author: JUSTICE JIGANTI

text:
    JOHN SEXTON CONTRACTORS COMPANY, Petitioner-Appellant, v. THE POLLUTION CONTROL BOARD et al., Respondents-Appellees.
    First District (4th Division)
    No. 1-89-1393
    Opinion filed June 29, 1990.

      Petition for review of order of Pollution Control Board.
    Mohan, Alewelt, Prillaman & Adami, of Springfield (Fred C. Prillaman and Lisa A. Manion, of counsel), for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Michelle D. Jordan, Matthew J. Dunn, Joseph J. Annunzio, and Arleen C. Anderson, Assistant Attorneys General, of Chicago, of counsel), for respondents.
   JUSTICE JIGANTI

delivered the opinion of the court:

The petitioner, John Sexton Contractors Company (Sexton), appeals from an order of the respondent, the Pollution Control Board (Board), which affirmed the imposition of special conditions by the Environmental Protection Agency (Agency) on Sexton’s closure/post-closure care plan for its landfill in Lansing, Illinois. This appeal is brought pursuant to section 41 of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1987, ch. III1/2, par. 1041), and Supreme Court Rule 335 (107 Ill. 2d R. 335), which provide that review of a Board decision shall be afforded directly in the appellate court. Sexton contends that the Board erred in concluding that the closure/post-closure care plan constituted a permit application to which the Agency was authorized to attach conditions. Sexton further contends that the Board’s decision to affirm the four special conditions which are contested in this appeal was against the manifest weight of the evidence. Also, Sexton maintains that two of the special conditions were premised upon draft guidelines which had not been promulgated or adopted in accordance with Board regulations.

Sexton operates a solid waste landfill on 60 acres of land near Lansing, Illinois. On June 5, 1982, the Agency issued a permit to Sexton for the development and operation of a 20-acre solid waste disposal site designed to accept commercial, industrial and residential solid wastes. On March 18, 1983, the Agency issued a supplemental permit allowing Sexton to operate the landfill on the adjacent 40 acres of land. In 1975 and 1976, Sexton was issued supplemental permits allowing for the disposal of sludge and liquid wastes containing heavy metals, polyvinyl acetate, methylene chloride, tricresyl phosphate, triethanolamine and waste-cutting oils (hereinafter referred to as special wastes). Throughout the course of this litigation, Sexton has denied that these special wastes were ever accepted into the landfill.

In 1983, the Environmental Protection Act was amended to add section 21.1, which requires all owners and operators of sanitary landfills to post a bond or other financial document with the Agency to assure that sufficient funds will be available upon closure of the landfill to properly close and monitor it for a specified length of time. (Ill. Rev. Stat. 1987, ch. lll1^, par. 1021.1.) Section 21.1 authorizes the Board to adopt regulations to promote the purposes of this section and authorizes the Agency to “approve or disapprove any performance bond or other security posted” and to “establish such procedures as it may deem necessary for the purpose of implementing and executing its responsibilities under this Section.” (Ill. Rev. Stat. 1987, ch. HV-k, pars. 1021.1(b), (e), (f).) The Agency’s disapproval of a performance bond or other security may be contested in a permit denial appeal. Ill. Rev. Stat. 1987, ch. IIIV2, par. 1021.1(e).

In 1985, the Board adopted a final order implementing the requirements of section 21.1 of the Act in a proceeding entitled In The Matter Of: Financial Assurance For Closure And Post-Closure Care of Waste Disposal Sites (Economic Impact Of Temporary Regulations And Adoption Of Final Regulations) (Board Rule 84 — 22C (November 21, 1985)), and issued regulations (35 Ill. Adm. Code §§807.501 to 807.666 (1986 Supp.)). Essentially, the regulations require a landfill operator to prepare a closure/post-closure care plan which would serve as a basis for cost estimates to implement the financial assurance requirements of section 21.1 of the Act. Section 807.501, which states the purpose, scope and applicability of the Board regulations, provides that the closure/post-closure care plans “will become permit conditions” and will “form the basis of the cost estimates and financial assurance required *** for disposal sites.” (35 Ill. Adm. Code §§807.501(b), (c) (1986 Supp.).) Section 807.502 states the closure performance standard, providing that: “an operator of a waste management site shall close the site in a manner which: (a) [minimizes the need for further maintenance; and (b) [cjontrols, minimizes or eliminates post-closure release of waste, waste constituents, leachate, contaminated rainfall, or waste decomposition products to the groundwater or surface waters or to the atmosphere to the extent necessary to prevent threats to human health or the environment.” (35 Ill. Adm. Code §807.502 (1986 Supp.).) Sections 807.503(a) and (d) state that “[a]n operator of a waste management site shall have prepared a written closure plan which shall be a condition of the site permit” and which “shall be included in the permit application.” (35 Ill. Adm. Code §§807.503(a), (d) (1986 Supp.).) Section 807.503 also provides that the closure/post-closure care plan “shall be a condition of the site permit.” (35 Ill. Adm. Code §807.503(a) (1986 Supp.).) Section 807.504 defines the submission of any modification of a closure plan as a “permit application.” 35 Ill. Adm. Code §807.504 (1986 Supp.).

In accordance with section 21.1 of the Act and the Board regulations, Sexton submitted a revised closure/post-closure (CPC) care plan to the Agency on July 13, 1988. On July 26, 1988, the Agency approved Sexton’s CPC care plan, but imposed 34 special conditions on the plan. Sexton appealed to the Board from special conditions 4, 6, 17, 19(b) and 20. Special condition 20 is not a subject of this appeal. Special condition 4 concerned gas control at the landfill following its closure. Sexton’s CPC care plan stated that gas control would be effected through a passive gas-flaring system and outlined the number, locations and types of passive gas flares that it had installed and intended to install at the site. The plan further stated that “[u]pon closure, the gas may be used for electricity generation.” The Agency’s special condition 4 stated:

“The information developed for Special Condition No. 3 shall be used to determine a closure and post-closure time frame for ‘Gas Control’ activities. This gas control facility should be considered separate from the landfill activity, and the subject of a partial closure plan. A revised closure/post-closure care plan for the landfill with a separate closure/post closure care plan for gas control shall be sent to this Agency within ninety (90) days on [sic] this permit.”

Special condition 6 involved leachate management. Leachate is the liquid which forms and collects at the base of the landfill. Sexton’s CPC care plan indicated that its passive gas control system may be utilized in the future for leachate extraction and further indicated that it would monitor the site for leachate “weeps,” “seeps” and “pop outs” through the final cover. It would also monitor the groundwater for contamination. Special condition 6 provided as follows:

“The applicant [Sexton] shall propose a leachate management program for this site that will define the amount and type of leachate generated, how the leachate elevation will be stabilized, when and how the leachate will be attenuated.”

Special condition 17 concerned a groundwater-monitoring system. At the time Sexton submitted its CPC care plan, it had in place a comprehensive groundwater-monitoring program which the Agency approved in 1984. Special condition 17 provided as follows:

“The groundwater monitoring program for this site is subject to the following modifications:
a. The existing monitor wells *** shall be sampled and tested for initial water quality parameters *** for four (4) quarters.
b. Propose a revised groundwater monitoring program, based on draft Groundwater Monitoring Network design guidelines. The proposal shall include at least one (1) deep upgradient monitor well capable of determining groundwater quality flowing onto and unaffected by the landfill, and new downgradient wells that will help assess the current contribution of the existing landfill on groundwater quality and determine if a release to groundwater is occurring. This shall be by a supplemental permit request within 60 days of the date of this permit.
c. Determine the gradients and groundwater flow directions through the potential leachate migration pathways and identify the potentially impacted water resources (i.e. surface water groundwater aquifers). This can be done by determining the piezometric and hydraulic characteristics of the potential leachate migration pathways.”

Special condition 19(b) established the criteria to be used in determining whether the groundwater near the landfill is being impacted by.the facility. Sexton’s CPC care plan proposed that groundwater quality would be measured against groundwater parameters reported from previous quarterly reports. Where “distinctive differences” occur, a report would be prepared and further analytical evaluations undertaken to establish the nature of the data variability. Special condition 19(b) stated:

“If any parameter exceeds, over twice the background quality, groundwater contamination shall be suspected and within 30 days of the report due date for the quarter another sample shall be obtained from the suspect well and analyzed for all background parameters.”

A Board hearing was held on November 3, 1988, at which Sexton presented three witnesses: James D. Schoenhard, the Agency permit reviewer who imposed the special conditions; Richard W. Eldredge, the engineer who prepared Sexton’s CPC care plan; and Joseph R. Benedict, Jr., Sexton’s director of regulatory affairs. The Agency presented no witnesses.

James D. Schoenhard testified that he reviewed Sexton’s CPC care plan and inserted the special conditions. He stated that he inserted special condition 4, which required a separate CPC care plan for a “gas control facility,” because Sexton mentioned that at some time in the future landfill gas may be used for electricity generation. This indicated to him that both the volume and pressure of the landfill gas must have been significant. Schoenhard testified that Sexton’s plan failed to indicate how long the landfill would continue to generate gas, or explain how and when any of the existing or proposed gas vents would be closed. According to Schoenhard, it was possible for Sexton to calculate the approximate time that gas would be generated in enough volume to cause a problem to human health and the environment. If Sexton were to close its gas control system at a time when gas was still being generated in the landfill, the gas could build up enough pressure to blow a hole in the containment.

Schoenhard testified that special condition 6, requiring Sexton to propose a new leachate management program, was necessary “[o]nly to the extent that we [the Agency] have reason to believe that there are many gallons of liquid in the landfill that were placed in the landfill by permit.” Schoenhard stated that Sexton’s proposal to use the passive gas-flaring system to extract leachate was not necessarily denied, but that the Agency needed more information regarding the amount and type of leachate generated at the landfill. He further testified that special condition 17, which required Sexton to propose a new groundwater-monitoring system, was based at least in part on the Agency’s belief that Sexton accepted the special wastes for which it had received permits. According to Schoenhard, certain of the special wastes had the ability to permeate the clay liner of the landfill and contaminate the groundwater. At one point in the hearing, the following exchange occurred:

“Q. [Counsel for the Agency]: Mr. Schoenhard, does your concern with the [groundwater] adjacent to or beneath the Sexton Lansing site have anything to do with the liquids that may have gone into the landfill?
A. [Schoenhard]: Oh, sure. It has been determined by a lot of experimentation that these particular hydrocarbon materials that have lower dielectric constant in water will cause a collapse of clay and permit laminar flow which effectively allows liquid to go through clay a hundred to a thousand times faster than the water would.
* * *
Q. So what you have before you [was] information that indicated Sexton did have permission to take those materials [the special wastes] to the landfill?
A. Yes.
Q. And that’s what the condition was based on, that being both the leachate management control condition and condition 17, being the groundwater monitoring condition?
A. Yes.”

Schoenhard testified that special condition 17(a), which required additional background groundwater-quality testing, was made necessary by fluctuations in the ongoing quarterly results as well as by the fact that the special wastes were in the landfill. He also stated that the Board had enacted new rules and regulations since the Agency had approved Sexton’s comprehensive groundwater-monitoring program in 1984, but did not specify any of the new rules or regulations. Schoenhard acknowledged that the groundwater-monitoring network design guidelines referred to in special condition 17 were in draft form and had not been adopted by the Board.

With respect to special condition 19(b), the “over twice the background” standard which would trigger the need for further sampling, Schoenhard stated that there was no Board rule or regulation for determining when contamination at a nonhazardous waste site poses a threat to human health or the environment. Rather, the Agency permit reviewer makes this determination on a case-by-case basis. Schoenhard explained that where the number one represents the background quality, any number higher than one could conceivably relate to contamination. He chose the number two, representing twice the background quality, as the triggering mechanism because it was the next whole number. In Schoenhard’s opinion, Sexton’s triggering mechanism, i.e., “distinctive differences” between the groundwater parameters of samples taken and those reported from previous quarterly reports, was undefined and subjective.

Richard Eldredge testified that he prepared Sexton’s CPC care plan. In his opinion, the gas control system proposed by Sexton was adequate to protect the health, safety and welfare of the area, rendering special condition 4 unnecessary. He stated that the gas flares at the site were 10 to 15 feet deep, which is the typical depth for relieving gas at landfills. Eldredge further testified that Sexton’s proposal to use the gas control system to extract leachate is effective and common in the industry, rendering special condition 6 unnecessary. He disagreed with Schoenhard’s opinion that certain wastes could attack the clay liner under the conditions which existed at Sexton’s landfill.

Eldredge opined that special condition 17 was also unnecessary. He stated that the present list of parameters for which Sexton tests was adequate and that there was no reason to believe that there were chemicals or constituents in the landfill which would not be detected by the presently permitted monitoring system. From his review of groundwater-monitoring results from the two deep downgradient wells, he concluded that the site has had no impact on the groundwater. There was therefore no need to install an upgradient deep well, although Sexton may wish to do so if the downgradient deep wells ever showed signs of contamination. Furthermore, Eldredge stated that Sexton has already provided the Agency with information regarding gradients and groundwater flow directions.

In Eldredge’s opinion, there are no potential leachate migration pathways at the site because it was established in a clay environ and those areas where such pathways may have existed had been intercepted by a recompacted liner.

Joseph R. Benedict, Jr., Sexton’s director of regulatory affairs, testified that he had reviewed the permits allowing Sexton to receive the special wastes and that, with the exception of a single load of sludge, none of the special wastes was ever received by the landfill. Benedict stated that his conclusion that the special wastes were not taken into the landfill was based on his review of “every record, permit file, billing record, site logs — a site log is simply a site diary, cash receipts, notice of cash receipts, bills, and correspondence between members of the corporation of that time period and the people in question.”

Benedict testified that in order to comply with special condition 4, assuming the Agency would find Sexton’s passive gas collection and flaring system to be inadequate, it would cost Sexton $500,000 to construct a positive extraction system. The annual maintenance costs for the system would be $66,000. With respect to special condition 6, it would cost Sexton $800,000 to retrofit a leachate collection system to the landfill and an additional $200,000 per year for maintenance and removal. Benedict stated that Sexton did not conduct any studies to determine whether there was a leachate problem at the site, but believed it was unnecessary because Sexton did not receive any of the special wastes which formed the basis of the Agency’s imposition of special condition 6. Benedict testified that it would cost Sexton approximately $1 million to comply with the groundwater-monitoring requirements of special condition 17. He stated that such costs were unnecessary and also unfair because the landfill is nearly closed and there would be no way to finance the requirements imposed by the special conditions.

The Board affirmed the Agency’s imposition of the special conditions, and Sexton has appealed. The pertinent findings of the Board will be related in our discussion of the issues raised by Sexton.

Sexton first contends that the Board erred in construing Sexton’s CPC care plan as a permit application to which the Agency could attach conditions. Sexton argues that treatment of the plan as a permit application has the effect of allowing the Agency to reopen the substantive terms of the permit and update those terms to meet the Agency’s own more stringent closure/post-closure care requirements. By judging the plan according to draft guidelines, Sexton argues, the Agency is able to devise an “end-run” around the Board’s regulations and force landfill operators to redesign their landfills according to the Agency’s latest concept of technical propriety. According to Sexton, section 21.1 of the Act makes no reference to any such permit modification system and specifically limits the Agency’s options to approval or disapproval of the proposed financial assurances.

As stated earlier, section 21.1 of the Act requires owners and operators of landfills such as Sexton to post a bond or other financial document with the Agency to assure that sufficient funds will be available to properly close the landfill and monitor it after closure. (Ill. Rev. Stat. 1987, ch. IIIV2, par. 1021.1.) Section 21.1 specifically authorizes the Board to adopt regulations to implement these financial requirements. (111. Rev. Stat. 1987, ch. lll1^, par. 1021.1.) Pursuant to this authorization, the Board adopted regulations requiring landfills to prepare a closure/post-closure care plan which would serve as a basis for cost estimates which would be used to implement the financial requirements of the Act. (35 Ill. Adm. Code §§807.501 to 807.666 (1986 Supp.).) The regulations state that the CPC care plan will become a condition of the site permit (35 Ill. Adm. Code §807.503(a) (1986 Supp.)) and require that the closure plan be included in the permit application (35 Ill. Adm. Code §807.503(d) (1986 Supp.)). Any submitted modification of the plan is deemed a permit application. 35 Ill. Adm. Code §807.504 (1986 Supp.).

In its opinion affirming the Agency’s imposition of the special conditions, the Board interpreted these regulations as stating clearly that “the initial submission of a closure plan, or the submission of amendments to that plan, constitute a permit application.” The Board determined that pursuant to the regulations, the Agency had the authority to impose conditions upon the permit application to ensure compliance with the Act.

It is well established that the interpretation given by an administrative agency to its own rules and regulations is entitled to respectful consideration and will not be overruled unless plainly erroneous. (Heifner v. Board of Education of Morris Community High School District No. 101 (1975), 32 Ill. App. 3d 83, 87, 335 N.E.2d 600.) In interpreting the meaning of Agency regulations, the courts apply the same rules of construction that are used in construing statutes. (Heifner, 32 Ill. App. 3d 83, 335 N.E.2d 600.) Therefore, in determining the intent of the drafters in adopting a regulation, a court may consider the language used, the reason and necessity for the regulation, the evil sought to be remedied and the purpose to be achieved. Stewart v. Industrial Comm’n (1987), 115 Ill. 2d 337, 341, 504 N.E.2d 84.

Here, regulations were enacted to implement the Act’s requirement that landfill owners and operators provide financial assurance that sufficient funds will be available to properly close and monitor the landfill. A closure/post-closure care plan is necessary to provide information from which the amount of financial assurance required can be calculated. In determining the sufficiency of the plan for this purpose, the Agency must assess whether the proposed CPC care plan will minimize the need for further maintenance and will minimize or eliminate release of wastes from the landfill to the extent necessary to prevent threats to human health or the environment. (35 Ill. Adm. Code §807.502 (1986 Supp.).) The Board has determined that where a proposed CPC care plan fails to meet these goals, the Agency may either refuse to approve the plan by denying it as a permit application or it may impose conditions upon the plan as long as the conditions relate only to closure and post-closure care. Under Sexton’s interpretation of the Act and Board regulations, the Agency would be limited to either approving or disapproving the proposed CPC care plan. As noted by the Board, an outright denial of the request for approval would require a new plan covering all aspects of closure/post-closure care and would place the facility in immediate violation of section 21.1 of the Act.. We are not persuaded that the Board’s interpretation of the request for closure/post-closure care plan approval as a permit application to which conditions may be attached is plainly erroneous.

Sexton next contends that the Board’s decision affirming special conditions 4, 6, 17 and 19(b) was against the manifest weight of the evidence.

We will first address special conditions 6 and 17. Sexton maintains that it made out a prima facie case that its proposed CPC care plan was adequate with respect to leachate management and groundwater monitoring and that special conditions 6 and 17 were unnecessary. Sexton argues that the Agency, which did not present any evidence at the hearing, failed to rebut the prima facie case and that the Board’s affirmance of the conditions was accordingly erroneous.

To prevail before the Board, Sexton had the burden of establishing that its proposed CPC care plan would not result in any future violations of the Act or the regulations and that the conditions imposed by the Agency were therefore unnecessary to accomplish the purposes of the Act. (Ill. Rev. Stat. 1987, ch. IIIV2, par. 1039(a); Browning-Ferris Industries of Illinois, Inc. v. Pollution Control Board (1989), 179 Ill. App. 3d 598, 600, 534 N.E.2d 616.) Once Sexton had established a prima facie case that the conditions were unnecessary, it became incumbent upon the Agency to refute the prima facie case. (Marathon Petroleum Co. v. Illinois Environmental Protection Agency (1989), PCB 88 — 179; see also Browning-Ferris, 179 Ill. App. 3d 598, 534 N.E.2d 616.) The ultimate burden of proof that the conditions were unnecessary, however, rested upon Sexton. Browning-Ferris, 179 Ill. App. 3d 598, 534 N.E.2d 616.

Upon review of Board decisions, this court must evaluate the evidence to determine whether the findings and conclusions of the Board were against the manifest weight of the evidence. (Environmental Protection Agency v. Pollution Control Board (1986), 115 Ill. 2d 65, 70, 503 N.E.2d 343.) A finding is against the manifest weight of the evidence if an opposite conclusion is clearly evident. Burke v. Board of Review, Department of Labor (1985), 132 Ill. App. 3d 1094, 1100, 477 N.E.2d 1351.

Essentially, Sexton argues that special conditions 6 and 17 were imposed because the Agency mistakenly believed that special wastes for which Sexton had received permits had actually been received and put into the landfill. To prove that the special wastes were not in the landfill, Sexton presented the testimony of Joseph R. Benedict, Jr., its director of regulatory affairs. Benedict testified that he had reviewed all of the documents concerning the landfill, including billing records and site logs, and stated that the special wastes were never received. The Board in its opinion found that although Sexton argued that the special wastes were not in the landfill, “Sexton presents no tangible evidence to this effect, and it does not direct the Board’s attention to any affirmative assertion before the Agency that it did not accept these permitted wastes at the site.” Neither in its opinion nor in its brief on appeal does the Board suggest what it means by “tangible” or “affirmative” evidence. Sexton presented expert testimony that its leachate management proposal and its groundwater-monitoring program were adequate to protect the environment and would not result in future violations of the Act. Sexton also presented evidence, through the testimony of a corporate officer who had examined all of Sexon’s records, that the special wastes which formed the basis of the Agency’s imposition of special conditions 6 and 17 were not in the landfill. In our view, Sexton established a prima facie case that these two special conditions were unnecessary. The Board’s finding to the contrary was against the manifest weight of the evidence.

Rather than striking special conditions 6 and 17, as Sexton requests, we elect to remand these matters to the Board for further hearings and consideration. (107 Ill. 2d R. 335(h)(2); Ill. Rev. Stat. 1987, ch. 110, par. 3 — 111.) Although it is clear from the testimony of the Agency permit reviewer, James Schoenhard, that the conditions were imposed in large part because of his belief that the special wastes were in the landfill, the record is unclear as to whether this belief was the sole basis supporting the conditions. Schoenhard did, for example, mention fluctuations in quarterly statistics that may have indicated inadequate background data. For that reason, we will remand this cause to the Board for further proceedings at which the Agency will have the opportunity to rebut Sexton’s claim that the wastes are not in the landfill or to establish an independent basis supporting the necessity of special conditions 6 and 17.

Sexton also advances an alternate basis for striking special conditions 6 and 17. Sexton maintains that these conditions were based upon standards and criteria which were never lawfully adopted by the Board, such as the draft groundwater-monitoring network design guidelines referred to in special condition 17. The Agency has conceded that it cannot impose such draft documents as rules and the Board in its opinion stated that it did not “affirm or condone the imposition of any non-statutory, non-regulatory materials as permit requirements.” The Agency maintains, however, that it was merely directing Sexton’s attention to a readily available source for guidance. We cannot conclude from the record before us that the special conditions were attached in an effort to impose the Agency’s draft guidelines as apart from other considerations. Further proceedings before the Board may serve to clarify this matter.

Sexton then argues that the Board’s decision to affirm special condition 4, which required Sexton to file a separate CPC care plan for gas control, was against the manifest weight of the evidence. Sexton interprets special condition 4 as requiring it to install a gas control system different from the one that is currently in place. We do not believe that Sexton’s interpretation is justified. Schoenhard testified that the passive gas-flaring system proposed by Sexton was not necessarily denied but that the Agency needed further information as to how long gas would be produced at the site in sufficient volume to pose an environmental threat and as to how Sexton planned to close the system. Schoenhard explained that this information was necessary because if Sexton closed the system too soon, pressure from the gas could blow a hole through the containment. We do not believe that Sexton has established that the Agency’s request for this information was unnecessary.

Sexton next contends that the Board’s decision to affirm special condition 19(b) was against the manifest weight of the evidence. Sexton asserts that the Agency’s choice of the “over twice the background” test for triggering further evaluation of apparent groundwater data variations was arbitrary. Sexton’s CPC care plan proposed further analysis where groundwater samples show “distinctive differenees” from previous test results. Schoenhard testified that the term “distinctive differences” was subjective, and the Agency contends that it would invite disagreement over its meaning. Although Sexton attached the Agency’s triggering mechanism as arbitrary, it failed to demonstrate that its own proposal would not result in any future violations of the Act. Nor has Sexton demonstrated in what manner it would be prejudiced by the Agency’s imposition of special condition 19(b). Under these circumstances, we must affirm the imposition of special condition 19(b).

Accordingly, the order of the Pollution Control Board is affirmed in part, reversed in part and remanded to the Board for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded for further proceedings.

McMORROW, P.J., and JOHNSON, J., concur.

      Special condition 3 required the operator to demonstrate how the facility would be closed in a manner which complied with the purposes of the Act.


source: Caselaw Access Project

license: Public Domain

text:
    INTERNATIONAL INSURANCE COMPANY, Plaintiff-Appellant, v. FLORISTS’ MUTUAL INSURANCE COMPANY, Defendant-Appellee.
    First District (4th Division)
    No. 1-89-2203
    Opinion filed June 29, 1990.

      Edward F. Ruberry, Jeffrey A. Goldwater, and James A. Lupo, all of Brinton, Bollinger & Ruberry, of Chicago, for appellant.
    D. William Porter, of Stevenson, Rusin & Friedman, Ltd., of Chicago, for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, International Insurance Company (International), brought an action in the circuit court of Cook County, seeking declaratory relief and damages from Florists’ Mutual Insurance Company (Florists), the defendant, for Florists’ refusal to defend a lawsuit brought against one of its insureds. Florists made a motion to dismiss International’s complaint. The circuit court denied the motion. The parties then filed cross-motions for summary judgment. The court granted Florists’ motion for summary judgment and denied International’s motion. The court allowed International to file an amended complaint. Pursuant to Florists’ motion to dismiss the amended complaint, the complaint was stricken and the cause of action dismissed with prejudice. This appeal follows.

Florists’ Transworld Delivery Association (FTD), which is not a party to this action, was sued for alleged antitrust violations in the United States District Court for the Northern District of Illinois. Upon receiving service of the Federal complaint, FTD tendered its defense of the action to its business liability insurer, Florists’ Mutual Insurance Company, the defendant in this action. Under the terms of the policy, Florists had a duty to defend FTD against claims of injury arising out of advertising activity. Florists’ Mutual refused to defend the Federal claim, and FTD provided its own defense. The district court granted summary judgment in FTD’s favor. In defending the Federal suit, FTD incurred $850,000 in legal fees. FTD assigned its rights under the Florists’ Mutual policy, insofar as they related to the antitrust lawsuit, to International Insurance Company, the plaintiff in this action.

FTD is a florist’s association engaged in the business of advertising and promoting floral services, and providing a national clearinghouse for floral delivery services. In the underlying Federal action, another floral clearinghouse service, American Floral Services, Inc. (AFS), sued FTD for alleged antitrust violations. Specifically, AFS alleged in its antitrust complaint that FTD and coconspirators had entered into contracts and engaged in a conspiracy to restrain trade in the business of providing floral directory, advertising, facilities, and clearinghouse services to subscribing florists. Among other things, AFS alleged that FTD’s Rule 18(b) requires FTD member florists, on threat of fine and loss of membership, to send and process all FTD trademark, selection guide, or other FTD publishing consumer guide floral arrangements, exclusively and only through FTD’s clearinghouse, unless the customer expressly instructs otherwise. AFS also alleged that FTD interpreted Rule 18(b) as creating the presumption that a customer who orders an FTD-advertised or trademark arrangement, or floral arrangement pictured in the FTD selection guide or other FTD consumer guide, does so on instruction that the order be sent and processed through the FTD clearinghouse only.

On appeal, International argues that based on the allegations in the underlying Federal complaint, Florists was aware of a potentially covered claim, and therefore, had a duty to defend the underlying action. (Thornton v. Paul (1978), 74 Ill. 2d 132, 384 N.E.2d 335.) The relevant provisions of the insurance policy, under which FTD was insured by Florists, read in part as follows:

“COVERAGE E-BROAD FORM COMPREHENSIVE GENERAL LIABILITY
WE agree to pay on YOUR behalf all sums which YOU shall become legally obligated to pay as damages (except PUNITIVE DAMAGES) because of BODILY INJURY, PROPERTY DAMAGE, ADVERTISING INJURY or PERSONAL INJURY caused by an OCCURRENCE covered by this policy. The OCCURRENCE must pertain to YOUR business operations and must take place during the policy period and within the POLICY TERRITORY.
* * *
WE will defend YOU in any suit seeking damages payable under the policy, even though the allegations of the suit may be groundless or false. ***
* * *
ADVERTISING INJURY
means the following: libel, slander, defamation; infringement of copyright, title or slogan; piracy, unfair competition, idea misappropriation or invasion of rights of privacy; which arise out of YOUR advertising activities.”

International’s argument is that while the Federal complaint did not allege an injury directly caused by advertising activity, the complaint did allege an injury sufficiently related to advertising to satisfy the language of the policy specifying injuries which arise out of advertising activity. International asserts that the “arising out of” language in the policy is ambiguous exclusion or limitation language, and as such must be construed strictly against the insurer. (State Farm Mutual Automobile Insurance Co. v. Schmitt (1981), 94 Ill. App. 3d 1062, 419 N.E.2d 601.) Citing to Consolidated Rail Corp. v. Liberty Mutual Insurance Co. (1981), 92 Ill. App. 3d 1066, 416 N.E.2d 758, International argues that the language “arising out of” is synonymous with “connected with” or “incidental to,” and has been construed as contemplating a mere causal connection between an injury and a defendant.

International maintains that the injury alleged in the underlying Federal complaint triggered Florists’ duty to defend because the injury, unfair competition, was causally connected to advertising activity. According to International, FTD’s Rule 18(b), around which the Federal complaint centered, was promulgated, adopted, and enforced to protect FTD’s advertising investment. International asserts that were it not for advertising, Rule 18(b) would not be necessary. International concludes that but for FTD’s advertising activity, Rule 18(b) would not have been promulgated, and the unfair competition alleged in the Federal complaint would not have occurred, thus the injury alleged was causally connected to advertising activity. International points out that to trigger the duty to defend, the insurer need only be aware that a claim “might possibly” fall within the scope of coverage. La Rotunda v. Royal Globe Insurance Co. (1980), 87 Ill. App. 3d 446, 408 N.E.2d 928.

In counterargument to International’s assertions, Florists argues that to find the insurer liable for a duty to defend in this case would be a perversion of the policy language. Florists maintains that International cannot create an ambiguity where none exists. (Baldwin v. Auto-Owners Insurance Co. (1972), 5 Ill. App. 3d 300, 282 N.E.2d 204; Thompson v. Fidelity & Casualty Co. (1958), 16 Ill. App. 2d 159, 148 N.E.2d 9, cert. denied (1958), 358 U.S. 837, 3 L. Ed. 2d 74, 79 S. Ct. 62.) Citing to La Rotunda v. Royal Globe Insurance Co. (1980), 87 Ill. App. 3d 446, 408 N.E.2d 928, Florists maintains that when an insurer agrees to provide legal services to its insured, it is agreeing to defend those legal actions which reasonably could touch upon the policy.

Florists argues that the underlying Federal complaint in this case did not allege any advertising injury. To find otherwise, Florists asserts, would be to conclude that if unfair competition in any way whatsoever, no matter how remote, involved advertising, there would be potential coverage. Florists argues that in the underlying complaint AFS did not allege that any ad, broadcast, or message to the public in any way played any part in the unfair competition claim. Florists asserts that by definition, advertising connotes marketing activity, or publication to the public. Florists points out that FTD’s Rule 18(b) was published only to member florists and was an internal rule concerning the processing of orders. For support, Florists draws our attention to Lazzara Oil Co. v. Columbia Casualty Co. (M.D. Fla. 1988), 683 F. Supp. 777, aff’d (1989), 868 F.2d 1274. In Lazzara, the district court found that allegations that an oil company compelled antitrust plaintiffs to post certain prices did not describe an advertising injury as set forth under the language of the policy. The language of the Lazzara policy defined an advertising injury as “an injury arising out of a tort committed in the course of the Plaintiff’s advertising activities, if such injury arises out of *** defamation, violation of right of privacy or unfair competition.” (683 F. Supp. at 778.) In reply to Florists’ argument, International distinguishes the policy language of the Lazzara case from the present case on the basis that in Lazzara, the policy defined an injury caused by a tort committed “in the course of” as opposed to “arising out of” plaintiff’s advertising activity.

Even accepting International’s language distinctions and its argument that an injury “arising out of” any given activity need only be causally connected to that activity, we do not believe that the allegations alleged in the underlying Federal complaint sustain a charge that the underlying action arises out of advertising activity. The allegations in the underlying complaint, which International asserts implicate an advertising injury, stem from FTD’s Rule 18(b). The plaintiff in the underlying Federal suit alleged that FTD’s Rule 18(b) requires FTD member florists, on threat of fine and loss of membership, to send and process all FTD-advertised floral arrangements exclusively through FTD’s clearinghouse. It was further alleged in the underlying complaint that FTD interpreted the rule as creating a presumption that FTD-advertised products would be processed through FTD. According to the underlying plaintiff, FTD’s policies with reference to Rule 18(b) thus resulted in unfair competition in derogation of antitrust law.

It is undisputed that FTD’s Rule 18(b) was an internal organization rule that was not reproduced or broadcast to the public. The term “advertising” has been held to refer to the widespread distribution of promotional material to the public at large. Letters sent to advertisers from a magazine publisher disparaging another publisher’s circulation guarantees are not related to advertising activities. (Playboy Enterprises, Inc. v. St. Paul Fire & Marine Insurance Co. (7th Cir. 1985), 769 F.2d 425.) Neither are 400 pamphlets circulated to a company’s distributors to aid them in educating the salespersons to solicit purchase orders for the company’s product. (Fox Chemical Co. v. Great American Insurance Co. (Minn. 1978), 264 N.W.2d 385 (cited in Playboy Enterprises, 769 F.2d 425).) Similarly, an in-house rule prescribing conditions for processing floral arrangements that have been advertised in a particular way is not related to advertising activity such that an injury attributable to the rule can be considered an advertising injury. The fact that the purpose of FTD’s Rule 18(b) was to protect its advertising investment is of no consequence when the injury is alleged to have been caused, not by the advertising, but by the rule. Even under the broad interpretation of “arising out of” that International advances, we do not believe that the allegations of the underlying complaint support a conclusion that there is a causal connection between FTD advertising activity and the injury alleged in the Federal suit.

International’s next argument is that if the allegations of the underlying Federal complaint alone did not put Florists on notice of its duty to defend, the complaint together with unpleaded facts that Florists learned of after the filing of the complaint triggered its duty to defend. (See Associated Indemnity Co. v. Insurance Co. of North America (1979), 68 Ill. App. 3d 807, 386 N.E.2d 529.) Essentially, International alleges that as the underlying case developed, Florists came into possession of documents that indicated that FTD’s Rule 18(b) was promulgated and enforced to prevent other clearinghouses from taking a “free ride” on FTD’s advertising. International contends that these true facts, although not pleaded in the underlying complaint, when viewed with the complaint, triggered Florists’ duty to defend.

We do not believe that these facts even if known to Florists, when viewed with the complaint, triggered a duty to defend. As we have stated above, the fact that FTD’s Rule 18(b) was promulgated to protect its advertising expense is not causally connected to the injury alleged in the underlying antitrust suit. We conclude that neither the allegations in the underlying Federal complaint, nor the complaint together with the allegedly true but unpleaded facts outside the complaint, triggered a duty to defend in this case. For these reasons, the decision of the trial court is affirmed.

Affirmed.

McMORROW, P.J., and LINN, J., concur.


author: JUSTICE FREEMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL WILLIAMS, Defendant-Appellant.
    First District (3rd Division)
    No. 1-88-1371
    Opinion filed July 5, 1990.

      Michael J. Pelletier and Gordon H. Berry, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE FREEMAN

delivered the opinion of the court:

Following a bench trial, defendant Michael Williams was convicted of burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 1(a)), and was sentenced as a Class X offender to a prison term of 12 years (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3(c)(8)). On appeal, he contends that he was wrongfully sentenced as a Class X offender because there was no evidence of the dates of his prior offenses. He contends further that double jeopardy principles protect him from being resentenced as a Class X offender and that therefore the cause should be remanded for Class 2 or ordinary resentencing. (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 1(b).) In the alternative, he contends that his sentence was excessive and that it should be reduced to six years.

On the evening of August 9, 1987, Chicago police found defendant inside a burned-out, boarded-up liquor store located at 755 North Clark Street in Chicago. There was evidence that homeless people frequented the area and that the premises previously had been burglarized. When defendant was found, he was inside a cooler that contained cheese, beer and other beverages, and his pocket contained pickled pigs’ feet. There were 20 to 25 liquor bottles and an open jar of pickled pigs’ feet near defendant. There were also two buckets filled with liquor bottles on the roof.

The trial court convicted defendant of burglary and ordered an evaluation by TASC, Inc. (Treatment Alternatives to Street Crimes). TASC found that defendant was an addict who was ineligible and unacceptable for TASC services because he lacked “recognition of a need” and did not “exhibit a readiness for drug treatment.” The trial court then held a sentencing hearing.

At the sentencing hearing, the assistant State’s Attorney argued in aggravation that defendant’s criminal background made him eligible for a Class X sentence.

The record discloses the following information about defendant’s criminal background: on October 12, 1972, defendant was convicted of criminal damage to property, was sentenced to probation for one year and was ordered to pay restitution in the amount of $125; on January 3, 1974, he was convicted of burglary and was sentenced to probation for one year; on January 23, 1974, he was convicted of theft and was sentenced to 30 days in jail; on August 16, 1974, he was adjudged to be in violation of probation in connection with the 1974 burglary conviction and was sentenced to a prison term of one to three years; on May 12, 1976, he was convicted of burglary and was sentenced to a prison term of one to five years; and on February 15, 1978, he was arrested for burglary, was convicted on June 20, 1978, was sentenced to a prison term of three years, and was paroled on August 15,1979.

The record discloses further that on August 31, 1979, defendant was arrested for burglary, was convicted on April 24, 1980, was sentenced to a prison term of six years, and was discharged on March 16, 1984; on June 8, 1984, he was arrested for theft, was convicted on July 5, 1984, and was sentenced to jail for 27 days; and on July 15, 1984, he was arrested for burglary, was convicted on August 9, 1984, was sentenced to a prison term of four years, and was paroled on April 25, 1986. On August 9, 1987, defendant committed and was arrested for the present burglary, was convicted on January 13, 1988, and was sentenced on April 28,1988.

The record discloses further that defendant was homeless and had not had stable employment since the late 1970’s.

In sentencing defendant to a 12-year prison term, the trial judge indicated that defendant’s “prior contacts” unquestionably rendered him eligible for a Class X sentence.

On appeal, defendant contends that the trial court erred in sentencing him as a Class X offender because the State failed to prove the sequence of prior convictions required by the statute that governs Class X sentencing. The State suggests that any error was waived because defendant failed to dispute the accuracy or validity of the information presented to the trial court. However, we decline to treat the matter as waived and turn our attention to the merits instead. See People v. Washington (1990), 195 Ill. App. 3d 520, 528-29, 552 N.E.2d 1067; People v. Pietruszynski (1989), 189 Ill. App. 3d 1071, 1081, 545 N.E.2d 942; but see People v. Stewart (1989), 186 Ill. App. 3d 833, 838, 542 N.E.2d 915.

Burglary is a Class 2 felony with a statutory penalty range of not less than three nor more than seven years’ imprisonment. (Ill. Rev. Stat. 1985, ch. 38, pars. 19 — 1(b), 1005 — 8—l(aX5).) The statutory penalty range for a Class X felony is not less than six nor more than 30 years’ imprisonment. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—l(aX3).) Pursuant to section 5 — 5—3(c)(8) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3(cX8)), prior convictions for Class 2 felonies can be used to enhance the defendant’s sentence to Class X magnitude under certain circumstances. The statute provides as follows:

“When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted of any Class 2 or greater Class felonies in Illinois, and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender. This paragraph shall not apply unless (1) the first felony was committed after the effective date of this amendatory Act of 1977 [February 1, 1978 (Pub. Act 80 — 1099)]; and (2) the second felony was committed after conviction on the first; and (3) the third felony was committed after conviction on the second.” (Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3(cX8).)

Prior convictions used to enhance the defendant’s sentence must be proved beyond a reasonable doubt. (People v. Harris (1987), 157 Ill. App. 3d 70, 74, 510 N.E.2d 107.) Proof of the prior convictions generally consists of certified copies of the convictions and identification of the defendant as the person convicted. (People v. Harris (1987), 157 Ill. App. 3d 70, 510 N.E.2d 107.) Even if certified copies are introduced disclosing the dates of the defendant’s prior arrests and convictions, the State must still introduce evidence of the dates on which the prior offenses were committed. People v. Parks (1988), 168 Ill. App. 3d 978, 987, 523 N.E.2d 130.

In the case at bar, defendant does not dispute that he was over 21 years old when he was convicted of the Class 2 felony in the present case on January 13, 1988. Nor does he dispute his identification as the person convicted of the prior offenses. Rather, he disputes the sufficiency of the evidence concerning the dates on which he committed the prior offenses.

There is no direct evidence of the dates on which defendant committed the prior offenses, and the issue therefore is whether the dates of commission of the prior offenses can be circumstantially inferred from the dates of arrest and conviction. The authorities are divided on this question. The sixth division of this district has held that it is permissible to infer the dates of commission of prior offenses from the dates of prior arrests and convictions (People v. Stewart (1989), 186 Ill. App. 3d 833, 838, 542 N.E.2d 915), but the second district and the first and fifth divisions of this district have declined to draw the inference. (See People v. Hamilton (1990), 198 Ill. App. 3d 108; People v. Pietruszynski (1989), 189 Ill. App. 3d 1071, 1081, 545 N.E.2d 942; People v. Washington (1990), 195 Ill. App. 3d 520, 529, 552 N.E.2d 1067.) We believe that the more flexible approach of People v. Stewart is the better one, and we conclude that the dates on which defendant’s prior offenses were committed can be circumstantially inferred from the report of proceedings and presentence investigation report in the case at bar.

The amendatory act of 1977 took effect on February 1, 1978. (Pub. Act 80 — 1099, eff. February 1, 1978 (amending Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 5—3).) On August 15, 1979, defendant was paroled; and on August 31, 1979, he was arrested for burglary. He was convicted on April 24, 1980, and was sentenced to a prison term of six years. This was his first Class 2 felony conviction relevant to the Class X sentencing issue on appeal. It reasonably can be inferred from the above that his first Class 2 felony conviction for burglary stemmed from an offense committed in 1979, between his August 15, 1979, parole and his August 31, 1979, arrest, and after the February 1,1978, effective date of the amendatory act of 1977.

Next, his second relevant Class 2 felony conviction on August 9, 1984, inferentially stemmed from a burglary committed in 1984, between his release from jail for theft and his July 15, 1984, arrest for the burglary. Therefore, it reasonably can be inferred that his second offense was committed in 1984, after his conviction on April 24, 1980, for the first relevant Class 2 felony.

Finally, defendant’s third Class 2 felony conviction stemmed from the present offense, committed on August 9, 1987, which was after his conviction on August 9, 1984, for the second relevant Class 2 felony. Given these circumstances, we find that defendant’s prior convictions were proved beyond a reasonable doubt and that he was properly sentenced as a Class X offender. Therefore, we need not address the double jeopardy issue asserted by defendant. We note, however, that there is a division of authority on this issue as well. See People v. Washington (1990), 195 Ill. App. 3d at 530-31 (double jeopardy principles did not protect the defendant from being resentenced as a Class X offender); but see People v. Hamilton (1990), 198 Ill. App. 3d 108 (double jeopardy principles protected the defendant from being resentenced as a Class X offender).

The next issue is whether defendant’s 12-year sentence was excessive. He suggests that his conduct was more similar to theft than burglary, but we reject this suggestion because he does not challenge the sufficiency of the evidence supporting his burglary conviction. He suggests further that the present crime “was not serious criminal conduct” and was merely a petty property crime committed by a homeless drug addict.

In People v. Center (1990), 198 Ill. App. 3d 1025, the court held that the defendant’s 15-year Class X sentence for burglary was excessive and reduced it to seven years. However, the defendant in People v. Center was employed, maintained stable family ties, had been accepted into a firefighter-paramedic training program, denied using drugs or alcohol, had served as a lookout during the burglary, and had two prior convictions. In the case at bar, defendant had not been steadily employed since the late 1970’s and had a lengthy criminal record. The trial court was convinced that if defendant were released, he would quickly commit another burglary. The trial court observed that defendant was unable to conform his conduct to the law. Defendant’s criminal background supports the trial court’s observations. Moreover, when defendant addressed the trial court, he stated that he had committed burglaries, knew how to break into premises, and would have broken into a store, but was “shocked” that he was charged with the present burglary. We do not believe that the trial court abused its sentencing discretion and we therefore decline to disturb defendant’s sentence.

The judgment of the circuit court is affirmed.

Judgment affirmed.

RIZZI and WHITE, JJ., concur.

      The State’s brief suggests that the first relevant conviction was the June 20, 1978, conviction for burglary. However, defendant was arrested for that offense on February 15, 1978. Pursuant to People v. Pietruszynski (1990), 189 Ill. App. 3d at 1081, the fact that defendant was arrested on February 15, 1978, is not proof that the burglary was committed after the February 1, 1978, effective date of the amendatory act of 1977.


author: JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY JONES, Defendant-Appellant.
    First District (5th Division)
    No. 1-88-0029
    Opinion filed July 6, 1990.

      Michael J. Pelletier and Ann C. McCallister, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Paul Gliatta, and John deGrasse, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

In November 1984, Larry Jones (Jones) was convicted by a jury of the offense of rape. He was sentenced to 10 years’ imprisonment. On appeal, the case was remanded for the purpose of conducting what has come to be called a “Batson” hearing. On remand, the trial judge denied Jones a new trial. Jones appeals the trial court’s order denying him a new trial.

The equal protection clause prohibits the exclusion by peremptory challenge of prospective jurors by the prosecution “solely on account of their race.” (Batson v. Kentucky (1986), 476 U.S. 79, 89, 90 L. Ed. 2d 69, 83, 106 S. Ct. 1712, 1719.) A Batson hearing arises where it appears from a criminal record that the prosecutor has excluded minorities in exercising its peremptory challenges. Prior to 1986 and apparently back to the days when the English and other Europeans settled in America, a peremptory or other challenge to a venireman or prospective juror had nothing to do with the juror’s race, creed, national origin, sex, political affiliation, wealth, poverty, religious or nonreligious affiliation or by whatever other name we now use to describe members of the human race. As a matter of fact the term “jury of one’s peers” was unmentioned in either the original State or United States Constitutions or in cases interpreting their provisions as they relate to jurors. As the common law and under the original State and Federal Constitutions, a party entitled to a jury was guaranteed a “fair and impartial jury.” A fair and impartial jury was one made up of “liber homo,” that is not only a freeman and not bound, but also one that hath such freedom of mind that “ ‘he stands indifferent as he stands unsworn.’ ” Coughlin v. People (1893), 144 Ill. 140,163, 33 N.E. 1, quoting Coke Litt., 155a, note d.

Probably the best case concerning the use of challenges and a description of the old common law and original constitutional concepts of jurors and challenges of veniremen in a criminal case is the case of Coughlin v. People (1893), 144 Ill. 140, 33 N.E. 1. That case involved challenges for cause made by the prosecutor and approved by a trial judge in a famous criminal trial in Chicago involving the murder of Dr. Patrick Henry Cronin. Dr. Cronin’s body was discovered in a manhole in the Chicago area known as Lakeview. Dr. Cronin was an active member of the “Clan-na-Geal.” The organization’s aim was to free Ireland from its dependence upon the government of England. In some respects it was similar to organizations of today whose goal it is to eliminate apartheid in Africa.

A number of persons, including Coughlin, were indicted for a conspiracy to do the good doctor in. The trial began on August 30, 1889, and ended on October 22, 1889. 1,009 veniremen were called. 927 were excused for cause. 175 were rejected by the use of peremptory challenges. On appeal the Illinois Supreme Court reversed Coughlin’s conviction, holding that the use of some of the challenges offended the prevailing concepts of a fair and impartial jury. The fact that no Irish Catholic ended up on the jury was not even raised as error in the trial or on appeal.

Over the years the concept of fairness and impartiality in juries took on the idea of a jury of one’s peers or a cross-section of the community. Finally in 1986 the United States Supreme Court concluded that the unabashed use of race by the prosecution in exercising its peremptory challenges offended United States constitutional guarantees to a fair and impartial jury. Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.

With this background we cite the facts of the case: Jones, an Afro-American, was indicted of the crime of rape. Jones’ defense was the consent of the victim. The alleged victim was a white woman. The record does not reflect the ethnic background of this woman. A jury convicted Jones of the offense. The trial court sentenced Jones to 10 years with our Department of Corrections. Jones appealed his conviction charging that the prosecution improperly exercised its peremptory challenges to exclude Afro-American jurors.

On appeal this court affirmed Jones’ conviction, but based on the cited Batson case remanded to the trial court for a hearing to permit Jones to attempt to make a showing that the prosecution had exercised its peremptory challenges solely to strike prospective Afro-American members of the jury. This court directed that if such a showing was made and the prosecution failed to provide neutral explanations for the exercise of its challenges, the trial court was to vacate Jones’ conviction and grant a new trial; otherwise, Jones’ conviction and sentence was to stand. People v. Jones (1987), 155 Ill. App. 3d 641, 508 N.E.2d 357.

The trial court held a hearing in accordance with Batson v. Kentucky. (Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.) At the Batson hearing, it was established that the State had peremptorily challenged eight veniremen from the jury, five of whom were black and two who were Hispanic. A defendant contending that the prosecution’s exercise of peremptory challenges was racially motivated has the burden of showing purposeful discrimination. (Batson v. Kentucky (1986), 476 U.S. 79, 93, 90 L. Ed. 2d 69, 85, 106 S. Ct. 1712, 1721.) At the hearing the trial court found that Jones established a prima facie case of the discriminatory and unconstitutional use of peremptory challenges by the State. As dictated by the Batson decision, the State was required to come forward with “neutral reasons” for having excluded the Afro-Americans as jurors in Jones’ previous trial. Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.

The following are the alleged neutral reasons for the exclusion of the jurors as advanced by the prosecution in the brief the State filed in this court:

“The prosecutor explained that Edwina David had been peremptorily challenged because she had been convicted of involuntary manslaughter. Additionally the prosecutor was concerned that the venireman’s occupation, which involved social work, might have been prejudicial to the People’s case. Defense counsel agreed that Davis was properly excused by the people because she was a convicted felon.”
“Anthony Curry was peremptorily challenged for four reasons. First, he was unemployed. *** Second, his voir dire testimony was inconsistent with the information he had written on his juror card. This would indicate that Curry was either untruthful or inattentive. *** Third, Curry’s demeanor indicated a hostility toward women. His comments, combined with the fact that he was divorced, created a reasonable concern in the prosecutor’s mind as to whether the venireman would be biased in deciding a case which hinged on the credibility of a woman. *** Fourth, the prosecutor was concerned with the fact that Curry did not have any visible means of supporting his child.”
“Gerald Green was peremptorily challenged for three reasons. First, his father was a police officer. *** Second, Green’s demeanor indicated a hostility toward his father. Green referred to his father as a ‘cop.’ The prosecutor correctly deemed this to be a term of disrespect. Additionally, the venireman testified that he never talked to his father about his father’s job. *** Third, no one who served as a juror had been a party to a lawsuit. The prosecutor was concerned that the venireman’s prior involvement with the legal system might affect his assessment of the victim’s credibility.”
“Linda Berry was peremptorily challenged for three reasons. First, she lived in defendant’s neighborhood. *** Second, the prosecutor believed that Berry exhibited a lack of intellectual capacity and he was concerned that this would prevent her from performing her duties as a juror. *** Third, the prosecutor believed that Berry’s occupation as a motel maid may have caused her to be too quick to believe that defendant’s contention that the victim consented to sexual relations.”
“[E]rma Delaney was challenged because she lived in the neighborhood where the crime was committed.”

The trial judge concluded that the prosecutor articulated legitimate race-neutral reasons for the exclusion of the veniremen. After a denial of Jones’ motion for reconsideration this second appeal followed.

Jones has appealed the trial court’s decision in the Batson hearing. Jones argues that the reasons advanced by the State were pretextual, that the trial court’s finding that the State had rebutted Jones’ prima facie case of racial discrimination was clearly erroneous, and that Jones is entitled to a new trial. Jones also argues that because of this showing his constitutional right to a trial by an impartial jury was violated. On the other hand the prosecutor argues that its showing of neutrality and the trial court’s acceptance thereof should not be overturned by this court. We reluctantly agree.

Once a defendant makes out a prima facie case of discrimination, the prosecutor need only “articulate a neutral explanation related to the particular case to be tried.” (People v. Harris (1989), 129 Ill. 2d 123, 177, 544 N.E.2d 357, cert. denied (1990), 494 U.S. 1018, 108 L. Ed. 2d 498, 110 S. Ct. 1323.) The State’s explanations must first be clear, reasonably specific, legitimate, and nonracial in order to dispel the presumption created by the prima facie case. (Batson, 476 U.S. at 98, 90 L. Ed. 2d at 89, 106 S. Ct. at 1724.) Although the State’s explanations need not rise to the level justifying a challenge for cause, a mere assertion that the prosecutor acted in good faith or without a discriminatory motive will not suffice. (People v. Harris (1989) , 129 Ill. 2d 123, 177, 544 N.E.2d 357, cert. denied (1990), 494 U.S. 1018, 108 L. Ed. 2d 498, 110 S. Ct. 1323; Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.) Furthermore, if a prosecutor’s explanation is so limited as to make citation of the challenged venire member’s race essential to the explanation’s coherence, then the explanation can truly be said to rest “solely” or “simply” on the racial factor — for otherwise, stripped of the racial underpinning, it would effectively not have been a sufficient explanation at all and would have failed to rebut a Batson prima facie case. (People v. Hope (1990) , 137 Ill. 2d 430.) Once the State has come forward with its reasons for striking the venire persons, the trial court must then determine whether the explanations are sufficient to rebut defendant’s prima facie case. To do so, the trial court must make a “sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case.” (People v. Harris (1989), 129 Ill. 2d 123, 174, 544 N.E.2d 357, cert. denied (1990), 494 U.S. 1018, 108 L. Ed. 2d 498, 110 S. Ct. 1323.) The presumption created by the prima facie case may be rebutted if the State offers a Batson sufficient neutral explanation. The defendant then has the opportunity to rebut the prosecution’s explanation as being pretextual. (People v. Young (1989), 128 Ill. 2d 1, 27, 538 N.E.2d 453.) Then after the trial court weighs the evidence in light of the prima facie case, the adequately articulated neutral explanations, and any rebuttal of those explanations the court will decide the ultimate question whether purposeful discrimination has been shown by a preponderance of the evidence. People v. Harris (1989), 129 Ill. 2d 123, 177, 544 N.E.2d 357, cert. denied (1990), 494 U.S. 1018, 108 L. Ed. 2d 498,110 S. Ct. 1323.

At the conclusion of the hearing, the trial court has the duty to weigh the evidence and determine if the defendant has established purposeful discrimination. A trial court’s Batson determination will not be overturned unless it is against the manifest weight of the evidence. (People v. Mahaffey (1989), 128 Ill. 2d 388, 539 N.E.2d 1172, cert. denied (1989), 493 U.S. 873, 107 L. Ed. 2d 156, 110 S. Ct. 203; People v. Evans (1988), 125 Ill. 2d 50, 71, 530 N.E.2d 1360, 1365-66, cert. denied (1989), 490 U.S. 1113, 104 L. Ed. 2d 1036, 109 S. Ct. 3175.) 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 71, 530 N.E.2d at 1367.) “Since the trial judge’s findings on the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference.” Batson, 476 U.S. at 98 n.21, 90 L. Ed. 2d at 89 n.21,106 S. Ct. at 1724 n.21.

The supreme court has not attempted to define the term “neutral explanation” for the exercise of a peremptory challenge. However, the following have been held to be racially neutral. Prosecution properly dismissed the venireman because he was not too happy with the venireman’s demeanor and how he answered the questions. (People v. Talley (1987), 152 Ill. App. 3d 971, 987, 504 N.E.2d 1318.) Employment status and positions of prospective jurors have been held to be racially neutral reasons for the exercise of peremptory challenges. (People v. Mack (1989), 128 Ill. 2d 231, 241, 538 N.E.2d 1107.) The fact that a potential juror lived in the area of the crime has been found to be a legitimate race-neutral explanation for the use of a peremptory challenge. People v. Williams (1988), 177 Ill. App. 3d 787, 789, 532 N.E.2d 1044, 1047.

A mere reading of the reasons advanced by the State for excluding the Afro-American veniremen discloses that at best they are subjectively neutral reasons. For example, one reason the prosecutor cites for excluding potential Afro-American jurors is that one juror lived in the same neighborhood as the defendant and the other juror lived in the same neighborhood as the incident. In one instance the prosecutor equated 1527 S. Lawndale as being in the same neighborhood as 209 S. Kalow. In the other instance he equated 933 W. Fletcher with 1757 W. Fletcher. Anyone who is familiar with Chicago’s division of neighborhoods realizes that they cannot be determined by metes and bounds. A neighborhood in Chicago can encompass an area as small as a one-block area or as large as a square mile or two. Many neighborhoods are not determined by blocks, but rather by parishes or ethnic conclaves. To many Catholics, particularly on the south side, Chicago is divided into parishes such as “Viz,” “Tommy More,” and “Barnabas,” To others, such names as “Streeterville,” “Canaryville” and “Bucktown” describe the neighborhood.

Without going into further detail, it is apparent from a reading of the alleged “neutral reasons” advanced by the prosecutor that these “neutral reasons” are obviously subjective. The important issue in this case is whether in a Batson hearing the prosecutor’s explanation of why he excluded minorities from a jury must be objectively neutral or subjectively so. No case law in the criminal area appears to be of much help.

Unfortunately none of the many cases cited by the parties address this topic. Defendant argues that the reasons asserted are contrived from a post-trial review of the jury cards. Nothing in the record suggests such an insidious motive.

The only cases the court found discussing the issue of “neutrality” is in the area of news coverage. In the case of a journalist tarring the name of some innocent public figure the test of responsibility is not objective truth but a journalist’s subjective belief. The test of neutrality of reportage is subjective not objective. Unless a newsman deliberately distorts statements given him by another he is free of the consequences of his act. (Krauss v. Champaign News Gazette (1978), 59 Ill. App. 3d 745, 375 N.E.2d 1362.) There is no showing here of a deliberate distortion of the prosecutor’s so-called reasons in excluding Afro-Americans from the jury of the Jones 1984 trial.

We conclude that the exercise of peremptory challenges by a prosecutor in a criminal case involving the race, sex, religion, politics, or ethnic background of a prospective juror must of necessity be subjectively neutral. Any other conclusion would make the grant of peremptory challenges in both civil and criminal cases almost meaningless. In this case the defendant is asking us to penetrate the surface reasons to attribute racial reasons, thereby effectively asking us to eliminate peremptory challenges. In Batson v. Kentucky, the Supreme Court recognized the “important position” of peremptory challenges in trial procedure and acknowledged that generally such challenges can contribute to the administration of justice. (Batson, 476 U.S. at 98-99, 90 L. Ed. 2d at 89, 106 S. Ct. at 1724.) As of this date neither the legislature nor the supreme court has told us to eliminate peremptory challenges. Although Batson prohibits the use of racially motivated reasons for exercising peremptory challenges, Batson has failed to give us any guidelines, specifications or reasons for determining what the underlying motive of a prosecutor might be.

As a matter of fact our Illinois Supreme Court has held that a determination of a juror’s impartiality even in the case of a challenge for cause is not “purely an objective determination.” (People v. Cole (1973), 54 Ill. 2d 401, 414, 298 N.E.2d 705, 712.) Strangely enough in support of this proposition the Cole court cites the case of Coughlin v. People (1893), 144 Ill. 140, 33 N.E. 1.

Although Jones’ attorney makes a forceful argument that the reasons advanced by the State are contrived, no facts in the record support that conclusion. At best the reasons the State advances are obscure. However, absent some evidence in the record to support Jones’ charge that the State’s exclusion of the Afro-American or Hispanic-American prospective jurors was pretextual or contrived, we must affirm the trial court and let Jones’ conviction and sentence stand.

For the above reasons we affirm the trial judge.

Judgment affirmed.

LORENZ and GORDON, JJ., concur.