagree. As noted previously, defendant for purposes of appeal has dropped the contention made at trial that the provocation consisted of adultery.

Generally, mutual combat which may constitute adequate provocation to reduce murder to voluntary manslaughter (People v. Leonard (1980), 83 Ill. 2d 411, 415 N.E.2d 358) has been defined as a “fight or struggle which both parties enter willingly or in which two persons, upon a sudden quarrel, and in hot blood, mutually fight upon equal terms and death results from the combat.” (People v. Matthews (1974), 21 Ill. App. 3d 249, 253, 314 N.E.2d 15, 18.) Although slight evidence indicating voluntary manslaughter can justify the giving of the appropriate instruction (People v. Simpson (1978), 74 Ill. 2d 497, 384 N.E.2d 373), that evidence must demonstrate more than slight provocation; the provocation must be serious enough so as to excite a reasonable person to intense passion. (People v. Toth (1982), 106 Ill. App. 3d 27, 435 N.E.2d 748.) Moreover, “where a defendant on slight provocation attacks a victim with violence that is out of proportion to the provocation, the mutual combat aspect of provocation does not apply as a matter of law.” People v. Ford (1987), 163 Ill. App. 3d 497, 503, 516 N.E.2d 766, 770.

In this case, there is no evidence to warrant or require the tender of a voluntary manslaughter instruction. The only evidence which even tests this issue is defendant’s own testimony. And, even his testimony does not sufficiently establish a provocation which would warrant or require the submission of that instruction to the jury.

By defendant’s account, the victim first grabbed defendant by the collar. Defendant responded by pushing the victim away. According to the defendant, the victim again grabbed him and began to choke him. The choking ended when defendant asked the victim to leave the apartment. No further physical contact was initiated by the victim. In fact, according to defendant’s own testimony, the victim went to the door. Once the victim was by the door, defendant pushed him twice without any evidence or testimony of a retaliatory response by the victim, other than his reluctance to leave. Thus, at this point, it was the defendant and not the victim who became the aggressor. Even where the victim starts out as the aggressor, a subsequent retreat will negate the inference that what may have started as mutual combat provoked the killing of the victim. (People v. Yates (1978), 65 Ill. App. 3d 319, 382 N.E.2d 505.) Moreover, defendant testified that he became angry, not because of any physical altercation with the victim, but because he was suspicious of something the victim had done with Jeanine. Thus, even by his own testimony, it was not the altercation or the quarrel that made him angry, but rather, his suspicion that the victim and Jeanine were “doing something.” This suspicion of adultery was never substantiated by the evidence and, as stated previously, it was dropped by the defendant on appeal as support for his contention of entitlement to a voluntary manslaughter instruction.

Therefore, the trial judge was well justified when he determined that there was insufficient evidence to warrant a voluntary manslaughter instruction.

For the reasons stated, the judgment of the circuit court is remanded with directions to hold a Batson hearing wherein the State will explain the reasons for peremptorily challenging the black prospective jurors. If the trial court determines that the State excluded any of the black prospective jurors because of race, the defendant is entitled to a new trial. Conversely, if the trial court finds that the State did not use its peremptory challenges to exclude black prospective jurors because of their race, the defendant’s conviction shall stand affirmed.

Remanded with directions.

MURRAY and LORENZ, JJ., concur.


author: JUSTICE LORENZ

text:
    GENERAL MILLS, INC., Petitioner-Appellant, v. THE ILLINOIS COMMERCE COMMISSION et al., Respondents-Appellees.
    First District (5th Division)
    No. 1-89-0491
    Opinion filed July 27, 1990.

      Eric Robertson and Edward C. Fitzhenry, both of Lueders, Robertson & Konzen, of Granite City, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Amy S. Botschner, Special Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Commerce Commission.
    Sidley & Austin, of Chicago (Sarah J. Read and Anastasia M. Polek, of counsel), for respondent Commonwealth Edison Company.
   JUSTICE LORENZ

delivered the opinion of the court:

General Mills, Inc. (General Mills), appeals from an order of the Illinois Commerce Commission (Commission) denying its complaint against Commonwealth Edison Company (Edison). We address the issue of whether the Commission properly found Edison’s rate schedule was ambiguous on its face and properly examined other documents to construe the rate schedule. For the following reasons, we affirm.

General Mills filed a complaint with the Commission on October 2, 1987, against Edison under section 9 — 252 of the Public Utilities Act (Ill. Rev. Stat. 1987, ch. lll2/s, par. 9 — 252) alleging that Edison charged General Mills an excessive and unjustly discriminatory rate for electric service from March 8, 1985, to at least December 1, 1986. General Mills alleged it was a manufacturer served under Edison’s “Rate 6L-Large General Service” (Rate 6L). On November 29, 1984, a revised version of Rate 6L became effective and provided in part:

“This rate is applicable to (1) any commercial, industrial, or governmental customer with a maximum demand of 1,000 kilowatts or more in three of the 12 months preceding the billing month, (2) successors to customers served under these charged immediately prior to the date of succession whose estimated maximum demands meet the demand requirements in clause (1) above, (3) new customers whose estimated maximum demands meet the demand requirements in clause (1) above, and (4) any customer previously billed hereunder pursuant to clauses (1) or (2), except as otherwise provided below.
If a customer at one time was served pursuant to (1) above on Large General Service — Time of Day and has a maximum demand which has not exceeded 200 kilowatts in any month of the twelve month period preceding the billing month, such customer may elect, in written application to the Company, to be served on Rate 6, General Service. Rate 6L, Large General Service — Time of Day, shall not again be applicable until such customer qualifies for such rate under clause (1) above.
The Large General Service — Time of Day charges of this rate shall not be applicable to customers or their successors with electric space heating taking service under the Heating with Light provisions of Rider 25 prior to November 23, 1977, except upon written application by the Customer to the Company. Except as stated above, the Large General Service charges shall apply to these customers.”

The rate schedule provided energy charges for two types of service: “Large General Service — Time of Day” and “Large General Service.” Under “Large General Service — Time of Day” (time-of-day charge), a customer was charged dependent on the time of day the service was provided. The charge was higher during peak periods than during off-peak periods. Under “Large General Service” (non-time-of-day charge), a customer was charged dependent on the number of kilowatt-hours supplied in a month. The charge decreased when the number of kilowatt-hours supplied increased during the month. The rate schedule also provided that it was issued pursuant to the Commission’s order entered on July 12, 1984, in case No. 83 — 0537, and its special permission order No. R — 18552, entered on November 14, 1984.

General Mills alleged that under the rate schedule neither the time-of-day charge nor the non-time-of-day charge was restricted to a certain type of customer. In a letter to Edison dated March 8, 1985, General Mills requested a transfer from the time-of-day charge to the non-time-of-day charge for its West Chicago plant. In a similar letter dated March 26, 1985, General Mills made the same request for its South Chicago plant. Edison rejected the requests and, as a result, General Mills filed a complaint seeking reparation in the amount of $700,000 plus interest.

Edison answered the complaint denying the material allegations and raised three affirmative defenses, only one of which is relevant here. Edison asserted that the version of Rate 6L at issue was filed in response to the Commission’s previous order to include a non-time-of-day charge for “Heating with Light” customers. Because General Mills was not a “Heating with Light” customer, it was not entitled to the non-time-of-day charge.

For a hearing before the Commission on the complaint, General Mills and Edison stipulated to the following facts. At all relevant times, General Mills was charged for electric service under the time-of-day energy charge of Rate 6L. Beginning November 29, 1984, Rate 6L provided for both time-of-day and non-time-of-day energy charges. On March 8, 1985, and March 26, 1985, General Mills requested a transfer from the time-of-day charge to the non-time-of-day charge under Rate 6L. Edison rejected those requests.

After a hearing, the Commission entered an order denying General Mills’ complaint. The Commission found Rate 6L was ambiguous on its face regarding the applicability of the two sets of energy charges. Although the rate schedule clearly stated that the time-of-day charge was not applicable to certain “Heating with Light” customers, it did not clearly state which charge applied to other Rate 6L customers. Further, Rate 6L did not state that those other customers had an option to choose between time-of-day and non-time-of-day charges. On the day the rate schedule went into effect, General Mills and other similarly situated customers were charged under the existing time-of-day charge. The Commission reasoned that if customers, other than certain “Heating with Light” customers, had an option between time-of-day and non-time-of-day charges under the rate schedule, a mechanism would have had to be in place for customers to make that selection at the time Rate 6L became effective. Because Rate 6L did not contain such a mechanism, the Commission found that it was ambiguous.

In its order the Commission stated, “[wjhen a question of tariff interpretation arises other documents bearing on the meaning of the tariff can be examined.” Therefore, to resolve the ambiguity the Commission examined the previous version of Rate 6L and its previous orders requiring Edison to file the rate schedule in question. Prior to November 29, 1984, Rate 6L only provided a time-of-day charge. The rate schedule in question was the result of orders dated July 12, 1984, and July 17, 1984, where the Commission directed Edison to revise Rate 6L to include a non-time-of-day charge for certain “Heating with Light” customers. In its order in the present case, the Commission found that under its previous orders it did not intend to extend the non-time-of-day charge to customers other than qualified “Heating with Light” customers. Because General Mills was not a “Heating with Light” customer, it was not entitled to the non-time-of-day charge. Accordingly, the Commission denied General Mills’ complaint and it now appeals.

Opinion

Under the Public Utilities Act, all rates for public utilities must be just and reasonable and every public utility must file schedules of rates with the Commission. (Ill. Rev. Stat. 1987, ch. lll2/3, pars. 9 — 101, 9 — 102.) A rate is defined, in part, as any schedule or tariff of a public utility. (Ill. Rev. Stat. 1987, ch. lll2/s, par. 3 — 116.) If a complaint is made under section 9 — 252 and the Commission finds a public utility has charged an “excessive or unjustly discriminatory amount for its product, commodity or service,” the Commission may order the utility to make due reparation to the complainant. Ill. Rev. Stat. 1987, ch. lll2/s, par. 9 — 252.

On review, the Commission’s findings on questions of fact are prima facie true, the Commission’s orders are prima facie reasonable, and the party appealing from an order has the burden of proof on all issues raised. (Ill. Rev. Stat. 1987, ch. 11 lzk, par. 10— 201(d).) However, the Commission’s determination of a question of law is not binding on review. (Business & Professional People for the Public Interest v. Illinois Commerce Comm’n (1989), 136 Ill. 2d 192.) An appellate court can reverse the Commission’s order if it finds that the Commission’s findings were not supported by substantial evidence, the Commission did not have jurisdiction to enter the order, or the Commission violated the Federal or State constitution or laws. Ill. Rev. Stat. 1987, ch. lll2/s, par. 10 — 201(e)(iv).

Initially, General Mills contends that the Commission’s order should be reversed because Rate 6L was not ambiguous and must be enforced according to its terms, citing Western Transportation Co. v. Wilson & Co. (7th Cir. 1982), 682 F.2d 1227 (common carrier and shipper are bound to the terms of an unambiguous tariff).

Although we have not found an Illinois case that has reviewed an order of the Commission finding that a utility rate schedule was ambiguous, we agree with General Mills that whether the rate schedule was ambiguous was a question of law and, therefore, this court is not bound to the Commission’s finding. Cf. Penn Central Co. v. General Mills, Inc. (8th Cir. 1971), 439 F.2d 1338 (interpretation of common carrier’s tariff is ordinarily a question of law); Coca-Cola Co. v. Atchinson, Topeka & Santa Fe Ry. Co. (5th Cir. 1979), 608 F.2d 213 (tariff has the force of law and it is interpreted as a question of law similarly to a statute).

Rate 6L provided both time-of-day and non-time-of-day charges. However, Rate 6L did not clearly state which charge applied to which types of customers. The only express statement was contained in the third paragraph of the applicability section:

“The [time-of-day] charges of this rate shall not be applicable to customers or their successors with electric space heating taking service under the Heating with Light provisions of Rider 25 prior to November 23, 1977, except upon written application by the Customer to the Company. Except as stated above, the [non-time-of-day] charges shall apply to these customers.”

From this paragraph, it is clear that “Heating with Light” customers could not be served under the time-of-day charge unless they applied for such service with Edison. Without such an application, “Heating with Light” customers were served under the non-time-of-day charge. Only “Heating with Light” customers were given an option between the two types of charges. Rate 6L did not further provide whether time-of-day or non-time-of-day charges applied to “non-Heating with Light” customers. Because it was unclear under which service “non-Heating with Light” customers would be charged, Rate 6L was ambiguous.

General Mills argues that the Commission created an ambiguity in Rate 6L by first reviewing its previous orders which directed Edison to file the version of Rate 6L involved in this appeal and then determining that Rate 6L was ambiguous. We disagree with General Mills’ interpretation. In its order, the Commission stated it found Rate 6L was ambiguous on its face and explained the specific provisions in Rate 6L that it found were ambiguous. Further, the Commission stated that its previous orders were reviewed to resolve the ambiguity rather than to determine whether an ambiguity existed.

General Mills argues that if Rate 6L was ambiguous, it should have been resolved against Edison, which drafted the rate schedule, citing Bolin Drive-A-Way Co. v. United States (Ct. Cl. 1960), 283 F.2d 697 (ambiguity in tariff should be resolved against common carrier). However, as both Edison and the Commission contend, such a construction is not required where the rate schedule can be construed consistently with its intent. Cf. Penn Central, 439 F.2d at 1341 (tariff should not be strictly construed against common carrier when there is “a permissible and reasonable construction which conforms to the intentions of the framers of the tariff”).

If the Commission’s interpretation of an electric rate is not unreasonable, it will not be overturned on appeal. (Chicago Housing Authority v. Illinois Commerce Comm’n (1960), 20 Ill. 2d 37, 169 N.E.2d 268.) In Chicago Housing Authority, the Commission approved Edison’s proposed rate change and rejected the Chicago Housing Authority’s contention that it should be charged under a governmental rate rather than a residential rate for the electric service it provided to its tenants. The supreme court affirmed the Commission’s ruling because “the Commission did not act arbitrarily or unreasonably.” Chicago Housing Authority, 20 Ill. 2d at 42, 169 N.E.2d at 271.

In construing the rate schedule in the present case, the Commission properly reviewed the previous version of Rate 6L and its previous orders directing Edison to file the version of Rate 6L which is at issue in this case. (See City of Hurst v. Illinois Commerce Comm’n (1983), 120 Ill. App. 3d 354, 458 N.E.2d 568 (the Commission can properly take administrative notice of its own findings and orders).) The Commission found that it only intended for Edison to provide the non-time-of-day charge to certain “Heating with Light” customers. The Commission concluded that the non-time-of-day charge did not apply to General Mills because it was not a “Heating with Light” customer. This construction was reasonable because it was consistent with the Commission’s intent to provide the non-time-of-day charge to “Heating with Light” customers.

For the foregoing reasons, the Commission’s order denying General Mills’ complaint for reparation is affirmed.

Affirmed.

COCCIA, P.J., and MURRAY, J., concur.


text:
    EDWIN ROBINSON, Petitioner-Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Respondents-Appellees.
    First District (5th Division)
    No. 1-88-2479
    Opinion filed July 27, 1990.

      Elizabeth Dale and Kenneth N. Flaxman, both of Chicago, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Jennifer A. Keller, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Human Rights Commission.
    Robert J. Mignin and Joan E. Gale, both of Seyfarth, Shaw, Fair-weather & Geraldson, of Chicago, for respondent Evanston Hospital Corporation.
   JUSTICE GORDON

delivered the opinion of the court:

. This matter comes to us pursuant to Supreme Court Rule 335 (107 Ill. 2d R. 335) for direct review of an order of the respondent Illinois Human Rights Commission (hereinafter Human Rights Commission or Commission), dismissing the charge of petitioner, Edwin Robinson, that respondent Evanston Hospital Corporation (hereinafter Evanston Hospital or Hospital) terminated his employment in retaliation for his opposition to the Hospital’s alleged discriminatory practices. Petitioner contends that the Commission improperly dismissed the charge based on its finding that it had no jurisdiction to consider the charge because it was not filed within 180 days of the date of his termination. We affirm.

On March 14, 1983, Evanston Hospital fired petitioner, an African-American, from his position as associate director of housekeeping for the stated reason that he had falsified his employment application by not informing the Hospital that he had been previously convicted of a crime. Petitioner testified that on July 6, he told an intake person at the Illinois Department of Human Rights (hereinafter Human Rights Department or Department) that he believed that he had been terminated on the basis of his race and his help for other minorities at the Hospital. Thereafter, the intake person prepared a charge of discrimination form which stated in two separate places that petitioner believed he was fired solely because of his race. The form stated as particulars:

“A. The charge (conviction) which the hospital refers to is 76 MCI 140443, was disposed of by Judge John Reynolds, pursuant to a one year conditional discharge and both the court and my attorney advised me that the disposition was not considered a conviction.
B. I believe Respondent’s reason for my termination were [sic] pretextual because Respondent stated the Department of Immigration investigation provided this information on me and no other non-black were [sic] investigated by Respondent.”

Petitioner signed this form.

On March 9, 1984, 360 days after the filing of petitioner’s initial charge, the Department prepared an “amendment” to that charge, adding retaliation for opposing Evanston Hospital’s alleged discriminatory policies as a cause for petitioner’s termination. The amendment added as particulars:

“C. During my employment at Respondent I assisted Roosevelt Floyd, Troy Hodges, Eddie Drummond, Andrea Daye, Kevin House, and other minority employees in fighting Respondent’s discriminatory actions by meeting with Respondent’s managers to discuss these cases and urging retraction of discriminatory actions.
D. I believe Respondent’s decision to terminate me was in retaliation for my active role in opposing discriminatory practices at Respondent and that Respondent’s reasons for my termination were pretextual.”

Petitioner also signed this form.

On November 14, 1985, the Human Rights Department issued a two-count complaint against Evanston Hospital, alleging that petitioner’s termination was based on race discrimination and retaliation. About a year later, a hearing was conducted on both charges by an administrative law judge who, at the close of petitioner’s case, granted Evanston Hospital’s motion to dismiss the race charge on grounds that petitioner had failed to present a prima facie case. The administrative judge, however, denied defendant’s motion to dismiss the retaliation charge. The Human Rights Commission subsequently reversed that ruling on the basis of the second district’s decision in Pickering v. Human Rights Comm’n (1986), 146 Ill. App. 3d 340, 496 N.E.2d 746, finding that it had no jurisdiction to consider the retaliation charge because it was not filed within 180 days of petitioner’s termination, as required by section 7 — 102(A)(1) of the Illinois Human Rights Act (hereinafter Human Rights Act or Act) (Ill. Rev. Stat. 1987, ch. 68, par. 7-102(A)(l)).

Petitioner contends that the Human Rights Commission improperly decided that section 7 — 102(A)(1) was a jurisdictional time limit. He argues that section 7 — 102(A)(1) is merely a statute of limitations and, as such, is subject to the defenses of waiver, estoppel, and equitable tolling. He further argues that had the Commission properly treated section 7 — 102(A)(1) as a statute of limitations, it would have found that the 180-day filing period would have been tolled because the late filing was solely due to the intake officer’s failure to include the retaliation charge as part of the initial charge of discrimination. We disagree with petitioner’s contention that section 7 — 102(A)(1) is not jurisdictional.

The concept of jurisdiction generally deals with the power of a court to hear and determine a class of cases and the power to grant the requested relief. (People ex rel. Illinois Department of Human Rights v. Arlington Park Race Track Corp. (1984), 122 Ill. App. 3d 517, 521, 461 N.E.2d 505, 508.) Jurisdiction is conferred on courts by either the Constitution or legislation. (Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 210, 486 N.E.2d 893, 895.) A lack of jurisdiction may be raised at any time, either directly or collaterally. (Fredman, 109 Ill. 2d at 215, 486 N.E.2d at 898.) When jurisdiction is found lacking in a case, parties may not waive jurisdiction nor by their conduct be estopped from objecting to jurisdiction (Caldwell v. Nolan (1988), 167 Ill. App. 3d 1057, 1066, 522 N.E.2d 175, 182), and the case is properly dismissed for want of jurisdiction. See Fredman, 109 Ill. 2d at 215, 486 N.E.2d at 898.

Although the concept of jurisdiction may not be strictly applicable to an administrative agency, it is appropriately used to designate the agency’s authority to act. (Spray v. Illinois Civil Service Comm’n (1983), 114 Ill. App. 3d 569, 573, 449 N.E.2d 176, 180.) An administrative agency obtains its power to act from the legislation creating it and has no power to act beyond that granted by the legislation. (See Pickering v. Human Rights Comm’n (1986), 146 Ill. App. 3d 340, 352, 496 N.E.2d 746, 754.) Section 7-102(A)(l) of the Illinois Human Rights Act, the source of the Human Rights Commission’s power, states the following regarding a charge of a civil rights violation:

“Within 180 days after the date that a civil rights violation allegedly has been committed, a charge in writing under oath or affirmation may be filed with the Department by an aggrieved party or issued by the Department itself under the signature of the Director.” (Ill. Rev. Stat. 1987, ch. 68, par. 7 — 102(A)(1).)

Several districts of the appellate court have found this provision to be a jurisdictional time limit. (Pickering v. Human Rights Comm’n (1986), 146 Ill. App. 3d 340, 496 N.E.2d 746 (second district); Larrance v. Human Rights Comm’n (1988), 166 Ill. App. 3d 224, 519 N.E.2d 1203 (fourth district); Lee v. Human Rights Comm’n (1984), 126 Ill. App. 3d 666, 467 N.E.2d 943 (first district). But cf. Gonzalez v. Human Rights Comm’n (1989), 179 Ill. App. 3d 362, 369-70, 534 N.E.2d 544, 547-48 (first district) (declining to decide whether this provision is jurisdictional but suggesting that it was like a statute of limitations).) Though there is some language in case law to the contrary, equitable concepts of waiver, estoppel, and tolling generally will not be available to extend this jurisdictional time limit. (See Pickering, 146 Ill. App. 3d at 347-48, 496 N.E.2d at 751-52; Larrance, 166 Ill. App. 3d at 231-32, 519 N.E.2d at 1208-09.) Consequently, where charges have not been filed within the 180-day period, they have been dismissed by the Commission. Pickering, 146 Ill. App. 3d 340, 496 N.E.2d 746; Larrance, 166 Ill. App. 3d 224, 519 N.E.2d 1203.

The Human Rights Commission’s dismissal of petitioner’s retaliation charge was based on the decision of the second district court in Pickering v. Human Rights Comm’n (1986), 146 Ill. App. 3d 340, 496 N.E.2d 746. The Pickering court specifically found that section 7— 102(A)(1) of the Human Rights Act was jurisdictional. (Pickering, 146 Ill. App. 3d at 347, 496 N.E.2d at 751.) Relying upon Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 486 N.E.2d 893, where our supreme court found the Administrative Review Law’s 35-day filing period (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 103) to be jurisdictional because it was an inherent element of a statutorily created right unknown to common law, the Pickering court found section 7 — 102(A)(1) to be jurisdictional because it was an inherent element of the right to be protected from terminations based on age or handicap, which was a right specifically created by the Human Rights Act. (Pickering, 146 Ill. App. 3d at 346, 496 N.E.2d at 750-51.) The Pickering court further found that since the Human Rights Commission could only act pursuant to the authority granted to it by the Human Rights Act, it had no authority to even consider charges filed outside the 180-day time period specified by section 7— 102(A)(1). Pickering, 146 Ill. App. 3d at 352, 496 N.E.2d at 754.

Though Pickering dealt with violations of the Human Rights Act involving age and handicap, its rationale and conclusion that section 7 — 102(A)(1) is jurisdictional clearly pertain to all rights protected under the Human Rights Act. Even if, arguably, the right to be protected from termination for encouraging opposition to discriminatory practices were a right recognized under the common law (cf. Kelsey v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353 (holding that discharge in retaliation for filing workmen’s compensation claim contrary to public policy)), we would still conclude that section 7— 102(A)(1) is a jurisdictional time limit. That conclusion would be mandated since the Human Rights Act makes it a right which cannot be enforced other than before the agencies it creates. (See Mein v. Masonite Corp. (1985), 109 Ill. 2d 1, 485 N.E.2d 312.) Section 8— 111(C) of the Act further states that “no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in this Act.” (111. Rev. Stat. 1987, ch. 68, par. 8— 111(C).) Thus, by making this right one which can only be enforced by these agencies and by conferring authority upon these agencies to enforce this right, the Human Rights Act would in effect have turned it into a distinct right for which a timely filing of a charge is a precondition of enforcement.

As previously indicated, an administrative agency has no inherent or common law power and may only act in accordance with the power conferred upon it by the legislature. (Rossler v. Morton Grove Police Pension Board (1989), 178 Ill. App. 3d 769, 773, 533 N.E.2d 927, 930.) The Human Rights Act, which is the source of the Human Rights Commission’s power, does not provide authority to consider complaints based on any untimely filed charges. Section 7 — 101 of the Act (Ill. Rev. Stat. 1987, ch. 68, par. 7 — 101) limits the powers of the Human Rights Department to only issue charges filed in conformity with the Act. (Ill. Rev. Stat. 1987, ch. 68, par. 7 — 101(B).) Like a court of limited jurisdiction, an administrative agency can only act in conformity with the procedure set forth in the statute which empowers it. (Pickering, 146 Ill. App. 3d at 352, 496 N.E.2d at 754.) As noted analogously in Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 486 N.E.2d 893:

“[W]hen a court is in the exercise of special statutory jurisdiction, that jurisdiction is limited to the language of the act conferring it and the court has no powers from any other source. [Citation.] In the exercise of special statutory jurisdiction, if the mode of procedure prescribed by statute is not strictly pursued, no jurisdiction is conferred on the circuit court.” (Fredman, 109 Ill. 2d at 210, 486 N.E.2d at 895-96.)

Because the retaliation charge was not filed within the time limit set forth in section 7 — 102(A)(1), the Commission had no power, and thus no jurisdiction, to consider it. See Jones v. Department of Human Rights (1987), 162 Ill. App. 3d 702, 706, 515 N.E.2d 1255,1257.

Moreover, if we were to conclude that section 7 — 102(A)(1) were not a jurisdictional precondition for enforcing that right, we would be creating an anomaly where that section would be jurisdictional for some rights found in the Act, such as the rights involved in Pickering, but would not be jurisdictional for other rights found in the same Act, such as the one involved in this appeal. That would be an unnatural bifurcation of the intention of the legislature.

Our conclusion that section 7 — 102(A)(1) is a jurisdictional time limit would normally make it unnecessary to address petitioner’s argument that section 7 — 102(A)(1) is a statute of limitations and should be equitably tolled under the circumstances of this case. However, we shall respond to it in light of a statement in Larrance v. Human Rights Comm’n (1988), 166 Ill. App. 3d 224, 519 N.E.2d 1203, that, even with regards to a jurisdictional time limit like section 7— 102(A)(1), “[e]quitable tolling *** should be applied to prevent injustice when the agency has knowingly misled a complainant or *** acted unfairly.” Larrance, 166 Ill. App. 3d at 232, 519 N.E.2d at 1209.

We strongly question the applicability of the equitable principle of tolling to any jurisdictional time limitation even under circumstances where an agency has arguably contributed to a late filing. An agency’s authority to act is strictly limited to the statute creating it, and we find no provision in the Human Rights Act authorizing a tolling of the 180-day filing period. However, even if it were possible to apply it to such time limits, it should not apply under the circumstances of the present case. Though petitioner testified that he informed the Department’s intake person that he believed that one of the reasons he was fired was because of his help for other minorities, there is no indication that the Department either did anything to intentionally mislead him or in any way acted unfairly. The Department apparently did prepare the charge form for petitioner, but there is no indication that the Department misinformed him of its contents. In fact, petitioner did sign the form, which clearly states in two separate places that he was claiming race discrimination, and, absent any evidence to the contrary, it must be presumed that he understood and agreed that the contents of the charge represented a fair statement of his claim when he signed the form. Lastly, we note that even if the equitable principle of tolling were otherwise applicable, it could not be considered on appeal since petitioner failed to raise or argue it at the administrative level. See Frantzve v. Joseph (1986), 150 Ill. App. 3d 850, 853, 502 N.E.2d 396, 398.

Petitioner cites to the United States Supreme Court’s decision in Zipes v. Trans World Airlines, Inc. (1982), 455 U.S. 385, 71 L. Ed. 2d 234, 102 S. Ct. 1127, as support for his argument that section 7— 102(A)(1) is merely a statute of limitations. In Zipes, the Supreme Court found that the time period for filing a charge with the Equal Employment Opportunity Commission (EEOC) was not a jurisdictional prerequisite to a suit under Title VII of the Federal Civil Rights Act of 1964 (42 U.S.C. §2000e et seq. (1988)) but was more like a statute of limitations which is subject to waiver, estoppel and equitable tolling. The Court based its determination on: (1) the absence of any statutory language limiting the jurisdiction of district courts, the designated forum for actions brought under that act, to matters which were timely filed with the EEOC, (2) legislative history indicating an intent that the time limit for filing was like a statute of limitations, and (3) the reasoning of prior cases.

The present case is unlike the Zipes case in several key respects. As previously indicated, the Illinois Human Rights Act not only creates a new cause of action but, unlike Title VII, also creates the administrative forum which is to adjudicate that cause of action. Thus, the time limit involved in the Human Rights Act in contrast to that in Title VII can be viewed as both a condition precedent to petitioner’s right to recover and a specific limitation on the power of the forum created to adjudicate the claim. Moreover, the legislative history to the time for filing provision in Title VII indicates that it was intended to be a statute of limitations. There is no similar legislative history to the Human Rights Act. On the contrary, an inferential manifestation of legislative intent may be derived from section 7 — 102(B), which immediately follows section 7 — 102(A) and which deals with the time period for providing notice and response to the charge. That section specifically provides that the time period for providing notice “shall not be construed to be jurisdictional.” (111. Rev. Stat. 1987, ch. 68, par. 7 — 102(B).) The absence of a similar disclaimer of jurisdictional intent in connection with section 7 — 102(A)(1) would connote that it does indeed provide a jurisdictional limitation. Lastly, contrary to precedent pertaining to federally enacted Title VII, existing Illinois precedent pertaining to the Illinois Human Rights Act supports the conclusion that section 7 — 102(A)(1) is jurisdictional. Pickering v. Human Rights Comm’n (1986), 146 Ill. App. 3d 340, 496 N.E.2d 746; Larrance v. Human Rights Comm’n (1988), 166 Ill. App. 3d 224, 519 N.E.2d 1203; Lee v. Human Rights Comm’n (1984), 126 Ill. App. 3d 666, 467 N.E.2d 943.

Alternatively, petitioner contends that even if section 7 — 102(A)(1) is jurisdictional, his amended charge was timely filed because it related back to the date his original charge was filed, which was well within the 180-day time limit. As support, he cites to Rule 3.6 of the rules of the Department of Human Rights, which provides:

“A charge or any part thereof may be amended by the complainant to cure technical defects or omissions, or to clarify or amplify allegations made therein, or to set forth additional facts or allegations related to the subject matter of the original charge, and such amendments shall relate back to the original filing date.” (56 Ill. Adm. Code §2520.360 (1985).)

He argues that his retaliation charge relates back because it, like his race charge, arose out of his termination. He further argues that Evanston Hospital will not be prejudiced if his amended charge were to relate back to the time of his original charge because the amended charge was filed while the Human Rights Department was still conducting its investigation, which was over one year before any complaint was filed and over two years before the hearing. We find that the amended charge does not relate to the subject matter of the original charge and thus does not relate back to the original filing date.

Petitioner’s amended charge was a statement of a new charge based on a separate and distinct statement of facts. Petitioner’s original charge claimed that his termination was based on race discrimination; his amendment added a new charge .based on retaliation. Both charges are parallel to each other and do not intersect. One may be fired in retaliation for efforts to prevent discrimination regardless of one’s race, while the charge of race discrimination is wholly independent of any charge that the firing was retaliatory. The facts which supported the race charge were that the Department of Immigration had provided Evanston Hospital with information that he had falsified his employment application and that the Hospital had not similarly investigated any nonblack. The facts which supported the retaliation charge were that petitioner had aided several named minority employees of Evanston Hospital on their claims of discrimination. It is clear from a review of these facts that the facts supporting the amended charge are more than simply “additional facts or allegations related to the subject matter of the original charge.” 56 Ill. Adm. Code §2520.360 (1985).

Furthermore, the fact that both charges arose out of petitioner’s termination does not mean that they relate to the same subject matter. Rule 3.6 of the Department’s rules applies to facts which relate to the subject matter of the original charge. The subject matter of the original charge was race discrimination and not the termination itself. Though the Act’s pleading requirements are quite liberal and the Department’s rules permit amendments to relate back (see Whitaker v. Human Rights Comm’n (1989), 184 Ill. App. 3d 356, 360, 540 N.E.2d 361, 364), amendments will not relate back if they set forth different claims based on different sets of facts. 56 Ill. Adm. Code §2520.360 (1985).

The cases cited by petitioner on this point, Washington v. Kroger Co. (8th Cir. 1982), 671 F.2d 1072, and Galvan v. Bexar County (5th Cir. 1986), 785 F.2d 1298, are distinguishable. Although in each case the court considered a claim based on a right created by Federal law even though it was not timely filed, the decision to consider the claim was largely dependent upon the fact that the statutory time limit involved was procedural and not jurisdictional. Additionally, in Washington, a second charge of discrimination under Title VII based on race filed after the date for filing a charge with the EEOC was considered to be properly related to an initial timely filed charge of discrimination based on sex because both charges arguably grew out of the same set of facts. (Washington, 671 F.2d at 1076.) In Galvan, an amended complaint based on a violation of the Federal Age Discrimination in Employment Act (29 U.S.C. §621. et seq. (1988)) was considered to be related to an original complaint based on age discrimination under a separate statutory provision because both claims arose out of the same conduct, transaction or occurrence: a termination based on age considerations. (Galvan, 785 F.2d at 1305.) In the present case, petitioner’s amended charge was based on facts unrelated to the subject matter of his original charge and, thus, should not relate back to the original filing date.

Moreover, petitioner misconstrues the principle of relating back in arguing that Evanston Hospital will not be prejudiced thereby. An amended charge will relate back only if it sets forth facts related to the subject matter of the original charge regardless of its prejudicial impact. If it does not set forth related facts but instead sets forth a new charge, then that charge is independently subject to the time limit set forth in section 7 — 102(A)(1). This is particularly compelling where the time limitation is jurisdictional, as it is under the Human Rights Act, since the Human Rights Commission would be without authority to consider a charge unless it is timely filed. See Zaborski v. United States Steel Supply Division of United States Steel Corp. (1981), 2 Ill. HRC Rep. 75.

We are not unmindful of the fact that our interpretation of section 7 — 102(A)(1) is consistent with that of the Illinois Human Rights Commission, the agency charged with the implementation of the provisions of the Illinois Human Rights Act. As stated in Peoples Gas Light & Coke Co. v. Illinois Commerce Comm’n (1987), 165 Ill. App. 3d 235, 520 N.E.2d 46, decided by our division, “[a] court is not formally bound by an agency’s interpretation of the legal effect of statutory language, but it -will give the agency’s conclusion great weight in the court’s own construction of the statute.” (165 Ill. App. 3d at 247, 520 N.E.2d at 54.) For all of the aforestated reasons, we affirm the decision of the Commission, finding section 7 — 102(A)(1) to be jurisdictional.

Affirmed.

COCCIA, P.J., and MURRAY, J., concur.