text:
    VIVIAN FAULKNER-KING, Plaintiff-Appellant, v. EUGENE C. WICKS et al., Defendants-Appellees.
    Fourth District
    No. 4—91—0660
    Opinion filed March 31, 1992.
    Robert G. Kirchner, of Lerner & Kirchner, of Champaign, for appellant.
    Michael R. Cornyn, of Thomas, Mamer & Haughey, of Champaign, for appellees.
   JUSTICE KNECHT

delivered the opinion of the court:

This case is before us pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308). The Champaign County circuit court certified five questions for our review related to its jurisdiction to hear plaintiff Vivian Faulkner’s claims. We find under each circumstance presented in the questions, the circuit court correctly found it lacked subject-matter jurisdiction to consider plaintiff’s claims.

I. Allegations And Circuit Court’s Ruling

Plaintiff was employed at the University of Illinois (University) in the School of Art and Design. As of August 20, 1987, her employment at the University was not extended. On September 16, 1988, she filed suit in Champaign County circuit court against the board of trustees at the University and against individual defendants Eugene C. Wicks, Donald Pilcher, James Kaufman, Jack McKenzie, Edwin L. Goldwasser, Theodore Zemich, Alvin D. Moore, and Jerrold Ziff. The individual defendants were professors and administrators at the University.

Plaintiff previously filed a complaint with the Illinois Department of Human Rights. The complaint was dismissed because it was filed beyond the statute of limitations. We recently upheld that ruling. (Faulkner-King v. Department of Human Rights (1992), 225 Ill. App. 3d 784.) According to defendants, plaintiff also filed an action under Title VII (42 U.S.C. §2000e (1988)), which was dismissed by the Federal district court because it was filed beyond the statute of limitations. (Faulkner-King v. Board of Trustees (C.D. Ill. 1991), 757 F. Supp. 951.) This ruling is currently on appeal before the Seventh Circuit Court of Appeals (case No. 91 — 1578). Finally, she has filed a claim in the Illinois Court of Claims (docketed case No. 91 — CC— 1417), which has been stayed until the other cases are resolved.

In this case, plaintiff alleges she was denied a promotion and tenure as a result of the individual defendants’ evaluations and recommendations. She seeks damages for the individual defendants’ past actions. Defendants acted in their capacities as either committee members, deans, directors or assistant vice-chancellors. She also seeks injunctive relief against the University’s board of trustees in the form of reinstatement to her position at the University.

Plaintiff filed a second-amended complaint March 12, 1990. Her theories of recovery were based on the claim that she had been discriminated against because of her gender, and/or that the evaluation and recommendation process for retention, promotion, and tenure was conducted in an arbitrary and capricious manner. The second-amended complaint alleged claims under the Constitution of Illinois (Ill. Const. 1970, art. I, §§2, 18), the Constitution of the United States (U.S. Const., amend. XIV), Federal law (42 U.S.C. §§1983, 1985, 1986 (1988)), and common law claims including tortious interference with contract, prospective economic advantage, common law due process, and fraudulent misrepresentation. Defendants filed a motion to dismiss plaintiff’s second-amended complaint, arguing among other reasons, that the court lacked jurisdiction to hear her case because of the basis of her claims.

In its opinion filed July 2, 1991, the circuit court dismissed plaintiff’s second-amended complaint. The court concluded it lacked subject-matter jurisdiction over the causes of action set forth by plaintiff’s complaint because the court’s jurisdiction over gender-based discrimination claims is restricted to reviewing decisions of the Human Rights Commission pursuant to section 8 — 111(C) of the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1989, ch. 68, par. 8—111(C)). The court found gender-based discrimination was central to each of plaintiff’s 14 counts. It concluded that to the extent plaintiff’s claims were not premised on gender discrimination, the Court of Claims was the appropriate forum. It also noted the allegations of the second-amended complaint did not properly allege a claim against any of the individual defendants and stated plaintiff could replead allegations if she wished.

II. Certified Questions

On plaintiff’s motion, the court entered an order pursuant to Rule 308. It certified the following questions of law for our review:

“a. Whether the Circuit Court has jurisdiction over a claim for retaliatory discharge founded upon the public policy of the State of Illinois as expressed in Article I, Sections 2, 17 and 18 of the Constitution of the State of Illinois, 1970 where the Plaintiff claims to have been retaliatorily discharged as a result of sexual discrimination and arbitrary or capricious conduct in the tenure evaluation process, the decision denying her promotion and tenure, and in the decision as to whether to discharge her from her employment at the University of Illinois.
b. Whether the Circuit Court has subject matter jurisdiction over a cause of action brought directly under Article I, Sections 2, 17 and 18 of the Constitution of the State of Illinois, 1970 where the Plaintiff claims to have been retaliatorily discharged as a result of sexual discrimination and arbitrary or capricious conduct in the tenure evaluation process, the decision denying her promotion and tenure, and in the decision as to whether to discharge her from her employment at the University of Illinois.
c. Whether the Circuit Court has subject matter jurisdiction over claims founded upon a theory of Due Process (common law), tortious interference with contract, tortious interference with prospective economic advantage and fraudulent misrepresentation where the Plaintiff claims that the conduct of the Defendants was motivated as a result of the Plaintiff being a female and/or for arbitrary and capricious reasons.
d. Whether the Circuit court has subject matter jurisdiction over claims brought under Title 42 U.S.C.S. Sections 1983, 1985 and 1986 where the Plaintiff alleges that the actions taken against her were as a result of her being a female and/or for arbitrary and capricious reasons.
e. Whether the Circuit Court has subject matter jurisdiction over claims alleging a civil conspiracy to violate Plaintiff’s common law and constitutional rights based upon her status as a female and/or for arbitrary and capricious reasons.”

These questions raise two issues. The first question is whether section 8 — 111(C) of the Act precludes circuit courts from exercising jurisdiction over claims brought under the Constitution of the State of Illinois (Ill. Const. 1970, art. I, §§2, 17, 18), the Constitution of the United States (U.S. Const., amend. XIV), Federal law (42 U.S.C. §§1983, 1985, 1986 (1988)), and common law where the underlying theory for the complained-of actions is gender-based discrimination and/or arbitrary and capricious conduct.

The second issue raised is whether plaintiff’s claims founded on other than gender discrimination in the evaluation of her as a professor, for retention, promotion, and tenure must be brought in the Court of Claims.

III. Subject Matter Jurisdiction Over Alleged Employment Discrimination

Plaintiff first argues the circuit court erred by concluding it lacked jurisdiction to hear discrimination claims based on the Illinois Constitution, common law, Federal constitutional and statutory law. She raises the following arguments: (1) article I, section 2, of the Illinois Constitution permits her to seek original review by the circuit court of her claims; (2) article I, section 17, of the Illinois Constitution was enacted to protect against private, not public, discrimination; (3) article I, section 18, of the Illinois Constitution authorizes her to seek remedies in the circuit court; (4) the language of the Act does not preempt the circuit court’s jurisdiction because her claims are not protected under the Act; and (5) circuit courts have original jurisdiction of Federal statutory and constitutional claims and cannot refuse to consider cases which raise these issues. We reject plaintiff’s arguments.

The language of the Act and article I, sections 2, 17, and 18, of the Illinois Constitution is pertinent to resolving whether the circuit court had jurisdiction over plaintiff’s claims.

The Act states it is intended to “secure and guarantee the rights established by Sections 17, 18 and 19 of Article I of the Illinois Constitution of 1970.” (Ill. Rev. Stat. 1989, ch. 68, par. 1—102(C).) Section 8—111(C) of the Act further provides, “[ejxcept as otherwise provided by law, no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in this Act.” Ill. Rev. Stat. 1989, ch. 68, par. 8—111(C).

Article I, section 2, of the Illinois Constitution states “[n]o person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.” Ill. Const. 1970, art. I, §2.

Article I, section 17, of the Illinois Constitution provides:

“All persons shall have the right to be free from discrimination on the basis of race, color, creed, national ancestry and sex in the hiring and promotion practices of any employer ***.
*** [T]he General Assembly by law may establish reasonable exemptions relating to these rights and provide additional remedies for their violation.” Ill. Const. 1970, art. I, §17.

Article I, section 18, of the Illinois Constitution states: “The equal protection of the laws shall not be denied or abridged on account of sex by the State or its units of local government and school districts.” Ill. Const. 1970, art. I, §18.

A. Article I, Section 2

Article I, section 2, of the Illinois Constitution does not authorize plaintiff to seek original review of her gender-discrimination claims in the circuit court. Plaintiff previously appealed a decision by the Illinois Human Rights Commission, arguing that the Department of Human Rights lacked jurisdiction to hear her complaint against the University of Illinois School of Art and Design. (See Faulkner-King, 225 Ill. App. 3d 784.) Her complaint was based on the same outcome she complains of in this case, the termination of her position with the school in August 1987, and the school’s failure to grant her tenure or promote her. We concluded the Act is an exclusive remedy for civil rights violations when the action is premised on article I, section 2, of the Illinois Constitution. We relied on the Illinois Supreme Court ruling in Mein v. Masonite Corp. (1985), 109 Ill. 2d 1, 7, 485 N.E.2d 312, 315, which established that the Act was the exclusive remedy for employment discrimination claims. Faulkner-King, 225 Ill. App. 3d at 793.

B. Article I, Section 17

Plaintiff contends article I, section 17, of the Illinois Constitution was intended to reach discrimination only by private persons. We disagree. She argues cases restricting the remedy to that provided by the Act have involved a private employer which allegedly violated rights protected by section 17 thereof. See Thakkar v. Wilson Enterprises, Inc. (1983), 120 Ill. App. 3d 878, 878-79, 458 N.E.2d 985, 986; Dilley v. Americana Healthcare Corp. (1984), 129 Ill. App. 3d 537, 537, 472 N.E.2d 596, 597.

Courts have consistently rejected efforts to view the Act as other than the exclusive remedy for employment discrimination claims. In Dilley (129 Ill. App. 3d at 546, 472 N.E.2d at 603), we rejected an argument that article I, section 17, of the Illinois Constitution granted concurrent jurisdiction as between the circuit courts and the forum provided under the Act. Each district of the appellate court has found the Act to be the exclusive remedy for employment discrimination. Thakkar, 120 Ill. App. 3d at 881, 458 N.E.2d at 987 (first district); Yount v. Hesston Corp. (1984), 124 Ill. App. 3d 943, 949, 464 N.E.2d 1214, 1218 (second district); Armstrong v. Freeman United Coal Mining Co. (1983), 112 Ill. App. 3d 1020, 1022-23, 446 N.E.2d 296, 298 (third district); Dilley, 129 Ill. App. 3d at 546, 472 N.E.2d at 603 (fourth district); Cahoon v. Alton Packaging Corp. (1986), 148 Ill. App. 3d 480, 482, 499 N.E.2d 522, 523 (fifth district).

More importantly, the Illinois Supreme Court has spoken definitively on the issue concluding the Act was intended to be the exclusive remedy for handling claims of employment discrimination:

“The legislature has specifically provided through section 8— 111(D) of the present act [(Ill. Rev. Stat. 1983, ch. 68, par. 8—111(D) (now see Ill. Rev. Stat. 1989, ch. 68, par. 8—111(C)))], *** that courts have no jurisdiction to hear independent actions for civil rights violations. It is clear that the legislature intended the Act, with its comprehensive scheme of remedies and administrative procedures, to be the exclusive source for redress of alleged human rights violations. [Citations.] Debates on Senate Bill 1377, which became the Human Rights Act, confirm that the legislature intended by the Act to avoid direct access to the courts for redress of civil rights violations.” Mein, 109 Ill. 2d at 7, 485 N.E.2d at 315.

There should be no distinction between private and public employment discrimination. Article I, section 17, of the Illinois Constitution states “[a]ll persons shall have the right to be free from discrimination *** of any employer.” (Emphasis added.) (Ill. Const. 1970, art. I, §17.) This section also authorizes the General Assembly to establish laws to enforce the rights granted all employees, public and private, to be free of workplace discrimination. Ill. Const. 1970, art. I, §17; see also Dilley, 129 Ill. App. 3d at 550-51, 472 N.E.2d at 605-06 (Green, P.J., specially concurring).

C. Article I, Section 18

Plaintiff contends article I, section 18, of the Illinois Constitution does not limit a plaintiff’s right to seek redress in circuit courts because, unlike the authority granted in section 17, section 18 does not authorize the legislature to establish “reasonable exemptions.”

She contends that no court has ruled a State employee who is protected by the Illinois Constitution from employment discrimination is precluded from seeking redress under the Constitution of the State of Illinois. She reasons State employees can seek redress under both Title VII (see 42 U.S.C. §§2000e-2, 2000e-5 (1988)) and the Constitution of the United States and the fourteenth amendment, and cites Trigg v. Fort Wayne Community Schools (7th Cir. 1985), 766 F.2d 299. Similarly, State employees should be entitled to seek relief under article I, sections 2 and 18, of the Illinois Constitution in the circuit courts and under the Act.

Plaintiff cites no case law supporting her argument. Although not addressing jurisdiction, employment-discrimination cases brought by State employees have been filed under the Act. See Board of Trustees of University of Illinois v. Human Rights Comm’n (1985), 138 Ill. App. 3d 71, 73, 485 N.E.2d 33, 35; Board of Trustees of Southern Illinois University v. Knight (1987), 163 Ill. App. 3d 289, 290-91, 516 N.E.2d 991, 993.

While the equal protection clause of article I, section 18, of the Illinois Constitution provides a right to be free from discrimination by the State, this protection in the area of employment discrimination is covered by article I, section 17. The Act states it is intended to protect rights established by section 18. (Ill. Rev. Stat. 1989, ch. 68, par. 1—102(C).) Plaintiff’s remedy for claims raised under this section are limited to those provided under the Act. Article I, section 18, does not confer on plaintiff a private right of action for alleged gender discrimination.

D. Claims Protected By The Act

Plaintiff finally argues that because the claims she raises are not protected by the Act, she can seek her remedy in the circuit court. She directs us to that portion of the Act which states the Act does not preempt jurisdiction which is otherwise provided by law. Ill. Rev. Stat. 1989, ch. 68, par. 8—111(C).

Plaintiff compares her action to the court’s ruling in Ritzheimer v. Insurance Counselors, Inc. (1988), 173 Ill. App. 3d 953, 527 N.E.2d 1281, in which the Fifth District Appellate Court held the circuit court had original jurisdiction over plaintiff’s complaint, in which she alleged she was discriminated against by her private employer because she became pregnant. The court ruled the Act did not apply there because the employer had less than 15 employees and, therefore, was not subject to the Act. It further suggested in dictum that plaintiff’s second count based on intentional tortious conduct should not have been dismissed. The court reasoned this claim was not necessarily related to, and required different evidence from, an employment-discrimination claim. Ritzheimer, 173 Ill. App. 3d at 963-64, 527 N.E.2d at 1288.

Plaintiff also relies on Pavilon v. Kaferly (1990), 204 Ill. App. 3d 235, 561 N.E.2d 1245, as support for her argument that her claims are not protected by the Act. In Pavilon, the court ruled the circuit court was not preempted by the Act from considering a claim of intentional infliction of emotional distress. Pavilon, 204 Ill. App. 3d at 243, 561 N.E.2d at 1250.

Plaintiff contends that where the provisions of the Act apply and the rights to be enforced are created by article I, section 17, a plaintiff must pursue his or her remedies as provided under the Act. Where, however, the Act’s provisions do not apply, and the cause the plaintiff seeks to bring is not based on article I, section 17, of the Illinois Constitution, he or she can seek relief in the circuit court. She claims she can seek review in the circuit court because her claims are based on statutory or constitutional bases not provided for by the Act. The bases for the rulings in Ritzheimer and Pavilon support our finding plaintiff’s claims are protected by the Act.

In both cases, the claim which the court viewed as outside the purview of the Act was for intentional infliction of emotional distress. Each court reasoned this claim required evidence far beyond that required in a discrimination claim. Ritzheimer, 173 Ill. App. 3d at 963-64, 527 N.E.2d at 1288-89; Pavilon, 204 Ill. App. 3d at 244-45, 561 N.E.2d at 1250-51.

Plaintiff’s action raises claims similar to those raised in Anderson v. Pistner (1986), 148 Ill. App. 3d 616, 499 N.E.2d 566. The Anderson court dismissed claims of tortious interference with contractual relations and prospective business advantage on jurisdictional grounds, because these claims were rooted in an age-discrimination claim. (Anderson, 148 Ill. App. 3d at 619-20, 499 N.E.2d at 569.) Plaintiff’s claims are rooted in a gender-discrimination claim. The circuit court noted each of plaintiff’s 14 counts was based on a claim of gender-based discrimination. Plaintiff’s additional allegations do not require that she be permitted to seek remedies outside those provided by the Act. Her allegations are primarily based on a claim of gender discrimination which the Act protects against.

E. Federal Constitutional and Statutory Claims

Plaintiff argues the circuit court erred in ruling it lacked subject-matter jurisdiction over claims brought under the fourteenth amendment to the Constitution of the United States and under title 42 of the United States Code, sections 1983, 1985, and 1986 (42 U.S.C. §§1983, 1985, 1986 (1988)). She contends circuit courts have concurrent jurisdiction over a claim premised on Federal civil rights statutes and cites numerous cases in support of her contention. See, e.g., Howlett v. Rose (1990), 496 U.S. 356, 110 L. Ed. 2d 332, 110 S. Ct. 2430; Seibring v. Parcell’s Inc. (1987), 159 Ill. App. 3d 676, 512 N.E.2d 394; Donnelly v. Yellow Freight System, Inc. (7th Cir. 1989), 874 F.2d 402, 405-06, aff’d (1990), 494 U.S. 820, 108 L. Ed. 2d 834, 110 S. Ct. 1566.

Plaintiff directs us to Donnelly, a Title VII case (see 42 U.S.C. §2000e — 2 (1988)) in which the Seventh Circuit ruled a State court was obligated to hear a case which raised a Federal claim as to which concurrent jurisdiction existed. (Donnelly, 874 F.2d at 409.) Plaintiff also directs us to the United States Supreme Court’s ruling in Howlett that a State court’s refusal to exercise jurisdiction over a claim under title 42, section 1983, of the United States Code (42 U.S.C. §1983 (1988)) violated the supremacy clause. A State court is obligated to address such a claim. (Howlett, 496 U.S. at 371-81, 110 L. Ed. 2d at 350-56, 110 S. Ct. at 2440-45.) According to plaintiff, these rulings illustrate the court’s error in concluding it lacked jurisdiction to hear claims which arose under Federal constitutional and statutory law.

The United States Congress cannot require circuit courts to hear certain disputes. Congress can utilize State courts to enforce Federal rights, but it must do so subject to all conditions which the State court imposes on other litigants. (Brown v. Gerdes (1944), 321 U.S. 178, 190, 88 L. Ed. 659, 666-67, 64 S. Ct. 487, 493.) Although circuit courts are courts of general jurisdiction, the legislature, by authority of the State Constitution, has restricted that jurisdiction when the claim involves a controversy covered by the Act. Courts have consistently ruled the Act is the exclusive source of a remedy for an employment-discrimination claim. Circuit courts cannot be compelled to accept such cases under the guise of Federal authority.

Plaintiff’s argument is similar to one rejected by the Fifth District Appellate Court in Cahoon, i.e., the plaintiff had an independent enforceable Federal right under the Age Discrimination in Employment Act of 1967 (29 U.S.C. §621 et seq. (1982)). The court ruled it had no jurisdiction because the claim had to be brought under the Act. Cahoon, 148 Ill. App. 3d at 483-84, 499 N.E.2d at 524.

Plaintiff also contends her second-amended complaint raised Federal constitutional and statutory law claims against individual defendants who are not employers. For this reason too, the Act should not have preempted the circuit court’s jurisdiction to hear these claims. The circuit court noted in its opinion that claims against the individual defendants were not sufficiently pleaded. Defendants’ actions which were complained of were in conjunction with their roles in the decision to deny plaintiff tenure at the University. The Act properly preempts the circuit court of original jurisdiction when a claim alleges employment discrimination.

IV. Jurisdiction Over Common Law Claims

The second issue raised by the certified questions is whether the Court of Claims is the proper forum for plaintiff’s claims other than those alleging gender discrimination. We rule it is the only forum in which plaintiff can raise these claims. Section 8 of the Court of Claims Act provides in relevant part:

“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.
* * *
(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 Trustees of the University of Illinois ***.” Ill. Rev. Stat. 1989, ch. 37, pars. 439.8(a), (d).

Whether an action constitutes a suit against the State depends on the issues involved and the relief sought. (Ellis v. Board of Governors of State Colleges & Universities (1984), 102 Ill. 2d 387, 394, 466 N.E.2d 202, 206; Robb v. Sutton (1986), 147 Ill. App. 3d 710, 712-13, 498 N.E.2d 267, 270.) The court found plaintiff’s claims which were based on other than gender discrimination were for damages for past actions and sought injunctive relief against the University’s board of trustees. It further concluded the claims against the individual defendants were based on actions in their capacities within the tenure process at the University. The State law claims, according to the court, were based on laws or regulations of the State of Illinois, arose out of contractual rights and obligations between plaintiff and the board of trustees, or sounded in tort. If cognizable claims independent of those covered by the Act are presented by plaintiff’s action, the court concluded the proper forum for those claims is the Court of Claims.

Plaintiff concedes an action against the State must be brought in the Court of Claims. (Healy v. Vaupel (1990), 133 Ill. 2d 295, 308, 549 N.E.2d 1240, 1247.) Bringing the action in this court cannot be evaded by nominally bringing suit against an agent or servant of the State. (Sass v. Kramer (1978), 72 Ill. 2d 485, 491, 381 N.E.2d 975, 977.) Plaintiff, however, directs us to cases stating sovereign immunity affords no protection when it is alleged that the State’s agent acted in violation of statutory or constitutional law or in excess of his authority. In these instances, the plaintiff may seek redress in the circuit courts. See, e.g., Healy, 133 Ill. 2d at 308, 549 N.E.2d at 1247.

She also directs us to Hoffman v. Yack (1978), 57 Ill. App. 3d 744, 748, 373 N.E.2d 486, 490, in which the court found the circuit court could properly rule on whether the defendant acted outside the scope of his employment and engaged in tortious conduct which interfered with plaintiff’s relationship with the university at which plaintiff was a tenured instructor. In addition, the First District Appellate Court has ruled a suit alleging defendant abused his discretion or authority is not subject to a sovereign immunity defense. (Houseknecht v. Zagel (1983), 112 Ill. App. 3d 284, 290, 445 N.E.2d 402, 406.) Because her claims against the individual defendants allege similar violations, plaintiff contends the circuit court has jurisdiction to hear these claims.

Plaintiff’s action is more akin to the scenario present in Ellis, wherein the plaintiff complained she was terminated from a tenured position without good cause. Plaintiff in Ellis filed suit against the Board of Governors of Colleges of Illinois for damages, injunctive relief, and reinstatement. (Ellis, 102 Ill. 2d at 390, 466 N.E.2d at 204.) The court ruled the Court of Claims had exclusive jurisdiction over both claims. It reasoned that although plaintiff sought injunctive relief and money damages, the suit did not have to be severed by litigating the money damages in the Court of Claims and the injunctive relief in the circuit court. It concluded the action must be brought in the Court of Claims because it was based on a present claim which had the potential to impose liability on the State. (Ellis, 102 Ill. 2d at 395, 466 N.E.2d at 206-07.) Plaintiff has raised allegations against the State by alleging wrongdoing by the board of trustees.

This district has addressed whether a claim alleging wrongdoing by a defendant in his individual capacity actually raises liability of the State. In Robb, the defendant, an assistant dean of Southern Illinois University, was sued in his individual capacity on negligence and fraud theories. This court found because defendant was acting in his official capacity while communicating with plaintiff, and because damages were sought, the claim was one against the State which must be brought in the Court of Claims. Robb, 147 Ill. App. 3d at 713, 498 N.E.2d at 270-71.

Similarly, plaintiff’s claim is for damages for past actions. She also seeks injunctive relief against the board of the University in the form of reinstatement. The individual defendants are alleged to have acted in their individual capacities as either committee members, deans, directors, or assistant vice-chancellors. Because the relief plaintiff seeks could expose the State to liability, she must bring her action in the Court of Claims.

Defendants argue further that because the board of trustees is their employer, and the individual defendants merely made recommendations to the employer regarding plaintiff’s future employment, their role is protected by the courts. Plaintiff argues the individual defendants are not immune from prosecution because she alleged they acted outside their authorized capacities in discriminating against her.

We need not, however, address the parties’ arguments. A court of review is not limited to the questions certified for review, but should also consider the propriety of the court order. (Schoonover v. American Family Insurance Co. (1991), 214 Ill. App. 3d 33, 40-41, 572 N.E.2d 1258, 1262.) Whether the individual defendants are immune from liability is not relevant to the circuit court’s order. The court found plaintiff failed to properly allege claims against the individual defendants and told her she could amend her complaint if she wished to do so. Plaintiff did not amend her complaint. If plaintiff raises allegations against the defendants individually, it is generally for the Court of Claims to determine whether the defendants’ actions were governmental and therefore make them immune from civil prosecution. Oppe v. Missouri (1988), 171 Ill. App. 3d 491, 494, 525 N.E.2d 1189, 1191.

We find the circuit court lacked subject-matter jurisdiction to hear plaintiff’s claims under each circumstance certified as a question. The Act provides the exclusive remedy for employment discrimination claims. The circuit court lacked subject-matter jurisdiction to consider such of plaintiff’s claims as were premised on employment discrimination. In addition, the Court of Claims is the proper forum for plaintiff’s additional claims because these claims expose the State to potential liability.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN O’TOOLE, Defendant-Appellant.—THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRENDA HANEY, Defendant-Appellant.
    Fourth District
    Nos. 4—91—0223, 4—91—0224 cons.
    Opinion filed March 30, 1992.

      Daniel D. Yuhas and Judith L. Libby, both of State Appellate Defender’s Office, of Springfield, for appellant John O’Toole.
    Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender’s Office, of Springfield, for appellant Brenda Haney.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

A Vermilion County jury convicted defendants, Brenda Haney and John O’Toole, of solicitation of murder for hire (Ill. Rev. Stat. 1989, ch. 38, par. 8—1.2). The trial court sentenced O’Toole to 25 years in prison and Haney to 27 years in prison. Because defendants present essentially the same arguments to this court, we have consolidated their appeals for purposes of disposition.

On appeal, both defendants make the following arguments: (1) the trial court should have suppressed the videotape that depicted defendants soliciting an undercover police agent to murder defendant Haney’s ex-husband because the State did not comply with all of the statutory requirements for obtaining an eavesdropping authorization order; (2) the trial court erred by not excusing certain jurors for cause who had heard or read about the case; (3) the trial court erred by requiring defendant to admit to the elements of the crime charged before raising the defense of entrapment; (4) the trial court erred by allowing the State to introduce hearsay testimony; (5) the trial court erred in allowing the State to improperly impeach a defense witness; and (6) the prosecutor made an improper closing argument. Defendant O’Toole individually argues that the court improperly considered at his sentencing hearing that his conduct threatened serious harm even though the threat of serious harm is inherent in the offense of solicitation of murder for hire. Finally, defendant Haney argues that the trial court disproportionately sentenced her as compared to defendant O’Toole.

We affirm.

I. Facts

Brenda Haney divorced her third husband, John Haney, on June 7, 1990. John received temporary custody of their three-year-old daughter, Kelly, pending a home investigation and study of both parents by the Illinois Department of Children and Family Services. Thereafter, Brenda, along with her 16-year-old daughter from her first marriage and her daughter’s boyfriend, moved in with Brenda’s boyfriend, John O’Toole, whom Brenda had been dating five months prior to her divorce from John Haney.

On August 3, 1990, O’Toole approached Ron Johnson, an acquaintance of his for eight years, at a gas station and asked Johnson if he would “knock off” someone. At that time, the date for the final hearing on permanent custody of Kelly had not yet been set. O’Toole had previously asked Johnson’s father and brother to murder John, but both had refused. At first, Johnson also told O’Toole that he would not commit the murder. Brenda then joined the conversation and said that she thought her ex-husband would receive custody of Kelly, so she “wanted the bastard dead.” Knowing that Johnson had served in the army as a demolitions expert, O’Toole suggested that Johnson rig an explosive device to John’s car. Johnson again refused, but O’Toole continued to ask, insisting that “he wanted the motherfucker dead.” Johnson asked if they were serious, and O’Toole responded that they were “dead serious.” Johnson then feigned agreement and said he would put them in contact with a hit man; however, he really intended to inform the police of their request.

That night, Johnson contacted Agent Charles Casagrande of the drug enforcement unit of the Vermilion County police department, with whom Johnson was acquainted. Casagrande in turn contacted the Illinois State Police, Division of Criminal Investigation, which arranged an undercover sting operation as detailed below.

On August 6, Casagrande applied to the circuit court for an eavesdropping authorization order under section 108A — 3 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 108A—3). The application named Johnson as the consenting party to the eavesdrop and O’Toole as the other party to the conversation, but did not name Brenda as a party to the conversation. After hearing testimony from Johnson and Casagrande in support of the application, the court granted the eavesdropping authorization order at 4:50 p.m. The technical services division of the Illinois State Police immediately set up a hidden videotape and audiotape recording device in the room next to room 105 at the Redwood Inn, a local motel.

That evening, after a briefing with Casagrande at the motel, Johnson again met with Brenda and O’Toole to find out if they were still serious and, if so, to make further arrangements for them to meet with the undercover agent. When they informed him that they still wanted it done, Johnson brought them to room 105 of the Redwood Inn to meet Dave McLearin, an undercover State Police officer posing as a hit man. On the way to the meeting, Johnson again asked if they were serious. Johnson explained that the hired killer they were going to meet would not like it if they pulled out after they met with him. O’Toole again repeated his eagerness to go through with the hit. Upon arriving at the motel, Johnson introduced Brenda and O’Toole to McLearin at the door to room 105 and then left to wait in his car as the other three went inside.

From 6:55 to 7:19 p.m., the technical services unit videotaped the conversation between Brenda, O’Toole, and McLearin. At defendants’ trial, the videotape was admitted into evidence. The conversation thereon began as follows:

“AGENT McLEARIN: [Johnson] said that you’re going to need something done.
DEFENDANT O’TOOLE: Yeah, we got a ... a ... a man, her ex-husband, needs to be tookin’ [sic] out of the way—
McLEARIN: O.K.
O’TOOLE: —completely. He’s wanting to take custody right now, and they’re trying to take her child away from her.
* * *
McLEARIN: But you want him taken out of the way. How do you want ... what do you want ... an accident? Or do you want him —
O’TOOLE: Just instantly.
McLEARIN: You tell me.
O’TOOLE: Just instantly.
* * *
McLEARIN: O.K. Well, I have to know that you’re serious, you know.
O’TOOLE: Oh, we’re serious.
DEFENDANT HANEY: I’m dead serious.
O’TOOLE: Seriouser than a heart attack.”

The three began to discuss a price and other details about how to kill John. They discussed John’s schedule, when he would have Kelly with him, what car he drove, the wooden bumper on his car, where he worked, and the route he took to work. Brenda also drew a map for McLearin to show him how to get to John’s house. They further discussed specific methods of killing John, such as rigging his car to explode or shooting him with a silenced gun at pointblank range.

McLearin repeatedly questioned Brenda and O’Toole about their seriousness, as shown by this dialogue:

“AGENT McLEARIN: You guys are sure you want this done, because, you know, this is serious business.
DEFENDANT O’TOOLE: We’re positive, we’re positive.
DEFENDANT HANEY: I want him out of my life.
O’TOOLE: I can tell you, we’re serious as a heart attack.
HANEY: You know, after what he’s done, I have no use for him. None.”

They further discussed how McLearin could inform them that he had succeeded. Upon discussing the method of payment, O’Toole gave McLearin his post office box number and said he would leave payment in the box and tape the key to the box under a table in the post office. They also discussed the many possible alibis Brenda and O’Toole could devise to avoid suspicion that either of them killed John. Indeed, the only thing they did not make absolutely clear was the price, primarily due to defendants’ lack of money. They explained to McLearin that their resources were minimal, but they nonetheless agreed to pay McLearin $1,000 for the killing: $250 down and $750 once McLearin had killed John. The videotape then ended with the following dialogue:

“AGENT McLEARIN: Now, what you want done is — just so there’s no mistake here—
DEFENDANT O’TOOLE: There’s no mistake.
McLEARIN: —because, hey, dead is forever, you know.
O’TOOLE: Yeah, I understand that. ***
McLEARIN: And it’s pretty serious, you know, and I don’t want to take the chance and stuff here, and you come back and you say, ‘no, no that’s not what I meant; I just want him hurt.’
DEFENDANT HANEY: No.
McLEARIN: If that’s what you want, that’s what we’ll do.
O’TOOLE: No, we want him dead.
HANEY: Totally.
O’TOOLE: That’s what we been wanting.”

At that moment, several police officers burst into the room and arrested Brenda and O’Toole.

II. Analysis

A. The Eavesdropping Order

Defendants first argue that the trial court erred by not suppressing the videotape recording because the State failed to comply with all of the statutory requirements for obtaining an eavesdropping authorization order under section 108A — 3 of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 108A—3). That section requires, in part, that an application for an order authorizing an eavesdropping device shall include the identity of the party to the expected conversation consenting to the use of an eavesdropping device, as well as the identity of the person, if known, whose conversations are to be overheard by the eavesdropping device. (See Ill. Rev. Stat. 1989, ch. 38, pars. 108A—3(a)(2)(c), (a)(2)(d).) Defendants argue that the eavesdropping application in the present case is defective because (1) it failed to name Brenda as a party to the conversation, and (2) the consenting party named in the application, Johnson, did not participate in the recorded conversation. The State replies that the application did not name Brenda as a participant and named Johnson rather than McLearin as the consenting party because the police did not know if Brenda would participate in the conversation and did not know if Brenda and O’Toole would speak directly to McLearin. The State’s evidence at the hearing on defendants’ motion to suppress the videotape showed that if Johnson could not arrange the meeting at the Redwood Inn, the police planned to wire him for sound and record his conversation with Brenda and O’Toole under the same authorization order. Accordingly, the State argues that the defects of which defendants complain were justified and insignificant.

In People v. Ellis (1984), 122 Ill. App. 3d 900, 904, 461 N.E.2d 646, 651, the court addressed technical violations of the eavesdropping statutes and wrote the following:

“Where there is a failure to comply with statutory requirements *** suppression depends upon whether: (1) the particular safeguard is central to the legislative scheme of preventing abuses; (2) the purpose the particular procedure was designed to accomplish has been satisfied despite the error; and (3) the statutory requirement was deliberately ignored and, if so, whether the State gained any tactical advantage thereby.”

In the present case, none of the above elements warranting suppression is present. We do not regard inclusion of all, as opposed to just some, of the names of the parties to the conversation to be overheard as central to the legislative scheme of preventing abuses. Further, the State’s application presented the court with sufficient evidence about the expected crime to create reasonable cause for believing that defendants were about to commit a serious crime and that an eavesdropping device would obtain conversations pertaining thereto. The State did not deliberately ignore the statutory requirements by failing to include Brenda’s and McLearin’s names, nor did it gain any tactical advantage by omitting those names. Further, that omission could not have altered the trial court’s determination that an eavesdropping device should be authorized.

Moreover, in light of the Illinois Supreme Court’s decision in People v. Beardsley (1986), 115 Ill. 2d 47, 503 N.E.2d 346, we are not at all certain that the State even needed to obtain the eavesdropping order because the videotape recording in the present case may not have constituted eavesdropping under section 14 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 14—2). In Beardsley, the defendant, while seated in the rear of a police car, recorded a conversation between two police officers in the front seat of the car. (Beardsley, 115 Ill. 2d at 49, 503 N.E.2d at 348.) The State charged defendant with eavesdropping and a jury convicted him. The appellate court affirmed, but the supreme court reversed and wrote the following:

“The primary factor in determining whether the defendant in this case committed the offense of eavesdropping is not *** whether all of the parties consented to the recording of the conversation. Rather, it is whether the officers/declarants intended their conversation to be of a private nature under circumstances justifying such expectation. ***
***
*** [C]learly our eavesdropping statute should not prohibit the recording of a conversation by a party to that conversation or one known by the parties thereto to be present.” (Emphasis in original.) Beardsley, 115 Ill. 2d at 54-56, 503 N.E.2d at 350-51.

The supreme court also indicated that the eavesdropping statute does not apply when a party to a conversation electronically records the conversation merely to provide a better, but less intrusive, record of the conversation than taking notes about it or testifying thereafter to its contents. (Beardsley, 115 Ill. 2d at 56, 503 N.E.2d at 351.) In so indicating, the supreme court seemed to approve the Federal standard that eavesdropping occurs only when a party uses an electronic device “to listen in on conversations it could not otherwise have heard.” “In essence, the conduct at which the [eavesdropping] statute is aimed is that of listening in secret to what is said in private.” Beardsley, 115 Ill. 2d at 55-56, 58, 503 N.E.2d at 351, 352, citing Lopez v. United States (1963), 373 U.S. 427, 439, 10 L. Ed. 2d 462, 471, 83 S. Ct. 1381, 1388.

In the present case, McLearin participated in the entire conversation depicted on the videotape. As such, the State videotaped the conversation not to listen to “[a] conversation ] [the State] could not otherwise have heard, but only to obtain the most reliable evidence possible of a conversation in which the [State’s] own agent was a participant and which that agent was fully entitled to disclose.” (Beardsley, 115 Ill. 2d at 56, 503 N.E.2d at 351, citing Lopez, 373 U.S. at 439, 10 L. Ed. 2d at 470, 83 S. Ct. at 1388.) Thus, in view of Beardsley, we doubt that the videotape in the present case even needed the support of an eavesdropping order to be admissible. This is an additional reason for holding that the trial court did not err in denying defendants’ motion to suppress the videotape.

B. Juror Familiarity with the Case

Defendants next argue that the trial court erred in not excusing several jurors for cause because they had read about the case in the newspaper prior to trial. In particular, some of the jurors had read that (1) defendants initially claimed to the police that they were only joking about hiring a hit man; (2) the State had videotaped defendants making their solicitation; and (3) the trial court had declared a mistrial and excused the initial jury chosen to try defendants in this case because some of those initial jurors had inadvertently seen defendant O’Toole being escorted out of the courthouse in handcuffs. We reject defendants’ arguments.

A case such as this one in a small community will inevitably generate publicity, and no one should be surprised that potential jurors have read or talked about the case prior to trial. However, a prospective juror’s familiarity with a case does not automatically disqualify that juror. (People v. Britz (1989), 185 Ill. App. 3d 191, 200, 541 N.E.2d 505, 511, quoting People v. Taylor (1984), 101 Ill. 2d 377, 386, 462 N.E.2d 478, 482.) Further, experience with such jurors teaches that the secondhand, often uninformed, and vague account of what some reporter thinks the evidence is will rarely affect a juror’s ability to critically evaluate the evidence the juror personally receives in the courtroom, unless the news story reveals suppressed or unadmitted, prejudicial information. See People v. Britz (1988), 123 Ill. 2d 446, 467, 528 N.E.2d 703, 713 (trial court should not exclude jurors for cause due to exposure to media coverage unless the coverage is “extensive, close in proximity to the trial, and contain[s] prejudicial and inadmissible material”); People v. Rogers (1985), 135 Ill. App. 3d 608, 628, 482 N.E.2d 639, 653 (although exposure to other media coverage constituted no error or harmless error, fact that juror read article revealing suppressed evidence and shared that information with other jurors required reversal).

Prospective jurors frequently have vague impressions of the case they are called to hear, and these impressions are typically overcome as the jurors view the actual evidence in the case. Further, we note that all of the impanelled jurors said that what (if anything) they had read about the case would not prejudice their ability to weigh the evidence impartially. Despite defendants’ assertions to the contrary, it does not “defy human belief” that the jurors could overcome their initial (and uninformed) impressions. Defendants’ assertions are particularly groundless in the context of this case.

The first item of pretrial publicity that defendants claim allegedly prejudiced prospective jurors focuses on the pretrial publicity that defendants claimed their solicitation of McLearin was merely a joke. However, because defendants presented this defense at trial, we fail to see what prejudice they suffered. The worst that can be said of their posture at trial is that some jurors had a “sneak preview” of their defense. The pretrial publicity did not expose the jury to anything it did not receive during trial. See Britz, 123 Ill. 2d at 467, 528 N.E.2d at 713.

Defendants’ second argument regarding excusing prospective jurors for cause is that the awareness of those jurors that the State had videotaped defendants’ solicitation of McLearin unduly emphasized the videotape. We disagree. The publicity concerning the videotape would have posed a problem only if the trial court had suppressed it. (See Britz, 123 Ill. 2d at 467, 528 N.E.2d at 713.) Because the jurors viewed the videotape at trial, they could judge the videotape’s evidentiary value for themselves. Defendants have failed to show how they were prejudiced because some jurors knew in advance of trial that the State possessed the videotape.

Finally, defendants argue that some prospective jurors knew that the trial court had dismissed the jury initially chosen to hear defendants’ case because some of those initial jurors saw O’Toole in handcuffs as he was being escorted out of the courthouse. Defendants argue that the court should have excused for cause those prospective jurors who knew of the earlier mistrial and the reason therefor. However, the trial court did not need to dismiss the initial jury in the first place. (See People v. Jackson (1990), 195 Ill. App. 3d 104, 118, 551 N.E.2d 1025, 1033 (“even had the jurors been able to view defendant in the lockup area, no substantial prejudice resulted so as to deprive defendant of a fair trial”).) The trial judge did so merely to take an extra (and unnecessary) precaution not to permit defendants to preserve what they claimed was reversible error at the earliest stages of the case. Because television and the media regularly depict criminal defendants in handcuffs, a juror’s viewing a defendant in handcuffs can no longer be regarded as having a shocking effect on a prospective juror’s sensibilities.

We want to emphasize the limited scope of our holding. We are not dealing with claims that jurors saw O’Toole shackled in the courtroom as the trial proceedings were taking place. Seeing a defendant in that condition might suggest to a juror that the judge believes the defendant too dangerous to sit unshackled during trial, thereby perhaps prejudicing the defendant in that juror’s eyes. (See Illinois v. Allen (1970), 397 U.S. 337, 344, 25 L. Ed. 2d 353, 359, 90 S. Ct. 1057, 1061.) Instead, all that was involved in this case is that some members of defendants’ initial jury saw O’Toole in shackles outside the courtroom. We find nothing prejudicial to defendants in the initial jury’s having seen O’Toole this way. Moreover, whatever tenuous prejudicial effect that seeing O’Toole in shackles might have had on the initial jury, the second jury’s merely hearing about it via coverage in the newspapers (and the mistrial the court ordered based thereon) certainly had no prejudicial effect whatsoever.

The trial court is in the best position to judge whether a juror can impartially weigh the evidence despite exposure to pretrial publicity. Thus, we will not reverse a trial court’s finding that a juror is impartial unless it is against the manifest weight of the evidence. (Britz, 185 Ill. App. 3d at 201, 541 N.E.2d at 511.) In the present case, we find that the trial court did not abuse its discretion in refusing to excuse some of these jurors for cause because of pretrial publicity.

C. The Illinois Rule Requiring a Defendant To Admit a Crime before Pursuing an Entrapment Defense

Defendants next argue that we should reconsider the Illinois rule that a defendant must admit a crime before asserting entrapment as an affirmative defense. (See People v. Gillespie (1990), 136 Ill. 2d 496, 501, 557 N.E.2d 894, 896.) In the present case, during the course of the prosecution’s case in chief, the prosecutor moved to require defendants to choose as their defense either the nonexistence of the elements of the crime or entrapment. The prosecutor argued that the trial court could not determine the proper scope of relevancy when objections were made during defendants’ cross-examination of the State’s witnesses if the court did not know which of these two inconsistent defenses the defendants would pursue. The court agreed and required defendants to choose between the two defenses. Defendants then chose to abandon the entrapment defense.

The long-standing rule in Illinois requires a criminal defendant to admit the elements of a crime before asserting that the State entrapped him into committing the crime. (See People v. Morgan (1941), 378 Ill. 461, 471, 38 N.E.2d 760, 765.) This rule arose because it is inconsistent for a defendant to first deny that he committed a crime and then claim that the State entrapped him into committing the crime. (Gillespie, 136 Ill. 2d at 501, 557 N.E.2d at 897.) We note also that this rule allows both the court and counsel to determine the appropriate scope at trial of the relevancy of proffered evidence, as was done in this case.

In Matthews v. United States (1988), 485 U.S. 58, 62, 99 L. Ed. 2d 54, 60, 108 S. Ct. 883, 886, the United States Supreme Court held that a defendant in Federal criminal proceedings can request and receive jury instructions on the entrapment defense when the evidence could support that defense even if the defendant denies one or more elements of the crime. The Illinois Supreme Court in Gillespie held that Matthews did not alter the Illinois rule that a defendant must admit the elements of a crime before claiming entrapment because Matthews was not based on the U.S. Constitution, but rather on the Federal Rules of Evidence and the Federal common law on instructing juries. (Gillespie, 136 Ill. 2d at 502, 557 N.E.2d at 897.) After concluding that the decision in Matthews did not bind Illinois courts, the supreme court expressly reaffirmed the Illinois rule on entrapment. Gillespie, 136 Ill. 2d at 503, 557 N.E.2d at 897-98.

Defendants argue that the Illinois Supreme Court’s subsequent decision in People v. Everette (1990), 141 Ill. 2d 147, 565 N.E.2d 1295, indicates that the Illinois Supreme Court has had a change of mind on this subject. In Everette, the supreme court held that a homicide defendant could assert the inconsistent defenses that (1) he intentionally killed the victim but was acting in self-defense, and (2) his killing of the victim was an accident. (Everette, 141 Ill. 2d at 156-57, 565 N.E.2d at 1299.) Defendants thus argue that the supreme court has implicitly changed the Illinois rule that a defendant cannot assert the inconsistent defenses of entrapment and the nonexistence of one or more of the elements of the charged offense. We disagree.

In our judgment, Everette does not cast Gillespie or the Illinois rule on entrapment into doubt. The supreme court in Gillespie definitively (and recently) addressed the entrapment issue in this case, and that decision directly controls the result here.

D. The Prosecution’s Use of Hearsay

Defendants next argue that the trial court erred by allowing the State to elicit hearsay testimony from several of its witnesses. In particular, Johnson (the informant), Casagrande (a Vermilion County officer involved in the investigation), and McLearin (the Illinois State Police officer who posed as the hit man) all testified as to what each other said when initiating and planning the undercover investigation. All three also testified that they started the investigation because O’Toole had approached Johnson and asked him to kill someone. Defendants argue that the trial court should not have admitted these hearsay statements and that doing so constituted reversible error.

The Illinois Supreme Court has defined hearsay as follows:

“Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” (People v. Carpenter (1963), 28 Ill. 2d 116, 121, 190 N.E.2d 738, 741.)

Testimony of an out-of-court statement not offered for its truth, but rather offered to show or explain the course of conduct of another, does not constitute hearsay. (People v. Cameron (1989), 189 Ill. App. 3d 998, 1003-04, 546 N.E.2d 259, 263.) In such a case, the truth of the out-of-court statement is not at issue. However, out-of-court statements that explain a course of conduct should be admitted only to the extent necessary to provide that explanation and should not be admitted if they reveal unnecessary and prejudicial information. Cameron, 189 Ill. App. 3d at 1004-05, 546 N.E.2d at 263-64.

In Cameron, this court explained in detail how the out-of-court statements in that case revealed unnecessary and prejudicial information and described how they could have been edited so that they explained the police officers’ course of conduct (to the extent it was appropriate and necessary that it be explained) but eliminated the unnecessary and prejudicial information. (Cameron, 189 Ill. App. 3d at 1004, 546 N.E.2d at 263.) We also stated that the trial court should have conducted a hearing out of the jury’s presence to determine both the proper scope of the out-of-court statements and the need for the jury to hear them. (Cameron, 189 Ill. App. 3d at 1005, 546 N.E.2d at 264.) The failure of the trial court in the present case to conduct such a hearing and make appropriate findings has given rise to this issue on appeal.

In the present case, Johnson could properly testify that O’Toole asked him at the gas station to kill or find someone to kill Haney. This testimony constituted an admission by O’Toole and as such is not barred by the hearsay rule. (People v. Shelton (1990), 205 Ill. App. 3d 471, 479, 564 N.E.2d 226, 231.) Although confrontation problems often arise in joint trials when admissions of codefendants who do not testify are admitted, O’Toole did testify and was subject to cross-examination regarding his statements to Johnson. Furthermore, Johnson’s testimony that O’Toole, on behalf of both himself and Brenda, asked Johnson to kill someone was admissible against Brenda because that testimony fell under the hearsay exception for statements of a coconspirator made in furtherance of the conspiracy. See People v. Sanchez (1989), 189 Ill. App. 3d 1011, 1017, 546 N.E.2d 268, 272.

However, the testimony of Casagrande and McLearin was improper when they testified that Johnson told them O’Toole had asked Johnson to kill or find someone to kill Haney. (See Cameron, 189 Ill. App. 3d at 1004-05, 546 N.E.2d at 263.) Although it was not improper for them to testify that Johnson told them he had spoken to O’Toole and that, based thereon, they set up an undercover sting operation, it was improper for them to testify to the detail they did — that Johnson told them that O’Toole had asked Johnson to kill or find someone to kill Haney.

However, we find the trial court’s error in admitting this testimony falls far short of requiring reversal. First, the evidence against defendants at trial was truly overwhelming, including a videotape that depicted them soliciting an undercover agent to kill defendant Brenda’s ex-husband, as well as evidence of O’Toole’s asking Johnson’s brother and father to kill Haney before O’Toole asked Johnson to do it. Second, both Johnson and O’Toole testified about their conversations at the gas station, thereby rendering the testimony of Casagrande and McLearin to the same effect merely cumulative and not prejudicial to defendants. See People v. Arman (1989), 131 Ill. 2d 115, 124, 545 N.E.2d 658, 662 (“When the competent evidence in the record establishes the defendant’s guilt beyond a reasonable doubt and it can be concluded that retrial without the erroneous admission of the challenged evidence would produce no different result, the conviction may be affirmed”).

E. Impeachment of a Defense Witness Through That Witness’ Criminal Record

Defendants next argue that the trial court erred in allowing the prosecution to impeach a nonparty defense witness by using that witness’ criminal record. C.L. Dye testified for defendants that he often employed O’Toole to help with roofing jobs. Dye also testified about certain expressions O’Toole commonly used as a part of his “bullshitting.” He testified that O’Toole would often say, “Man, I’ll kill you,” or “I’m seriouser than a heart attack” (a statement O’Toole used in the videotape) when in fact he was not serious or just joking around.

The prosecution’s cross-examination attempted to show that Dye testified for the defense only because he held an antiprosecution bias. The prosecutor did so by questioning Dye about his many prior arrests and convictions. When Dye admitted only two prior convictions and said he could not remember any others, the prosecutor abandoned his cross-examination with an insinuation that Dye had lied about his record.

The Illinois Supreme Court has held that the State may use evidence of a defense witness’ prior arrests and charges to establish an antiprosecution bias or motive to testify. (People v. Triplett (1985), 108 Ill. 2d 463, 475, 485 N.E.2d 9, 15, quoting People v. Mason (1963), 28 Ill. 2d 396, 400, 192 N.E.2d 835, 837.) However, in People v. Hughes (1988), 168 Ill. App. 3d 758, 761-62, 522 N.E.2d 1275, 1278, the appellate court held that a single pending charge is not sufficient to establish antiprosecution bias.

Defendants argue that here Dye’s prior arrests similarly did not establish an antiprosecution bias. While the record suggests that Dye’s criminal history apparently far exceeds that of the defense witness in Hughes, we need not resolve in this case whether any error in the prosecutor’s handling of Dye’s prior arrests and convictions was error. We conclude that the error, if any, falls far short of being a basis for reversal. (Arman, 131 Ill. 2d at 124, 545 N.Ed.2d at 662.) Dye’s testimony could have had little (if any) impact at trial. The fact that O’Toole had previously used the expressions, “I’m seriouser than a heart attack,” and “Man, I’ll kill you,” even in jest, does not come close to proving that he was merely jesting when he asserted, among other things, to McLearin that he was “seriouser than a heart attack” about killing Haney.

E The Prosecutor’s Closing Argument

Defendants’ last joint argument is that the prosecutor improperly referred to their prior convictions during his rebuttal closing argument and continued to do so even after the trial court sustained their objection. Citing People v. Johnson (1988), 170 Ill. App. 3d 828, 835, 525 N.E.2d 546, 551, defendants argue that this continuing line of improper argument after the trial court sustained their objection constitutes reversible error.

The statements at issue during the rebuttal portion of the prosecutor’s closing argument are as follows:

“PROSECUTOR: [Defense Counsel argues that] these Defendants somehow aren’t going to be able to [know] on their own that when they’re asked about solicitation of murder for hire that maybe if they say... ‘well... gee... we really didn’t mean that,’ that might be significant. Counsel would argue that both of these Defendants, both of whom have previous felony convictions, would be so naive as to have any idea what the import of—
THE COURT: Objection sustained.
DEFENSE COUNSEL RYAN: Objection.
THE COURT: It is improper argument. The jury is instructed to disregard that.
PROSECUTOR: That they would not be able to know what the significance of T really didn’t mean it,’ would have.” (Emphasis added.)

The prosecutor then proceeded to an entirely different argument.

Evidence of prior crimes is not admissible to prove that the defendant has the propensity to commit crime. (People v. Walker (1990), 194 Ill. App. 3d 864, 867, 551 N.E.2d 721, 723.) However, evidence of a defendant’s criminal behavior is admissible for any other legitimate purpose, such as to prove modus operandi, motive, knowledge, intent, absence of mistake or accident, the defendant’s state of mind, consciousness of guilt, absence of an innocent frame of mind or presence of criminal intent, circumstances or context of the defendant’s arrest, circumstances of the crime charged that would otherwise be unclear, how an otherwise implausible fact relating to the crime charged arose, placement of the defendant in proximity to the time and place of the crime, identification of the weapon used in the crime, whether the crime charged was actually committed, opportunity or preparation, and dislike for or attitude toward the victim. (See People v. Kimbrough (1985), 138 Ill. App. 3d 481, 484-85, 485 N.E.2d 1292, 1296 (and cases cited therein).) Further, as noted in Kimbrough, this list of purposes “should not be taken to mean that these are the only purposes for which evidence of other crimes may be admitted.” Kimbrough, 138 Ill. App. 3d at 485-86, 485 N.E.2d at 1296-97.

Although defendants argue that the prosecutor improperly used their prior convictions to prove their propensity to commit crime, the above quote from his closing argument shows that the prosecutor did no such thing. Defense counsel argued that defendants’ initial statements to the police (that they were not serious) constituted honest, unfabricated explanations of their real intent. The prosecutor then responded that defendants were not so naive as defense counsel had argued, referring to their prior convictions as evidence of their lack of naivete. This limited reference to the defendants’ prior convictions (which, we emphasize, were already properly before the jury to impeach defendants’ credibility when they testified) did not constitute an improper use of their prior convictions. Accordingly, we find that any prejudicial effect of the prosecutor’s argument was minimized by what the jury already knew about defendants’ criminal records. Arman, 131 Ill. 2d at 124, 545 N.E.2d at 662.

Furthermore, even if the prosecutor’s reference did constitute such an improper use of the defendants’ prior convictions, the prosecutor did not continue the error after the court sustained defense counsel’s objection. On this record, we find the trial court’s sustaining defendants’ objection and instructing the jury to disregard the improper argument cured any error. See People v. Eichelberger (1989), 189 Ill. App. 3d 1020, 1033, 546 N.E.2d 274, 282 (“[generally, when the court sustains an objection or admonishes the jury, any error resulting from the comment is cured”).

G. O’Toole’s■ Claim That the Court Used an Improper Factor When Sentencing Him

Defendant O’Toole individually argues that the trial court improperly considered as an aggravating factor in sentencing him that his conduct threatened serious harm even though the threat of serious harm is an inherent part of the crime of solicitation of murder for hire. In People v. Saldivar (1986), 113 Ill. 2d 256, 269, 497 N.E.2d 1138, 1143, the supreme court held that a sentencing court should not consider as an aggravating factor an element that is inherent in the crime for which defendant is to be sentenced. However, a sentencing court need not unrealistically avoid any mention of such inherent factors, treating them as if they did not exist. (People v. Willis (1991), 210 Ill. App. 3d 379, 387, 569 N.E.2d 113, 118, quoting People v. McPherson (1985), 136 Ill. App. 3d 313, 317, 483 N.E.2d 592, 594.) In addition, although a particular factor might be inherent in a particular crime, the degree to which it is present might differ from occurrence to occurrence. (See Saldivar, 113 Ill. 2d at 269, 497 N.E.2d at 1143.) Thus, when reviewing a sentence in which the trial court allegedly considered an inherent factor of the crime as an aggravating factor in sentencing, an appellate court must determine (1) whether the alleged inherent factor can differ in degree from occurrence to occurrence of the same crime, (2) whether the court merely mentioned or actually considered the inherent factor when sentencing, and (3) whether the inherent factor served as such a primary factor in the defendant’s sentence that the court would not have imposed the same sentence if the court had not improperly considered that factor. See Saldivar, 113 Ill. 2d at 269, 497 N.E.2d at 1143; Willis, 210 Ill. App. 3d at 387-88, 569 N.E.2d at 118-119 (and cases cited therein).

Solicitation of murder for hire differs from murder and manslaughter (the offenses considered in Saldivar and Willis) in that the harm to the victim has not yet occurred. Further, the degree of risk to the victim can vary greatly from case to case depending, for instance, on the resolve of the defendant to find someone to commit the murder, the resources available to the defendant, and the person the defendant solicited. Thus, unlike the fact of death, considered inherent in murder and manslaughter by Saldivar and Willis, the sentencing court in a solicitation of murder for hire case can appropriately consider the threat of serious harm that the defendant caused, i.e., the nature and extent of his acts to effectuate the crime solicited, as an aggravating factor when imposing sentence. In the present case, the sentencing court did appropriately consider this factor when it said the following to the defendant at his sentencing:

“I agree with the State in saying that the most dangerous part of this [crime] is that you would have kept asking people until you found somebody to do the job. Fortunately for Mr. Haney and fortunately for the public, you found someone that called the police and *** got somebody that was able to stop you in this plan to do away with Mr. Haney.”

This statement recognizes that O’Toole’s crime of solicitation of murder for hire could be viewed as worse than if he had solicited just one person. Accordingly, the trial court did not err in considering that defendant’s conduct threatened serious harm when sentencing O’Toole.

We also note that the court considered many different aggravating factors in sentencing O’Toole, including his lengthy criminal record (10 prior felony convictions), the fact that he was on felony probation when he committed the present offense, and that the sentence was needed to deter others from committing the same offense. The court then imposed a sentence of 25 years — only 5 years over the statutory minimum and 15 years under the statutory maximum. (See Ill. Rev. Stat. 1989, ch. 38, par. 8—1.2(b).) In view of defendant’s miserable criminal record, we find no basis in this record for concluding that any sentencing error occurred.

H. Comparative Sentencing Between Defendants

Finally, Brenda argues that the trial court disproportionately sentenced her to two more years of imprisonment than it gave O’Toole, even though O’Toole had a longer criminal record, O’Toole was on probation at the time of the offense, and O’Toole acted as the primary participant in the crime. We disagree.

We will not reverse a sentence unless the trial court abused its discretion in imposing that sentence. (People v. Foster (1990), 199 Ill. App. 3d 372, 392-93, 556 N.E.2d 1289, 1302-03.) Although defendants similarly situated should not receive grossly disparate sentences, they do not have a right to have the same sentences. (Foster, 199 Ill. App. 3d at 393, 556 N.E.2d at 1303.) The court can base disproportionate sentences on the relative character and history of the codefendants, the degree of culpability, rehabilitative potential, and the criminal records of the codefendants. Foster, 199 Ill. App. 3d at 393, 556 N.E.2d at 1303; Sanchez, 189 Ill. App. 3d at 1018-19, 546 N.E.2d at 273.

When sentencing Brenda, the court noted that she had the most to gain by the crime and probably had come up with the idea. The court also noted that she had not suffered a history of psychological disorders like O’Toole and that she was a “much smarter individual than Mr. O’Toole.” Based on this record, we certainly cannot say that the trial court abused its discretion.

Finally, although the transcript might indicate that O’Toole played the primary role in the solicitation because he did most of the talking to Johnson and McLearin, the trial court had the benefit in this case of viewing both defendants on videotape as they solicited McLearin to kill Haney. From this tape, it is apparent that Brenda was not bowing to O’Toole’s willpower and ideas; instead, O’Toole, who did most of the talking, appeared to serve merely as Brenda’s mouthpiece. She manifested her agreement by casually nodding at times and only entered into the conversation to correct O’Toole or to add or emphasize certain facts. This tape indicates that O’Toole did not play the primary role in the solicitation, but rather that the two acted in concert. As the trial court noted when sentencing Brenda, “The tape indicates that you, in a very, very clear, decisive, calculated manner sat down with Mr. O’Toole and discussed with him and with the officer the murder of John Haney.” Our review of the videotape supports the trial court’s characterization of Brenda. Therefore, because the trial court did not abuse its discretion, we affirm the sentence it gave to Brenda.

III. Conclusion

For the reasons stated, we affirm the trial court’s judgments and sentences.

Affirmed.

GREEN, P.J., and LUND, J., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE ex rel. JIM O. EDGCOMB, County Tax Collector of Macon County, Plaintiff-Appellee, v. JAMES A. WOLFE, Defendant-Appellant.
    Fourth District
    No. 4—91—0584
    Opinion filed February 28, 1992.
    James A. Jankowicz, of Decatur, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Petitioner James Wolfe appeals from the Macon County circuit court’s denial of his application for a sale in error. Wolfe also argues he should be awarded V-k% monthly interest on the amount he paid for the property from the date of the purchase through the date the purchase price is refunded to him. We affirm the court’s denial of a sale in error; because Wolfe is not entitled to a sale in error, he necessarily is not entitled to any award of interest.

On November 9, 1987, Realtax Developers, Inc., bought real estate in Macon County at a tax sale for $53,751.02. The tax sale certificate of purchase was assigned to Wolfe. On July 17, 1990, Wolfe filed a petition for a tax deed. After filing his petition, Wolfe discovered the property was subject to two Federal tax liens which totalled $148,420.24. The first lien was recorded on August 6, 1987. The second lien was recorded on September 10, 1987. Both liens had been recorded more than 30 days before the tax sale and there was no claim the Federal government was notified about the tax sale within 25 days before the sale occurred. Consequently, the property was subject to the Federal liens. On May 24, 1991, Wolfe filed an application for declaration of sale in error because the property was subject to the Federal liens. The Macon County collector opposed Wolfe’s motion.

On July 11, 1991, the circuit court issued its written order. It denied Wolfe’s application for a declaration of sale in error. The judge found that when Wolfe purchased the property, the statute which authorized a tax sale to be set aside due to error did not include the existence of Federal tax liens on the property as a reason to set the sale aside. He also noted the error which Wolfe claimed was not caused by error in the tax sale process. Wolfe could have discovered the Federal tax liens by investigating the records before the sale.

The relevant statute was revised in 1989 to permit a declaration of sale in error when Federal liens remain on the property sold. (Ill. Rev. Stat. 1989, ch. 120, par. 741.) The judge, however, rejected Wolfe’s argument that the 1989 amendment (Pub. Act 86 — 286, §1, eff. Aug. 30, 1989 (1989 Ill. Laws 2171, 2175)) expressed a preexisting right to a refund when a Federal lien remains on the property. The judge also noted the amendment to the statute declared the act to be an expression of prior law regarding the rights of tax collectors, but did not make a similar declaration about the rights of the tax purchaser. (See Pub. Act 86-286, §1 (1989 Ill. Laws 2171, 2175-76) Oast paragraph of amendment to section 260 stating that the provision for declaration of sale in error “upon application of the county collector shall be construed as declaratory of the standing of the collector under existing law and not as a new enactment”).) This, the judge reasoned, implied that before the 1989 amendment to the statute, there was no preexisting right to a declaration of a sale in error when a Federal lien remained on property after the property was purchased at a tax sale.

Wolfe argues the court erred by denying his motion to vacate the tax sale. He concedes that when the tax sale occurred a Federal lien was not cited as a reason for setting aside a sale under section 260 of the Revenue Act of 1939 (Revenue Act) (Ill. Rev. Stat. 1987, ch. 120, par. 741). He argues, however, the reasons which were listed in the statute for setting aside a sale were not meant to be inclusive, but were merely exemplary. The county collector argues that because the Revenue Act did not specifically authorize setting aside a tax sale when Federal liens remained on the property, the court did not err in denying Wolfe’s request.

When Wolfe’s assignor purchased the property, section 260 of the Revenue Act, as then in effect, and which authorized setting aside tax sale purchases, enumerated the following circumstances as a basis for setting aside a tax sale: (1) the property was not subject to taxation; (2) the taxes were paid before the sale; (3) there was a double assessment; (4) the property’s description was void because it was uncertain; (5) the taxing bodies erred in a manner other than in determining the property’s value; (6) improvements to the property were destroyed after the tax sale but before the tax deed was issued; and (7) bankruptcy proceedings were filed before the tax deed was issued. (Ill. Rev. Stat. 1987, ch. 120, par. 741.) A Federal lien was not listed as a basis for a sale in error until the section was amended in 1989. Ill. Rev. Stat. 1989, ch. 120, par. 741.

Wolfe argues the 1989 amendment to section 260 did not represent substantive changes. He directs us to In re Delinquent Taxes for the Year 1985 (1990), 202 Ill. App. 3d 665, 670, 559 N.E.2d 1014, 1017 (hereinafter Certificate No. 147), in which this court stated in dictum the revisions to section 260 made no substantial change in the grounds for finding a sale in error. This statement was not a guiding factor in the outcome of that case. In addition, Certificate No. Ufl does not control under the facts in this case. In Certificate No. 147, the petitioner sought to set aside the purchase due to destruction of improvements to the property. The petitioner also argued the sale should be invalidated pursuant to section 271.1 (Ill. Rev. Stat. 1989, ch. 120, par. 752.1), which permitted an invalidation where a village, city or town had an interest in the land under police powers. (Certificate No. 147, 202 Ill. App. 3d at 667, 559 N.E.2d at 1015.) We also note the 1989 amendments in Public Act 86 — 286 in fact substantively changed section 260. Section 260, as amended, now expressly affords the county collector standing to apply for a sale in error; and further authorizes a purchaser to seek a sale in error when Federal liens remain on the property, by all appearances an entirely new basis for setting aside a tax sale purchase as in error. Ill. Rev. Stat. 1989, ch. 120, par. 741.

Wolfe also contends public policy compels us to reverse the circuit court’s ruling. He cites Thornton, Ltd. v. Rosewell (1978), 72 Ill. 2d 399, 381 N.E.2d 249, for his contention that to encourage public participation in tax sales, we must find a purchaser can obtain a sale in error if Federal liens are discovered after the purchase. In addition, he notes Thornton states that the circumstances listed in section 260, under which a sale can be invalidated, are not exclusive.

Thornton was decided primarily on equitable bases and addressed what circumstances allowed a sale in error before the tax sale and the issuance of the certificate were completed pursuant to section 247 of the Revenue Act. (Thornton, 72 Ill. 2d at 404-05, 381 N.E.2d at 252; Ill. Rev. Stat. 1975, ch. 120, par. 728.) Wolfe’s case arises under section 260. Ill. Rev. Stat. 1987, ch. 120, par. 741.

The court’s statement in Thornton was that the circumstances listed in section 260 are not declared to be exclusive, and that statement was not necessary to the resolution of the case. The discussion of this section was limited to finding it was not relevant to the section the court found controlling. (Thornton, 72 Ill. 2d at 406-07, 381 N.E.2d at 253.) Its statement is not binding on the issues raised in this case which directly address the provisions of section 260. Ill. Rev. Stat. 1987, ch. 120, par. 741.

In addition, unlike Wolfe’s situation, the tax purchaser in Thornton inspected the records before bidding on the property and found taxes for only one year were unpaid. Taxes, however, were unpaid for three years. The county clerk’s office had erred in recording the unpaid taxes. The court sought to protect the tax-sale bidder against unfairness (Thornton, 72 Ill. 2d at 407, 381 N.E.2d at 253), but determined the appropriate remedy was a refund to plaintiff in the amount paid as due under the bid, based on the taxes, interest, and costs owing on the property as advertised by the collector — which, it turned out, was substantially less than was actually due. Neither Wolfe nor his assignor inspected the records. As the trial court here noted, the liens on the property to which Wolfe took an assignment could have been discovered if he or his assignor had inspected the records. Wolfe and his assignor were chargeable with any encumbrances on the property about which the record would have informed them. Borrowman v. Howland (1983), 119 Ill. App. 3d 493, 502, 457 N.E.2d 103, 108.

If it is the public policy of this State to protect purchasers from encumbrances on property which could be discovered from an inspection of the record, this protection should come from the legislature. The legislature provided this protection when it amended section 260 in 1989 to include Federal liens as a reason to set aside a tax sale purchase. There is no evidence, however, that this enactment was intended to express a preexisting right to a refund where a Federal lien remained on the property after the purchase.

The history of section 260 supports the view that the enumerated reasons for setting aside a sale in error are intended to be exclusive. In 1969, the section contained only four reasons to invalidate a tax sale purchase: (1) the property was not subject to taxation; (2) the taxes were paid before the sale; (3) there was a double assessment; and (4) the description of the property was void for uncertainty. (Ill. Rev. Stat. 1969, ch. 120, par. 741.) In 1971, destruction of improvements on the property was added as a separate basis for declaring a sale in error. (Ill. Rev. Stat. 1971, ch. 120, par. 741.) Two additional reasons for invalidating a tax sale were added in 1983: (1) bankruptcy proceedings by the legal or beneficial owner of the real estate, and (2) error by a tax collector. (Ill. Rev. Stat. 1983, ch. 120, par. 741.) In 1989, a Federal lien which could not be extinguished by the tax deed was finally added as a reason to set aside a tax sale purchase as a sale in error. Ill. Rev. Stat. 1989, ch. 120, par. 741.

This history suggests the legislature does not envision courts invalidating a tax sale as in error unless the reason for doing so is enumerated in section 260. It is unlikely the legislature would add reasons for invalidating a sale if it contemplated the courts would view the list contained in section 260 as merely illustrative.

The county collector relies on the principle that when a statute lists specific conditions, other conditions which are not explicit in the statute are excluded from coverage. Section 260 lists circumstances under which a tax sale purchase can be invalidated. The collector reasons that all other circumstances are excluded from coverage. The collector cites Department of Corrections v. Illinois Civil Service Comm’n (1989), 187 Ill. App. 3d 304, 309-10, 543 N.E.2d 190, 195, In re Sneed (1977), 48 Ill. App. 3d 364, 368, 363 N.E.2d 37, 40, and People v. McCoy (1975), 29 Ill. App. 3d 601, 607, 332 N.E.2d 690, 695, as support. The county collector is correct. A court’s role in interpreting a statute does not include annexing provisions to a statute. (Buckellew v. Board of Education of Georgetown-Ridge Farm Community Unit School District No. 4 (1991), 215 Ill. App. 3d 506, 511, 575 N.E.2d 556, 559 (and cases cited therein).) We should not read language into a statute to enlarge its meaning. (Parizon v. Granite City Steel Co. (1966), 71 Ill. App. 2d 53, 70, 218 N.E.2d 27, 36.) In 1987, section 260 did not include Federal tax liens as a reason for setting aside a purchase made at a tax sale. (Ill. Rev. Stat. 1987, ch. 120, par. 741.) Wolfe cannot rely on protection which was added to section 260 in 1989. This protection did not exist when his assignor purchased the property at issue.

Wolfe’s argument that Federal liens were impliedly included in section 260 in 1987 also fails. The county collector cites People v. Youngbey (1980), 82 Ill. 2d 556, 563, 413 N.E.2d 416, 420, and Powell v. Board of Education of the City of Peoria, District 150 (1989), 189 Ill. App. 3d 802, 807, 545 N.E.2d 767, 770, as support for the argument that when an unambiguous statute is amended, the legislature intends to effect change in the law. We agree. A statutory amendment generally indicates an intention to change the law from its previous mandate (Weast Construction Co. v. Industrial Comm’n (1984), 102 Ill. 2d 337, 340, 466 N.E.2d 215, 216), particularly when the previous statute was not ambiguous. (O’Connor v. A & P Enterprises (1980), 81 Ill. 2d 260, 271, 408 N.E.2d 204, 209; Bonfield v. Jordon (1990), 202 Ill. App. 3d 638, 645, 560 N.E.2d 412, 417.) Section 260 was not ambiguous in 1987. It merely did not include the reason on which Wolfe seeks to rely for setting aside the tax-sale purchase of the Macon County property as in error.

The county collector directs us to In re Application of the County Collector (1975), 27 Ill. App. 3d 646, 649-50, 327 N.E.2d 125, 128, in which the court ruled a tax sale would not be invalidated due to the destruction of improvements to the property when this provision was not added to section 260 until July 1970, and the sale occurred in 1969. We think this represents the proper analysis under section 260. Because in 1987, Federal liens were not a reason to vacate a tax sale under section 260, Wolfe was not entitled to a sale in error.

Because we rule Wolfe is not entitled to a sale in error, he is not entitled to any interest. For this reason, we need not address the interest rate applicable had a sale in error been appropriate.

Affirmed.

COOK and LUND, JJ., concur.