author: JUSTICE GORMAN

text:
    RIVER BEND COMMUNITY UNIT SCHOOL DISTRICT No. 2, Petitioner-Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Respondents-Appellees.
    Third District
    No. 3—91—0619
    Opinion filed July 30, 1992.

      Alice M. Ralph, of Hodges, Loizzi, Eisenhammer, Rodick & Kohn, of Arlington Heights (Bennet Rodick, of counsel), for petitioner.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jan E. Hughes, Assistant Attorney General, of Chicago, of counsel), for respondent Human Rights Commission.
    Katz, Friedman, Schur & Eagle, of Chicago (Stephen Katz, of counsel), for respondent Virginia Ray.
   JUSTICE GORMAN

delivered the opinion of the court:

The petitioner is a school district which has a policy forbidding in-tradistrict faculty transfers that would result in one spouse directly supervising another. An employee claimed that this constitutes unlawful discrimination on the basis of marital status after she was denied a transfer. The Illinois Human Rights Commission agreed and found the petitioner guilty of discrimination. We affirm.

River Bend Community Unit School District No. 2 (the District) is located in Whiteside County. The District operates four schools: (1) Fulton Elementary School (grades kindergarten through five); (2) Fulton Junior High School (grades six through eight); (3) Albany Elementary School (grades kindergarten through eight); and (4) Fulton High School (grades 9 through 12).

Virginia Ray has been employed by the District since 1966. She taught fifth grade at Fulton Junior High until 1980, when that grade level was moved to Fulton Elementary. From 1980 through 1983, Mrs. Ray was assigned to the sixth grade at Fulton Junior High.

Ben Ray is Virginia’s husband and is also an employee of the District. From 1966 through 1970, he was the principal at Fulton Junior High. He was then assigned to Fulton Elementary.

In 1981, the River Bend Board of Education adopted a policy (Policy 4112) regarding assignments and transfers, which states as follows:

“CERTIFIED PERSONNEL-ASSIGNMENT AND TRANSFER
The teaching staff of the River Bend Schools shall be assigned to particular buildings by the Superintendent.
Reassignment may be made when, in the judgment of the Superintendent, such reassignment or transfer is for the good of the school system.
Teachers may apply for reassignment, in writing, to the Superintendent. The judgment of the Superintendent and the Board is final.
No request will be granted which would place a spouse under the direct supervision of his/her spouse.”

In spring of 1983, River Bend reduced staff and combined the principal positions at Fulton Elementary and Fulton Junior High. These two schools shared the same campus but were not in the same building. Mr. Ray was then assigned to act as principal for both schools, which made him Mrs. Ray’s supervisor.

Pursuant to Policy 4112, the District then transferred Mrs. Ray to Albany Elementary. She was given her choice of teaching either third or fifth grade at Albany. When she indicated that she would prefer not to choose her position, she was assigned to teach third grade. Mrs. Ray’s rate of pay, seniority and benefits were unaffected by the transfer.

In March of 1984, Mrs. Ray wrote to the District’s then superintendent, Dr. Martin Kinert, requesting to be transferred to a fifth-grade position at Fulton Elementary. Dr. Kinert rejected the request.

Mrs. Ray thereafter filed a complaint with the Illinois Department of Human Rights, alleging that she had been discriminated against on the basis of her sex and marital status. (Ill. Rev. Stat. 1991, ch. 68, pars. 1 — 103, 2 — 102.) The Human Rights Commission (Commission) issued a complaint of civil rights violation and a hearing was held before Administrative Law Judge Richard J. Gonzalez.

In Gonzalez’s recommended order and decision, he rejected both claims of sex and marital status discrimination. He found that Mrs. Ray had presented a prima facie case of marital status discrimination based on In re Burton & Allied Chemical Corp. (1984), 13 Ill. HRC Rep. 246. However, Gonzalez also determined that “given [the District’s] structure and mode of operation, it is a bona fide occupational qualification [BFOQ] that a teacher within the system not be married to his or her principal/supervisor.” Accordingly, he recommended dismissing the complaint with prejudice.

A three-member panel of the Commission affirmed the dismissal of the sex discrimination claim. The panel, though, rejected Gonzalez’s analysis and found that Mrs. Ray had proven a valid case of marital status discrimination and that the policy was not a BFOQ.

The District filed a petition for rehearing by the full Commission which was granted. Upon rehearing, the Commission found that the statutory ban on marital status discrimination includes a ban on discrimination based on the spouse’s identity, and that the District’s policy forbidding a teacher from transferring to a school where her spouse is the principal does not constitute a BFOQ as that term is used under the Human Rights Act. The District then petitioned this court for review.

The primary question presented on appeal is whether the definition of “marital status” includes the identity of one’s spouse or whether that phrase refers solely to the condition of being married or single.

The Human Rights Act prohibits, inter alia, unlawful discrimination based on a person’s marital status. Marital status is statutorily defined as “the legal status of being married, single, separated, divorced or widowed.” Ill. Rev. Stat. 1991, ch. 68, par. 1 — 103(J).

The District argues that the Commission impermissibly expanded the definition beyond the statute’s plain language. It claims that “marital status” only refers to the condition of being married or single, but does not include the identity of the spouse.

This is a case of first impression in the Illinois courts. The Commission addressed this exact issue in a prior case and found that “marital status” does include the spouse’s identity. In re Burton & Allied Chemical Corp. (1984), 13 Ill. HRC Rep. 246.

In Burton, the Commission examined the two possible interpretations for the phrase “marital status.” It found both that the interpretations were reasonable and that the statute could be read either in the broad sense or the narrow sense. The Commission determined that the broader definition was more in line with the legislative purpose underlying the Human Rights Act (Act) and with the supreme court’s mandate that the Act is remedial in nature and is to be liberally construed. (Board of Trustees of Community College District No. 508 v. Human Rights Comm’n (1981), 88 Ill. 2d 22, 429 N.E.2d 1207.) The Commission expressly reaffirmed Burton in finding unlawful discrimination here.

Both parties’ positions find support in other States’ interpretations of similar laws. (See generally Annot., What Constitutes Employment Discrimination on Basis of “Marital Status” for Purposes of State Civil Rights Laws, 44 A.L.R.4th 1044 (1986).) Some courts have found that a prohibition on marital status discrimination does not extend to the identity of a person’s spouse. (See, e.g., Whirlpool Corp. v. Civil Rights Comm’n (1986), 425 Mich. 527, 390 N.W.2d 625; Manhattan Pizza Hut, Inc. v. New York State Human Rights Appeal Board (1980), 51 N.Y.2d 506, 415 N.E.2d 950; Thomson v. Sanborn’s Motor Express, Inc. (1977), 154 N.J. Super. 555, 382 A.2d 53.) Other States, however, have concluded that proscribed conduct does include discrimination based on the spouse’s identity. See, e.g., Ross v. Stouffer Hotel Co. (Hawaii) Ltd. (1991), 72 Haw. 350, 816 P.2d 302; Thompson v. Board of Trustees, School District No. 12 (1981), 192 Mont. 266, 627 P.2d 1229; Kraft, Inc. v. State (Minn. 1979), 284 N.W.2d 386; Washington Water Power Co. v. Washington State Human Rights Comm’n (1978), 91 Wash. 2d 62, 586 P.2d 1149.

Two scholarly comments on the subject have also opined that marital status discrimination does include discrimination based on the identity of one’s spouse. Wexler, Husbands & Wives: The Uneasy Case for Antinepotism Rules, 62 B.U.L. Rev. 75 (1982); Note, Challenging No-Spouse Employment Policies as Marital Status Discrimination: A Balancing Approach, 33 Wayne L. Rev. 1111 (1987).

This is clearly an issue where both interpretations are reasonable. That fact is evidenced not only by the split of authority among the States, but by the fact that several of the other States’ decisions were the result of closely divided courts.

A reasonable interpretation of a statute by an agency charged with administration and enforcement of that statute is entitled to great weight. (Illinois Consolidated Telephone Co. v. Illinois Commerce Comm’n (1983), 95 Ill. 2d 142, 447 N.E.2d 295.) Moreover, while an agency’s long-term adherence to a particular interpretation of a statute is not a prerequisite to judicial deference, it adds weight to the validity of the agency construction. Yu v. Clayton (1986), 147 Ill. App. 3d 350, 497 N.E.2d 1278.

The District contends that the expansion of the definition of marital status is a decision for the legislature, not the Commission or the courts. The District argues that the plain meaning of marital status does not encompass the identity of one’s spouse and that had the legislature intended to prevent that type of discrimination, it could have expressly done so, which, in fact, some States have done. E.g. Minn. Stat. Ann. §363.01 (West 1989).

The Commission notes that the General Assembly has amended the Human Rights Act numerous times since the Burton decision but has not overruled the Commission’s interpretation of the disputed phrase or amended the statutory definition of “marital status” in any way. Therefore, the Commission argues, it must be presumed that the legislature was aware of the construction of the statute and acquiesced in that interpretation. (Pielet Brothers Trading, Inc. v. Pollution Control Board (1982), 110 Ill. App. 3d 752, 442 N.E.2d 1374.) That, coupled with the supreme court’s mandate that the Act is to be liberally construed (Board of Trustees of Community College District No. 508 v. Human Rights Comm’n (1981), 88 Ill. 2d 22, 429 N.E.2d 1207), leads the Commission to its conclusion that Burton’s interpretation of the Act should be upheld.

In its order, the Commission stated:

“We believe the public policy of this state as declared in the Act, that all individuals should be free from discrimination because of marital status, supports our decision. We, therefore, find that a policy which subjects an employee to adverse consequences because of his or her marriage to a particular individual is ‘marital status’ discrimination within the meaning of the Act and is the type of discrimination the Illinois legislature intended the Act to prohibit.”

The Hawaii Supreme Court was recently faced with similar arguments. (Ross v. Stouffer Hotel Co. (Hawaii) Ltd. (1991), 72 Haw. 350, 816 P.2d 302.) The relevant statute defined “marital status” as “the state of being married or being single.” (Haw. Rev. Stat. §378 — 1 (1985).) That court noted the split of authority among the States and then rejected the narrow construction of the phrase in favor of one which included the identity of one’s spouse.

Policy 4112 is clearly triggered by a party’s marital status and imposes a direct burden upon marriage. A person who remains single would not be affected by the rule. The Commission’s finding that discrimination based on the identity of one’s spouse does fall within the conduct proscribed by the Human Rights Act is not unreasonable. We therefore hold that the Act does prohibit discrimination based on the spouse’s identity and that Policy 4112 does fall within the ambit of the Act.

The District next argues that even if this court accepts the Commission’s interpretation of “marital status,” Policy 4112 qualifies as a bona fide occupational qualification (BFOQ).

The Act provides that BFOQs are exempt from the discrimination rules. (Ill. Rev. Stat. 1991, ch. 68, par. 2 — 104(A).) A BFOQ exemption is available if the employer shows that the employment qualification is reasonably related to the essential operation of the job involved and if there is a factual basis for believing that all or substantially all persons meeting the qualification would be unable to properly perform the duties of the job. (State v. Mikusch (1990), 138 Ill. 2d 242, 562 N.E.2d 168.) The exemption also applies when it is shown that it is impossible or impracticable to determine job fitness on an individual basis. Mikusch, 138 Ill. 2d at 251, 562 N.E.2d at 172.

This exemption is a narrow one. “Under traditional analysis the BFOQ defense is available only when the employer can show that no one in the excluded class is capable of performing the duties essential to the job.” City of Belleville v. Human Rights Comm’n (1988), 167 Ill. App. 3d 834, 841, 522 N.E.2d 268, 273.

The District presented expert testimony regarding the problems that can arise when one spouse supervises another, especially in a school context. The District also points to the various supervisory and administrative functions which a principal exercises over a teacher.

Mrs. Ray presented evidence that there had been no problems during the years (1966-70) when Mr. Ray had been her principal. In addition, the problems which the policy seeks to forestall could arise in many other types of close, personal relationships which are not addressed by the policy. For example, the cohabitation of two people would implicate the same potential problems as would a marriage, yet this relationship would be unaffected by the policy. Similarly, if a principal and a teacher were to marry, a plain reading of the policy would not require that one of the two be transferred out. The policy only applies to transfers which would result in one spouse supervising another. The Commission expressly declined to decide whether a more inclusive prohibition would qualify as a BFOQ. Instead, it held that Policy 4112, which merely forbids transferring a teacher to a school where his or her spouse is the supervisor, does not constitute a BFOQ.

The District had the burden of showing that one spouse is unable to effectively supervise another. To the contrary, the undisputed evidence showed that there had been no problems when Mr. Ray had been Mrs. Ray’s principal. Accordingly, we cannot say that the Commission’s rejection of the BFOQ defense is against the manifest weight of the evidence.

Finally, the District contends that the Commission erred in finding that there was a position available into which Mrs. Ray could transfer. The District argues that there was no fifth-grade position available at Fulton Elementary when Mrs. Ray requested transfer and that was the reason her request was denied.

It should be noted that Mrs. Ray does not challenge the original transfer from Fulton Junior High to Albany Elementary. She only alleges that the refusal to transfer her back to Fulton Elementary was discriminatory.

The District argues that the Commission failed to differentiate between voluntary and involuntary reassignments. Mrs. Ray’s request was for a fifth-grade position at Fulton Elementary. Dr. Kinert testified that it was District policy to consider a transfer request only for the specific position which the teacher requested. There was also evidence that this process was incorporated into the teachers’ contract with the District. It is the District’s position that it would not involuntarily transfer one teacher merely to accommodate the voluntary request of another teacher. The District thus argues that it would have rejected the request regardless of Policy 4112 because no fifth-grade position was then available at Fulton Elementary.

Mrs. Ray presented evidence of several other intradistrict transfers which caused openings at many different grade levels at the various schools.

The Commission’s decision did not directly address this question. The administrative law judge, however, found the vacancy question to be essentially a nonissue. He stated that because of Policy 4112, Dr. Kinert failed to give Mrs. Ray’s request serious consideration or to present the request to the school board for consideration. Thus, it was the District’s discriminatory policy which directly led to the denial of the transfer request.

This is a factual question on which the District bore the burden of proof. Once a prima facie case of discrimination has been presented, the employer must articulate legitimate, nondiscriminatory reasons for taking the action. (R.R. Donnelley & Sons Co. v. Human Rights Comm’n (1991), 219 Ill. App. 3d 789, 579 N.E.2d 1144.) The complainant can then rebut that evidence by showing that the articulated reason was merely a pretext for the unlawful discrimination.

There was evidence presented that the District enjoyed some degree of flexibility in making assignments and that Mrs. Ray’s request was not given serious consideration because of Policy 4112. Because the transfer request was not adequately considered, it is difficult to determine whether or not there would have been a vacancy. Since the District has the burden of proving that no vacancy existed, we cannot say that the finding that a vacancy did exist is contrary to the manifest weight of the evidence.

For the aforementioned reasons, we affirm the decision of the Illinois Human Rights Commission.

Affirmed.

STOUDER and SLATER, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE BARRY JUSTICE GORMAN,

license: Public Domain

text:
    NATIONAL MARINE, INC., Plaintiff-Appellant, v. THE ENVIRONMENTAL PROTECTION AGENCY et al., Defendants-Appellees.
    Third District
    No. 3—90—0814
    Opinion filed August 3, 1992.
    Karen K. Litscher, of Much, Shelist, Freed, Denenberg, Ament & Eiger, of Chicago (William A. Speary, Jr., of counsel), and Keith R. Leigh, of Pool & Leigh, of Ottawa, for appellant.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Carol L. Edelson, Matthew J. Dunn, Joseph J. An-nunzio, and William D. Seith, Assistant Attorneys General, of Chicago, of counsel), for appellees.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Plaintiff, National Marine, Inc., appeals from judgment of the circuit court of Grundy County dismissing its first amended complaint for declaratory judgment and other relief. The suit arises out of defendant Illinois Environmental Protection Agency’s (the Agency’s) issuance of notice pursuant to section 4(q) of the Environmental Protection Act (Ill. Rev. Stat. 1991, ch. llD/a, par. 1004(q)) (the Act). The circuit court ruled that the action was premature because plaintiff had not exhausted its administrative remedies and dismissed the complaint.

The Agency’s notice to plaintiff was initially issued on February 26, 1990, and supplemented by a second, 25-page notice on May 18, 1990. The latter notice, which forms the basis for this suit, states, inter alia, that the Agency investigated plaintiff’s property, found the release or threat of release of hazardous substances which presents an immediate and significant risk of harm to human life and health and to the environment, and determined that action was necessary to prevent or mitigate such risk. Specifically, the notice states that “the Agency through a contractor investigated the site and collected samples from three lagoons and other locations on the Site,” and that testing showed certain concentrations of various volatile organic compounds, semi-volatile organic compounds, pesticides and metals. Based on this investigation, the Agency detailed 10 pages of “response action” to be taken by National Marine in anticipation of a cleanup.

Plaintiff’s first amended complaint contains, in essence, two counts for relief. The first alleges that section 4(q) is unconstitutional and that the Agency acted arbitrarily and beyond its statutory authority in issuing the section 4(q) notice because contamination was found on only 12 acres of plaintiff’s approximately 64-acre parcel and the notice relates to the entire parcel; further, that the notice issued in this case exceeded the Agency’s authority because it was in the form of a “mandate” rather than a “notice.” Plaintiff requests that the court declare the statute unconstitutional on its face and as applied, declare the Agency’s action illegal, and permanently enjoin the Agency from enforcing its notice or relying on the factual findings as recited in the notice. In the second count, plaintiff alleges the same core facts, adding only that it has no adequate remedy at law, and requests that the court proceed under the common law writ of certiorari to review the Agency’s records and reverse and quash the notice.

The statutory provisions at issue provide:

“The Agency shall have the authority to provide notice to any person who may be liable pursuant to Section 22.2(f) of this Act for a release or a substantial threat of a release of a hazardous substance or pesticide. Such notice shall include the identified response action and an opportunity for such person to perform the response action.” Ill. Rev. Stat. 1989, ch. HV-k, par. 1004(q).
“Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (j) of this Section, the following persons shall be liable for all costs of removal or remedial action incurred by the State of Illinois as a result of a release or substantial threat of a release of a hazardous substance or pesticide:
(1) the owner and operator of a facility or vessel from which there is a release or substantial threat of release of a hazardous substance or pesticide.” Ill. Rev. Stat. 1989, ch. lllVz, par. 1022.2(f).

In this appeal plaintiff argues both that it was not required to exhaust administrative remedies and that the trial court abused its discretion in denying judicial review under a common law writ of certiorari.

The Agency is authorized to issue “notices” under section 4(q) of the Act. Further, any cost-recovery action or action to impose civil penalties based on the property owner’s failure to respond affirmatively to such notice would have to be initiated by the Agency before the Pollution Control Board (the Board) (Ill. Rev. Stat. 1989, ch. IIIV2, par. 1031(c)). Under the legislative scheme for the Illinois Environmental Protection Act, judicial review lies only from final orders of the Board. (Ill. Rev. Stat. 1989, ch. IIIV2, par. 1041.) Plaintiff points out, however, that where administrative action is challenged as unauthorized, exhaustion of administrative remedies is not required and the aggrieved party may proceed directly to the circuit court. Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541, 387 N.E.2d 258.

In our opinion, National Marine’s challenge to the constitutionality of the statutory scheme in the first count was adequately addressed by the court in City of Quincy v. Carlson (1987), 163 Ill. App. 3d 1049, 517 N.E.2d 33. In Carlson, as here, the Agency issued a section 4(q) notice to the plaintiff-landowner alleging potential liability for actual or threatened release of hazardous substances from an area where hazardous substances had been found. Plaintiff brought suit in the circuit court seeking declaratory judgment and injunctive relief. Plaintiff brought five counts, one claiming that the notice provision of the Act is unconstitutional on its face, and the other four counts charging improper Agency conduct. The trial court, on the Agency’s motion, ultimately granted judgment on the pleadings upholding the constitutionality of the section 4(q) notice provision and dismissed the remainder of the complaint for failure to state a cause of action. Plaintiff appealed, and the reviewing court affirmed, holding that the trial court correctly ruled that section 4(q) satisfies the requirements of due process and that declaratory judgment on the remaining counts was unavailable because no actual controversy was presented.

In Carlson, as here, the plaintiff charged that the statutory scheme, inasmuch as it does not provide the landowner with a preenforcement hearing, deprives the potentially liable landowner of property rights without due process of law. As stated in Carlson:

“The potential release of hazardous waste into the environment is the very type of extraordinary or emergency situation which justifies a post-deprivation hearing. There is a strong public interest in protecting the public health and environment. Accordingly, statutes which are enacted for the protection and preservation of public health are to be given extremely liberal construction for the accomplishment and maximization of their beneficial objectives. (United States v. Conservation Chemical Co. (1985), 619 F. Supp. 162.) Consequently, the lack of a preenforcement hearing does not offend due process principles.” 163 Ill. App. 3d at 1054, 517 N.E.2d at 36.

To the extent that the complaint challenges the statute on its face and as applied, the trial court in this case correctly ruled that preen-forcement judicial review was not available.

Next, National Marine argues that even though an administrative agency’s decision may not be reviewable under the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 101 et seq.), administrative action taken in issuing the notice in this case may still be reviewed in the circuit court by a petition for a common law writ of certiorari. (Smith v. Department of Public Aid (1977), 67 Ill. 2d 529, 367 N.E.2d 1286.) Defendants argue that despite National Marine’s correct statement of the law with respect to the granting of writs of certiorari generally, the relevant question is whether the Agency acted within its jurisdiction (Hartley v. Will County Board of Review (1982), 106 Ill. App. 3d 950, 436 N.E.2d 1073); and since no judicial or quasi-judicial action was taken by the Agency, the trial court correctly dismissed the petition in this case.

As stated in Hartley, the proper inquiry under a writ of certio-rari is limited to two narrow questions: whether the inferior tribunal, jurisdiction or court acted outside its jurisdiction; and whether the inferior tribunal, jurisdiction or court proceeded illegally and no other mode of direct review of the proceeding is provided. The writ is not available to determine whether the inferior tribunal, jurisdiction or court correctly determined the questions before it. 106 Ill. App. 3d at 955, 436 N.E.2d at 1076-77.

By petitioning for a common law writ of certiorari, the plaintiff seeks preenforcement judicial review that is precluded under the Act. Here, the only action taken by the Agency was the issuance of a section 4(q) notice. And, as noted above, there is no other mode of direct review of that action. As we see it, the question is whether the well-pleaded facts present a situation of such egregious overreaching that judicial intervention is warranted notwithstanding legislative preference to the contrary.

The pleadings establish that the firm hired by the Agency to investigate plaintiff’s property only sampled the soil from an area of about 12 acres. The balance of the 64-acre site, according to the pleadings, was not tested for contamination. It is on the basis of this discrepancy that National Marine attacks the authority of the Agency to issue its supplemental 4(q) notice. Specifically, National Marine alleges that: (1) the Agency’s supplemental notice included an additional 52.684 acres of plaintiff’s property without proof of any contamination; (2) the 52.684 acres were not proved to be a “facility” from which there exists a release or threat of release of hazardous substances; (3) the inclusion of the 52.684 acres within the purview of the supplemental notice is arbitrary, capricious, an abuse of discretion and contrary to the manifest weight of the evidence; and (4) the Agency is not authorized to issue notices in the form of judicial or quasi-judicial “orders.”

By alleging that the Agency has exceeded its authority, these claims arguably challenge the Agency’s “jurisdiction.” The first three allegations are premised on a finding that some 52 acres of the 64-acre site in question are not contaminated. The Agency virtually concedes the point, giving as its only reason for including the remainder of the “site” in its section 4(q) notice the fact that the 64 acres constitute a single undivided parcel now owned by National Marine.

The agency’s notice alludes to contamination primarily in three lagoons tested “within or near” a 12-acre portion of the property that had been leased to various chemical manufacturers both before and after acquisition of the 64-acre parcel by National Marine. There is no indication that the contractor hired by the Agency to investigate the property even took samples from any part of the 52 plus acres outside of the area where contamination was identified.

In our opinion, the gross disparity between the area of identified contamination and the area covered by the notice distinguishes this case from the Carlson case and justifies judicial intervention. National Marine understandably may have an interest in subdividing and transferring all or part of the approximately 52 acres that were not the subject of the Agency’s investigation. It cannot do so while title to the entire parcel is clouded by the Agency’s notice. And, at this point there is no meaningful way to estimate when the contaminated 12-acre area will be cleaned up. Thus, whether intentionally or not, the consequence of the Agency’s “mere issuance of notice” in this case was to profoundly restrict the landowner’s right to deal with some 52 acres of presumably “clean” property. Further, and contrary to the Agency’s argument, we are not convinced that the fact that National Marine has not identified a ready, willing and able purchaser for any of the property is an adequate reason to deny National Marine its day in court before final Board action has been taken in enforcement proceedings initiated by the Agency.

Under the circumstances, we hold that the gross disparity between the area of alleged actual contamination and the area included in the notice presents a case appropriate for review under common law certio-rari and that failure to grant such review was an abuse of the court’s discretion.

We conclude that the circuit court of Grundy County erred in dismissing plaintiff’s claim for common law writ of certiorari. Accordingly, we reverse the order of dismissal and remand this cause for further proceedings.

Reversed and cause remanded.

McCUSKEY, J., concurs.

JUSTICE GORMAN,

dissenting:

I respectfully dissent. I agree with the majority’s discussion of the facts, and I agree with their review of City of Quincy v. Carlson (1987), 163 Ill. App. 3d 1049, 517 N.E.2d 33, finding the Environmental Protection Act constitutional. I depart from the majority opinion on the availability of the common law writ of certiorari to attack the notice issued by the Illinois Environmental Protection Agency.

The majority opinion frames the issue as “whether the well-pleaded facts present a situation of such egregious overreaching that judicial intervention is warranted notwithstanding legislative preference to the contrary.” (232 Ill. App. 3d at 851.) I do not find support for the existence of such a test to determine the availability of a writ of certiorari and believe that the decided cases limit the availability of the writ to those instances in which the petitioner is without an avenue for review from an action by a tribunal exercising judicial or quasi-judicial functions. (Stratton v. Wenona Community Unit District No. 1 (1990), 133 Ill. 2d 413, 551 N.E.2d 640.) The legislative scheme specifically provides for administrative review from final determinations, and I would hold that this writ is not available to test the adequacy of the notice.

The Agency was created by the Environmental Protection Act to perform technical, licensing and enforcement functions. It is the Agency’s duty to investigate violations of the Act. (Ill. Rev. Stat. 1991, ch. IIIV2, pars. 1004(e), 1030.) Here, the Agency investigated National Marine’s property and found the release or substantial threat of release of hazardous substances. Accordingly, the Agency issued a section 4(q) notice to National Marine. (Ill. Rev. Stat. 1991, ch. IIIV2, par. 1004(q).) Pursuant to this section, the notice included the identified response action and an opportunity for National Marine to perform the response action.

This notice, in and of itself, does not cause any legal detriment to the notified party. The party is, in fact, free to ignore the notice. (City of Quincy, 163 Ill. App. 3d at 1053, 517 N.E.2d at 35.) If that happens, the Agency is authorized to proceed with cleanup operations on its own. Ill. Rev. Stat. 1991, ch. HV-k, par. 1004(s).

The Agency can then institute a cost-recovery action against the allegedly responsible parties. (Ill. Rev. Stat. 1991, ch. HV-k, par. 1022.2(i).) The Pollution Control Board will hold a de novo hearing at which the Agency bears the burden of proving that the respondent caused the violation. Ill. Rev. Stat. 1991, ch. lll1^, pars. 1031,1032.

The Board was created by the Act to perform both quasi-legislative and quasi-judicial functions. If the Board finds the party liable and if it also finds that the party failed “without sufficient cause” to provide remedial action in accordance with the Agency’s notice, the Board may impose punitive damages in addition to actual damages. (Ill. Rev. Stat. 1991, ch. IIIV2, par. 1022.2(k).) This provision is intended to further the legislature’s desire for prompt alleviation of pollution without formal hearings by giving the responsible party a strong incentive to act. The Board’s final decision may be appealed to this court. Ill. Rev. Stat. 1991, ch. lll1^, par. 1041.

National Marine sought review of the notice by filing a writ of cer-tiorari action in the circuit court. The common law writ of certiorari was developed to provide a means whereby a petitioner who was without an avenue of appeal for direct review could obtain limited review over an action by a tribunal exercising judicial or quasi-judicial functions. (Stratton, 133 Ill. 2d at 427, 551 N.E.2d at 645.) This writ has an extremely limited application. (Hartley v. Will County Board of Review (1982), 106 Ill. App. 3d 950, 954, 436 N.E.2d 1073, 1076.) The absence of other adequate remedies for direct review is an essential precondition to review by common law certiorari. (Hartley, 106 Ill. App. 3d at 956, 436 N.E.2d at 1078.) The writ will not issue where another adequate remedy is available. (First National Bank & Trust Co. v. Rosewell (1982), 93 Ill. 2d 388, 396, 444 N.E.2d 126, 130.) If a writ is granted, the proper inquiry is limited to the narrow questions of whether the inferior court or tribunal acted within its jurisdiction and proceeded by the applicable procedural rules. (Hartley, 106 Ill. App. 3d at 954, 436 N.E.2d at 1076-77.) The granting or denial of a writ of certiorari lies within the broad discretion of the trial court. Stratton, 133 Ill. 2d at 428, 551 N.E.2d at 646.

Where the Administrative Review Law has been made applicable to an agency, it acts as the sole method of review, to the exclusion of any other statutory, equitable, or common law mode of review of decisions of administrative agencies. (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 102.) Admittedly, the Administrative Review Law does not apply to all actions of the Agency. (National Marine Service Inc. v. Environmental Protection Agency (1983), 120 Ill. App. 3d 198, 208, 458 N.E.2d 551, 557.) Nor does the Environmental Protection Act expressly adopt the Administrative Review Law to review the issuing of a section 4(q) notice. (Ill. Rev. Stat. 1991, ch. lll1^, par. 1041.) But that is simply because this action by the Agency is not any form of quasi-judicial action which would cause a legal detriment to National Marine.

The Agency argues that this notice does not constitute judicial or quasi-judicial action and therefore the question of whether it exceeded its jurisdiction should not be reached. National Marine argues that the language and form of the notice cause it to become a “final order.”

The supreme court has said that the finality of an order is not necessarily determined by its form. (Wilkey v. Illinois Racing Board (1983), 96 Ill. 2d 245, 449 N.E.2d 843.) Instead, the ultimate question is “ ‘whether the judgment fully and finally disposes of the rights of the parties to the cause so that no material controverted issue remains to be determined.’ [Citation.]” Wilkey, 96 Ill. 2d at 249, 449 N.E.2d at 844.

The notice does not dispose of the issues. It is merely a precursor to the filing of a complaint, which would then be followed by a de novo hearing. No matter what form or language the notice used, it is clear that it does not in any way bind National Marine. The Agency would still have to plead and prove all the necessary facts before the Board in order to hold National Marine liable. Then, and only then, would National Marine have suffered a legal detriment. And any final decision of the Board would be appealable.

National Marine still has adequate avenues of review available to it. It can ignore the notice and wait for the Agency to institute a cost-recovery action, or it can attempt to settle the dispute. The Act specifically authorizes the Agency to negotiate and attempt a settlement prior to the filing of a formal complaint. (Ill. Rev. Stat. 1991, ch. IIIV2, par. 1031(d).) Indeed, the Act expresses a preference for settling without a formal hearing. Ill. Rev. Stat. 1991, ch. IIIV2, par. 1022.2a.

Even if this notice is held to constitute quasi-judicial action, National Marine must still show that the Agency was without jurisdiction to issue this notice. National Marine argues that the inclusion of the 52.684 acres as part of the facility affects the Agency’s jurisdiction.

The Act does not require the Agency to limit its notice to the exact area where the hazardous substance was found. Rather, the legislature has given the term “facility” a broad meaning. Ill. Rev. Stat. 1991, ch. IIIV2, par. 1022.2(hXl).

The size of the “facility,” like the level of contamination and other such issues, is properly viewed as a question that goes to the merits of the action which should be decided by the Board. It is undisputed that the merits of an Agency action are not properly before the court prior to a cost-recovery action. (City of Quincy, 163 Ill. App. 3d at 1056, 517 N.E.2d at 37.) Moreover, it is equally well established that a writ of cer-tiorari is not available to determine whether the inferior tribunal correctly determined the questions before it. Hartley, 106 Ill. App. 3d at 955, 436 N.E.2d at 1077.

Whether the Agency properly included the additional acreage is not a decision which can be reviewed by writ of certiorari. Simply because the decision of the Agency may ultimately be found to be wrong after a hearing before the Board does not mean that the Agency was without jurisdiction to make that decision.

The legislature has expressly precluded any preenforcement hearing in favor of an “act first and litigate later” approach. (City of Quincy, 163 Ill. App. 3d at 1053-54, 517 N.E.2d at 35-36.) Given the threat to public health that arises from a violation of the Act, both Federal and State courts have repeatedly refused to handcuff the Agency by delaying effective responses. (See, e.g., City of Quincy, 163 Ill. App. 3d at 1054, 517 N.E.2d at 36 (and cases cited therein).) As the court stated in City of Quincy:

“The legislative policy underlying the adoption of these strict measures is the protection and enhancement of the quality of the environment achieved through prompt alleviation of environmental damage which poses serious endangerment to the public health and welfare.” 163 Ill. App. 3d at 1053, 517 N.E.2d at 35.

It is not unreasonable to assume that the earlier action is taken, the lesser the likelihood of widespread contamination and damage. Preen-forcement judicial review would hamper this process at great cost to the environment and to public safety. Where great public detriment or inconvenience is likely to result from interfering with the proceeding of the inferior tribunal, the writ of certiorari should not issue. (Connolly v. Upham (1950), 340 Ill. App. 387, 92 N.E.2d 207.) Allowing preenforcement judicial review in pollution cases could delay cleanup by months or even years.

In addition, National Marine has not suffered a substantial injury or injustice so as to merit equitable relief. (Stratton, 133 Ill. 2d at 428, 551 N.E.2d at 646.) It alleges that it has had difficulty selling the 52 acres while the title is clouded by the Agency’s notice. National Marine, however, admits that it could sell the land but that now it would have to comply with the Responsible Property Transfer Act of 1988 (Ill. Rev. Stat. 1991, ch. 30, par. 901 et seq.). National Marine therefore does not claim that it cannot sell the parcel; it merely claims that the value has substantially decreased. National Marine’s being inconvenienced by having difficulty selling its land cannot override the public’s interest in prompt cleanup of hazardous materials. This interest would be thwarted by allowing preenforcement judicial review by way of a writ of certio-rari.

Courts have allowed the use of a writ of certiorari to review decisions of the Agency only in extremely limited situations. In National Marine Service Inc. v. Environmental Protection Agency (1983), 120 Ill. App. 3d 198, 458 N.E.2d 551, for example, the Agency denied a requested certification pursuant to its authority under section 4(m) of the Act. (Ill. Rev. Stat. 1981, ch. IIIV2, par. 1004(m).) The fourth district noted that the Act specifically adopted the Administrative Review Law and gave the Board the authority to review the denials of certain enumerated permits. However, the Board was not expressly granted authority to review denials of this type. Furthermore, the appeals allowed under the Administrative Review Law were limited to ones taken from a Board decision or from the denial of a permit. Because the petitioner did not fall into any of those categories, it was left without an avenue of review. It had clearly suffered an injury because without the certification, it could not acquire certain permits. The petitioner was not required to exhaust its administrative remedies because there simply were no remedies available. Therefore, the court allowed the writ to issue.

Here, the facts are much different. National Marine has suffered no recognizable injury. Further, there still is an adequate avenue of review available to it. Before National Marine can be made to pay any money, the Agency must prove its case before the Board. This would include proving that these 64 plus acres constituted a “facility.” Moreover, present in this case is the fact that there is a great public interest in immediate cleanup of the hazardous waste, a factor not presented to the fourth district.

To allow a writ of certiorari in a situation such as this would open a virtual Pandora’s box of litigation. Each time the Agency issues a notice, the allegedly responsible party could petition for preenforcement judicial review by means of a writ of certiorari. The parties could challenge any one of a number of determinations made by the Agency, e.g., size of the facility, level of pollution, etc. The result would be a greatly reduced speed in alleviating pollution and a greatly increased court docket.

The issuing of a section 4(q) notice is not an unreviewable action; it can be reviewed by the Board at a cost-recovery action and then by this court by way of administrative review.

The Agency has the authority to investigate possible violations of the Act. It also has the power and the duty to issue section 4(q) notices and to prosecute offenders before the Board. It is not disputed that the Agency has the authority to issue a notice. All that is disputed is the inclusion of the 52 plus acres in this notice. This is a factual question best left to the Agency. It is better equipped than the courts to investigate and to make that determination. The Agency is empowered to make such investigatorial and prosecutorial decisions. If its decision is erroneous, it can be corrected by the Board or by this court by way of administrative review. The trial court did not abuse its discretion in holding that the writ of certiorari should not issue.

For the foregoing reasons, I respectfully dissent.


author: PRESIDING JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK C. MELTON, Defendant-Appellant.
    Fourth District
    No. 4—91—0819
    Opinion filed June 30, 1992.
    Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    John Turner, State’s Attorney, of Lincoln (Norbert J. Goetten, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On September 24, 1991, following a jury trial in the circuit court of Logan County, defendant Mark C. Melton was convicted of residential burglary (Ill. Rev. Stat. 1991, ch. 38, par. 19 — 3(a)). He was subsequently sentenced to a term of 10 years’ imprisonment.

On appeal, defendant maintains (1) the prosecutor committed reversible error by telling the jury it was defendant’s duty to call non-alibi witnesses, and (2) the State failed to prove him guilty beyond a reasonable doubt. We affirm.

Terry Crutcher testified at trial as follows: (1) on April 29, 1991, he resided at 113 Stringer in Lincoln, Illinois, with Valerie Condie; (2) they left the residence at 9 p.m. on that day and returned at 11 p.m. to find the screen on the kitchen window had been removed, and the window was wide open; (3) his stereo, tools and toolbox, a pair of boots, and a television remote control were missing; (4) he did not give anyone permission to open the window and remove these items; (5) on May 4, 1991, he saw defendant walking near Crutcher’s apartment carrying one of Crutcher’s stereo speakers; (6) Crutcher confronted defendant and saw the rest of his stereo in the trunk of defendant’s car; (7) he said defendant told him he had bought the stereo from someone else, and he was going to sell it; (8) three other individuals who were with defendant then went into an adjacent apartment building and brought out the boots, the toolbox and some of the tools; and (9) defendant suggested that Crutcher call the police to get the matter straightened out, and defendant waited until the police arrived. Crutcher testified on redirect that when he first saw defendant with the speaker, defendant appeared to be trying to conceal the speaker. He said the speaker was wrapped up, and defendant “scurried” by the apartment.

Valerie Condie testified that she saw defendant outside their apartment on May 4, 1991, with the stereo. She said defendant indicated he had purchased the stereo from someone else.

Detective John Combs then testified as follows: (1) on May 5, 1991, defendant told him he had purchased the stolen items from “John Persale” for $120; (2) defendant produced a bill of sale for the items dated May 2, 1991, and signed by “John Persale”; (3) on May 7, 1991, Combs spoke to a “Johnnie Parcelle” and asked if he had seen defendant within the previous two weeks; (4) Parcelle told Combs he had not seen defendant for six months and had not sold the stolen items to defendant; (5) Parcelle then signed his name, and Combs compared the signatures to the handwriting on the bill of sale; and (6) the signatures showed the names on the two documents were spelled differently. Combs testified on cross-examination that there were no fingerprints or personal items linking the defendant with the burglary, and he had no way to identify Parcelle as the person defendant said had sold him the property other than the similarity of names.

Johnnie Parcelle testified he was an acquaintance of defendant, did not sell him any items on May 2, 1991, and did not sign a bill of sale indicating he had.

Thomas Estep testified he was a document examiner for the Illinois State Police. He said the writing on the bill of sale was awkwardly written in an “unnatural” style. He said writing samples produced by defendant appeared to be disguised, based upon frequent changes in speed and slant. He said the writing samples from Johnnie Parcelle were “freely written” and could not be associated with the writing on the bill of sale. Finally, Estep testified he could not say that defendant was the person who wrote the bill of sale or signed the name “John Persale.”

Defendant testified as follows at trial: (1) he was 27 years old and had previous theft convictions; (2) he obtained possession of the items described by Crutcher on May 2 or 3; (3) he wrote the entire bill of sale, except for the signature, because he was on parole and did not want to get into trouble for being in possession of items he could not prove were his; (4) he paid a total of $100 for the items; (5) he met John Persale at a party at defendant’s apartment, and Persale asked if defendant wanted to purchase the items; (6) defendant did not know the items were stolen; (7) when he was transporting the stereo, he did so in open view during daylight hours; (8) he was going to sell the stereo because it was “somebody’s” birthday, and he needed the money; (9) the John Parcelle who was in the courtroom was not the John Persale who sold the items to defendant; and (10) the police never asked him to describe John Persale.

During the rebuttal portion of closing argument, the assistant State’s Attorney argued as follows:

“We put on the evidence that’s available. The defendant says through his attorney that we didn’t fingerprint, and we didn’t find a foot mark, and I should have done that for you. Well, you know what is lacking in this case is not something that the State didn’t do. The defendant says there is a John Persale who works in Lincoln in a bakery who he has met only twice, once at a party. Doesn’t know how he got there. That person is here in Lincoln working in a bakery. Where is he?”

Defendant’s objection to the statement as an attempt to shift the burden of proof to him was overruled. The State then argued:

“The State didn’t say that there was a John Persale, P-e-r-s-a-1e. The defendant says that. That witness has not testified. That’s not evidence. You don’t decide the case on evidence that isn’t before you. You decide it upon what is before you on the evidence that was presented. He interjected his mom in the case. She’s not here to testify about the party where this sale took place. She could have come in and said about the party. I didn’t interject her in the case.”

Defendant’s objection was again overruled.

Defendant argues on appeal the prosecutor’s comments that it was defendant’s duty to have called John Persale and his mother as witnesses constituted reversible error. Defendant notes the Illinois Supreme Court has found a prosecutor’s comment on a defendant’s failure to call a nonalibi witness is improper where there is no showing that he was not equally available to both parties. (People v. Beller (1979), 74 Ill. 2d 514, 526, 386 N.E.2d 857, 862.) In People v. Munday (1917), 280 Ill. 32, 42, 117 N.E. 286, 293, the court also noted it was improper for the State to comment unfavorably on the defendant’s failure to produce a witness equally accessible to the State, because such remarks unfairly tend to shift the burden of proof to the accused. Here, however, the witnesses, about whom the State commented, were clearly far more accessible to the defense than the State and would have been alibi witnesses.

In People v. Adams (1985), 109 Ill. 2d 102, 485 N.E.2d 339, the defendant stated he was in a store buying a bottle of vitamin E prior to the time the proprietor was robbed and killed. He said he left the bottle at the home of Shirley McClaine. Defendant did not call her as a witness to corroborate this statement, and the prosecutor commented on the failure of the defense to produce McClaine. The supreme court said her testimony was important to defendant’s defense, and assumed that locating her was under defendant’s control or within his knowledge. The court found it was not error for the prosecutor, under the circumstances, to comment on the nonproduction of McClaine.

Here, presumably, John Persale could have testified that he sold the stolen items to defendant. This was a material fact vital to defendant’s defense. Defendant claimed Persale worked at a bakery in Lincoln and was not the Johnnie Parcelle produced by the State. Defendant claimed to have had dealings with Persale on two occasions: once when they met at defendant’s mother’s apartment and defendant made down payment on the stolen items, and again a few days later when Persale returned to retrieve the remainder of the $100 purchase price. The only information the State had was that “Persale” worked in a bakery in Lincoln. The State had no description of Persale and had not been told the name of the bakery or where it was located. This is insufficient to say the State had equal access to this witness.

Since Persale could have testified to a material fact within his knowledge, and defendant could more easily have been able to discover his whereabouts, the State properly commented on defendant’s failure to call him.

In People v. Kubat (1983), 94 Ill. 2d 437, 447 N.E.2d 247, the court noted defendant’s failure to call a witness or bring in evidence within his control in explanation or refutation, is “ ‘a circumstance entitled to some weight in the minds of the jury, and, as such, is a legitimate subject of comment by the prosecution.’ ” Kubat, 94 Ill. 2d at 497, 447 N.E.2d at 274, quoting People v. Blakes (1976), 63 Ill. 2d 354, 359-60, 348 N.E.2d 170, 174.

Finally, defense counsel argued in closing that defendant testified he had purchased the items and had a bill of sale to prove it. In People v. Parker (1976), 40 Ill. App. 3d 597, 352 N.E.2d 394, the defense attorney argued in closing that the manager of an apartment building would corroborate defendant’s testimony that he saw the victims carrying stolen items out of the building. The prosecutor in rebuttal questioned why the defendant did not bring the manager in to testify. The court said there was no error in overruling a defense objection to this remark, stating, “[a] defense attorney cannot provoke a reply to his own improper argument and then claim error.” (Parker, 40 Ill. App. 3d at 605, 352 N.E.2d at 402.) Defendant’s implication here that John Persale would corroborate his version of how he came into possession of the stolen property invited the State to question why defendant did not call him as a witness. There was no error in the prosecutor’s comment.

The prosecutor’s comment as to defendant’s mother was also proper, because she, too, would have testified to a material fact and was not equally accessible to the State. She could have testified concerning the party held at her apartment at which defendant allegedly purchased the stolen items. Although defendant stated she did not witness the actual sale, she could have verified that the party took place, which would have made the possibility of a sale more likely. Defendant did not offer any other evidence of who was at the party.

Moreover, a witness is not equally available if she is likely to be biased against the State, for example, if that witness is related to the defendant. (People v. Enoch (1989), 189 Ill. App. 3d 535, 550, 545 N.E.2d 429, 440.) In Enoch, the court concluded any comment by the prosecutor on the defendant’s failure to call his mother and brother to testify was proper since they were not equally accessible to the State because they were likely biased against the State. Here, similarly, defendant’s mother was not equally available to the State because she was likely to be biased against it.

Defendant next argues he was not proved guilty beyond a reasonable doubt. The recent and exclusive possession of items stolen in a burglary, without reasonable explanation, allows the jury to infer defendant’s guilt of burglary. The inference is permissible if (1) there is a rational connection between his recent possession of property stolen in a burglary and his participation in the burglary; (2) his guilt of burglary is more likely than not to flow from his recent, unexplained and exclusive possession of burglary proceeds; and (3) there is evidence corroborating the inference. People v. Housby (1981), 84 Ill. 2d 415, 424, 420 N.E.2d 151, 155; People v. Klein (1983), 115 Ill. App. 3d 582, 585, 450 N.E.2d 1268, 1270.

Here, the inference of guilt was permissible, because defendant’s explanation that he had purchased the stolen property could easily have been found by the trier of fact to be incredible and indicative of dishonesty.

Defendant testified he purchased the property from “John Per-sale” three days after the burglary and was caught with the items two days later. According to police detective John Combs, defendant told Combs he purchased the items for $120, but he testified at trial he paid $100. Defendant did not produce John Persale to verify his signature on the alleged bill of sale or to testify he had sold the items to defendant. The entire theory concerning the bill of sale was fraught with suspicion and the jury was entitled to reject it.

Moreover, defendant’s testimony was inconsistent in other respects as well. At one point he said he only met Persale once, but also said he paid Persale part of the total purchase price during the sale, and Persale came back later to get the rest of the money. He also stated he made the purchase on May 2, and Persale returned a week later for the rest of the money. However, defendant was arrested on May 4. Finally, defendant said he kept the items for “at least 3 or 4 days” after he bought the items before deciding to sell them.

The jury could have inferred, from defendant’s testimony, that (1) defendant’s possession of the stolen property resulted from his participation in the burglary; (2) the defendant’s use of a bill of sale to “prove” his rightful possession to the stolen property was further evidence of his guilt of the burglary; and (3) the corroborating circumstances supporting the inference that defendant participated in the burglary included defendant’s suspicious explanation of how he came to be in possession of the stolen property. In Housby, the court indicated sufficient corroboration is presented “where the defendant himself presents an explanation of possession that the jury reasonably finds to be false.” Housby, 84 Ill. 2d at 430-31, 420 N.E.2d at 158.

The determination of the credibility of the witnesses, the weight to be given to their testimony and the inferences to be drawn therefrom are exclusive functions of the jury. The jury’s determination of guilt should not be disturbed on review where, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.

Here, defendant’s testimony was inconsistent in many respects, and the jury could have concluded his explanation was false. Accordingly, for the reasons stated, the decision of the trial court is affirmed.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD FLAUGHER, Defendant-Appellant.
    Fourth District
    No. 4—91—0796
    Opinion filed August 13, 1992.
    Rehearing denied September 14, 1992.

      Curtis L. Blood, of Collinsville, for appellant.
    Charles H. Burch, State’s Attorney, of Hardin (Norbert J. Goetten, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court;

On August 3, 1990, a two-count indictment was returned in the circuit court of Calhoun County charging defendant Ronald Flaugher with the offense of attempt (first degree murder) (Ill. Rev. Stat. 1989, ch. 38, pars. 8 — 4(a), 9 — l(aXl)) committed on July 8, 1990, against two separate victims. The first count named defendant’s brother Thomas Flaugher as the victim and the second count named Thomas’ wife, Dorothy Flaugher, as the victim. After a jury trial, the court entered judgment on August 5, 1991, on a verdict finding defendant guilty on both counts. Subsequently, the court sentenced defendant to two consecutive terms of 15 years’ imprisonment. Defendant has appealed. We affirm.

Defendant makes no claim that the evidence was insufficient to support the verdict but asserts that the evidence was sufficiently balanced that several errors, either singularly or as accumulated, require a new trial. He contends those errors arose from (1) a misunderstanding by the court of the operation of the Montgomery rule (People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695); (2) admission of testimony of defendant’s post-arrest silence after receiving Miranda warnings; (3) perjury of State’s witness Thomas Flaugher, discovered after the trial; (4) refusal of the court to permit defendant to call the prosecutor as a witness; (5) improper closing argument by the prosecutor; (6) the submission of a confusing set of instructions to the jury; and (7) ineffective assistance of counsel. We hold that (1) defendant was not deprived of his right to effective assistance of counsel, (2) the evidence was not evenly balanced, and (3) any errors committed were neither singularly nor in combination such as to warrant the grant of a new trial.

Defendant admits that on July 8, 1990, during a dispute, he intentionally fired a shotgun at the two victims and hit them. He also admits he then fired a pistol at Thomas and missed him. Defendant contended at trial that the seriousness of his conduct was sufficiently mitigated by provocation that he was only guilty of attempt (second degree murder) (Ill. Rev. Stat. 1989, ch. 38, pars. 8 — 4(a), 9 — 2(aXl)). He contends that the provocation arose from a series of events culminating in the July 8 episode in which he shot the two victims.

In 1985 or 1986, defendant and Thomas purchased real estate in Granite City. In 1988 or 1989, they sold one-half of the interest in that real estate and purchased land in Calhoun County which had constituted two adjacent farms. One was called the Becker farm and, at times, Thomas had stayed there. The other was called the Meyer farm and defendant and his family had stayed there. The deeds to the property had been drafted in such a way that Thomas, defendant, and defendant’s wife Donna Flaugher each owned an undivided one-third interest in the property. Thomas violently objected to this division, contending he was entitled to a one-half interest. Defendant maintained the division was fair because he had made a greater monetary contribution to the purchase price.

The dispute between Thomas and defendant had become so acute that, according to Thomas, defendant had told him that he, defendant, would kill him if he came on the land. Thomas also testified that defendant had once shot at him and missed when he did come on the land. Thomas admitted he once told defendant the title question should have been straightened out and, if somebody was killed in the dispute, “it is going to be” defendant. Another sore point between defendant and Thomas occurred when Thomas became angry at defendant’s son for riding a four-wheeler on a hill on the Becker farm and hit the boy, knocking him from the four-wheeler. Evidence indicated further threats between the brothers ensued after this incident. Some witnesses testified that Thomas had become so involved with his disputes with defendant that they questioned his mental stability.

The specific dispute giving rise to the shooting concerned a wagon-type trailer, title to which was in defendant’s name and in which he claimed ownership. Thomas contended he had helped build it and had some rights to it. On July 8, 1990, Thomas towed the trailer from the farm of a friend named Watters to the Becker farm. According to Thomas, he intended to pick up an air engine which was in a barn at that farm, and place it on the trailer and take it to his house and then return the trailer. Thomas testified that defendant drove up and objected to his using the trailer but he told defendant he would return the trailer as soon as he was done and defendant left. Defendant testified he told Thomas he needed the trailer to take their father’s corn picker to Missouri. Both agree that defendant then left and came back in about 15 minutes with a shotgun. Both defendant’s wife Donna and Thomas’ wife Dorothy had been with their husbands, but when defendant returned he was alone.

According to Thomas, when defendant returned, defendant backed his truck into the trailer, knocking the trailer off of a jack. Thomas further testified defendant then got out of his truck and stated, “I have warned you once that I’d kill you if you came back, and I’m going to kill you,” whereupon defendant fired his shotgun first at Thomas, who was standing by the trailer, and then at Dorothy, who was in the cab of Thomas’ truck. Both were hit. Thomas further stated that defendant then fired a pistol at him but missed him and then left. Dorothy’s testimony corroborated the version given by Thomas but she stated she could not see whether Thomas had a gun in his hand when defendant fired at him.

Defendant testified that when he returned, Thomas called him names and threatened to kill him and his wife and held a gun in his left hand as he made those threats. Defendant admitted he fired at Thomas and then at Dorothy. He stated that Dorothy had her hand between the door of the cab and the windshield and he thought she had a gun. Defendant then asserted that he saw Thomas on the ground pointing a pistol at him so he fired at Thomas and then drove off. Defendant testified he then telephoned Calhoun County Sheriff Stacy Ferguson and told him he had shot Thomas and Dorothy at the Becker farm. Both defendant and the sheriff testified that before coming to the Becker farm, defendant had gone to the sheriff’s house and requested the sheriff to accompany him to the Becker farm because he anticipated difficulty in getting the trailer from Thomas. The sheriff had refused to intervene in the civil dispute over the trailer.

Defendant’s most serious claims of error concern (1) the contention that the circuit court misunderstood the Montgomery rule, and (2) the court’s permitting introduction of evidence of defendant’s post-arrest silence.

As is well known, in Montgomery the supreme court adopted what became Federal Rule 609 (Fed. R. Evid. 609) in regard to impeachment of a witness by proof of conviction of a crime. The essence of the rule is that the conviction must (1) be for (a) a felony or (b) a misdemeanor involving dishonesty or false statement, (2) have been entered not more than 10 years prior to use at trial, and most importantly, (3) be one which the trial judge determines to be of a probative value that is not “ ‘substantially outweighed by the danger of unfair prejudice.’ ” (Montgomery, 47 Ill. 2d at 516, 268 N.E.2d at 698, quoting 51 F.R.D. 391.) The third aspect as stated above constituted the balancing test required under the Montgomery rule. Montgomery and its progeny make clear that similarity between the offense for which the accused is on trial and the offense conviction of which is offered for impeachment enhances the prejudice to the accused but does not absolutely bar use of the conviction. See People v. Moore (1978), 65 Ill. App. 3d 712, 382 N.E.2d 810; M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §609.4, at 380 (5th ed. 1990).

Here, the court denied a defense motion in limine to suppress use of defendant’s prior Federal convictions for conspiracy to possess and distribute in excess of five kilograms of cocaine and possession of a firearm by a felon. Defendant then admitted these convictions in his testimony in chief. In denying the motion in limine, the trial judge stated “[unfortunately, I think the Federal would be admissible ’cause it goes to the very essence of the charge here, which is attempt murder, first degree, involving a weapon.” This would seem to indicate the court misapplied the balancing test under a mistaken belief that the greater the similarity between the offense charged and the impeaching offense the stronger the case for admissibility.

The court did, however, recognize the existence of the requirement for a balancing test and also stated at the time of ruling on the in limine motion that “[t]he fact that they’re a felony doesn’t necessarily qualify them for admission.” Moreover, the narcotic offenses were not closely related to the attempt (murder). Even the possession of the gun conviction was not highly prejudicial to defendant. The evidence was so overwhelming that he possessed the propensity to carry a gun that the effect of the added conviction was very minor. We conclude no reversible error resulted.

In support of the trial court’s ruling on the in limine motion, the State cites the decision of this court in People v. Blythe (1974), 17 Ill. App. 3d 768, 308 N.E.2d 675. There, this court held that in a prosecution for murder, the accused’s prior convictions in another State for manslaughter and assault with intent to commit robbery with a weapon were properly admitted to impeach the accused’s assertion that he killed in self-defense. Much of the discussion concerned the question of whether convictions for those offenses were admissible for impeachment even though they were not infamous crimes under our statutes. Montgomery was cited to explain that the impeaching offenses need only be felonies or certain types of misdemeanors. However, to the extent the opinion indicates that similarity between impeaching offenses and that charged is a factor supporting admissibility, the opinion is wrong and is hereby overruled.

As with our ruling concerning application of the Montgomery rule, we are concerned about evidence of defendant’s post-arrest silence which was presented to the jury but find that no reversible error resulted. The record reveals that on direct examination Sheriff Ferguson testified that after the shooting “[Ferguson] read [defendant] his Miranda rights, and [Ferguson] asked [defendant] right there in the driveway if he wanted to tell [Ferguson] anything about the shooting or any events that led up to it, and [defendant] said, no, that he really didn’t want to, that he would just wait and talk to his attorney.” Subsequently, Illinois State Police Investigator Dennis Higgins testified “[h]e talked to defendant at the Calhoun County Sheriff’s Department and asked him if he wanted to talk about the incident, and he said he wanted to talk to his attorney.” Defense counsel neither objected to the introduction of this testimony, moved to have it stricken, nor raised the question of the propriety of the testimony in defendant’s post-trial motion.

In Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, a consolidated case, the prosecuting attorney elicited testimony from both defendants at their trials regarding their post-arrest silence and why they did not tell the police the story they were telling at trial. The Supreme Court noted that “[s]ilence in the wake of [Miranda] warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested.” (Doyle, 426 U.S. at 617, 49 L. Ed. 2d at 97, 96 S. Ct. at 2244.) The Court concluded use of the defendant’s post-arrest silence violated the due process clause of the fourteenth amendment.

The State maintains the foregoing testimony was proper to show the nature of the law enforcement investigation when, as here, not accompanied by closing argument that defendant’s refusal to talk further was an indication of guilt. The State cites People v. Lindgren (1982), 111 Ill. App. 3d 112, 443 N.E.2d 1129, and People v. LaSumba (1980), 92 Ill. App. 3d 621, 414 N.E.2d 1318, both decisions of this court. LaSumba is distinguishable. The accused had walked into a police station and told officers a body was in a motel room to which he gave them the key. Evidence was admitted of this conversation and his subsequent statement that the body was of a woman and his refusal to speak further. The opinion did not indicate any Miranda warnings had been given.

Lindgren was more similar to this case. One police officer testified that while that accused was in custody the accused stated he had been fishing during the night of a killing and refused to say more. Another officer testified that after the accused was read his Miranda rights he made a comment about fishing but refused to speak further. This court approved the introduction of the evidence as an elicitation of “a complete recitation of police procedure” not contended to be “indicative of guilt” (Lindgren, 111 Ill. App. 3d at 117, 443 N.E.2d at 1133). While we agree that there, as here, the introduction of the testimony of the silence of the accused after Miranda warnings was not reversible error, we conclude that the proper practice is to exclude testimony of the silence of the accused when the only purpose for its admission is to show police procedure. No substantial detriment to the State results from such a rule and judges and prosecutors should be alert to prevent such matter from getting before a jury.

Our rationale for excluding this evidence of investigative procedure is analogous to that which we expressed in People v. Cameron (1989), 189 Ill. App. 3d 998, 546 N.E.2d 259, concerning the introduction of hearsay evidence prejudicial to an accused which was presented merely to show investigative procedure. There, an investigator in a drug case was permitted to testify concerning (1) phone calls from an informant who stated the accused had recently purchased drugs and was intending to get rid of them because he thought he was being watched, and (2) one side of a phone conversation with an informant who allegedly arranged a purchase with the accused. We indicated that the trial court should have cut off the testimony short of allowing the damaging hearsay to get before the jury while allowing the witness to mention he had conversations with the various people involved in order to explain why he acted as he did.

This court in Cameron recognized that a number of appellate decisions seemed to support the actions of the trial court but determined that closer scrutiny of the details of the evidence to be admitted was required. We noted as follows:

“A highly respected evidence text describes the theory upon which out-of-court statements are admitted to explain a course of police conduct and discusses the danger of misuse of such statements:
‘In criminal cases, an arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct. His testimony that he acted “upon information received,” or words to that ef-feet, should be sufficient. Nevertheless, cases abound in which the officer is allowed to relate historical aspects of the case, replete with hearsay statements in the form of complaints and reports, on the ground that he was entitled to give the information upon which he acted. The need for the evidence is slight, the likelihood of misuse great.’ McCormick, Evidence §249, at 734 (3d ed. 1984).” (Emphasis added.)
Cameron, 189 Ill. App. 3d at 1004, 546 N.E.2d at 263.

Here, no purpose was served by any portion of the quoted statements of the two officers. The prosecutor should not have elicited the information and defense counsel should have objected to the questions which elicited the information. However, error in admission of evidence to which no objection is made and which is not cited in a post-trial motion is usually waived. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) Such is the case in regard to a violation of Doyle even where the prosecutor comments upon the impermissible evidence when the evidence is not closely balanced and the error is not such as to deprive the defendant of a fair trial. (People v. Herrett (1990), 137 Ill. 2d 195, 561 N.E.2d 1.) As we subsequently explain, the evidence here was not evenly balanced and the circumstances of the introduction of the evidence were such that the prejudice to the defendant was minor. He admitted he had shot the two victims and the thrust of his case concerns the degree of his culpability. Evidence that he refused to talk does not imply any greater culpability than he has admitted. Admission of this evidence created no reversible error.

Defendant’s claim that Thomas committed perjury at trial is based on testimony of Thomas that he had brought suit against defendant to obtain a greater interest in the Calhoun County land. This testimony would indicate that defendant had a motive to kill Thomas because of the filing of the suit. Defendant alleged in his post-trial motion that he had recently been served with process in connection with such a suit and learned then, for the first time, that Thomas had not yet filed suit when he testified at trial. The record showed that suit had not been filed at the time of trial.

Defendant maintains he was denied due process because of the incorrect statement by Thomas, which he contends must have been knowing. He relies on People v. Cornille (1983), 95 Ill. 2d 497, 448 N.E.2d 857, where in a post-conviction petition the defendant sought a new trial based on evidence that the expert witness in his trial presented false testimony regarding his qualifications as an expert. The Cornille court concluded the false testimony of the State’s expert regarding his qualifications violated that defendant’s due process rights. The court noted that to elevate an allegation of perjury to a violation of due process the defendant must establish the State was involved in the perjury. The court concluded the State action requirement was satisfied there by showing that the State failed to verify its expert witness’ credentials in addition to the involvement of the State adjudicatory process. The court also noted that once State action is established the defendant is entitled to a new trial unless the State can prove beyond a reasonable doubt the false testimony was immaterial and did not lead to the conviction. The court also noted that false testimony relating only to the issue of credibility may constitute reversible error in closely balanced cases.

Here, unlike in Cornille, the filing of the complaint was of little consequence. The jury was aware of this dispute concerning the division of interest in the farmland. The inaccurate evidence that a suit had actually been filed gave only a slight increase in the weight of evidence of a motive for the shootings. The defense had almost as much reason to know whether the complaint had been filed as did the State. The inaccurate testimony was likely not wilful as Thomas had consulted an attorney and likely did not understand the procedure whereby a suit is not initiated until a complaint has been filed. The question of whether the filing had actually taken place was a detail about which we cannot strongly criticize the prosecutor for not checking. No culpability on the State sufficient to require a new trial existed here.

Defendant’s discovery after trial that Thomas had not filed a lawsuit does not entitle defendant to a new trial on the basis of newly discovered evidence for many of the same reasons that the falsity of Thomas’ testimony does not require a new trial.

“ ‘To warrant a new trial, the new evidence must be of such conclusive character that it will probably change the result on retrial, that it must be material to the issue but not merely cumulative, and that it must have been discovered since the trial and be of such character that it could not have been discovered prior to trial by the exercise of due diligence.’ ” People v. Molstad (1984), 101 Ill. 2d 128, 134, 461 N.E.2d 398, 402, quoting People v. Baker (1959), 16 Ill. 2d 364, 374, 158 N.E.2d 1, 6.

Defendant’s next two claims of error concern his testimony that he went to see Charles Burch, Calhoun County State’s Attorney, concerning threats Thomas had made to him and the State’s Attorney refused to do anything. Prior to trial, defendant filed a list of witnesses he expected to call. The name of State’s Attorney Burch was on that list. The State objected to Burch being a witness because that would prevent him from trying the case. Defendant indicated he wanted to call Burch to establish that he came to see Burch in regard to threats which Thomas had made to him. Burch represented to the court that defendant had been to see him but the visits concerned the property dispute and not threats and that he could not get involved in that civil dispute. Burch stated he had no file indicating defendant had made any complaint.

Defendant furnished the list of witnesses less than two weeks before a scheduled trial date. As Burch argued, he would have had a difficult time finding a substitute prosecutor who could be ready for trial. Moreover, a “ ‘trial court has wide discretion in refusing to permit attorneys to testify at a trial wherein they also serve as advocates.’ [Citation.] There is no abuse of discretion in the court’s refusal where the testimony of the prosecuting attorney is not necessary for the presentation of a defense.” (People v. Rosenberger (1984), 125 Ill. App. 3d 749, 765, 466 N.E.2d 608, 619.) Here, even if Burch would have substantiated defendant’s contention that he complained to Burch because of threats from Thomas, defendant had a great deal of direct testimony in that regard from other witnesses. Proof of a self-serving statement by defendant to Burch would have added little to defendant’s case. The court did not exceed its discretion in ruling as it did. People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.

Defendant asserts that claimed error in the circuit court’s refusal to require Burch to testify was compounded when, in closing argument, Burch stated as follows:

“Now, they say, T went to the State’s Attorney,’ and [defendant] tells you, ‘He denied me my constitutional rights.’ What can he want me to do, put his brother off his farm? *** I can’t put his brother off his farm. His brother owned every inch of that farm with [defendant] and Donna Flaugher. I had no right to take him off of that farm. That’s far beyond the purview of the job of State’s Attorney.”

Defendant had testified Burch had denied him any help when he came to Burch’s office. Defendant maintains Burch was, in effect, improperly testifying. People v. Smith (1990), 141 Ill. 2d 40, 565 N.E.2d 900; People v. Ford (1980), 83 Ill. App. 3d 57, 403 N.E.2d 512.

Defendant correctly states that the argument was improper as it was phrased in such a way that the prosecutor was giving testimony about at least some matters not in evidence. However, the matter discussed was a very minor one, as we have explained. The trial court has great discretion in passing upon the propriety of closing argument. The court acted well within its discretion in overruling objection to the State’s closing argument. People v. Morgan (1991), 142 Ill. 2d 410, 568 N.E.2d 755.

Defendant’s next claim of error concerns instructions given to the jury. Understanding this issue requires a brief review of the charges. Defendant was charged with attempting to commit the offense of first degree murder as to each of the two alleged victims. He maintains he was only guilty of attempting to commit second degree murder, which type of murder occurs pursuant to section 9 — 2(a) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2(a)) when a person commits first degree murder as defined in subsections (1) and (2) of section 9 — 1(a) of the Code (Ill. Rev. Stat. 1989, ch. 38, pars. 9— l(aXl), (aX2)) and at the time the defendant is (1) acting under sudden and intense passion usually provoked by the person killed, or (2) possessed of unreasonable belief he is justified to act in self-defense. Here, defendant, maintained he acted under sudden and intense passion resulting from provocation. Under the provisions of section 9— 2(b) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2(b)) he had the burden of proving that he so acted by a preponderance of the evidence.

Defense counsel admitted that Dorothy Flaugher had not done anything sufficient to provoke defendant to attempt to kill her. The court gave the State’s tendered instructions in regard to the alleged offense against Thomas which defined the offense of attempt (second degree murder) and set forth the issues. Over defense objection, the court gave an instruction defining the mitigating factor of provocation “by Dorothy Flaugher” but gave no issues instruction concerning provocation that might have resulted from conduct of Dorothy Flaugher. Defendant maintains those instructions confused the jury

Confusion possibly existed but we do not see how the confusion could have been prejudicial to defendant. Defense counsel admits that the evidence was insufficient to raise an issue of provocation by Dorothy The evidence was insufficient to raise an issue that defendant fired at Dorothy intending to hit Thomas. Thus, no showing was made sufficient to permit the jury to reduce the offense against Dorothy to attempt (second degree murder). (See Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2(aXl)-) As far as the alleged offense against Thomas Flaugher was concerned, the jury was adequately instructed as to the circumstances which would mitigate those charges to attempt (second degree murder). No reversible error arose from the instructions.

Finally, defendant maintains he received ineffective assistance of counsel because of the failure of his counsel (1) to investigate whether Thomas had actually filed suit against defendant, and (2) failing to object to or request instructions on post-arrest silence. The short answer to these contentions is that one of the requirements for establishing that the constitutional rights of an accused is violated in that respect is a showing of the existence of “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington (1984), 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068.) Here, neither the question of whether Thomas had filed suit before the shooting nor whether defendant refused to talk to investigators had any substantial bearing on the outcome.

The evidence here was not evenly balanced. The proof was very strong. Defendant intentionally shot at both victims at least knowing he was likely to kill them. No showing of provocation by Dorothy was shown. Defendant made no claim that he believed he fired in self-defense. Defendant left the premises and returned with a gun, thus tending to negate that any passion he possessed was “sudden and intense” (emphasis added) as required by section 9 — 2(aXl) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2(aXl))- No combination of errors required reversal.

We affirm.

Affirmed.

COOK and LUND, JJ., concur.


author: PRESIDING JUSTICE BARRY

text:
    NANCY JOHN, Plaintiff-Appellant, v. THE CITY OF MACOMB et al., Defendants-Appellees.
    Third District
    No. 3-91-0721
    Opinion filed July 7, 1992.
    Modified on denial of rehearing August 4, 1992.

      John R. Glidden and Stanley L. Tucker, both of Hartzell, Glidden, Tucker & Hartzell, of Carthage, for appellant.
    Stephen J. Heine and Karen L. Kendall, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellee City of Macomb.
    William A. Allison, of Allison & Kelly, of Bloomington, for appellee County of McDonough.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Plaintiff brought suit against the City of Macomb and the County of McDonough claiming damages for personal injuries she suffered on June 24, 1989, in a fall on property possessed and owned by defendants, respectively. Plaintiff’s complaint charges that defendants were guilty of negligence in knowingly permitting and failing to repair a dangerous condition on the courthouse lawn.

At the time of the accident plaintiff was attending a festival known as “Heritage Days.” The City moved to dismiss on the ground of governmental immunity (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 106). The trial court denied the motion, holding that the courthouse lawn where plaintiff fell was not specifically intended for recreational purposes. Both defendants answered the complaint, and the matter proceeded to discovery. After plaintiff was deposed, defendants moved for summary judgment, again claiming immunity pursuant to section 3 — 106 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 106). The court granted summary judgment in favor of both defendants and denied plaintiff’s post-judgment motion. Plaintiff perfected this appeal. For reasons that follow, we reverse.

On review, we will sustain a trial court’s grant of summary judgment only where the pleadings, depositions, admissions and exhibits of record, construed strictly against the movant, reveal that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Rayner Covering Systems, Inc. v. Danvers Farmers Elevator Co. (1992), 226 Ill. App. 3d 507, 589 N.E.2d 1034.) In addition to the pleadings and the parties’ attorneys’ legal memoranda, the record before us contains a transcript of plaintiff’s deposition and the parties’ interrogatories and responses.

From the documentation of record, the following facts appear undisputed. On the evening of June 24, 1989, the “inside street” around the courthouse in Macomb was closed for Heritage Days, an annual event taking place on the courthouse lawn. This inside street has several parking spaces along the curb on the northwest side, and beyond the curb is a grassy lawn. A hole was left on the lawn side of the curb where a parking meter had been removed. It had not been filled as of around 8 p.m. of the date in question when plaintiff fell. According to plaintiff, she and her husband had gone to the festival to see a band. After listening to the band, they headed toward the courthouse for a concession stand. Plaintiff stepped from the pavement of the inside street, to the curb and then to the hole in the lawn. As she fell, plaintiff’s ankle “popped.” She felt it swell up immediately and was taken to the hospital.

Section 3 — 106 of the Local Governmental and Governmental Employees Tort Immunity Act (the Act) provides as follows:

“Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury.” (Ill. Rev. Stat. 1989, ch. 85, par. 3— 106.)

The purpose of the legislation is to encourage the development and maintenance of parks, playgrounds and similar areas. Larson v. City of Chicago (1986), 142 Ill. App. 3d 81, 86, 491 N.E.2d 165, 168, citing Beckus v. Chicago Board of Education (1979), 78 Ill. App. 3d 558, 397 N.E.2d 175.

The primary issue before us is whether plaintiff’s fall took place in an area “intended or permitted to be used for recreational purposes.” In our opinion, that issue remains a genuine question of material fact.

From the record it cannot be determined whether “Heritage Days” is a recreational use of the courthouse lawn. Nor does the record disclose whether defendants customarily permitted any recreational activity on the lawn. The record indicates that on the night in question a band played. But permitting a band concert, without more, does not so alter the character of a public area not generally used for recreational activity that it would necessarily fall within the intended scope of section 3 — 106 of the Act. In our opinion, the legislative intent of the Act is to immunize governmental entities from liability for simple negligence in areas where public activities of a sportive nature, as opposed to stage entertainment, are permitted. Similarly, the record discloses that a concession stand was permitted on the premises. This is surely a business pursuit — not one that, in itself or combined with the proximity of a band concert, renders the grounds a recreational facility for purposes of section 3 — 106 of the Act.

Further, even assuming that recreational activities were permitted on the lawn, there is no evidence that the street, curb and the parking meter area where plaintiff fell were necessarily within the perimeter of the area where recreational activities were allowed. The record fails to establish whether admission to the festival required the purchase of tickets before entering the inside street. There is no indication of record whether any area was cordoned off for recreational activities. Although there is some indication that the street that plaintiff was leaving to proceed to the lawn had been closed, the record does not disclose whether this measure was taken for the safety of the public or to allow the street and curbing area to be used for recreation. If the public used the closed street during the festival merely for passing unmolested by motor vehicles — as opposed to racing or dancing, for example — the street and its periphery, including the parking meter area, would not necessarily be considered part of an open area where recreational activities were permitted for purposes of the Act.

In Larson v. City of Chicago (1986), 142 Ill. App. 3d 81, 491 N.E.2d 165, the court considered a case somewhat analogous to this. There, plaintiff was injured while roller skating on a public sidewalk in a residential neighborhood. Among the city’s asserted defenses was immunity under section 3 — 106 of the Act. Defendant argued that plaintiff’s use in fact of the public way for recreation warranted extending the protection of the special immunity to the municipal defendant. On appeal, the court rejected the defense as inimical to the legislative intent of the provision. The court’s analysis is instructive for our purposes today:

“A public sidewalk in a residential neighborhood is not similar to a park or playground which are open areas designated by a governmental entity as being specifically intended for recreational purposes. Moreover, defendant’s interpretation of section 3 — 106 would shield the city from liability for its negligent maintenance of any street, sidewalk or open area in the city where the injured party has been engaged in recreational activity. Nothing in the statute indicates that the legislature intended to grant such a broad scope of immunity.” 142 Ill. App. 3d at 87, 491 N.E.2d at 168.

While we are aware that the statute was subsequently modified to include buildings and other enclosed recreational facilities, we do not find that the legislatively intended scope of the provision was so broadened as to obviate the Larson court’s observation about the types of “open areas” that section 3 — 106 encompasses. Thus, lacking any factual basis for determining that the area where plaintiff fell was specifically intended or permitted for recreational use, we hold that defendants were not entitled to judgment on the ground of immunity under section 3 — 106.

Because we find that defendants’ right to judgment has not been established as a matter of law, we need not address plaintiff’s arguments in the alternative. We reverse the judgment of the circuit court of McDonough County and remand this cause for further proceedings.

Reversed and remanded.

STOUDER and McCUSKEY, JJ., concur.