author: JUSTICE CAHILL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. THOMAS BRANTLEY et al., Defendants-Appellees.
    First District (4th Division)
    Nos. 1 — 92—1387, 1—92—1731, 1 — 92—2311 cons.
    Opinion filed June 17, 1993.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Kenneth T. McCurry, Assistant State’s Attorneys, of counsel), for the People.
    Paul J. Augustyn, of Allegretti & Associates, of Chicago, and James J. Ahern, of Ahern & Maloney, of Skokie, for appellees.
   JUSTICE CAHILL

delivered the opinion of the court:

These three cases, consolidated on appeal, present the same issue: Must a police officer issue a ticket for driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1991, ch. 95½, par. 11 — 501) before he asks a driver to take a breath test? Defendants Thomas Brantley, Andrew Kowalczyk, and Holly Hunt were each arrested and charged with DUI. The trial court in each case rescinded the defendant’s suspension of his or her driving privileges because the officer did not issue a DUI citation before the breath test was administered or refused. We reverse and remand.

The relevant facts of each case are the same. The officers stopped the defendants while driving, arrested them for DUI, placed them in custody, and then asked them to take a breath test pursuant to section 11 — 501.1 of the Illinois Vehicle Code. That section provides:

“Any person who drives or is in actual physical control of a motor vehicle upon the public highways of this State shall be deemed to have given consent *** to a chemical test or tests of blood, breath, or urine *** if arrested, as evidenced by the issuance of a Uniform Traffic Ticket, for any offense as defined in Section 11-501 ***.” Ill. Rev. Stat. 1991, ch. 95½, par. 11-501.1(a).

After the defendants either failed or refused to take a breath test, the officers then issued a ticket for DUI. Later, each defendant was granted a hearing on the statutory summary suspension of his or her driving privileges. The hearing was limited to the four issues set out in section 2 — 118.1 of the Vehicle Code. The relevant issue in each case was, “Whether the person was placed under arrest for an offense as defined in Section 11 — 501 ***, as evidenced by the issuance of a Uniform Traffic Ticket.” Ill. Rev. Stat. 1991, ch. 95½, par. 2 — 118.1.

The trial courts rescinded the defendants’ summary suspensions because the officers did not issue the tickets before they asked defendants to take a breath test. Each court followed the decision on point at the time, People v. Mannon (1991), 217 Ill. App. 3d 381, 577 N.E.2d 532. The third district court in Mannon interpreted section 11 — 501.1 to mean that an officer must arrest the driver for DUI and issue the ticket for DUI before he can lawfully ask the driver to take a breath test. That court stated, “The issuance of a uniform citation is the pivotal prerequisite that must be fulfilled in order to arrest a suspect for DUI.” (Emphasis omitted.) Mannon, 217 Ill. App. 3d at 383, 577 N.E.2d at 534.

On appeal plaintiff argues that the Mannon court misinterpreted the statute and urges us to construe the language according to its clear and unambiguous meaning. Defendants respond that the Man-non court correctly interpreted the statute and that we should examine the legislative history to determine the true intent of the drafters.

The issue before us in these consolidated cases is one of statutory construction of the Illinois implied consent law. The most reliable indicator of legislative intent is the language of the statute. (People v. Bryant (1989), 128 Ill. 2d 448, 455, 539 N.E.2d 1221, 1224.) The legislature intended that a traffic citation be evidence of a DUI arrest. There is nothing unusual about this directive. Every arrest that results in a prosecution is ultimately supported by a written document — a uniform traffic citation, complaint, information, or indictment — to enable a defendant to frame a defense to the charge. When we interpret the words of the statute, by their normal meaning, we find that the ticket is merely evidence of an arrest; it does not constitute the arrest.

We do not read the language which states that a driver gives his consent to a breath test if arrested, as evidenced by a citation, to mean that in order to arrest someone for DUI, the officer must issue a citation. Black’s Law Dictionary 498 (5th ed. 1979) defines “evidence” as, “That which demonstrates, makes clear, or ascertains the truth of the very fact or point in issue ***.” The phrase “as evidenced by” simply, means that a citation demonstrates that the officer arrested the driver for DUI. Although a citation may establish the fact of an arrest, the issuance of a citation is not the only admissible evidence of an arrest. The “pivotal prerequisite” for determining if an arrest has occurred is whether a reasonable person would have concluded that he was not free to leave under the circumstances. People v. Jones (1990), 198 Ill. App. 3d 572, 555 N.E.2d 1143.

Defendants, however, argue that the language “as evidenced by a Uniform Traffic Ticket” would be superfluous unless the legislators meant the citation to be a prerequisite for an arrest. We disagree and interpret this language to establish that a citation is a sufficient means of proving an arrest at an implied consent hearing. The language is relevant because the statute provides that the hearing “may be conducted upon a review of the law enforcement officer’s own official reports.” (Ill. Rev. Stat. 1991, ch. 95½, par. 2 — 118.1(b).) An implied consent hearing is a civil proceeding, and the State is not required to have the arresting officer appear and testify. (People v. Gafford (1991), 218 Ill. App. 3d 492, 578 N.E.2d 583.) The official reports alone are sufficient to establish proof of an arrest. Thus lies the directive that an officer issue a citation as proof of an arrest. See People v. Horberg (1984), 123 Ill. App. 3d 456, 459, 462 N.E.2d 831, 833 (“ ‘the issuance of a ticket is directory and not mandatory; it is only one way in which the fact of arrest may be established’ ”), quoting People v. Ellerbusch (1983), 118 Ill. App. 3d 500, 503, 454 N.E.2d 1166, 1168.

We note that the third district has addressed this issue three times since Mannon. In each case the court rejected its own precedent that the citation is a prerequisite to an arrest. (People v. Selby (1993), 241 Ill. App. 3d 80, 608 N.E.2d 961; People v. Scheperle (1992), 236 Ill. App. 3d 987, 603 N.E.2d 149; People v. Bahnfleth (1992), 233 Ill. App. 3d 289, 599 N.E.2d 16.) In Bahnfleth, the court held that the portion of the Mannon opinion which stated that issuance of a citation is a prerequisite for an arrest was dicta and stated, “[A] ticket need not precede the officer’s request that a driver submit to tests.” (Bahnfleth, 233 Ill. App. 3d at 292, 599 N.E.2d at 18.) In Scheperle, the court held, where there was sufficient proof that the defendant was arrested for DUI, “The fact that the ticket may not have been issued to the defendant until after he took the [breath] test is immaterial.” (Scheperle, 236 Ill. App. 3d at 989, 603 N.E.2d at 151.) Recently the court in Selby stated, “The significant issue under section 11 — 501.1(a) is not when the citation has been issued and served on the defendant but, rather, whether the defendant has been placed under arrest for DUI prior to the officer’s request that the driver submit to the appropriate test.” (Selby, 241 Ill. App. 3d at 83, 608 N.E.2d at 963-64.) Even more recently, in People v. Lewallen (1993), 247 Ill. App. 3d 350, we adopted the analysis in Selby and affirmed a trial court that followed these third district holdings post-Mannon.

For the reasons stated, we reverse the order of the trial court in each case and remand each cause for further proceedings consistent with this opinion.

Reversed and remanded.

JIGANTI, P.J., and HOFFMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE SCARIANO

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ZYGMUNT KOCH, Defendant-Appellant.
    First District (2nd Division)
    No. 1 — 92—1649
    Opinion filed June 15, 1993.

      John M. Carey, Jr., of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Donald T. Lyman, and Robin M. Mitchell, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendant Zygmunt Koch was charged by information with nine counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, pars. 12 — 14(a)(1), (a)(3), (a)(4)), three counts of criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 13(a)(1)), two counts of kidnapping (Ill. Rev. Stat. 1991, ch. 38, pars. 10 — 1(a)(1), (a)(2)), and one count of aggravated unlawful restraint (Ill. Rev. Stat. 1991, ch. 38, par. 10 — 3.1(a)). Prior to trial, the State nol-prossed the two kidnapping counts and, after choosing to be tried by the court sitting without a jury on the remaining counts, defendant was found guilty of three counts of aggravated criminal sexual assault and was sentenced to eight years in the custody of the Illinois Department of Corrections.

The following evidence was adduced at defendant’s trial. On July 21, 1991, at approximately 11 p.m., the victim, A.K., was watching television when she heard her dog bark. Upon looking out her window, she observed defendant, whom she had previously met at a party hosted by a mutual friend, standing just outside the window. At the party, A.K., a part-time salesperson for a cosmetic company, had informed defendant of the line of cosmetics available for men, and on a later date he had gone to her home to place an order with her. When she saw him again on July 21, she inquired why he was there, and he responded that he had come to retrieve his cosmetics order. A.K. did not indicate whether or not she had previously asked defendant to pick up his order or even that defendant’s cosmetics were, in fact, available on the night in question.

After A.K. invited defendant into her home, the two conversed while sitting on the couch in her living room, and after a while, he closed the distance on the couch which had separated them. Soon he embraced her, whereupon she asked him to stop and leave her home. Rather than complying with her plea, defendant kissed her cheek, and when she again rebuffed his advances, he withdrew a gun from his pocket, removed its clip and showed her that it contained live bullets in order to convince her that it was not a toy, and advised her that the safety was disengaged. He ordered her to stop crying and to “kiss him like she kisses her boyfriend.” He then led her into the bedroom, instructed her to disrobe and to lie down on the bed. While keeping the gun aimed at her, he removed his clothing, and after fondling her, he had sexual intercourse with her. Thereafter, he performed cunnilingus and forced her to perform fellatio.

After a short respite, he again forced her to engage in vaginal and oral intercourse, and after finishing, he instructed her to lie next to him while he rested. Thereafter, he arose and told her that he would be leaving. He threatened to kill her if she registered a complaint with the police or told anyone else of the incident, reminding her that he had a gun, and that in the event that he were arrested, he had friends who would kill her. He left her home around five o’clock on the morning of July 22.

She testified that she did not immediately call the police because she feared for her life and because she was not sure she would be able to describe the incident in even somewhat comprehensible English. She further testified that the first person whom she told of the assault was her boyfriend, John Mikrut, and that this conversation did not occur until much later that night. It was he who called the police, and with his help, she recounted the events of the evening, but all she could give them was defendant’s first name. On cross-examination, she conceded that she spoke and understood some English and that after she learned defendant’s last name, she was interviewed by a Chicago police detective without the benefit of an interpreter.

The State next called John Mikrut, who testified that he had been in a relationship with A.K. for about one year prior to the incident, and that on July 22, 1991, soon after his return from Wisconsin, he went to A.K.’s home. When he arrived, A.K. had visitors whom he also knew. He noticed that she was shaking and smoking heavily, and that she was inordinately nervous. After their friend left with her young son, he inquired as to what was troubling her and, in response, she divulged the events of the night before.

After learning defendant’s full name from A.K., Detective Robert Collins of the Chicago police department, who had been assigned to investigate her sexual assault complaint, obtained his address and went to his home in an attempt to speak with him. Defendant answered Collins’ knock on the door by opening an upstairs window and leaning out. The detective advised him who he was and requested an opportunity to speak with him. Defendant indicated that he would be down and closed the window. A short time later, a woman answered the door and the officer gave her his card, requesting her to ask defendant to contact the police as they wanted to discuss with him an alleged sexual assault. He then went around to the back of the home and observed a rear entrance, but did not see defendant. Collins returned to the house once again that evening, but was informed that defendant was not there. He made repeated telephone calls to the home and left messages with his name and phone number, requesting that defendant phone him. On August 1, 1991, in the presence of his attorney, defendant surrendered himself to the police and was arrested. At the close of the State’s case, the parties stipulated to the results of a serology test which concluded that a vaginal smear taken from the victim' disclosed the presence of sperm and that a sample taken from her robe also contained sperm.

Defendant offered the testimony of Celina Kubicka, who recalled that on July 22, 1991, at approximately 7 A.M., she received a call, from A.K. asking her for the last name of defendant and his address, telling her that he had just raped her. A.K. told her that defendant had come to her home the previous night and that he had a gun. She also related how she feared for her life because she believed defendant would kill her. Kubicka refused to give A.K. defendant’s name or address because she did not think poorly of him. It was later stipulated that telephone company records showed that on the date and at the time in question, there was a call from A.K.’s phone to the number assigned to Ms. Kubicka’s residence.

Defendant also took the stand and testified with the assistance of a Polish-speaking, court-appointed interpreter. He remembered that the first time he met A.K. was at a party held by Ms. Kubicka. The two exchanged names and addresses and defendant lent her some compact discs. A few days later, he visited A.K. at her residence, where the two engaged in consensual sexual relations and they again had sexual intercourse when he returned to her home a week later. He testified that during his relationship with A.K., she had asked to borrow a total of $1,200 from him, explaining that she had no money and needed the funds in order to subsist. He gave her the funds because he was contemplating moving in with her, although at that time he lived with another woman.

On the evening of July 21, 1991, he notified A.K. that he would be visiting her in her home and he arrived there around midnight. A.K. answered the door wearing only a robe and offered him a drink which he thought contained alcohol. The two then engaged in consensual sexual intercourse for approximately two hours. After they finished, defendant requested another drink, which A.K. agreed to provide. When she did not return within five minutes, defendant arose from the bed and saw A.K. holding his pants. He went to her and checked his wallet, which he found to be missing $300. He accused A.K. of stealing his money, and when she denied it, he berated her and threatened to beat her and inform her friends that she was a prostitute. In response, she threatened to call the police and accuse him of raping her.

When asked, he estimated that he had had some form of consensual sex with A.K. on four or five separate occasions. He denied carrying a gun on the night of the incident and stated that, while he had threatened her that night, it was not to prevent her from calling the police, but to frighten her into repaying the money she had stolen.

He remembered that a few days after his money was stolen, a police officer came to his home, flashed a badge, and said something in English which he could not understand. He ordered his girl friend to answer the door and tell the officer that he was not home and then he left through the back door in order to retrieve someone who would translate for him and also because he did not want his housemate to know what had transpired with A.K. He voluntarily surrendered himself to police on August 1, 1991, after retaining an attorney, explaining that the delay was due to his need to gather the funds to pay the lawyer.

After the parties rested but before summations, the State informed the court that one of the appointed interpreters had mistranslated a part of defendant’s response to a question asked in cross-examination, and she corrected her translation for the record. The parties then proceeded with closing arguments, after which the court found defendant guilty of three counts of aggravated criminal sexual assault and sentenced him to an eight-year term of incarceration. Defendant filed a timely notice of appeal.

I

Defendant’s first assertion of error concerns the circuit court’s considering as substantive evidence certain out-of-court declarations made by the victim and offered by defendant solely to impeach her credibility. The evidence complained of was the testimony of Celina Kubicka, who was called by defendant in order to contradict the averment of the victim that she did not call the police immediately after the attack because defendant had threatened to murder her if she told anyone and because she understood and spoke little English. A.K. had further testified that her boyfriend, John Mikrut, was the first person she informed of the assault, some 18 hours after it was perpetrated, and that it was he who phoned the police to report the incident. Kubicka, an acquaintance of both the victim and defendant, had refuted that testimony by informing the court that A.K. spoke to her a mere two hours after the assault wherein she notified her that defendant had raped her. Defendant contends that the trial court mistakenly ascribed substantive weight to this evidence and that its error contributed to his conviction. In response the State argues that defendant has waived the issue by failing to make a contemporaneous objection to the acceptance of the testimony into evidence, or, in the alternative, that, since defendant proffered Kubicka’s testimony, he invited its admission into evidence and, therefore, is estopped from complaining on appeal.

We find the State’s arguments unavailing. Under Illinois law, prior inconsistent statements may be offered solely for their impeachment value and may not be given substantive weight by the trier of fact. (People v. Smith (1984), 102 Ill. 2d 365, 374, 466 N.E.2d 236, 240, rev’d on other grounds (1984), 469 U.S. 91, 83 L. Ed. 2d 488, 105 S. Ct. 490; People v. Acklin (1990), 208 Ill. App. 3d 616, 624, 567 N.E.2d 525, 530, appeal denied (1991), 137 Ill. 2d 666, 571 N.E.2d 150.) In a case tried before a jury, defendant would have been entitled to an instruction (Illinois Pattern Jury Instructions, Criminal, No. 3.11 (3d ed. 1992)) in order to ensure that the jury would give no substantive weight to the prior inconsistent statement. (See People v. Bradford (1985), 106 Ill. 2d 492, 501, 478 N.E.2d 1341, 1345 (“This court, to reduce the risk that a jury might consider a prior inconsistent statement as independent evidence with substantive character, has held that a jury should be cautioned and properly instructed to limit its consideration of the statement to its narrow purpose”); People v. Camp (1984), 128 Ill. App. 3d 223, 231, 470 N.E.2d 540, 546.) The limiting instruction would allow defendant to gain the advantage of impeaching the inconsistent portions of the witness’ testimony without inadvertently bolstering that part of the testimony which was consistent with the earlier declaration. (People v. Newman (1964), 30 Ill. 2d 419, 424, 197 N.E.2d 12, 14; People v. Robinson (1984), 121 Ill. App. 3d 1003, 460 N.E.2d 392.) Since, in a jury trial, the instruction prevents the State from making substantive use of the prior inconsistent statement, assuming the defendant seeks the appropriate limiting instruction, his introduction of such evidence cannot be seen as constituting an invited erroneous admission of evidence.

Such an instruction is obviously unnecessary in a bench trial. Moreover, the trial judge is presumed to know the law, to apply it properly and to disregard all incompetent evidence. (People v. Guest (1986), 115 Ill. 2d 72, 503 N.E.2d 255; People v. Pelegri (1968), 39 Ill. 2d 568, 237 N.E.2d 453; People v. Cruz (1991), 224 Ill. App. 3d 425, 586 N.E.2d 658.) It also follows that defendant’s reliance on the court’s ability to discriminate between the proper uses of impeachment evidence obviated the need to make a contemporaneous objection to its use as substantive proof of defendant’s guilt. At the time he offered the testimony, defendant had no cause to object to it, for he rightly assumed that it would only be considered for the purpose for which it was offered. Accordingly, we cannot agree with the State that defendant has waived this issue, nor will we hold him to have invited an error by proffering the impeaching testimony.

However, defendant does not convince that the trial court considered the evidence for anything other than its proper purpose, i.e., how it affected the court’s assessment of the victim’s credibility. While rendering its judgment, the trial court reviewed the evidence presented at trial and when it reached the testimony of Ms. Kubicka, it stated:

“The Defense also presented Salina [sic] Kubicka who was the lady that brought these two [A.K. and defendant] together initially at her home in May who testified as to additional outcry who had not been brought forth by the State in their presentation of the complaining witness which I suppose can be viewed two ways. One is additional corroboration of the sexual assault which is basically what Ms. Kubicka testified to because there was nothing inconsistent with her testimony as to what [A.K.] had said and the inconsistency, therefore, being in whether or not this was an additional person whom she had talked to or whether John Macrute [sic] was the only person besides the police who [A.K.] had talked to.
Be that as it may, the Court has listened carefully to the evidence and had evaluated the respective positions put forth by both the State and the Defense, and it is the conclusion of the Court that the testimony of [A.K.] was clear, convincing, and candid in all respects.”

Defendant urges that the court’s use of the word “corroboration” establishes that it impermissibly used the impeaching testimony for its truth in order to find defendant guilty of the crime. While we agree that one may reasonably interpret the above statement as defendant does, we find another equally reasonable interpretation to be that the court found the victim’s credibility to be unsuccessfully challenged by the fact that on the stand she stated that she first informed her boyfriend of the assault, when, in reality, she told another person before telling him. In a bench trial, the court has the responsibility of weighing the credibility of the witnesses (People v. Slim (1989), 127 Ill. 2d 302, 307, 537 N.E.2d 317, 319; People v. Brown (1990), 197 Ill. App. 3d 907, 557 N.E.2d 199); therefore, we may appropriately view the above-quoted statement as merely its pronouncement explaining why it found the victim to be a credible "witness.

As stated previously, the trial judge, as the trier of fact, is presumed to know the law and to have considered only competent evidence in reaching his determination on the merits in a bench trial. (Guest, 115 Ill. 2d 72, 503 N.E.2d 255; Pelegri, 39 Ill. 2d 568, 237 N.E.2d 453; Cruz, 224 Ill. App. 3d 425, 586 N.E.2d 658.) In order to rebut this presumption, there must be an affirmative showing in the record that the trial judge actually used the evidence improperly as alleged. (People v. Gunartt (1991), 218 Ill. App. 3d 752, 760, 578 N.E.2d 1081, 1087, appeal denied (1991), 142 Ill. 2d 659, 584 N.E.2d 134; see also People v. Puhl (1991), 211 Ill. App. 3d 457, 472, 570 N.E.2d 447, 457, appeal denied (1991), 139 Ill. 2d 602, 575 N.E.2d 920.) In the instant case, since the court’s equivocal statement upon which defendant rests his entire argument may be seen as constituting the proper use of the victim’s prior inconsistent conduct, defendant has not overcome the presumption of regularity; accordingly, we hold that the trial court did not err.

II

Defendant next claims that the trial court erred in allowing the testimony of John Mikrut, who testified that on the evening of July 22, 1991, "approximately 18 hours after the incident, the victim had described how defendant had knocked on the window, told her he was there to pick up his cosmetics order, withdrew a gun and forced her to engage in sexual relations with him. Defendant now complains that this testimony was inadmissible hearsay and that the court committed reversible error by not excluding it. The State initially responds that because defendant objected to the reception of hearsay into evidence for the first time in his post-trial motion, he has waived the issue for the purposes of review.

We must agree with the State. Our supreme court has held that in order to preserve for review a question of the admissibility of evidence, a defendant must object in a timely fashion at trial and renew the assertion of error in his motion for a new trial. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Defendant counters that although he may have appreciated the inadmissible nature of Mikrut’s testimony when it was offered, he could not register a contemporaneous objection to the admission of this hearsay until such time that its inadmissibility became evident to the trial court, which, according to him, did not occur until he offered the testimony of Ms. Kubicka. He contends that no objection is valid unless its grounds have been offered into evidence or presented to the court. Assuming arguendo that we were to find merit in defendant’s “premature objection” argument, that rule would in no event relieve him of his obligation to make what would, even in that instance, constitute a timely objection.

It has long been established that an objection to evidence is untimely if not asserted as soon as its ground becomes apparent. (People v. Trefonas (1956), 9 Ill. 2d 92, 136 N.E.2d 817.) Where the ground for objection does not appear until after the admission of the evidence, the appropriate action for its opponent is to make a motion to strike. (People v. Fritz (1981), 84 Ill. 2d 72, 417 N.E.2d 612.) After the basis of the motion to strike is available, it must be made as soon as practicable or the would-be movant will be deemed to have waived any complaint with regard to that evidence. Levin v. Welsh Brothers Motor Service, Inc. (1987), 164 Ill. App. 3d 640, 659, 518 N.E.2d 205, 217, appeal denied (1988), 119 Ill. 2d 558, 522 N.E.2d 1246; Louis L. Weinzelbaum, Inc. v. Abbell (1964), 49 Ill. App. 2d 442, 449, 200 N.E.2d 43, 47.

In the case at bar, defendant concedes that the ground for the inadmissibility of Mikrut’s testimony became apparent after he presented the testimony of Ms. Kubicka, yet he never moved to strike that testimony at trial, instead apprising the court of its inadmissibility for the first time in his motion for a new trial. In People v. Driver (1978), 62 Ill. App. 3d 847, 379 N.E.2d 840, the court held that the defendant’s motion to strike inadmissible evidence which was raised at the close of the defendant’s case was untimely. In People v. Bean (1974), 17 Ill. App. 3d 377, 308 N.E.2d 334, the court held that since the State’s motion to strike the testimony of defendant’s five alibi witnesses was untimely, the trial court erred when it granted the motion. In Bean, the State was aware of the grounds for its motion from the start of trial, and it nonetheless remained silent until the start of its rebuttal case. Here, defendant was aware of the hearsay nature of Mikrut’s testimony well before his objection to it was asserted for the first time in his post-trial motion. Since this constitutes an even greater lapse of time between knowledge of inadmissibility and an attempt to strike the incompetent evidence than that found fatal in both Bean and Driver, we are compelled by those decisions to find that defendant’s failure to move to strike constitutes waiver of the issue for the purposes of review.

Moreover, as will be discussed in more detail below, even if we were to consider the admission of the hearsay to be error under the plain error rule (134 Ill. 2d R. 615(a)), we would nonetheless hold it harmless because the trier of fact expressly found the victim to be more credible than the defendant. Under People v. Schott (1991), 145 Ill. 2d 188, 582 N.E.2d 690, which rejected the aged Illinois rule which had found convictions for rape reversible unless the victim’s testimony was corroborated or the trier found it to be clear and convincing, we must defer to the fact finder where the dispositive question in a sexual assault prosecution touches upon the credibility of witnesses. Here the case turned entirely on the credibility of the victim and the accused, and so, given the court’s unequivocal indication of which of the two it chose to believe, we deem the possibly erroneous admission of this hearsay testimony to be harmless beyond a reasonable doubt.

III

Defendant’s third assignment of error questions whether the court impermissibly received evidence that he fled from police five days after the assault of A.K. He argues that at the time of the admission of the evidence, the record before the court contained nothing which manifested that he was aware that he was a suspect, which, he maintains, is a necessary predicate to the admission of “flight” evidence.

Evidence of a suspect’s flight from police is admissible as a circumstance from which the trier of fact may draw the inference that the defendant is conscious of his own culpability, and that such consciousness is, therefore, probative of his guilt of the crime charged. (People v. Assenato (1991), 224 Ill. App. 3d 96, 586 N.E.2d 445, appeal denied (1992), 144 Ill. 2d 636, 591 N.E.2d 24.) While proof that defendant knew he was suspected of criminal activity is a foundational requirement which must be satisfied prior to the introduction of flight evidence (People v. Wilson (1980), 87 Ill. App. 3d 693, 409 N.E.2d 344), contrary to defendant’s contention, there need not be direct proof that the defendant knew that he could be arrested. (People v. Griffin (1974), 23 Ill. App. 3d 461, 463, 318 N.E.2d 671, 674.) “If the circumstances were such as to give the defendant ‘reason to know’ that [the arresting officer] was an officer, the trier of fact would be warranted in drawing the inference of actual knowledge.” Griffin, 23 Ill. App. 3d at 464, 318 N.E.2d at 674.

In the case at bar, there was sufficient evidence before the trier of fact which would allow it to infer that defendant knew he was a suspect concerning some crime. Five days after the assault committed on A.K., Detective Collins knocked on the door of defendant’s home, and in response, he leaned out of an upstairs window to inquire who was calling. The detective informed defendant that he was a police officer and sought a moment of his time to ask a few questions, to which defendant acquiesced, advising the officer that he would come down to him. After waiting a period of time, the detective again rapped on the door, which was answered by defendant’s girl friend. Obviously, defendant had a reason to know that the person at his front door was a policeman since the officer identified himself as one; and just as clearly, the trier of fact could consider the fact that he did not speak to the officer after telling him that he would as ample proof of his consciousness of guilt. We consequently see no error in the reception of this evidence over defendant’s objection.

IV

Defendant next takes issue with the adequacy of the services provided by the court-appointed interpreter. Since defendant spoke only minimal English, a Polish-speaking interpreter was provided for him. On March 31, 1992, the second interpreter, Renata Jesmantas, admitted to the court, through the prosecutor, that she had previously misinterpreted a response of defendant to a question asked on cross-examination. The prosecutor clarified the error for the record, including the proper translation of defendant’s statement. Furthermore, in an affidavit accompanying his post-trial motion, defendant raised other errors and omissions made by the same translator. He maintains that the errors cast a negative light on his testimony, thus damaging his credibility before the trier of fact, which proved to be fatal to defendant.

The use of an interpreter is within the sound discretion of the trial court, the exercise of which is abused only where it deprives the defendant of some basic right. (People v. Shok (1957), 12 Ill. 2d 93, 145 N.E.2d 86; People v. Costales (1988), 166 Ill. App. 3d 234, 520 N.E.2d 421, appeal denied (1988), 121 Ill. 2d 574, 526 N.E.2d 834; People v. Starling (1974), 21 Ill. App. 3d 217, 315 N.E.2d 163.) A defendant has no cause to complain where an interpreter’s presentation of testimony is understandable, comprehensible and intelligible, and if it is not understandable, the unintelligibility of the translated testimony will warrant reversal only when it is rooted in the ineffectiveness of the interpreter. (People v. Niebes (1979), 69 Ill. App. 3d 381, 387 N.E.2d 800; Costales, 166 Ill. App. 3d 234, 520 N.E.2d 421.) Minor testimonial inconsistencies arising from linguistic misunderstandings do not warrant reversal of a conviction. (People v. Brinkley (1965), 33 Ill. 2d 403, 211 N.E.2d 730.) Moreover, we must be particularly averse to second-guess a trial court’s determination that an interpreter adequately translated the testimony, given that so much of that determination turns on factors such as inflection and emphasis, concerns which cannot be adequately divined from the transcript of proceedings. Niebes, 69 Ill. App. 3d 381, 387 N.E.2d 800.

In People v. Starling (1974), 21 Ill. App. 3d 217, 315 N.E.2d 163, it was held that the trial court abused its discretion in this regard by failing to replace as incompetent an interpreter who had to be repeatedly admonished not to hold a private conversation with the witness while counsel attempted to examine and cross-examine the Spanish-speaking complainant who was the State’s sole occurrence witness. In addition, both the defense attorney as well as the State had complained that the interpreter did not properly translate their questions.

Here, defendant’s affidavit asserts only minor discrepancies between the questions asked and the translated versions he received and which the trial court found to be insignificant. For example, he stated that the interpreter never asked him the name of his girl friend even though the transcript of the proceedings includes many references to that question. After a comprehensive review of the entire transcript of the proceedings, the court found that none of the alleged mistranslations dealt with matters material to its determination. On review, defendant points to no mistaken translations other than those which the trial court found immaterial or collateral to the central issues in the case; thus, we cannot say that the court’s refusal to appoint a new translator, or to grant a new trial because of her alleged incompetence, constituted an abuse of its vast discretion in this area.

V

Defendant lastly claims that there was insufficient evidence to find him guilty beyond a reasonable doubt. We note at the outset that defendant’s argument is wholly dependent on his misapprehension of the recent law in this area. Until 1991, the rule in Illinois was that'in order to sustain a conviction for rape, the victim’s testimony had to be either substantially corroborated by independent evidence or the trier of fact had to find it clear and convincing. (See, e.g., People v. Coates (1985), 109 Ill. 2d 431, 488 N.E.2d 247, overruled by People v. Schott (1991), 145 Ill. 2d 188, 582 N.E.2d 690; People v. Bell (1991), 217 Ill. App. 3d 985, 577 N.E.2d 1228, appeal denied (1991), 142 Ill. 2d 655, 584 N.E.2d 132.) In Schott, our supreme court found it

“incongruous for an appellate court to view a sex-offense victim’s testimony with skepticism by employing this special standard of review, when a fact finder has previously considered the testimony of the victim, together with any other evidence presented at trial, and found the defendant guilty beyond a reasonable doubt.” (Schott, 145 Ill. 2d at 202, 582 N.E.2d at 697.)

In place of the “clear and convincing evidence” test, the court applied the standard used for review of all other convictions, the reasonable doubt test of People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267, the most recent formulation of which was provided in People v. Sutherland:

“[W]hether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] The reviewing courts apply this standard regardless of whether the evidence is direct or circumstantial. [Citations.] This standard of review does not allow the appellate court to ‘substitute its judgment for that of the fact finder on questions involving the weight of the evidence or the credibility of the witnesses [citation].’ [Citation.] Therefore, [the reviewing court] will not reverse a criminal conviction unless the evidence is so ‘unreasonable, improbable, or so unsatisfactory as to justify a reasonable doubt of the defendant’s guilt [citation].’ [Citation.]” People v. Sutherland (1992), 155 Ill. 2d 1, 17. Such deference to the fact finder’s impressions of credibility, of course, applies to bench trials as well as to cases tried before a jury. People v. Slim (1989), 127 Ill. 2d 302, 537 N.E.2d 317.

Here, defendant’s contention centers on the fact that when all the evidence he claimed was inadmissible (the substantive use of Ms. Kubicka’s testimony, the corroborative hearsay statements of the victim to her boyfriend, and the evidence of defendant’s flight from the police) is removed from the consideration of the fact finder, the dispositive issue in the case is the relative credibility of the victim and himself, and since he had impeached her testimony with regard to the first individual she informed of the assault, while his testimony remained unsullied, the court erred in finding the victim more credible.

However, “ ‘[t]he fact that a witness, be he a party or otherwise, has made out-of-court statements inconsistent with his sworn testimony does not per se destroy the probative value of his testimony, and it ordinarily remains for the trier of fact to determine where the truth lies.’ [Citations.]” (Converters, Inc. v. Industrial Comm’n (1975), 61 Ill. 2d 218, 224, 334 N.E.2d 155, 159, quoting Guthrie v. Van Hyfte (1966), 36 Ill. 2d 252, 258, 222 N.E.2d 492, 495; People v. Pecka (1984), 125 Ill. App. 3d 570, 574, 466 N.E.2d 404, 408 (“Even assuming such inconsistent testimony as defendant alleges, inconsistent statements do not of necessity invalidate a witness’ testimony”).) In the case at bar, the trial court clearly stated that after considering defendant’s rendition of the events that evening, he found his testimony not worthy of belief. The court doubted that the victim of a theft, as defendant purported to be, would not contact the authorities, and the judge found it especially dubious that such an individual would fail to inform or even to respond to an officer who appeared at the front door of his home a few days after he was supposedly victimized.

In addition, the court found that A.K.’s credibility was not harmed by the minor inconsistency between her testimony that she first told her boyfriend about the assault some 18 hours after it occurred and the subsequent proof that she actually told Ms. Kubicka only two hours later. We need not discount the assessments of credibility of a witness made by the trier of fact merely because trivial inconsistencies in her testimony are brought to light. (People v. Mays (1980), 81 Ill. App. 3d 1090, 1099, 401 N.E .2d 1159, 1166.) “[Precise consistency as to purely collateral matters is not required to establish guilt beyond a reasonable doubt.” (Mays, 81 Ill. App. 3d at 1099, 401 N.E.2d at 1166.) Whom A.K. first told that she was sexually assaulted has no effect on the validity of her testimony with regard to whether she was assaulted or who the perpetrator of the assault was. Since that insignificant collateral inconsistency does not render the victim’s testimony as a whole so improbable as to raise a reasonable doubt as to defendant’s guilt, we have no choice under the commands of Sutherland but to affirm the trial court’s finding of guilt.

Affirmed.

HARTMAN and DiVITO, JJ., concur.


author: PRESIDING JUSTICE GORDON

text:
    MANAGEMENT ASSOCIATION OF ILLINOIS, INC., Plaintiff-Appellant, v. BOARD OF REGENTS OF NORTHERN ILLINOIS UNIVERSITY et al., Defendants-Appellees.
    First District (5th Division)
    No. 1 — 92—0476
    Opinion filed June 18, 1993.

      Gessler, Flynn, Fleischmann, Hughes & Socol, Ltd., of Chicago (George W. Gessler and Michael J. Flaherty, of counsel), for appellant.
    Sidley & Austin, of Chicago (Stephen C. Carlson and Gloria R. Mitka, of counsel), and George M. Shur, of Northern Illinois University, of De Kalb, for appellees.
   PRESIDING JUSTICE GORDON

delivered the opinion of the court:

Plaintiff, the Management Association of Illinois, Inc., appeals from the order of the circuit court of Cook County granting defendants’ section 2 — 619 (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619) motion to dismiss plaintiff’s action for damages, injunction, and other relief against defendants, the Board of Regents of Northern Illinois University, Mary Rose Hennessy, John Conrath, Daniel Hochstetter, David Murray, Sandra Pater and Sharon Young. The issue on appeal is whether the circuit court of Cook County has subject matter jurisdiction over plaintiff’s claims.

On appeal, plaintiff contends that, as to all counts other than the Trade Secrets Act (Ill. Rev. Stat. 1991, ch. 140, par. 351 et seq.) count, the various forms of relief sought against the Board of Regents of Northern Illinois University (injunction, accounting, constructive trust) do not affect the State’s legitimate actions or subject the State to liability for damages so as to make this a suit against the State within the meaning of the Court of Claims Act (Ill. Rev. Stat. 1991, ch. 37, par. 439.1 et seq.). Although plaintiff seeks money damage’s from the Board of Regents in its Trade Secrets Act count, plaintiff contends that by the language of the Illinois Trade Secrets Act (Ill. Rev. Stat. 1991, ch. 140, par. 351 et seq.), the State has expressly consented to be sued for damages on claims under that act; therefore, the count seeking damages is expressly excepted from Court of Claims jurisdiction.

Defendants contend in their brief that the language of the Trade Secrets Act does not expose the State of Illinois to suit in the circuit court and that the nature of each of plaintiff’s other claims or the relief sought is such that the suit is encompassed within the jurisdiction of the Court of Claims as a suit against the State of Illinois. Therefore, defendants contend that the Court of Claims has exclusive jurisdiction over all counts of the complaint.

We affirm the trial court’s order of dismissal on the grounds that the Court of Claims has exclusive subject matter jurisdiction.

The complaint alleges the following facts which for purposes of the section 2 — 619 motion are not disputed. Plaintiff, the Management Association of Illinois, Inc. (the Association), is a not-for-profit corporation with its principal place of business in Cook County. The Association provides educational and training services to member companies and nonmember companies and assists companies in securing grants to pay for Association services. The Association contracts with independent contractors who serve as instructors.

Prior to August 19, 1991, defendant Mary Rose Hennessy was a senior vice-president for the Association. She was in charge of providing educational and training services to businesses on behalf of the Association. Prior to August 19, 1991, defendants John Conrath, Daniel Hochstetter, David Murray, Sandra Pater and Sharon Young were Association employees working under Ms. Hennessy’s supervision. Conrath, Hochstetter, and Murray held management positions. The six individual defendants (Hennessy, Conrath, Hochstetter, Murray, Pater and Young) will be referred to collectively as “the Hennessy Group.”

The Hennessy Group, on behalf of the Association, individually or collectively prepared and distributed workshop and course catalogs; initiated and maintained proposals and contracts for educational and training services; designed, priced and scheduled customized on-site training and other programs; and arranged for grants to clients to fund the Association’s services. In the course of their duties, the Hennessy Group had access to lists of members, clients and prospective clients and to other confidential and proprietary marketing, sales and customer information.

Defendant Board of Regents of Northern Illinois University (NIU) is charged by statute with the management, control, operation, and maintenance of NIU. (Ill. Rev. Stat. 1991, ch. 144, par. 301.) The business and industry services department of NIU competes directly with the Association in providing educational and training services to businesses.

The complaint further alleges that on August 19, 1991, the Hennessy Group notified the Association that they intended to resign from the Association to become employed by the business and industry services department of NIU. The Association then ordered the Hennessy Group to vacate the Association premises and not to remove any confidential or proprietary information. The Hennessy Group vacated the premises. Soon afterwards, the Hennessy Group began employment at NIU, where they continue to be employed.

On February 4, 1992, the Association filed suit alleging that the Hennessy Group removed from the Association its membership list, lists of clients and prospective clients, course descriptions and catalogs, contracts between the Association and its clients, education and training proposals for existing and potential clients, files concerning funding efforts by the Association on behalf of clients, and files concerning Association programs (collectively referred to as Association Property). According to the complaint, these acts were for the benefit of the Hennessy Group’s new employer, NIU.

The complaint further alleges that the Hennessy Group encouraged other Association employees and instructors to leave the Association to work instead for NIU; that the Hennessy Group intentionally deleted certain courses from Association catalogs and failed to reserve space for some courses which were listed in the catalogs; that they held in abeyance some Association service proposals so that the proposals could be executed on behalf of NIU; that NIU assumed some contracts between the Association and its clients; and that funding which the Association helped clients obtain for Association services was instead used to fund NIU services to those same clients.

The complaint also states the Hennessy Group made representations which they knew to be false to clients, potential clients and instructors of the Association concerning discontinuance of certain programs and reductions in pay to instructors. The complaint further alleges that the Hennessy Group used the Association’s telephones and other facilities on the Association premises to solicit business for NIU.

The complaint avers that the acts of the Hennessy Group were wilfully designed to injure the Association and to benefit NIU and that the wrongful acts began in May 1991 and were discovered sometime after August 1991. The complaint does not delineate between acts and damages which occurred while the Hennessy Group were still employed by the Association and acts and damages which occurred later.

The complaint concludes that, as a result of the Hennessy Group’s wrongful acts, plaintiff has suffered, and continues to suffer, loss of customers, loss of repeat business and referrals from those customers, damage to the Association’s business reputation and loss of income. Plaintiff claims NIU is the direct recipient of much of the business lost by the Association.

Count I seeks injunctive relief. As to the Hennessy Group, their agents, and anyone acting in concert with them, plaintiff requests that these persons be enjoined from the following activities: retaining, or using without the Association’s written permission, any of the Association Property; soliciting or accepting business from Association clients; and encouraging Association employees to compete with the Association. In count I plaintiff also seeks restitution from the Hennessy Group members for compensation and benefits paid to them by the Association during their breach of fiduciary duty to the Association.

In count I plaintiff also requests that “defendants,” encompassing NIU as well as the Hennessy Group, be enjoined from: using or destroying Association Property; inducing clients or prospective clients to do business with NIU instead of the Association; providing any services for, receiving any payments from, or maintaining any business relationship with any customer wrongfully taken from the Association; making representations concerning the business of the Association; and unfairly competing with the Association. Also, plaintiff asks that defendants be required to tender Association Property to the court.

Count II seeks an accounting by NIU of all income received by NIU as a result of the Hennessy Group’s wrongful acts and application of a constructive trust as to that income.

Count III claims an intentional breach, by those in the Hennessy Group, of fiduciary duties owed to the Association by virtue of their employment. Plaintiff seeks an injunction against “all of the defendants,” prohibiting them from using Association Property, and damages of not less that $1 million from the Hennessy Group.

Counts IV, V, and VI allege the torts of unfair competition, misappropriation, and tortious interference with business relations, respectively. These counts allege that the Hennessy Group acted intentionally with the purpose of unlawfully injuring the Association and its business, property and reputation, and that the Hennessy Group “intentionally, maliciously and wilfully engaged in unfair competition by taking and misappropriating for commercial advantage the Property of the Management Association.” Count VI alleges the Hennessy Group’s intentional and malicious interference with business relationships, without just cause, by false representations and misappropriation of Association Property. In each of counts IV, V and VI, plaintiff seeks to enjoin “all of the defendants” from using the Association’s property and seeks damages of not less than $1 million from the Hennessy Group.

In count VII, plaintiff alleges past and continuing slander by the Hennessy Group through false and disparaging statements to Association clients and prospective clients including statements that the Association has discontinued, or is discontinuing, certain programs. Plaintiff alleges that the Hennessy Group have “wilfully defamed the Management Association and injured the Management Association in its trade and business.” Plaintiff asks that “all of the defendants” be enjoined from using Association Property and that the Hennessy Group pay damages of not less than $1 million.

Count VIII alleges violation of the Illinois Trade Secrets Act. Plaintiff alleges that the Association’s membership list and its contracts and proposals for educational and training services are trade secrets as defined in that act (Ill. Rev. Stat. 1991, ch. 140, par. 352(d)); that each individual in the Hennessy Group owed a duty to maintain those trade secrets for Association purposes; and that they each misappropriated the trade secrets for NIU’s benefit. Plaintiff states that NIU, aware of the misappropriation, acquired the trade secrets by improper means from or through the Hennessy Group and neither effected their return nor compensated the Association for the commercial advantage derived.

In count VIII, plaintiff seeks to enjoin all defendants from using the trade secrets and from doing business with any company disclosed in the trade secrets for a reasonable period of time. Plaintiff also seeks an accounting (at defendants’ expense) of the Association’s actual loss and NIU’s unjust enrichment resulting from the misappropriation, damages and exemplary damages.

In each of counts II through VIII, plaintiff prays that the court “grant such other relief, including attorneys’ fees, interest and costs, as the Court deems just and proper.”

Defendants filed a motion to dismiss, pursuant to section 2 — 619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619), on the grounds that under the Court of Claims Act (Ill. Rev. Stat. 1991, ch. 37, par. 439.1 et seq.), the Court of Claims has exclusive jurisdiction over the action and, therefore, the circuit court of Cook County lacks subject matter jurisdiction. After written briefs and oral arguments, the trial court granted the motion from which this appeal now follows.

The granting of a motion to dismiss under section 2 — 619 is proper if no set of facts may be proven by which the plaintiff can recover. (Campbell v. White (1991), 207 Ill. App. 3d 541, 548, 566 N.E.2d 47.) For purposes of the motion, all well-pleaded facts alleged in the complaint are taken as true. Conclusions unsupported by specific factual allegations are not considered. Where defects do not appear on the face of the pleadings, affidavits may be filed which state affirmative matters justifying dismissal. (Campbell, 207 Ill. App. 3d at 547-48.) The question in this case is whether the facts stated in the complaint would support a finding that the circuit court has subject matter jurisdiction.

Except where the State has expressly consented to be sued or where suit is brought under the Court of Claims Act, the doctrine of sovereign immunity applies and “the State of Illinois shall not be made a defendant or party in any court.” Ill. Rev. Stat. 1991, ch. 127, par. 801.

The Court of Claims Act states:

“The court shall have exclusive jurisdiction to hear and determine the following matters:
(a) All claims against the state founded upon any law of the State of Illinois, or upon any regulation thereunder by an executive or administrative officer or agency, other than claims arising under the Workers’ Compensation Act or the Workers’ Occupational Diseases Act, or claims for expenses in civil litigation.
(b) All claims against the state founded upon any contract entered into with the State of Illinois.
(d) All claims against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person or corporation in a civil suit, and all like claims sounding in tort against *** the Board of Regents of the Regency Universities System *** provided, that an award for damages in a case sounding in tort *** shall not exceed the sum of $100,000 to or for the benefit of any claimant. *** The defense that *** the Board of Regents of the Regency Universities System *** is not liable for the negligence of its officers, agents, and employees in the course of their employment is not applicable to the hearing and determination of such claims.” Ill. Rev. Stat. 1991, ch. 37, par. 439.8.

In the present case, the parties do not dispute that the Board of Regents is an agency or subdivision of the State of Illinois. That the Board of Regents is an arm or agency of the State to which the Court of Claims Act applies was established in McGuire v. Board of Regents of Northern Illinois University (1979), 71 Ill. App. 3d 998, 1000-01, 390 N.E.2d 632. Nevertheless, even though the Board of Regents is denominated as a defendant in the present case, plaintiff contends this is not an action against the State which mandates exclusive Court of Claims jurisdiction.

The determination that a claim is one against the State does not depend upon the State agency being named as a party. (Healy v. Vaupel (1990), 133 Ill. 2d 295, 308, 549 N.E.2d 1240.) The determination depends instead on the issues involved and the relief sought. A claim is clearly against the State where these three criteria are met:

“(1) no allegations that an agent or employee of the State acted beyond the scope of his authority through wrongful acts; (2) the duty alleged to have been breached was not owed to the public generally independent of the fact of State employment; and (3) where the complained-of actions involve matters ordinarily within that employee’s normal and official functions of the State, then the cause of action is only nominally against the employee.” Robb v. Sutton (1986), 147 Ill. App. 3d 710, 716, 498 N.E.2d 267.

Even where the three criteria above are not met, an action is deemed an action against the State if judgment for the plaintiff could either “operate to control the actions of the State or subject it to liability.” Robb, 147 Ill. App. 3d at 713; see, e.g., Oppe v. State of Missouri (1988), 171 Ill. App. 3d 491, 493-94, 525 N.E.2d 1189 (suit is against State where State is obligated to defend or indemnify employee); see also Hudgens v. Dean (1979), 75 Ill. 2d 353, 388 N.E.2d 1242 (circuit court lacked jurisdiction in suit naming director of Department of Conservation individually where injunction required State employees to rebuild road).

COUNT I, INJUNCTION

In count I, plaintiff seeks to enjoin NIU, as well as the Hennessy Group, from use of the Association Property and from various other activities. This count involves the same conduct as that discussed below for counts IV through VIII (tortious conduct and violation of the Trade Secrets Act). Plaintiff contended in oral argument that (1) the Court of Claims has no jurisdiction to grant such equitable relief, (2) there is no present claim against the State because the injunction applies only to continuing activity, and (3) NIU cannot complain of interference with operations of the State because the injunctive relief requested extends only to unlawful activities.

The Court of Claims does have jurisdiction to grant injunctive relief. In Fernandes v. Margolis (1990), 201 Ill. App. 3d 47, 51, 588 N.E.2d 699, the court held that a claim of retaliatory discharge from State employment which sought injunctive relief in addition to damages was under the exclusive jurisdiction of the Court of Claims. In Liebman v. Board of Governors of State Colleges & Universities (1979), 79 Ill. App. 3d 89, 93, 398 N.E.2d 305, the court stated that the plaintiff’s request for injunctive relief did not alter the basic nature of his complaint, which was an action against the State based on a contract. Therefore, the Court of Claims had exclusive jurisdiction.

For the Court of Claims to have jurisdiction to grant an injunction, the injunction must either (1) control the operations of the State (G.H. Sternberg & Co. v. Bond (1975), 30 Ill. App. 3d 874, 877, 333 N.E.2d 261 (intent was to enjoin all members of State government including successor director who performed no wrongful acts); see also Hudgens v. Dean, 75 Ill. 2d at 357 (injunction required affirmative act by State to rebuild road)) or (2) involve a present claim against the State. In Ellis v. Board of Governors of State Colleges & Universities (1984), 102 Ill. 2d 387, 466 N.E.2d 202, a professor claimed she had been discharged without good cause from her tenured position at a State university. She sought damages and an injunction requiring the university to reinstate her. (Ellis, 102 Ill. 2d at 389.) The Court of Claims had exclusive jurisdiction:

“Because plaintiff seeks injunctive relief, in addition to money damages, does not mean, as plaintiff asserts, that her suit must be severed into two parts, that portion of the suit for money damages being brought in the Court of Claims and the other portion being brought in the circuit court. As the appellate court correctly noted, Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, stands for the proposition that if a plaintiff is not attempting to enforce a present claim against the State, but rather seeks to enjoin a State officer from taking future actions in excess of his delegated authority, then the immunity prohibition does not pertain. [Citation.] However, we agree with the appellate court that the plaintiff’s suit in the instant case is clearly based upon a present claim which has the potential to subject the State to liability and thus must be brought in the Court of Claims.” Ellis, 102 Ill. 2d at 395.

As will be demonstrated in the discussions of counts IV through VIII, those other counts involve the same conduct and do allege a present claim against the State for tortious conduct and violation of a law of the State of Illinois (Trade Secrets Act). The Court of Claims, having exclusive jurisdiction over those present claims, also has exclusive jurisdiction over the injunctive relief sought.

This conclusion is bolstered by the possibility that some of the acts which the Association seeks to enjoin may prohibit lawful activity by, or on behalf of, NIU. If so, the action seeks to control the operations of the State, and jurisdiction can only be with the Court of Claims. In Betts v. Department of Revenue (1979), 78 Ill. App. 3d 102, 396 N.E.2d 1150, the plaintiff alleged various acts by State enforcement agencies in retaliation for the filing of a lawsuit. He sought to enjoin the governor’s administration from directly or indirectly taking any action affecting his property rights. (Betts, 78 Ill. App. 3d at 106.) The court ruled that it was an action against the State because such an injunction would curtail entirely legal prosecutions and investigations of the State as well as unconstitutional and illegal acts. Betts, 78 Ill. App. 3d at 108.

Count I of the complaint asks, among other things, that the Hennessy Group, their agents, and anyone acting in concert with them be enjoined from accepting business from Association clients and from encouraging Association employees to compete with the Association. Plaintiff asks that all defendants be enjoined from inducing Association clients or prospects to enter into contracts with NIU instead of the Association. The Hennessy Group, no longer employed by the Association, owes no such duty, nor does NIU owe a duty to the Association. Provided the Association Property which was allegedly misappropriated is not the means used to secure contracts with Association clients, prospective clients and employees (e.g., the same information may have been available from public documents or listings provided by another source), enjoining those activities which the Hennessy Group might lawfully undertake in the course of their employment at NIU would operate to control the State’s lawful acts. Thus, the action would be against the State and the Court of Claims would have jurisdiction to hear the injunction request.

COUNT II, ACCOUNTING AND CONSTRUCTIVE TRUST

In count II plaintiff alleges that NIU has been unjustly enriched as the recipient of business and income flowing from the wrongful acts of the Hennessy Group. Plaintiff asks the court to “order an accounting by NIU of the funds obtained or to be obtained from any client or client prospects of the Management Association.” Plaintiff also asks the court to impose a constructive trust on those funds for the use and benefit of the Association. Plaintiff requests attorney fees, interest and costs.

Plaintiff contends in its brief that no claim for damages is made against NIU. Rather, the accounting and constructive trust are equitable remedies sought to reimburse the Association for “funds wrongfully in possession of NIU as a result of illegal or malicious conduct.” Plaintiff contends that even if a constructive trust has an indirect effect of requiring payment from the State treasury, the Court of Claims does not have jurisdiction to grant such equitable relief.

The Court of Claims’ jurisdiction is not limited to monetary claims. (G.H. Sternberg & Co., 30 Ill. App. 3d at 878.) The Court of Claims is not without authority to grant equitable relief. See Ellis, 102 Ill. 2d at 395 (Court of Claims jurisdiction where injunctive relief is sought and there is a present claim which may subject State to liability); Magna Trust Co. v. Department of Transportation (1992), 234 Ill. App. 3d 1068, 600 N.E.2d 1317 (jurisdiction in Court of Claims although remedy sought is specific performance); Brucato v. Edgar (1984), 128 Ill. App. 3d 260, 470 N.E.2d 615 (Court of Claims has exclusive jurisdiction where remedy sought was accounting and appointment of trustee).

Plaintiff relies on City of Springfield v. Allphin (1978), 74 Ill. 2d 117, 384 N.E.2d 310, in contending that the circuit court has jurisdiction to impose a constructive trust on funds wrongfully in the possession of a State agency. In Allphin, the Department of Revenue collected taxes on behalf of various municipalities and paid the taxes over to the municipalities while keeping a portion of the funds as fees for administration. (74 Ill. 2d at 121-22.) The Director of Revenue, believing that a statute amending the formula for calculating fees had not yet become effective, erroneously retained too much money in fees for the State. The municipalities sought a declaratory judgment in the circuit court as to the amendment’s effective date and reimbursement of amounts erroneously withheld. (Allphin, 74 Ill. 2d at 122.) The Illinois Supreme Court noted the presumption that the State does not violate the constitution and laws of the State, but if such violation occurs, it is by the State officer and therefore a suit to compel the officer to disburse appropriated funds according to law is not an action against the State. The court stated:

“[T]he issues involved in the instant case (the effective date of a statute) and the relief requested (a declaratory judgment and the withholding of certain funds from the State treasury) do not render the instant case a suit against the State. That the relief requested necessarily will have an impact on the State’s General Revenue Fund is not dispositive.” Allphin, 74 Ill. 2d at 126.

The court went on to stress the fiduciary relationship between taxing authorities, i.e., between municipalities which assess the taxes and the State government which acts as collection agent. The concern of the court was to provide an adequate forum to municipalities to recover taxes wrongfully withheld by a government official acting in excess of statutory authority. See Allphin, 74 Ill. 2d at 127.

Allphin is distinguishable from the present case. The present case does not involve taxes as Allphin did. No fiduciary relationship exists between NIU and the Association such as the fiduciary relationship between taxing bodies. Furthermore, Allphin was a declaratory judgment action much like a mandamus action in that the wrong allegedly committed was an official’s failure to perform a ministerial act mandated by statute. The conduct for which the constructive trust is sought in the present case was tortious conduct regulated by common law rather than statute and involved, not ministerial acts, but discretionary acts on the part of a State agency.

Brucato v. Edgar (1984), 128 Ill. App. 3d 260, 470 N.E.2d 615, is analogous to the present case. In Brucato, the Secretary of State entered into a collective bargaining agreement which allowed for different rates of pay based on whether an employee worked in Cook County or downstate Illinois. (128 Ill. App. 3d at 262.) Section 10a of the Secretary of State Merit Employment Code (Ill. Rev. Stat. 1981, ch. 124, par. 110a) authorized area differentials. (Brucato, 128 Ill. App. 2d at 265.) A downstate employee claimed the area differentials used in the agreement were unconstitutional in that they were arbitrary and discriminatory, denying her due process and equal protection. (Brucato, 128 Ill. App. 3d at 262.) She also claimed that the Secretary of State acted in excess of his authority in entering into the agreement. The plaintiff claimed the suit was not an action against the State, but an action to compel the Secretary of State to perform his duties under the law and to enjoin him from acting in excess of his authority. (Brucato, 128 Ill. App. 3d at 264.) The relief sought was an accounting of salary differentials with accrued interest over the preceding 10 years and appointment of a trustee to administer payment of the calculated amounts to downstate employees.

The court in Brucato stated:

“[W]hile it is true that an action to restrain a State official from acting in contravention of the law or exceeding his authority thereunder is not considered to be against the State [citation], it is well settled that where the action seeks to control the officer’s conduct in governmental matters with respect to which he has been granted discretionary authority [citation], and if a judgment for plaintiff could operate to control the actions of the State or subject it to liability, it will be deemed an action against the State even though it is not a named party therein [citations].” (Brucato, 128 Ill. App. 3d at 264.)

The court found that the relief sought was, in effect, a money judgment subjecting the State to liability and, therefore, the Court of Claims had exclusive jurisdiction:

“Furthermore, although plaintiff’s prayer for relief is framed in equitable terms, it is apparent from reading of the complaint in its entirety that the principal relief sought is a monetary judgment for the difference between the wages paid to her and those paid to Cook County personnel pursuant to the collective bargaining agreements in effect throughout the last decade; indeed, plaintiff acknowledged both in her brief and in arguments before us that essentially she is seeking to be recompensed for those wage discrepancies. Thus, notwithstanding the terminology employed in the pleadings, the present action is substantively a claim for monetary damages from the State arising from a contract with the State. As such, it is within the exclusive jurisdiction of the Court of Claims, and the mere fact that equitable relief in the form of an accounting and appointment of a trustee is also sought does not alter the basic nature of the suit, inasmuch as an order granting such relief clearly would be dependent upon and incidental to a preliminary finding that plaintiff is entitled to a judgment for damages and would merely serve as the vehicles by which to calculate and distribute the amount due her thereunder.
Moreover, we find nothing in the language of the Court of Claims Act — nor in the case law interpreting it — which ‘strictly limits’ jurisdiction of that Court to monetary claims. To the contrary, section 8 provides that the Court shall have exclusive jurisdiction to hear and determine ‘(a) all claims against the state founded upon any law of the State of Illinois,’ and ‘(b) all claims against the state founded upon any contract entered into with the State of Illinois.’ (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 37, pars. 439.8(a), (d).) It appears therefrom— and cases have held — that it is the nature of the action, i.e., whether it is one against the State, as well as the relief sought, which determines whether jurisdiction is in the Court of Claims.” Brucato, 128 Ill. App. 3d at 267-68.

Just as the plaintiff in Brucato claimed the suit was not one against the State because the Secretary’s acts were in excess of his authority and pursuant to an unconstitutional statute, the Association contends that this is not an action against the State because the Hennessy Group’s acts were intentional, malicious and illegal. In Brucato, the court disregarded the plaintiff’s contention that the State official acted in excess of his authority, even though it was alleged that he acted pursuant to an unconstitutional statute. The relief sought by the Association, an accounting and constructive trust, is at its core indistinguishable from the relief sought in Brucato. Although equitable terminology is used, this action, like Brucato, in effect seeks a monetary judgment from the State. It can also be noted that in count II of the complaint, plaintiff asks that attorney fees and costs be awarded. An award of fees and costs against the State is also under the exclusive jurisdiction of the Court of Claims. See Ill. Rev. Stat. 1991, ch. 37, par. 439.8(a); see also Kadlec v. Department of Public Aid (1987), 155 Ill. App. 3d 384, 508 N.E.2d 342 (interpreting that statute and providing legislative history as to intent).

COUNT III, BREACH OF FIDUCIARY DUTY; AND

COUNTS IV, V, VI AND VII, TORTIOUS CONDUCT

Count III alleges breach by individuals in the Hennessy Group of a fiduciary duty owed by them to the Association. Counts IV through VII allege various torts (unfair competition, misappropriation, tortious interference with business relations, and slander). Plaintiff contends each of these five counts is directed at the Hennessy Group, hot NIU. However, no distinction is drawn in the complaint as to which wrongful conduct occurred during the Hennessy Group’s employment with the Association and which wrongful conduct occurred after the Hennessy Group became employed by NIU. Neither is any division of damages made in the complaint. To the extent that the wrongful conduct occurred after the Hennessy Group became employed at NIU and within the scope of their NIU employment, the claims can be considered claims against the State rather than against the Hennessy Group individually.

Furthermore, to the extent the wrongful activity was undertaken by the Hennessy Group as agents of NIU before they became formally employed at NIU, the action might also be considered to be one against the State. In Peccarelli v. State of Illinois (1978), 32 Ill. Ct. Cl. 105, an attorney sued to recover money due for services rendered under his contract with an attorneys’ association. The association had contracted with the attorney for consulting services in connection with a project for which the association had received a grant from the Illinois Law Enforcement Commission (Commission), a State agency. (Peccarelli, 32 Ill. Ct. Cl. at 106.) The State argued that the Court of Claims did not have jurisdiction because the action was not based on a contract entered into by the State. The court noted that the Commission had authorized the hiring of the attorney and the association had been bound by fiscal guidelines published by the Commission. (Peccarelli, 32 Ill. Ct. Cl. at 108.) The Court of Claims found it had jurisdiction because the association was acting as agent of the State and acted on behalf of the State in entering into the contract.

In the present case, plaintiff has alleged throughout the complaint that the Hennessy Group acted for the benefit of NIU even before they left the Association’s employ. Plaintiff has alleged that Association Property was used to solicit business for NIU and that NIU assumed contracts formerly executed between the Association and its clients. Assuming these facts to be true, an agency relationship existed between the Hennessy Group and NIU before their formal employment at NIU, which could subject the State to liability for the damages sought in counts III through VII.

In its brief, plaintiff contends that counts IV through VII cannot be construed as claims against the State because the nature of the tortious conduct takes the Hennessy Group’s acts outside the scope of their employment for NIU. Plaintiff notes that it is presumed the State cannot violate the law or act in an intentional or malicious manner. Throughout the complaint, plaintiff alleges that the wrongful acts of the Hennessy Group were intentional or knowing, wilful, malicious and with the intent to unlawfully injure plaintiff. The question is (a) whether the acts of this nature are outside the scope of employment making the action one against individual employees rather than the State, and (b) if so, whether plaintiff has pleaded facts which support those conclusions.

In City of Springfield v. Allphin (1978), 74 Ill. 2d 117, 384 N.E.2d 310, the court noted the existence of a presumption “ ‘that the State, or a department thereof, will not, and does not, violate the constitution and laws of the State, but that such violation, if it occurs, is by a State officer or the head of a department of the State, and such officer or head may be restrained by a proper action instituted by a citizen.’ ” (74 Ill. 2d at 124, quoting Schwing v. Miles (1937), 367 Ill. 436, 441-42; but see Brucato v. Edgar (1984), 128 Ill. App. 3d 260.) Plaintiff makes no claim of constitutional violation. Plaintiff did argue below, however, that the tortious acts alleged were unlawful and, therefore, the presumption should apply. Also, plaintiff in its Trade Secrets Act count claims violation of a statute.

Clearly, the violation of any statute cannot mandate that the action is not against the State. If that were so, section 8(a) of the Court of Claims Act, which grants jurisdiction over “[a]ll claims against the state founded upon any law of the State of Illinois” (Ill. Rev. Stat. 1991, ch. 37, par. 439.8(a)), would grant jurisdiction over little or nothing. In Ellis v. Board of Governors of State Colleges & Universities (1984), 102 Ill. 2d 387, 394, 466 N.E.2d 202, the plaintiff contended that violation of a statute providing for dismissal only for good cause took the case out of the exclusive jurisdiction of the Court of Claims. The court found that claimed violation of the statute put the case precisely within the wording of section 8(a) of the Court of Claims Act. Ellis, 102 Ill. 2d at 395.

The cases which apply the presumption stated in Allphin seem to deal with violations of nondiseretionary statutory duties or procedures. These cases involved actions for mandamus, declaratory judgment and injunctive relief to compel compliance or prevent noncompliance with a statute or agency regulation. See Senn Park Nursing Center v. Miller (1984), 104 Ill. 2d 169, 470 N.E.2d 1029 (mandamus to compel computation and payment under existing valid procedure instead of invalid procedure established by official); Allphin, 74 Ill. 2d at 117 (declaratory judgment suit to compel application of statutory formula for withholding of funds); County of Cook v. Ogilvie (1972), 50 Ill. 2d 379, 280 N.E.2d 224 (injunctive relief to compel payments of allocated funds according to statute); Fernandes v. Margolis (1990), 201 Ill. App. 3d 47, 588 N.E.2d 699 (violation of administrative rule providing for notice and hearing before discharge); Farmer v. Mc Clure (1988), 172 Ill. App. 3d 246, 526 N.E.2d 486 (mandamus and injunction to compel certification of employee to position in accordance with agency regulation); Board, of Education of Township High School District No. 206 v. Cronin (1979), 69 Ill. App. 3d 472, 388 N.E.2d 72 (suit to compel State Superintendent of Education to comply with school bus reimbursement statute).

Clearly, mere tortious conduct, without further delineation, cannot qualify as unlawful so as to trigger the presumption in Allphin. Otherwise, section 8(d) of the Court of Claims Act, dealing with tort claims against the State, would have no effect. Negligence claims are clearly within the Act. Acts which are outside the scope of the State employee’s authority would not be under exclusive Court of Claims jurisdiction unless those acts could result in the imposition of liability on the State or control of its actions. (See Betts v. Department of Revenue, 78 Ill. App. 3d at 107; see also Campbell, 207 Ill. App. 3d at 551.) Intentional and wilful conduct is not necessarily beyond the scope of authority. See Campbell, 207 Ill. App. 3d at 551; see also Robb, 147 Ill. App. 3d at 714 (allegations of recklessness, which connotes wilful and wanton behavior, insufficient to show defendant acted outside his authority).

Plaintiff contends, however, that malicious conduct is outside the scope of a State employee’s authority. Plaintiff relies on Hoffman v. Yack (1978), 57 Ill. App. 3d 744, 748, 373 N.E.2d 486, for this contention. We agree with the legal contention that malice, if well pleaded, is outside the scope of a State employee’s employment. However, plaintiff has failed to adequately plead malicious conduct by the Hennessy Group.

Malice has been defined as “[t]he intentional doing of a wrongful act without just cause or excuse, with an intent to inflict an injury or under circumstance that the law will imply an evil intent.” (Black’s Law Dictionary 862 (5th ed. 1979).) In Hoffman, the court found a university department supervisor acted outside the scope of his authority when he made false accusations of a professor’s incompetency, racist views, lack of integrity and aberrant sexual behavior. (Hoffman, 57 Ill. App. 3d at 746.) While the facts alleged in Hoffman could be construed as prompted by personal animosity, that case made no distinction between malicious acts which were motivated by personal animosity and those motivated by furtherance of the employer’s business.

In Nikelly v. Stubing (1990), 204 Ill. App. 3d 870, 562 N.E.2d 360, the court made that distinction. The plaintiff alleged intentional and unjustified interference with his employment contract and intentional infliction of emotional distress by his supervisor with the intent to coerce the plaintiff to retire. (Nikelly, 204 Ill. App. 3d at 871-73.) The court found the supervisor’s acts were within the scope of his authority because there were no facts alleged which showed personal animosity or acts committed for any purpose other than what he perceived to be the best interests of the agency which employed him. Thus, the action was one against the State. Nikelly, 204 Ill. App. 3d at 876.

The approach used in Nikelly is in line with respondeat superior doctrine in private sector cases. In Bremen State Bank v. Hartford Accident & Indemnity Co. (7th Cir. 1970), 427 F.2d 425 (a private sector case), the Seventh Circuit Court of Appeals wrote:

“Our reading of the cases leads us to conclude that the rule in Illinois is that the employer is liable for the negligent, wilful, malicious, or criminal acts of its employees when such acts are committed during the course of employment and in furtherance of the business of the employer; but when the act is committed solely for the benefit of the employee, the employer is not liable to the injured third party.” Bremen State Bank, 427 F.2d at 428.

Section 8(d) of the Court of Claims Act gives the Court of Claims jurisdiction over claims against the State which sound in tort “if a like cause of action would lie against a private person or corporation in a civil suit.” (Ill. Rev. Stat. 1991, ch. 37, par. 439.8(d).) It is in keeping with the statute to distinguish between malicious acts for one’s own purposes and those believed by the employee to be in furtherance of the State employer’s purposes.

The facts alleged in the Association’s complaint certainly indicate intentional acts. Plaintiff’s conclusory statements as to the Hennessy Group’s malicious conduct and intent to injure plaintiff, however, are not supported by specific facts which, if proven, would show malicious conduct. Furthermore, the facts alleged are consistent with an intent to further the business of the Hennessy Group’s employer, NIU, which acts can be considered within the scope of employment. For these reasons, the tort claims in counts IV through VII are properly viewed as claims against the State for damages sounding in tort.

With respect to the count III breach of fiduciary duty claim, the allegations, as those in counts IV through VII, encompass the entire course of conduct preceding and succeeding the Hennessy Group’s departure from the Association and commencement of their employment at NIU. While the theory upon which recovery is sought is for breach of a fiduciary duty, which would presumably apply only to employees and fiduciaries, there is no attempt to differentiate between the acts prior to the Hennessy Group’s departure from the Association and acts subsequent thereto. Plaintiff nevertheless argues that, because the theory of recovery is for breach of fiduciary duty, one may assume that NIU can have no liability thereunder.

There are, however, three problems with that assumption. First, plaintiff’s allegation that the Hennessy Group’s wrongful conduct was undertaken for the benefit of NIU implies that the Hennessy Group acted as NIU’s agent even before leaving the Association, i.e., in the period during which the Hennessy Group allegedly owed a fiduciary duty to plaintiff. If so, as is the case under the tortious conduct counts, NIU could be subject to liability under count III based on an agency theory. See Peccarelli, 32 Ill. Ct. Cl. at 108.

Secondly, even without allegations of agency, plaintiff has not isolated in its complaint the conduct occurring during the Hennessy Group’s employment with the Association or the damages restricted to that period. Moreover, the damages encompassing the entire course of conduct appear to be inextricably intertwined and, therefore, not subject to such isolation. There is no way, based on the complaint, to identify conduct and damages during the brief period prior to the Hennessy Group’s departure from the Association.

Finally, count III seeks attorney fees and costs from all defendants, including NIU. Absent a specific statutory provision to the contrary, fees and costs can only be awarded against NIU in the Court of Claims. See Kadlec, 155 Ill. App. 3d at 387-88.

For these reasons, plaintiff’s assumption that the State can have no liability under count III is incorrect. The Court of Claims has jurisdiction over count III as well as counts IV through VII.

COUNT VIII, VIOLATION OF THE ILLINOIS TRADE SECRETS ACT

Count VIII alleges violation of the Illinois Trade Secrets Act. The Act provides for injunctive relief and damages based on misappropriation of trade secrets. (Ill. Rev. Stat. 1991, ch. 140, par. 351 et seq.) The Act’s definition of “trade secret” includes, among other things, technical and nontechnical data, methods, techniques, financial data, and lists of actual or potential customers or suppliers if such information is sufficiently secret to derive actual or potential economic value and is the subject of reasonable efforts to maintain its secrecy or confidentiality. (Ill. Rev. Stat. 1991, ch. 140, par. 352(d).) Misappropriation includes acquisition of a trade secret by improper means (including breach of, or inducement to breach, a confidential relationship) and unauthorized disclosure or use of a trade secret. Ill. Rev. Stat. 1991, ch. 140, par. 352(b).

The Act states that, with certain exceptions, the Act is “intended to displace conflicting tort, restitutionary, unfair competition, and other laws of this State providing civil remedies for misappropriation of a trade secret.” (Ill. Rev. Stat. 1991, ch. 140, par. 358(a).) The exceptions listed include contract remedies, criminal remedies, civil remedies not based on trade secret misappropriation, and other statutory definitions of “trade secret.” Ill. Rev. Stat. 1991, ch. 140, par. 358(b).

In its brief, plaintiff contends that the Trade Secrets Act encompasses a governmental entity of the State just as it encompasses any other entity. Plaintiff bases this contention on the Act’s definition of “person,” which includes “government, governmental subdivision or agency” (Ill. Rev. Stat. 1991, ch. 140, par. 352(c)), and upon the Act’s failure to specifically mention sovereign immunity or Court of Claims jurisdiction. Plaintiff argues that because the Act encompasses State governmental entities and does not list sovereign immunity as an exception, it subjects the State to liability under the Act. Therefore, plaintiff argues, State liability under the Trade Secrets Act supersedes the earlier statutory provision of sovereign immunity and the Court of Claims Act. Thus, plaintiff contends, the State has consented through the Trade Secrets Act to assume general full liability in the circuit court, unmodified by the Court of Claims Act or sovereign immunity. We disagree.

The exceptions listed in section 8 of the Trade Secrets Act deal with remedies rather than liability; they are theories of action, not immunities or defenses which would preclude the imposition of liability. Therefore, the absence of sovereign immunity in the listed exceptions does not mean the legislature intended sovereign immunity to be waived in Trade Secrets Act suits. Plaintiff cited no case which subjected the State to liability in a circuit court under the Trade Secrets Act.

Defendants argue that, had the legislature intended the State to be subject in a circuit court to liability under the Trade Secrets Act, the Act would have explicitly so stated. Therefore, defendants contend, the State is protected by the sovereign immunity doctrine as to forum and jurisdiction is exclusively with the Court of Claims. The Trade Secrets Act is silent on the subject of sovereign immunity and on the subject of a proper forum for suits under the Act. The Court of Claims Act, however, grants exclusive jurisdiction to the Court of Claims for “[a]ll claims against the state founded upon any law of the State of Illinois.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 37, par. 439.8.

We find the defendants’ position more tenable, interpreting the Trade Secrets Act’s silence on the subject as a legislative intent that the Court of Claims Act should apply in actions against the State under the Trade Secrets Act.

In Byron v. Village of Lyons (1986), 148 Ill. App. 3d 1057, 1058, 500 N.E.2d 449, the plaintiff filed a tort action against the Village of Lyons. The village filed a third-party action for contribution against the Department of Children and Family Services (DCFS), a State agency. The village argued that because the Contribution Among Joint Tortfeasors Act made no mention of sovereign immunity, the doctrine did not apply to that act. The court affirmed the trial court’s dismissal for lack of subject matter jurisdiction. (Byron, 148 Ill. App. 3d at 1058.) The court stated:

“We also note that the filing of third-party suits for contrb bution in pending actions, authorized by the Contribution Among Joint Tortfeasors Act [citation] and relied upon by the village, does not expressly exclude contribution claims against the State from falling within the doctrine of sovereign immunity. Therefore, the State’s consent to such a suit would have to be implied. It has been held that legislative consent to suit against the State cannot be implied when there is an express statutory provision to the contrary. *** [Legislative consent must be clear and unequivocal; it cannot be inferred [citation]. The Court of Claims Act expressly grants, jurisdiction to that court in cases against the State grounded in tort; the Contribution Among Joint Tortfeasors Act is silent on the subject. Therefore, the expressed legislative intent places jurisdiction for this case in the Court of Claims.” Byron, 148 Ill. App. 3d at 1060.

By analogy, the Court of Claims Act expressly grants jurisdiction to the Court of Claims for “claims against the state founded upon any law of the State of Illinois” and the Trade Secrets Act is silent on the subject. Therefore, jurisdiction is in the Court of Claims for claims against the State under the Trade Secrets Act. Count VIII of plaintiff’s complaint alleges NIU’s misappropriation of trade secrets and seeks damages, exemplary damages, attorney fees and costs from NIU. It is a present claim against the State, subject to the exclusive jurisdiction of the Court of Claims. The circuit court lacks subject matter jurisdiction over the claims in count VIII.

This conclusion is bolstered by the absence of any mention of sovereign immunity in section 5 of the Trade Secrets Act. (Ill. Rev. Stat. 1991, ch. 140, par. 355.) Section 5 of the Act authorizes an award of attorney fees and costs to the prevailing party. In Kadlec v. Department of Public Aid, the court stated that statutes which authorized awards of costs in general terms without specific reference to the State are not sufficient to hold the State liable for such costs. (Kadlec v. Department of Public Aid, 155 Ill. App. 3d at 388, quoting Department of Revenue v. Appellate Court of Illinois, First District (1977), 67 Ill. 2d 392, 396, 367 N.E.2d 1302.) It seems likely that if the legislature intended sovereign immunity to be inapplicable under the Trade Secrets Act, it would have specified in section 5 that fees and costs could be assessed against the State.

For the foregoing reasons, the judgment of the trial court is affirmed.

Judgment affirmed.

MURRAY and McNULTY, JJ., concur.