text:
    HARRIS BANK HINSDALE, N.A., f/k/a The First National Bank of Hins-dale, N.A., Plaintiff and Counterdefendant-Appellee, v. GABRIEL F. CA-LIENDO, d/b/a Callo Development Company and Callo Properties Development Company, et al., Defendants and Counterplaintiffs-Appellants (Harris Bank Hinsdale, N.A., as Trustee, et al., Defendants).
    Second District
    Nos. 2—91—0786, 2—91—1004 cons.
    Opinion filed October 8, 1992.

      Norman Handing, of Chicago, for appellants.
    Steven C. Filipowski and James S. Fenton, both of Griffin & Fadden, Ltd., of Chicago, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendants, Gabriel E and Lois E. Caliendo (the Caliendos will later be referred to in the masculine singular), appeal from the orders of the circuit court of Du Page County dismissing their first amended counterclaim against the plaintiff, Harris Bank Hinsdale, National Association (the Bank), and granting the Bank’s motion for summary judgment on its first amended and consolidated complaint seeking foreclosure of five separate mortgages and two separate assignments of beneficial interests under land trusts given to secure loans made to Caliendo. The Bank’s complaint also sought a judgment against Caliendo under a guarantee for the remaining amount due under a separate loan. Caliendo’s first amended counterclaim against the Bank consisted of seven counts: counts I, II and III were based on written loan commitments from the Bank to him; count IV was for breach of fiduciary duty; count V was for fraud; count VI was for breach of an implied covenant of fair dealing, and count VII was for breach of contract. We affirm.

Since 1979, the Bank has made loans to Caliendo from time to time for a number of purposes. In 1985, Caliendo began a real estate development business acquiring, rehabilitating and reselling improved residential real estate in the Hinsdale area. In 1985 and 1986, Ca-liendo purchased, rehabilitated and then resold a number of properties located in Hinsdale. These properties were purchased with financing from the Bank and certain of the loans were modified when needed.

In the fall of 1987, Caliendo purchased property at 407 West North Street for a new construction project rather than for rehabilitation. The $400,000 loan to finance the North Street project was evidenced by a note, was secured by a mortgage and was guaranteed by Caliendo. The documents evidencing and securing the loan, as modified and increased first by $100,000 and then by $80,000 with a May 12, 1989, extended maturity date, were appended to the Bank’s first amended and consolidated complaint. Caliendo admitted the genuineness of the documents. The North Street project was not sold until the fall of 1989, and the proceeds of the sale were insufficient to pay the loan in full.

In fall 1987, Caliendo purchased a home at 622 South Stough Street in Hinsdale. The purchase and rehabilitation of this property were financed through the Bank, first with a $250,000 mortgage and then two loan modifications for $68,400 and $37,000 with an extended maturity date of April 26, 1989. Caliendo admitted the genuineness of these documents, which were appended to the Bank’s complaint.

In March 1988, Caliendo met with Emmett McCarthy, who was the president of the Bank at that time, to discuss plans to develop a property located on 55th Street in Hinsdale. Caliendo alleged that on March 23 McCarthy made a commitment, not in writing, to finance fully the purchase of the site and the construction of new homes on the parcel. Later, on April 1, McCarthy informed Caliendo that the Bank would not finance the project.

Also, in April 1988, Caliendo purchased a property at 553 North Grant Street in Hinsdale for a new construction project. The purchase of the site and the construction of the improvements were financed through loans from the Bank for $454,000 and an additional loan of $66,000 by written modification agreement with an extended maturity date of May 31, 1989. Caliendo admitted the authenticity of the documents evidencing the loan and modification. Although Caliendo denied liability or the existence of a default, he admitted that the loan was not repaid in accordance with its terms.

In the spring of 1988, Caliendo acquired property at 21 East 8th Street in Hinsdale. The Bank issued a written commitment specifying the terms and conditions upon which it would finance the acquisition of the property and the construction of improvements. The purchase of the property and construction were financed through a loan secured by a mortgage from the Bank for $662,000 to mature April 26, 1989. This loan indebtedness was later agreed by the parties to be reduced to $582,000 by a written loan modification agreement. The documents evidencing and securing the loan and modification were admitted by Caliendo to be authentic.

In fall 1988, Caliendo purchased additional property adjacent to the 8th Street parcel. The purchase of this property was financed through a loan from the Bank in the amount of $80,000 secured by an assignment of Caliendo’s interest in land trust No. L-1700. The note bore a maturity date of May 17, 1989. Caliendo admitted the authenticity of the loan documents and note.

In spring 1988, Caliendo also purchased property at 333 North Oak Street, Hinsdale. The Bank issued a written commitment letter detailing the terms and conditions upon which it would extend acquisition and construction financing. The land acquisition and construction were financed by a loan from the Bank in the amount of $431,000. Repayment was to be from the proceeds of sale or at maturity, May 17, 1989, whichever occurred first. Caliendo admitted the authenticity of the loan documents. Caliendo alleged that in March 1989 he discussed with Bank president Emmett McCarthy plans to start construction of the project that spring even though the due date of the note was May 17, 1989. He did not allege an agreement to any extension, of the loan maturity date.

The Bank also made a residential mortgage loan to Caliendo in the amount of $275,000 to enable him to purchase his residence at 30 Baybrook Lane, Oak Brook, Illinois, title to which is held in land trust No. L-1304. The $275,000 note evidencing the debt provided for monthly payments with the full debt due and payable on November 1, 1991. By the terms of the note, default would occur upon failure to pay the full amount of each monthly payment on the due date (the first of the month). Caliendo admitted he borrowed this from the Bank and that he has not made certain payments, but denied that the amounts were due or that there was any default for the reasons stated in his counterclaim.

On February 5, 1988, in order to provide Caliendo with some working capital, the Bank made a loan of $175,000 secured by an assignment of the beneficial interest in the land trust holding title to the Baybrook residence. The documents evidencing and securing the loan were appended to the Bank’s first amended and consolidated complaint. By its terms, the note evidencing this loan matured on February 5, 1989. Caliendo admitted the authenticity of the documents and that the note was not paid on the stated maturity date.

In his first amended counterclaim, Caliendo alleged that he was a “captive borrower” of the Bank and that he had been told he was “unbankable” due to a prior bankruptcy. Caliendo admitted, however, in his response to a request for admission of facts that, during the relevant time period, he received a car loan from another bank in the amount of $52,900.

Caliendo alleged in his counterclaim that between January 1986 and October 1988 the Bank had made a blanket, unwritten commitment to fund fully all of his projects so long as he limited himself to “core” Hinsdale properties. This allegation is contradicted by an allegation in count VII of his counterclaim that on April 1, 1988, before the Grant Street, 8th Street and Oak Street parcels were purchased, Bank president McCarthy informed him that the Bank would not finance the 55th Street project in Hinsdale. Caliendo also alleged in his counterclaim that the Bank’s unwritten promises and course of dealing with him created a commitment to continue to extend and increase loans indefinitely despite the fact that each admittedly genuine loan agreement, commitment and loan modification agreement contained a definite loan amount and maturity date. Caliendo alleged that the parties’ course of dealing created an unconditional obligation on the part of the Bank to grant him a loan increase whenever needed. Caliendo admitted, however, in his counterclaim that, in the fall of 1988, the Bank suggested that Caliendo reduce the amount of credit available on the 8th Street project in order to increase the lines on some of his other projects. This was done, thereby decreasing his indebtedness on the 8th Street project from $662,000 to $582,000. Without pleading any specific details, Caliendo alleged in his counterclaim that the Bank sometimes loaned him money before loan documents were prepared or signed and that the maturity date of a note was never used by the Bank as a final date when a loan had to be paid, but, instead, the maturity date was a means of keeping track of the progress of a loan. The various loan modification agreements which were appended to the Bank’s first amended and consolidated complaint were signed on or before the respective maturity dates of the loans.

Caliendo admitted in his first amended counterclaim that, during the initial years of their banking relationship, the Bank exhibited loyalty, good faith and truthfulness. The record contains no examples of any acts by the Bank in breach of its written contracts, obligations of good faith or alleged fiduciary duties until March 31, 1989, which was approximately six weeks after the $175,000 working capital note matured on February 5, 1989. On or about that March 31 date, Caliendo alleged that the Bank conceived and executed a fraudulent and malicious scheme to destroy his business. In furtherance of this scheme, Caliendo alleged that after March 31, 1989, officers of the Bank refused to extend him further credit; attacked his abilities as a developer; demanded additional insurance; impugned his business reputation in the Hinsdale community; returned unpaid checks issued to subcontractors; refused to return lien waivers provided by subcontractors; unilaterally decreased lines of credit; refused to fund loans to which it had committed; and threatened foreclosure. The next debts to mature after the February 5 working capital debt were those for the 8th Street and Stough Street projects which matured on April 26, 1989.

Caliendo alleged that he met with Bank president McCarthy on May 5, at which time McCarthy promised to “take care of” all Calien-do’s problems and concerns. Caliendo then met with another Bank officer, Frank Cannon, on May 9 at which time Cannon again allegedly threatened foreclosure of Caliendo’s personal residence if Caliendo would not transfer the “finished projects” to the Bank. Three days after that meeting, on May 12,1989, the North Street loan matured.

On May 16, through legal counsel, Caliendo contacted Harris Bank, the Bank’s parent company, to inquire about a settlement. Immediately thereafter, Bank president McCarthy allegedly telephoned Caliendo and, when Caliendo returned the call, threatened to put Ca-liendo out of business. Caliendo alleged that after the May 16 telephone call, he was aware that the Bank had no intent to honor its commitments. The loans to finance the Oak Street project and to acquire the vacant lot behind 8th Street matured on May 17.

Caliendo alleged in his first amended counterclaim that on May 18 the Bank, under the signature of Kay Olenec, another Bank officer, sent him a letter outlining the terms of a “proposed workout” which he found unacceptable, to which he never agreed, and over which the parties had not negotiated. Caliendo further claimed the Bank never informed him that he was in default until November 1989. That alie-gation is contradicted by an exhibit attached to the Bank’s complaint to foreclose. The exhibit is a letter, dated July 15, 1989, advising Ca-liendo that he was in default on the Baybrook Lane residence mortgage.

The last debt to mature was on the Grant Street project on May 31, 1989. By that date, all of the loans were past due by their express terms.

Caliendo alleged that on June 30 the Bank told him that he must halt work on all projects and that he would receive no further funds from the Bank. Thereafter, neither Olenec nor McCarthy would discuss the situation with Caliendo. Caliendo alleged that, at a settlement conference on August 11, other representatives of the Bank agreed to a settlement on some issues, but refused to put the agreement in writing and subsequently reneged on it. Thereafter, Caliendo alleged, the Bank harassed his suppliers, frequently asked for information about Caliendo, and ordered frequent credit checks on Ca-liendo. Caliendo eventually sought protection under Chapter 11 bankruptcy proceedings.

In December 1989, the Bank first filed an action to foreclose the mortgage and assigned beneficial interest on the Baybrook Lane residence. An action to foreclose the mortgages on the various other development parcels was filed shortly thereafter. Caliendo filed his answer and counterclaim as to each foreclosure case. The Bank filed motions to dismiss Caliendo’s counterclaims. Caliendo confessed, on presentation of the motions, that one of the motions had merit and sought and received leave to amend. The Bank’s actions were then consolidated, and it filed its first amended and consolidated complaint. To that, Caliendo filed an amended answer and amended counterclaim.

The Bank then filed motions to dismiss Caliendo’s amended counterclaim, pursuant to sections 2 — 615 and 2 — 619 of the Civil Practice Law (Ill. Rev. Stat. 1991, ch. 110, pars. 2 — 615, 2 — 619), for summary judgment (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1005) and for appointment as mortgagee in possession (Ill. Rev. Stat. 1991, ch. 110, par. 15 — 1701(b)). The section 2 — 615 and 2 — 619 motions to dismiss were briefed, argued and granted, with leave to amend. The trial court heard argument and testimony on the motion for appointment of mortgagee in possession and the Bank’s motion was granted.

Caliendo then filed a pleading designated as his “First [sic — was his second] Amended Counterclaim.” The Bank again filed motions to dismiss, and, after argument, the court granted the Bank’s section 2 — 615 motion. Caliendo failed to suggest any amendment to cure the defects in his first amended counterclaim, and the court granted the motion with prejudice.

Caliendo then sought and obtained leave to file an amended answer to the Bank’s first amended and consolidated complaint for foreclosure. The Bank stood on its motion for summary judgment, and Caliendo filed his answer to the motion with a supporting affidavit. The motion for summary judgment was granted after hearing, the court finding no just reason to delay enforcement or appeal pursuant to Illinois Supreme Court Rule 304 (134 Ill. 2d R. 304(a)). Thereafter, the Bank moved for entry of a judgment of foreclosure. The motion was heard and granted, and the court found no just reason to delay enforcement or appeal (134 Ill. 2d R. 304(a)). Caliendo again filed a notice of appeal, and this court then consolidated the appeals.

Caliendo’s first contention is that the court erred in dismissing with prejudice all seven counts of his first amended counterclaim. As noted above, the counterclaims purported to state causes of action for breach of contract, breach of fiduciary duty, breach of implied covenant of fair dealing, and fraud. Citing Foxeroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150, the Bank argues that the issue of the propriety of the dismissal of the counterclaim has not been preserved for review because Caliendo, in effect, abandoned it by filing an amended answer which deleted any and all reference to the counterclaim. Acknowledging Foxeroft for the proposition that, by the filing of an amended pleading, the issues raised in the prior complaint are no longer in the case if they were not also raised in the amended complaint, Caliendo replies he does not quarrel with that statement of law, but asserts that “the two pleadings are separate and distinct” and the dismissal of the counterclaim became appealable when the court entered the appealable order entering summary judgment.

We see at least two problems with this issue, both of which preclude addressing its merits. First, we take Caliendo’s reference to “the two pleadings” to mean his amended answer and his first amended counterclaim. As to their being “separate and distinct,” we disagree. Caliendo’s counterclaim was an integral part of his initial answer to the Bank’s complaint for foreclosure. In answer to each count of the Bank’s complaint, Caliendo denied either that he was in default or in default as to the amounts owed or that the Bank had a right to foreclose “for the reasons stated in the Counterclaim.” After two subsequent attempts by Caliendo to state causes of action in his counterclaim which would withstand the Bank’s motions to dismiss, the court, on May 1, 1991, dismissed Caliendo’s first amended counterclaim with prejudice. Afterward, on May 13, Caliendo filed an amended answer to the Bank’s complaint for foreclosure which included in paragraph three thereof a reference to Caliendo’s “Amended Counterclaim.”

This reference to the then-dismissed amended counterclaim was noted by the Bank at the hearing on summary judgment, and Ca-liendo stated:

“MR. HANFLING [Caliendo’s counsel]: Your Honor, first, counsel is correct and I would ask to amend on its face my amended answer, where in Paragraph 3 I use the words for the reasons stated in the amended counterclaim, rather than for the reasons stated herein.
Obviously this pleading *** was based upon my — the amended counterclaim having been stricken and the need to re-plead for that reason.
It is a typographical omission, which I ask to correct. I don’t believe it in any way changes anything that counsel knew or didn’t know.” (Emphasis added.)

Caliendo also filed an amended answer to the Bank’s motion for summary judgment. His motion for leave to file this amendment alleged in pertinent part:

“1. The Answer to the pending Motion for Summary Judgment of [the Bank] was prepared and filed while the Counterclaim of Caliendo was still pending in this matter.
2. The Counterclaim contained certain matters which were part of the Answer of Caliendo to the Motion for Summary Judgment.
3. Since the Counterclaim has been dismissed, those matters are no longer before the Court and, therefore, could be interpreted as no longer being part of the Answer to Motion for Summary Judgment.
4. The matters contained in the Amended Answer, which Caliendo is asking leave to file, are not new, but were contained either in the Counterclaim or in the motions and subsequent pleadings relating to the Counterclaim and, therefore, are not any surprise to [the Bank]. These items are taken from material sent by [the Bank] to Caliendo.
5. The filing of the Amended Answer to Motion for Summary Judgment will present the Court with Caliendo’s full Answer to the Motion of [the Bank] and will eliminate piecemeal arguments.”

We think it clear from the above that Caliendo’s subsequent amendment to his answers to the Bank’s complaint for foreclosure and its motion for summary judgment show he acquiesced in the court’s dismissal of his counterclaim and, in fact, intended to subsume therein “matters” which were contained in his counterclaim and other pleadings relating thereto. We agree, therefore, with the Bank that Caliendo abandoned his counterclaim as such and may not now appeal the court’s dismissal of it. (Foxcroft, 96 Ill. 2d at 153-55; Larkin v. Sanelli (1991), 213 Ill. App. 3d 597, 601-02; see also Du Page Aviation Corp. v. Du Page Airport Authority (1992), 229 Ill. App. 3d 793, 799-800.) In Foxcroft the supreme court stated:

“ ‘Where an amendment is complete in itself and does not refer to or adopt the prior pleading, the earlier pleading ceases to be a part of the record for most purposes, being in effect abandoned and withdrawn.’ [Citation.]
* * *
*** [W]e perceive no undue burden in requiring a party to incorporate in its final pleading all allegations which it desires to preserve for trial or review.” (Foxcroft, 96 Ill. 2d at 154.)

Although Foxcroft involved the filing of an amended complaint, the court in Larkin v. Sanelli found the waiver principles in Foxcroft and other cases applied to amended answers, as well, since they also were “pleadings.” (Larkin, 213 Ill. App. 3d at 602.) Larkin also considered the rule that a party seeking to avoid the legal effect of or defeat the cause of action set forth in the complaint must assert any ground or defense, whether affirmative or not, in the answer or reply. Ill. Rev. Stat. 1991, ch. 110, par. 2 — 613(d); Larkin, 213 Ill. App. 3d at 602.

The other problem we find which would justify a refusal to consider the issue on its merits is the fact Caliendo states no relevant authority in support of his contention that counts I through VII state the causes of action he asserts. Beyond citing authority for the general proposition that a cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover (Johnston v. City of Bloomington (1979), 77 Ill. 2d 108; Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298) and the proposition that all well-pleaded allegations of fact must be taken as true in determining whether the motion to dismiss was properly allowed (Edgar County Bank & Trust Co., 57 Ill. 2d at 298), Caliendo cites no authority in support of his contentions, nor does his reply specifically refute the pertinent and persuasive authority cited by the Bank in support of affirmance of the court’s dismissal order.

Supreme Court Rule 341 requires that arguments be supported with citation of authority (134 Ill. 2d R. 341(e)(7), (f)), and arguments raised without citation to authority do not merit consideration and are waived. (Susman v. Price (1992), 230 Ill. App. 3d 639, 641.) We proceed to consider Caliendo’s next contention.

Caliendo argues the court erred in granting the Bank’s motion for summary judgment. Specifically, he claims it was reversible error for the court to decide at the motion stage that a letter appended to his affidavit in response to the Bank’s motion for summary judgment would be inadmissible at trial, and the court had no way of knowing what the testimony would be at trial regarding the note for the working capital loan due February 5,1989.

In his amended answer to the Bank’s first amended and consolidated complaint, Caliendo admitted the essential, factual allegations of the complaint; admitted the authenticity of the documents attached to the complaint; denied generally that he was in default; alleged that the Bank without cause or justification breached commitments to fund construction of his projects; and alleged that, without a commitment for construction financing for the projects, he never would have acquired the properties or incurred the indebtedness. He did not allege that he ever paid any of the notes or deny the factual allegations of nonpayment. As to the Bank’s nonpayment allegation concerning the $175,000 working capital loan note which bore a February 5, 1989, maturity date, Caliendo alleged in his answer that “[h]ad [the Bank] not improperly and without cause, in the Spring of 1989, ceased funding the construction projects of Caliendo, sufficient funds would have been available to repay this loan.”

The Bank’s motion for summary judgment was supported by the affidavit of John Kovacs, an officer of the Bank, who stated that, to his personal knowledge, the allegations of the complaint were true and correct, and described the facts relating to each default with particularity. Among other things, Kovacs stated that Caliendo defaulted on the $175,000 note on February 5, 1989, and that no payments were made on that note since the date of default.

In opposition to the Bank’s motion for summary judgment, Ca-liendo submitted an amended answer to the motion for summary judgment to which was attached his own affidavit. Therein, Caliendo made a general denial of default; claimed that the allegation of a February 5 due date on the working capital loan note was contradicted by a letter dated May 18, 1989, from Bank vice-president Kay M. Olenec addressed to Caliendo and attached to his affidavit; claimed that, “on many occasions,” notes matured and new notes were not signed until later; and claimed that the Bank continued to loan money on two of his properties for some time after the alleged February 5 default date. Attached to Caliendo’s affidavit was Kay Olenec’s May 18 letter. The letter outlines a workout proposal as to each of the development parcels and Caliendo’s Baybrook Lane residence and requests that Ca-liendo acknowledge acceptance of the described terms by signing and returning an enclosed copy. Regarding the $175,000 loan, Olenec remarked that “this note #548081 — 12—89 matured April 14,1989.”

The Bank moved to strike paragraphs 3, 4 and 5 of Caliendo’s affidavit on the bases that his references therein to certain documents were not supported by sworn or certified copies of such documents in violation of Supreme Court Rule 191 (134 Ill. 2d R. 191(a)); that Olenec’s letter was in the nature of a settlement offer which is not a fact admissible in evidence at trial; and that her letter cannot be used to contradict the terms of a written instrument which is not ambiguous on its face.

At the hearing on the Bank’s motion for summary judgment, the Bank’s and Caliendo’s arguments focused on the $175,000 working capital loan note, the alleged default on which note preceded all the other defaults. Specifically, the parties argued whether Olenec’s letter was admissible to create a genuine issue of material fact as to the due date of the $175,000 working capital loan note. The court found that it was not.

Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. (In re Estate of Hoover (1992), 226 Ill. App. 3d 422; Continental Mobile Telephone Co. v. Chicago S M S A Limited, Partnership (1992), 225 Ill. App. 3d 317; Ill. Rev. Stat. 1991, ch. 110, par. 2— 1005.) In deciding whether a genuine issue of material fact exists, the court must construe all pleadings, depositions, affidavits and admissions strictly against the movant and liberally in favor of the opponent. (Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263; Rayner Covering Systems, Inc. v. Danvers Farmers Elevator Co. (1992), 226 Ill. App. 3d 507.) On appeal from a grant of summary judgment, this court’s function is to determine whether the trial court properly concluded there was no genuine issue of material fact and, if there was not, whether judgment was correct as a matter of law. Dalen v. Ozite Corp. (1992), 230 Ill. App. 3d 18, 30; People ex rel. Burris v. Memorial Consultants, Inc. (1992), 224 Ill. App. 3d 653.

In order to withstand a motion for summary judgment, the nonmovant must present some factual basis that arguably may entitle him to judgment. (Dalen, 230 Ill. App. 3d at 30; Weil, Freiburg & Thomas, P.C. v. Sara Lee Corp. (1991), 218 Ill. App. 3d 383); if the moving party supplies facts which, if not contradicted, would entitle that party to judgment as a matter of law, the opposing party cannot rely on his pleadings alone to raise a material issue of fact (Hermes v. Fischer (1992), 226 Ill. App. 3d 820). The function of affidavits in summary judgment proceedings is to show whether the issues raised are genuine and whether each party has competent evidence to offer which tends to support his side of the issue. (In re Estate of Hoover (1992), 226 Ill. App. 3d 422.) The form of affidavits used in connection with motions for summary judgment is governed by Supreme Court Rule 191 (134 Ill. 2d R. 191; Ill. Rev. Stat. 1991, ch. 110, par. 2-1005(e)); the affidavit is actually a substitute for testimony taken in open court and should meet the same requisites as competent testimony. (Skipper Marine Electronics, Inc. v. United Parcel Service, Inc. (1991), 210 Ill. App. 3d 231.) Inter alia, an affidavit in opposition to a motion for summary judgment shall not consist of conclusions but of facts admissible in evidence and shall have attached to it sworn or certified copies of all papers upon which the affiant relies. 134 Ill. 2d R. 191(a).

Caliendo’s argument here is not that the Olenec letter is or would be admissible at trial but, rather, that it was reversible error for the trial court to decide at the motion stage that Olenec’s letter would not be admissible at trial. He argues that a factual issue such as the one at bar which goes to the heart of the dispute between the parties should not be determined without a trial where evidence can be presented and witnesses allowed to testify. Caliendo cites no authority in support of his “reversible error contention,” and, indeed, the law is contrary to his contention. It is precisely the purpose of summary judgment proceedings to determine whether there is competent evidence showing a genuine issue of material fact. Although the court at the summary judgment stage does not try the issues (Siegel v. Levy Organization Development Co. (1991), 219 Ill. App. 3d 579; Patch v. Township of Persifer (1991), 214 Ill. App. 3d 108), evidence that would be inadmissible at trial may not be considered in support of or in opposition to a motion for summary judgment. (Kaplan v. Disera (1990), 199 Ill. App. 3d 1093; Luthy v. Keehner (1980), 90 Ill. App. 3d 127.) Necessarily, the trial court must consider and decide whether the affidavits and attachments which purport to create a genuine issue of material fact would be admissible evidentiary matter at a trial on the merits.

Caliendo does not state in his affidavit any facts from which it may be concluded that, in fact, there was a modification of the $175,000 working capital loan note such as would have extended the due date. Accordingly, he could not testify at trial that such modification occurred. The sole piece of evidence he offered in an attempt to create a genuine issue of material fact is Olenec’s letter stating that the note matured April 14, 1989. Olenec’s letter is unsworn and uncertified in violation of Supreme Court Rule 191, and the court properly could disregard it in deciding the motion for summary judgment. Regardless of the correctness of the court’s decision that Olenec’s letter would be inadmissible at trial, it is clear Caliendo’s affidavit and its defective attachment were insufficient to counter Kovac’s affidavit establishing the fact of Caliendo’s default on this working capital loan and, therefore, no genuine issue of material fact warranting trial could be said to exist. Cf Ben Franklin Financial Corp. v. Davis (1992), 226 Ill. App. 3d 414 (inconsistency in paragraphs of complaint regarding date upon which payment on secured note was accelerated did not create issue of material fact sufficient to preclude summary judgment).

For the reasons above, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

McLAREN and DOYLE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DOYLE

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GREGORY P. SMOLINSKI, Defendant-Appellee.
    Second District
    No. 2—91—0036
    Opinion filed October 16, 1992.

      James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Joseph M. Laraia and Kenneth D. Hubbard, both of Joseph M. Laraia & Associates, P.C., of Wheaton, for appellee.
   JUSTICE DOYLE

delivered the opinion of the court:

Defendant, Gregory P. Smolinski, was charged by complaint in the circuit court of Du Page County with two counts of driving under the influence of alcohol (Ill. Rev. Stat. 1989, ch. 95½, pars. 11 — 501(a)(1), (a)(2)). Following his arrest, defendant was notified pursuant to section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.1) of a summary suspension of his driving privileges as a result of his submission to a breathalyzer test which disclosed a blood-alcohol concentration in excess of .10. Defendant filed a petition seeking judicial review of the statutory suspension (see Ill. Rev. Stat. 1989, ch. 95½, par. 2 — 118.1(b)), and following a hearing on his petition, the circuit court entered its order rescinding the summary suspension. The State filed this timely appeal.

The sole issue presented for review is whether the presentation of credible testimony by defendant and his brother that he was not under the influence of alcohol is sufficient to support a prima facie showing for rescission of a summary suspension of driving privileges.

The following facts are relevant to our analysis. At the suspension hearing, defendant’s brother, Lawrence E. Smolinski, testified that on the evening of the arrest defendant had been at Lawrence’s home assisting him with a home repair project. Lawrence stated that he observed defendant consume three martinis at approximately one-hour intervals beginning at 7:30 p.m. He further stated that he did not observe anything unusual about defendant related to the consumption of alcohol, and, based upon his experience, he opined that defendant’s ability to manipulate a hacksaw and hammer that evening was not impaired. Upon completion of the project, Lawrence and defendant ate a pizza, and defendant departed at approximately 11:30 p.m. Lawrence further testified that from 10:30 p.m. to 11:30 p.m. he did not observe defendant consume any additional alcohol; that he did not notice anything unusual about defendant’s speech or mannerisms; that defendant’s eyes and facial color appeared normal; that he observed nothing out of the ordinary about defendant’s balance; and that he did not consider defendant to be under the influence of alcohol at the time of defendant’s departure.

On cross-examination, Lawrence stated that he had observed defendant drink three martinis on prior occasions and he had seen some effect, but under different circumstances. He further stated that he never observed his brother having balance problems, even under the influence of alcohol. Lawrence stated that when defendant left Lawrence’s house, defendant’s speech was not slurred; he did not smell alcohol on defendant’s breath; and he did not get a look at defendant’s eyes. Lawrence also stated that defendant’s eyes were bloodshot 24 hours a day.

Defendant testified that he arrived at Lawrence’s house at approximately 7:30 p.m. to assist in repairing a malfunctioning sump pump. During the course of the evening he consumed three 1- to IV2-ounce martinis. Defendant further testified that he consumed the martinis at approximately one-hour intervals beginning at 8 p.m. During the course of the work, defendant testified that he had no difficulty with his balance, dexterity or speech. After completion of the work, at approximately 10:30 p.m., he and his brother ate pizza and engaged in conversation until his departure at 11:30 p.m. Defendant denied consuming any additional alcoholic beverages during that period of time. At the time of his departure, defendant stated that he was not feeling the effects of the alcohol and that he felt his speech and balance were fine.

After leaving Lawrence’s house, defendant started to drive home. As he was proceeding south on Naperville Road, he made a left-hand turn onto Butterfield Road at which time he observed red lights and pulled to the shoulder of the road. After pulling over, he pulled back into the roadway and then returned back to the shoulder realizing that a squad car was behind him. A police officer approached defendant’s car and requested to see his driver’s license. Defendant testified that he took his wallet from his pocket and fumbled a bit as he removed his license from the wallet. Defendant explained that because of the age of his wallet it was somewhat difficult to remove the license. The officer then inquired whether defendant had been drinking, and defendant responded in the affirmative. The officer then asked defendant to get out of his car and inquired as to his willingness to submit to a field sobriety test. After initially refusing the officer’s request, defendant agreed to perform a one-leg balancing test. The officer also inquired whether defendant had any physical problems, and defendant responded that he had a pulled hamstring in his left leg. Nevertheless, defendant agreed to take the test by standing on his bad leg and raising his good leg. Defendant stated that he kept his leg raised for a couple of counts and that he dropped his leg several times touching the ground. Defendant was next provided with instructions for the performance of the heel-to-toe test. Defendant began to perform the test without being told by the officer to begin.

Shortly thereafter, another officer arrived at the scene and administered an “eye movement test” to defendant. The officer instructed defendant to follow with his eyes a pencil that the officer was holding up. After the second officer’s performance of the eye test, Officer Uhlir performed the same test again and then placed defendant under arrest. Defendant was transported to a sheriff’s police station. Upon his arrival at the station, defendant testified that he submitted to a breathalyzer test. Defendant further testified that, in his opinion, he was not under the influence of alcohol and that he felt fine.

On cross-examination, defendant stated that he was experiencing pain from a hamstring problem throughout the evening, but he never complained about it while at his brother’s house. He further stated that the problem also caused a limp. Defendant admitted that during the one-leg balance test he counted only to 27 instead of 30, as instructed, and that his raised leg touched the ground six times as a result of his hamstring problem.

Defendant further testified that after his arrival at the police station he received, orally and in writing, the warning to motorist information which informed him of the consequences of his taking or refusing the breathalyzer test. He further testified that he was accompanied by Officer Kuckenbecker during the entire time prior to the breathalyzer test and that he placed nothing in his mouth and did not regurgitate, belch or vomit. He further stated that he was able to view a printout and machine readout of the results of his test and that they revealed a result of .17.

On redirect examination, defendant testified that he did not feel light-headed from the time he was at Lawrence’s house until the time he took the breathalyzer. After the defense rested, the State moved for a directed finding on all counts in defendant’s petition. The trial court denied the motion as to all counts.

Andrew Uhlir, a police officer with the City of Wheaton, testified on direct examination that he was on routine patrol proceeding southbound on Naperville Road approaching the intersection of Dañada Square Drive at approximately 11:37 p.m. on November 5, 1990, when he observed a silver Cadillac directly in front of him veer to the right and then cross approximately 6 to 12 inches over the intermittent white lines. He further observed that the silver Cadillac came within inches of making contact with a brown Buick automobile, then immediately turned on its left turn signal and veered from its location on the road to the left turn lane on Naperville Road at Route 56. After completing the left turn onto Route 56, Uhlir observed the Cadillac continue to the right of the eastbound lane onto the shoulder by two to three feet. Uhlir activated his overhead lights and then observed the vehicle pull back onto the road, immediately slow, pull to the shoulder again and then back onto the eastbound lane and then off again, where it finally slowed to a stop on the shoulder of the road.

Uhlir approached defendant’s car and requested his driver’s license and proof of insurance. At that moment, he observed that defendant appeared very tired, and he detected a strong odor of alcoholic beverage emanating from defendant’s mouth. He further observed that defendant’s speech was slurred and that his eyes were glassy, red and bloodshot. Upon reaching into his pocket for his wallet, Uhlir observed that defendant fumbled through his wallet excessively, dropping it once, and that it took defendant “a good minute and a half” to retrieve his driver’s license. When asked whether he had been drinking that evening, defendant responded he had a couple of drinks at his brother’s house that evening.

Uhlir then requested that another unit report to his location, and upon its arrival he asked defendant to get out of his car. He observed defendant exit his car and then lean against it with his left hand, following the entire length of the car as he walked to the rear of the car. Uhlir asked defendant about his willingness to perform a battery of field sobriety tests, and defendant responded that he would not perform them but he would submit to a breathalyzer test. After a brief explanation of the purpose of the field tests, defendant agreed to submit to the tests.

During the one-leg test, Uhlir observed defendant swaying in a circular motion and that his raised leg touched the ground several times during the test. Before administering the test he asked defendant whether he had any medical problems with his legs, and defendant indicated that he had a slight hamstring pull in one of his legs, but that he would be able to perform the test. While the officer was instructing defendant on how to stand during the nine-step walk-and-tum test, defendant fell to his right several times, stepped off the line and his arms left his sides. Defendant then began to perform the test without being instructed to start.

Prior to his administration of the field sobriety tests, Uhlir observed Officer Kuckenbecker perform a horizontal gaze nystagmus test. After performing the test, Kuckenbecker indicated to Uhlir that the test results revealed that defendant was under the influence. Based upon his experience and observations of defendant, Uhlir opined that defendant was under the influence of alcohol, placed him under arrest and transported him to the police station. Uhlir testified that he and Kuckenbecker remained with defendant at the station until the time of the breathalyzer test.

On cross-examination, Uhlir testified that when he first observed defendant’s automobile it appeared to be proceeding at or under the speed limit. He further testified that defendant did not have difficulty removing his wallet from his pants pocket and that defendant’s speech was not “mush-mouthed” or “mumbled” at the time he confronted defendant after pulling him over.

James Kuckenbecker, a police officer with the City of Wheaton, testified that he was a trained breathalyzer operator and that he had administered approximately 100 breath tests in the previous two years. During Kuckenbecker’s testimony, the court took judicial notice of the Department of Public Health standards and that the breathalyzer, an Intoximeter 3000, was an approved instrument for the administration of breath tests. The prosecutor also requested Kuckenbecker to read an entry made in the logbook that accompanied the breathalyzer.' Defense counsel’s hearsay objection to the prosecutor’s request was sustained, but the court reserved its ruling as to admissibility of the document. Kuckenbecker was permitted to testify about testing the machine generally. He also pointed to a portion of the logbook where copies of the machine certification decals were kept and testified that, at the time of defendant’s test, a similar decal was affixed to the breathalyzer. He further testified that, based upon the fact that the certification decal was affixed to the machine, it would indicate to him that the machine would have rendered a true and accurate result on the date of defendant’s breath test. Kuckenbecker opined that on the date of defendant’s examination the breathalyzer was operating properly.

Kuckenbecker further testified that he observed defendant for 20 minutes prior to the test and that he did not observe him eat, drink, smoke, regurgitate or belch. He then started the machine, observed the machine purge itself, and then instructed defendant to blow into the attached mouthpiece. Kuckenbecker also identified an exact printout of the ticket that the machine printed the night of defendant’s test. Over defense counsel’s hearsay objection, Kuckenbecker testified that the readout on the machine was .17, which was the same as the printout.

Following Kuckenbecker’s testimony, the State moved to admit into evidence several exhibits to which defense counsel objected on various grounds. In particular, defense counsel objected to all exhibits pertaining to the breathalyzer machine, the printout and the logbook because the State failed to lay a proper foundation for their admission on the basis of the business records exception to the hearsay rule. Following the argument of counsel, the trial court denied the admission of the exhibits. After further argument, the trial court concluded that based upon all the testimony presented, and the totality of the circumstances, the officer had reasonable grounds to stop the defendant’s vehicle. The court further concluded, however, that there was insufficient evidence to establish that the breathalyzer unit was properly tested for accuracy and that it was working on the date in question. On that basis alone, the court entered its order rescinding the summary suspension. The State appealed from that order.

The State’s primary contention is that defendant failed to make a sufficient prima facie showing, within the context of a hearing to rescind a summary suspension of driving privileges, necessary to shift the burden of producing evidence to the State. The State argues that defendant’s failure to produce any evidence to support his claim of inaccurate testing relieved the State of its burden to produce “witnesses to demonstrate that the machine was tested regularly and performing accurately.” Defendant responds that his presentation of credible testimony that he was not under the influence of alcohol was sufficient to support a prima facie showing for rescission and, as a result, the burden of production was effectively shifted to the State.

In recognition of the reality that it often takes a substantial period of time for the State to prosecute impaired drivers and remove their driver’s licenses, our legislature has enacted a system separate from the criminal proceeding in which a motorist’s license is summarily suspended when he or she fails or refuses to submit to a chemical test. (People v. Moore (1990), 138 Ill. 2d 162, 166.) In order to insure against the deprivation of any due process rights a motorist might have in the retention of his or her driving privileges, the legislature has enacted a procedural mechanism whereby a motorist may file a written petition to rescind the statutory summary suspension of his or her license and receive a hearing. Ill. Rev. Stat. 1991, ch. 951/2, par. 2 — 118.1(b); Moore, 138 Ill. 2d at 166-67.

In a hearing to rescind a summary suspension, the burden is initially placed upon the motorist to make a prima facie showing that the results of the chemical test are unreliable. (People v. Orth (1988), 124 Ill. 2d 326, 338.) Once a prima facie showing for rescission is made, the burden shifts to the State to come forward with evidence justifying the suspension. (Orth, 124 Ill. 2d at 338.) Additionally, once the motorist has made a prima facie case that the breath test result did not disclose a blood-alcohol concentration of .10 or more, or that the test did not accurately reflect his blood-alcohol concentration, the State can avoid rescission only by moving for the admission of the test into evidence after laying the proper foundation. (Orth, 124 Ill. 2d at 340.) The trial court’s finding as to the prima facie case will not be overturned upon review unless it is against the manifest weight of the evidence. Orth, 124 Ill. 2d at 341.

In support of its argument, the State relies upon People v. Gryczkowski (1989), 183 Ill. App. 3d 1064, as being solely dispositive of this issue. In Gryczkowski, a motorist was arrested for DUI as a result of his failure to perform certain field sobriety tests satisfactorily. After voluntarily submitting to a breathalyzer test which disclosed a blood-alcohol test result in excess of .10, the defendant was served with a notice of summary suspension of his driving privileges pursuant to section 11— 501.1 of the Illinois Vehicle Code (see Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.1)). On appeal from a denial of his petition for rescission, defendant raised two issues: (1) whether his blood-alcohol content at the time of his arrest was relevant in a rescission hearing; and (2) whether defendant sustained his “burden of proof” in establishing the invalidity of the breathalyzer test result.

At the hearing, the defendant in Gryczkowski testified that he consumed four mixed drinks over a l½-hour period. Approximately five min- j utes after leaving the tavern where he consumed the drinks, defendant was stopped by a police officer, subjected to field sobriety tests, arrested and then transported to the station where he submitted to a breathalyzer test which yielded a result in excess of .10. Defendant also offered the testimony of a food chemist who concluded that defendant’s blood-alcohol content at the time of arrest would have been between .04 and .06.

On appeal, this court affirmed the trial court’s decision to continue the defendant’s summary suspension on two bases: (1) that a defendant’s blood-alcohol content at the time he was operating his vehicle was not an issue in a summary suspension proceeding; and (2) his failure to produce “any evidence whatsoever” to support his claim of improper testing or to introduce any evidence that would call into question the accuracy of the test results.

The State argues that Gryczkowski stands for the proposition that the defense has the .burden of showing that the breathalyzer malfunctioned, that the test results were inaccurate, or that the department failed to follow proper procedures; and that such evidence was indispensable to defendant’s prima facie showing necessary to shift the burden of production. Defendant contends, however, that his testimony as to sobriety at the time the breathalyzer test was administered is itself sufficient to cast doubt on the test’s accuracy. Although this court’s decision in Gryczkowski rested, in part, upon the fact that defendant’s claims alleging a lack of proper breathalyzer certification and the police department’s failure to follow procedures were entirely unsupported by the evidence, we decline to read our holding in Gryczkowski as narrowing the supreme court’s clear pronouncement in Orth that the evidence presented by defendant may consist of any circumstance which tends to cast doubt on the test’s accuracy, including, credible testimony by the defendant that he was not under the influence of alcohol. (See Orth, 124 Ill. 2d at 341.) We note that the testimony in Gryczkowski was solely directed to the question of whether defendant was intoxicated at the time of his operating his vehicle, which we subsequently held was irrelevant in a summary suspension hearing. Additionally, there was no testimony by the defendant in that case that at the time of the breath test he was not under the influence of alcohol.

In contrast to Gryczkowski, defense counsel here fully appreciated that the burden of making a prima facie showing rested upon defendant. Defendant testified, subject to the trial court’s credibility determination, that, in his opinion, he was not under the influence of alcohol at the time of taking the breathalyzer test and that he felt fine. On redirect, defendant again testified that he did not feel light-headed from the time he left his brother’s house until the time he took the breathalyzer test. Based upon defendant’s testimony that he consumed three martinis over a four-hour period and ate pizza during the hour prior to his departure, we do not conclude that his testimony was so inherently unreasonable or impossible as to disturb the trial court’s finding.

We conclude, therefore, that the trial court’s implicit determination that defendant’s testimony was sufficiently credible to meet his burden of making a prima facie showing for rescission of a summary suspension of his driving privileges was not against the manifest weight of the evidence.

We note that the State cursorily asserts in a single sentence of its brief that the trial court erred in its conclusion that there was insufficient evidence presented by the State that the breathalyzer was tested regularly for accuracy or that it was working properly. Because the State provides no argument or citation to authority we need not reach the issue of whether the State laid a proper foundation for the admission of the exhibits relating to the breathalyzer so as to rebut defendant’s prima facie showing. See 134 Ill. 2d R. 341(e)(7); Fitzpatrick v. A C F Properties Group, Inc. (1992), 231 Ill. App. 3d 690.

For the foregoing reasons, we affirm the order of the circuit court of Du Page County rescinding the summary suspension of defendant’s driving privileges.

Affirmed.

WOODWARD and GEIGER, JJ., concur.


author: JUSTICE NICKELS JUSTICE DOYLE,

text:
    OFFICE OF THE LAKE COUNTY STATE’S ATTORNEY, PlaintiffAppellee, v. THE HUMAN RIGHTS COMMISSION et al., Defendants-Appellants.
    Second District
    No. 2—91—1170
    Opinion filed September 30, 1992.
    Rehearing denied November 17, 1992.

      DOYLE, J., dissenting.
    Marian McElroy, of North Chicago, appellant pro se.

    Michael J. Waller, State’s Attorney, of Waukegan (John W. Bartels IV, Assistant State’s Attorney, of counsel), for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

On December 28, 1988, plaintiff, the office of the Lake County State’s Attorney, filed a complaint for an order of prohibition and declaratory judgment in the circuit court, seeking a determination that defendant, the Illinois Human Rights Commission (Commission), lacked jurisdiction to adjudicate a charge of discrimination originally brought by defendant, Marian McElroy (claimant), against plaintiff in December 1985. McElroy was suspended from her position as an assistant State’s Attorney in Lake County in December 1985 and was discharged on January 3,1986.

In October 1988, the Department of Human Rights filed a complaint against plaintiff, alleging that plaintiff discriminated against claimant because of her race and sex and that she was suspended and discharged in contravention of the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1985, ch. 68, par. 1 — 101 et seq.). Among other things, the Department’s complaint alleged that claimant was not given the same number of trial opportunities as similarly situated white male employees; that the State’s Attorney informed her that she “was not fitting in with the boys because she did not go out drinking with the boys and that she was not bubbly like another black female attorney”; that she was not promoted to the position of principal assistant State’s Attorney because of her lack of experience; that the State’s Attorney claimed she was suspended for ignoring the policies and objectives of the office in negotiating criminal cases and for being insubordinate to a supervisor; and that the State’s Attorney’s reasons for not promoting her, suspending and discharging her were pretextual.

In support of plaintiff’s assertion that the Commission was without jurisdiction to adjudicate this claim, plaintiff argued that assistant State’s Attorneys are not “employees” and that the office of the State’s Attorney is not an “employer” as defined in the Act. See Ill. Rev.'Stat. 1985, ch. 68, pars. 2-101(A), (B), 1-103(L).

On defendants’ motion, the circuit court initially dismissed plaintiff’s complaint, finding that the Commission had exclusive jurisdiction of the cause and that plaintiff must exhaust its administrative remedies before the Commission before seeking further review.

Plaintiff then appealed to this court, which concluded that the exhaustion of remedies doctrine did not preclude a challenge in the circuit court to determine the jurisdiction of the Commission and that the circuit court had subject-matter jurisdiction to consider plaintiff’s complaint for an order of prohibition and declaratory judgment. Accordingly, the judgment was reversed and the cause remanded for further proceedings. Office of the Lake County State’s Attorney v. Illinois Human Rights Comm’n (1990), 200 Ill. App. 3d 151.

Upon remand, plaintiff filed a motion for summary judgment, again arguing that the Commission had no jurisdiction to adjudicate the claim because plaintiff is not an employer and claimant is not an employee as defined by the Act. Plaintiff prayed for an order of prohibition to prevent defendants from proceeding on this claim. The Commission maintained its position that it had jurisdiction to adjudicate the claim, but otherwise declined to address further, on the merits, the issue whether plaintiff and claimant met the statutory definitions of “employer” and “employee,” respectively.

On September 9, 1991, the circuit court granted plaintiff’s motion for summary judgment, finding that, for purposes of proceeding on the discrimination charge, claimant was not a covered employee and plaintiff was not an employer as defined by the Act. Therefore, the Commission had no authority to adjudicate the civil rights complaint. As a result of its findings, the court issued a writ of prohibition preventing defendants from proceeding on the discrimination charges.

Claimant appeals from this order, arguing that the circuit court erred in granting summary judgment for plaintiff by ruling as a matter of law that (1) she was not an “employee” as defined by the Act; and (2) the plaintiff was not an “employer” as defined by the Act. This court has treated the question as jurisdictional in Lake County State’s Attorney (200 Ill. App. 3d at 156), and the precise question of the employer-employee relationship now presented is one of first impression in this court as it has never been answered (see Joliet Mass Transit District v. Illinois Fair Employment Practices Comm’n (1978), 66 Ill. App. 3d 296).

One of the stated purposes of the Illinois Human Rights Act is to “secure for all individuals within Illinois the freedom from discrimination because of race, color, religion, sex, national origin, ancestry, age, marital status, physical or mental handicap, or unfavorable discharge from military service in connection with employment, real estate transactions, access to financial credit and the availability of public accommodations; and to prevent sexual harassment in employment” and in higher education. (Ill. Rev. Stat. 1985, ch. 68, par. 1— 102(A).) The Act is intended to implement State constitutional guarantees against discrimination and to assure “that all State departments, boards, commissions and instrumentalities rigorously take affirmative action to provide equality of opportunity and eliminate the effects of past discrimination in the internal affairs of State government and in the relations with the public.” Ill. Rev. Stat. 1985, ch. 68, pars. 1 — 102(C), (D).

The present dispute centers on whether plaintiff is an “employer” and claimant is an “employee” covered by the Act. The pertinent provisions of the Act defining covered employers state:

“(B) Employer. (1) ‘Employer’ includes:
(a) Any person employing 15 or more employees within Illinois during 20 or more calendar weeks within the calendar year of or preceding the alleged violation;
***
(c) The State and any political subdivision, municipal corporation or other governmental unit or agency, without regard to the number of employees.” (Ill. Rev. Stat. 1985, ch. 68, par. 2— 101(B).)

A “person” is defined as “one or more individuals, partnerships, associations or organizations, *** the State of Illinois and its instrumentalities, political subdivisions, units of local government, legal representatives, [and] trustees in bankruptcy or receivers.” Ill. Rev. Stat. 1985, ch. 68, par. 1 — 103(L).

The pertinent provisions of section 2 — 101(A) of the Act define “employee” in the following terms:

“(A) Employee. (1) ‘Employee’ includes:
(a) Any individual performing services for remuneration within this State for an employer;
(b) An apprentice;
* * *
(2) ‘Employee’ does not include:
(a) Domestic servants in private homes;
(b) Individuals employed by persons who are not ‘employers’ as defined by this Act;
(c) Elected public officials or the members of their immediate personal staffs;
(d) Principal administrative officers of the State or of any political subdivision, municipal corporation or other governmental unit or agency.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 68, par. 2 — 101(A).

We address first the question whether the office of the State’s Attorney is an “employer” under the Act. Plaintiff argues that it is neither a “person” defined by the Act, nor a legal representative, or a unit of (local) government. Further, plaintiff argues, in a non sequitur and without explanation, that, because the State’s Attorney is a constitutional officer of the State, he is not an employer pursuant to section 2 — 101(B) of the Act. Plaintiff appears to avoid arguing specifically whether it is the legal equivalent of the State itself. The thrust of plaintiff’s argument appears to be that it is not specifically enumerated as an employer by the Act (and somehow falls through the cracks).

In general support of its position, plaintiff cites Morton v. Hartigan (1986), 145 Ill. App. 3d 417, an irrelevant case dealing with the common-law immunity defense applicable in tort law; there, the plaintiff mistakenly sued the Attorney General and three other officials in their individual capacities rather than suing the employer, the real party in interest — the State of Illinois. The common-law immunities of public officials described in Morton have nothing to do with the statutory cause of action under consideration here, where, pursuant to the State Constitution (see Dilley v. Americana Healthcare Corp. (1984), 129 Ill. App. 3d 537; see also Ritzheimer v. Insurance Counselors, Inc. (1988), 173 Ill. App. 3d 953, 959-60), the legislature has specifically authorized a cause of action against the sovereign State, its political subdivisions, municipal corporations, or governmental units and agencies. The claimant here has sued the office of the State’s Attorney as an entity of the State. The question before us does not concern the absolute immunity doctrine discussed in Morton, and we need not discuss it further. Indeed, the State’s Attorney specifically argued at the hearing on his motion for summary judgment that he was not interposing the defense of absolute immunity.

For purposes of suit, if the office of the State’s Attorney is not the equivalent of the State or one of its political subdivisions, governmental units, instrumentalities or agencies, what is its identity? We will endeavor to answer this question. While we agree with the State that the State’s Attorney is an elected constitutional officer (People v. Thompson (1980), 88 Ill. App. 3d 375, 377; Ill. Const. 1970, art. VI, §19), this certainly does not end the inquiry. The Attorney General, another constitutional officer, was, at common law, the law officer of the English crown and its chief representative in the courts. (See People ex rel. Kunstman v. Nagano (1945), 389 Ill. 231, 248-49.) Of course, under our form of government, all the prerogatives which pertained to the crown of England under the common law are now vested in the People. (People ex rel. Board of Trustees of the University of Illinois v. Barrett (1943), 382 Ill. 321, 346.) Historically, the State’s Attorney has had rights and duties analogous to or largely coincident with the Attorney General in representing the county or the People in matters affected with a public interest. (Nagano, 389 Ill. at 249.) While the State’s Attorney has previously been characterized as a county officer (Ashton v. County of Cook (1943), 384 Ill. 287, 297), our supreme court now treats the State’s Attorney as a member of the executive branch and as a State, rather than a county, officer. Ingemunson v. Hedges (1990), 133 Ill. 2d 364, 369.

The office of the State’s Attorney, then, is part of the executive branch of State government, and the powers exercised by that office are executive powers. (Thompson, 88 Ill. App. 3d at 377.) Among other things, it is the duty of the State’s Attorney to commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his county, in which the people of the State or county may be concerned; to commence and prosecute all actions and proceedings brought by any county officer in his official capacity; to defend all actions and proceedings brought against his county, or against any county or State officer, in his official capacity, within his county; and “[t]o assist the Attorney General whenever it maybe necessary.” Ill. Rev. Stat. 1985, ch. 14, pars. 5(1), (3), (4), (8).

The real question before us is whether, for purposes of this discrimination suit, the office of the State’s Attorney is indeed the legal equivalent of the State itself. We readily conclude that it is. First, the definition of “person” in the Act shows that the legislature meant to include within the ambit of this legislation the State and its instrumentalities, political subdivisions, units of local government and legal representatives. In the context of the stated purposes of the Act, this broad definition evinces a legislative intent to include as a “person” the State or any governmental entity acting on its behalf.

Second, the more specific provision defining “employer” also broadly includes the State and any political subdivision, municipal corporation or other governmental unit or agency without regard to the number of employees — in other words, all State governmental entities. A broader definition hardly seems possible. Obviously, when a State official is sued in his or her official capacity, the official is a real, natural person. However, “a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office. [Citation.] As such, it is no different from a suit against the State itself.” Will v. Michigan Department of State Police (1989), 491 U.S. 58, 71, 105 L. Ed. 2d 45, 58, 109 S. Ct. 2304, 2311 (holding that, because the eleventh amendment bars suits against the State unless the State has waived immunity, neither the State nor its officials acting in their official capacities are “persons” under the Federal civil rights statute (42 U.S.C.A. §1983 (West 1981)); see Houston v. Cook County (N.D. Ill. 1990), 758 F. Supp. 1225, 1226.

In adopting the Act and its forerunner (Ill. Rev. Stat. 1979, ch. 48, par. 851 et seq.), the legislature intended to give its remedial provisions the widest constitutional application that could be achieved. (Fair Employment Practices Comm’n v. Rush-Presbyterian-St. Luke’s Medical Center (1976), 41 Ill. App. 3d 712, 716.) We see no reason why the office of the State’s Attorney should be allowed to circumvent the legislative intent to cover State governmental employees by the use of a mere pleading device: that the State’s Attorney is not specifically enumerated in the Act.

In view of our discussion, we find that the office of the State’s Attorney exercises certain executive powers of the sovereign as established by our State Constitution and statutes, and we hold that, for all practical purposes, in a suit of the kind before us, the office of the State’s Attorney is the legal equivalent of the State itself and is an “employer” as defined in the Act. To conclude otherwise would effectively negate the stated purposes of the Act whenever a public employer-defendant claims that its particular State office or official has not been specifically enumerated in the Act.

The next question is whether claimant is a section 2 — 101(B) “employee” entitled to protection from discrimination under the Act. We hold that she is such an employee. Plaintiff argues that claimant, an assistant State’s Attorney, is exempted from the protection of the Act because the Act does not include elected public officials or “members of their immediate personal staffs” (Ill. Rev. Stat. 1985, ch. 68, par. 2 — 101(A)(2)(c)). Plaintiff relies on the loosely analogous Federal statutory provisions of title VII of the Civil Rights Act of 1964 (42 U.S.C.A. §2000e(f) (West 1981)) and earlier cases interpreting the Federal title VII exemption in relation to District Attorneys in particular States (see, e.g., Teneyuca v. Bexar County (5th Cir. 1985), 767 F.2d 148; Ramirez v. San Mateo County District Attorney’s Office (9th Cir. 1981), 639 F.2d 509; Wall v. Coleman (S.D. Ga. 1975), 393 F. Supp. 826).

Plaintiff also relies on Liras v. Petka (7th Cir. 1983), 711 F.2d 798. Although Liras described certain attributes of the office of State’s Attorney in the context of a dismissal of an assistant State’s Attorney for his conduct or because of alleged, pretextual political reasons, it did not decide whether an assistant State’s Attorney was an exempt employee under the Federal “personal staff” exemption, and the case is not applicable here. While we have considered the cases cited by plaintiff, we point out that, in construing our own State statutes, we are not bound by Federal court decisions other than, in appropriate cases, those of the United States Supreme Court; although such decisions are entitled to respect, they have only advisory effect upon the decisions of this court. City of Chicago v. Loitz (1973), 11 Ill. App. 3d 42, affd (1975), 61 Ill. 2d 92.

Under the exempt employee provisions of title VII of the Federal Civil Rights Act, an employee “shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision.” (Emphasis added.) (42 U.S.C.A. §2000e(f) (West 1981).) We observe in passing that previously exempt members of the personal staffs of State and local elected officials now have a remedy under Federal law for acts of discrimination committed against them. (See 2 U.S.C.A. §1220 (West Supp. 1992)(effective Nov. 21, 1991).) As can readily be seen, the language of our State statute (“immediate personal staffs”) differs from that of the Federal provision, a difference we shall explore later.

The legislative history of title VII and its extension to public officials demonstrates that Congress intended the exemptions from “employee” status to be narrowly construed. See, e.g., Anderson v. City of Albuquerque (10th Cir. 1982), 690 F.2d 796, 800 (where staff director of human rights board dealt primarily -with other appointees, had minimal interaction with mayor who did not directly appoint director and director did not formulate policy or advise mayor, there was no intimate and sensitive association or immediate personal relationship required by the exemption); Bostick v. Rappleyea (N.D.N.Y. 1985), 629 F. Supp. 1328, 1332 (legislative budget analyst sued State assemblymen under title VII; her contacts were mostly with other staff members; although she engaged in drafting, research and providing input in formulating policy and she was supervised by an administrator, she did not occupy sensitive and intimate position or appear to be “frontline adviser” exempt from employee status), following Gearhart v. Oregon (D. Or. 1976), 410 F. Supp. 597, 600, 601 (former deputy legislative counsel to State whose duties included drafting, research and other assistance to members of legislature was more than “just a law clerk” but was not a “first line adviser” so as to establish “immediate” relationship which Congress deemed necessary to invoke very limited exemption from strong policy of ending impermissible discrimination in public employment).

When title VII was amended in 1972 to apply to State and local governments and to provide for the personal staff exemption, Senator Ervin first proposed that the definition of employee exclude only officials who were elected and their legal and constitutional advisors, that is, any elected person or “ ‘any person chosen by such person to advise him in respect to the exercise of the constitutional or legal powers of his office.’ ” (Equal Employment Opportunity Comm’n v. State of Vermont (2d Cir. 1990), 904 F.2d 794, 798-99, quoting 118 Cong. Rec. 4483 (1972).) Senator Williams suggested that the exception be expanded to include the elected official’s personal staff, saying the purpose of the amendment was “ ‘to exempt from the coverage those who are chosen by the Governor or the mayor or the county supervisor, whatever the elected official is, and who are in a close personal relationship and an immediate relationship with him. Those who are his first line of advisers. Is that basically the purpose of the Senator’s amendment?’ ” (Emphasis in original.) (Vermont, 904 F.2d at 799, quoting 118 Cong. Rec. 4492-93 (1972).) Senator Ervin agreed that it was.

Senator Javits urged that further study be given to the scope of the “adviser” phrase, observing that, when he was Attorney General of New York he had some 500 employees, some 200 of whom were lawyers and that he would have to have “overnight” to check into what would be the status of that large group of employees. He concluded by saying, “ T realize that the Senator is seeking to confine [the exemption] to the higher officials in a policymaking or policy advising capacity.’ ” (Vermont, 904 F.2d at 799, quoting 118 Cong. Rec. at 4097.) Later Senator Javits added that, by immediate advisors, he was thinking “ ‘more in terms of a cabinet, of a Governor who would call his commissioners a cabinet, or he may have a cabinet composed of three or four executive officials, or five or six, who would do the main and important things.’ ” (Vermont, 904 F.2d at 799, quoting 118 Cong. Rec. at 4493.) The section that eventually became section 2000e(f) was reported out of conference with the following explanation:

“ ‘It is the intention of the conferees to exempt elected officials and members of their personal staffs, and persons appointed by such elected officials as advisors or to policymaking positions at the highest levels of the departments or agencies of State or local governments, such as cabinet officers, and persons with comparable responsibilities at the local level.’ ” (Emphasis in original.) Vermont, 904 F.2d at 800, quoting Joint Explanatory Statement of Managers at the Conference on H.R. 1746, 92d Cong., 2d Sess. 1972, reprinted in 1972 U.S. Code Cong. & Admin. News 2180.

An example of a case involving a narrow construction of the exemption in a judicial setting is Goodwin v. Circuit Court (8th Cir. 1984), 729 F.2d 541. There, the court narrowly construed the exemption in holding that a former judicial hearing officer in a State circuit court was entitled to sue under title VII for sex discrimination when she was transferred by the presiding judge of the juvenile court from the position of hearing officer to the position of staff attorney. The court noted that the “immediate adviser” exemption was intended to apply to those employees who are in a close personal relationship to the official. The court explained that the complainant and the judge had very few personal contacts, the position did not entail the sort of personal relationship contemplated in the exemption, and the hearing officer job itself required the complainant to assert her independent judgment free from any direction from others. When she offered advice to the judge, it was of a formal, detached nature, from one judicial officer to another. Goodwin, 729 F.2d at 548.

Probably the earliest reported case construing the Federal exemption in relation to an assistant District Attorney is Wall v. Coleman (S.D. Ga. 1975), 393 F. Supp. 826, a case cited by plaintiff. There, the court relied heavily on dictionary definitions of the phrase “personal staff” in examining the duties of the assistant District Attorney under Georgia law and applying the exemption to this position without citation to precedent. The court concluded that the assistant District Attorney was a member of the District Attorney’s personal staff and was exempt from the protection of the Federal Act. The court noted that the circuit court in which the District Attorney served had a county population of 187,816 and had a superior court served by three judges. By law, the District Attorney could appoint a minimum of three assistant District Attorneys and could delegate to each of them all or so much of the general authority, duties and responsibilities of his office as he wished to delegate. The meager facts seem to suggest that the office was a relatively small one by present standards, and there is no indication that there was a hierarchy within the office.

In Ramirez v. San Mateo County District Attorney’s Office (9th Cir. 1981), 639 F.2d 509, a Mexican-American who was not hired as a deputy District Attorney for the county was found to have no claim under the personal staff exemption. The court relied on Wall and concluded that the position of the deputy District Attorney was that of a member of the “personal staff” of an elected official because deputy District Attorneys served at the pleasure of their superior, the District Attorney, who had plenary powers of appointment and removal; the deputies performed to the District Attorney’s personal satisfaction and because of the highly sensitive and confidential nature of the work which deputies performed in representing the District Attorney, there was a level of personal accountability to the elected official which exempted them from the protection of title VII. Again, detailed facts surrounding the actual working conditions in the office are meager, and it must be presumed that there was direct interaction between the deputy and his superior.

In Teneyuca v. Bexar County (5th Cir. 1985), 767 F.2d 148, the court was called upon to determine whether summary judgment for the defendants was proper where it was alleged that the assistant criminal District Attorney was not an “employee” entitled to the protection of title VII. Plaintiff claimed she had been denied a position as assistant county criminal District Attorney on the basis of her sex. The District Attorney, an elected official, presented some evidence in support of his motion for summary judgment that he had wide discretion in hiring and firing such employees, but the plaintiff failed to present any evidence in response to the motion as required under the Federal rules of civil procedure. The court pointed out that the highly factual nature of the inquiry necessary to a determination of the “personal staff” exemption did not lend itself well to a disposition by summary judgment, but the court ultimately concluded that plaintiff failed to demonstrate the presence of a material factual issue so as to defeat defendants’ motion for summary judgment.

The Teneyuca court set forth a nonexhaustive list of factors that could be used in determining whether a complainant falls within the “personal staff” exemption. These factors include: (1) whether the elected official has plenary powers of appointment and removal; (2) whether the person in the position at issue is personally accountable to only that elected official; (3) whether the person in the position at issue represents the elected official in the eyes of the public; (4) whether the elected official exercises a considerable amount of control over the position; (5) the level of the position within the organization’s chain of command; and (6) the actual intimacy of the working relationship between the elected official and the person filling the position. (Teneyuca, 767 F.2d at 151.) Unfortunately, the court did not engage in any substantial application of those factors to the very limited facts stated in the case. Thus, Teneyuca has little persuasive value on the limited facts presented, but it does provide insight into the factors that may be considered.

We find that Wall, Ramirez, and Teneyuca are limited by their facts, and, additionally, these cases seem to have construed the exemption more broadly than we believe it should be in the case of our own State statute, which uses the term “immediate personal staff.” These Federal cases do not seem to give much weight to the hierarchical structure of the office of the State’s Attorney now common today and noted, but not expressly applied, in Teneyuca. They seem to rely too much on the wide discretion of the official to hire and fire subordinates. This discretion of a top-ranking official is found in most at-will employment situations and, without more, is not determinative of whether the relationship between the official and the subordinate is close or intimate.

Our research of the legislative history of the Illinois statute sheds no light on the intent of the term that was used. The language “immediate personal staff” first appears in the 1963 version (Ill. Rev. Stat. 1963, ch. 48, par. 852(c)) of the amended Fair Employment Practices Act which was enacted in 1961 (Ill. Rev. Stat. 1961, ch. 48, par. 851 et seq.). Because of the lack of available history from that time period, we are uncertain of the provenance of the term; it seems to antedate the language used in the Federal provision. In any case, the use of the term “immediate personal staff” rather than “personal staff” appears to create an even narrower exemption than might be found in the Federal provision.

Additionally, exceptions or provisos in a statute, being designed to qualify or limit what is affirmed in the body of an act, should be strictly construed; it is a fundamental rule of statutory construction that each word, clause, and sentence in a statute must, if possible, be given some meaning. (Mid-South Chemical Corp. v. Carpentier (1958), 14 Ill. 2d 514, 519; see Thoman v. Village of Northbrook (1986), 148 Ill. App. 3d 356, 358.) The use of the word “immediate” is a restrictive qualifier, and the word implies a legislative intent to exempt only those employees who interact directly with the elected official without some intervening layer of supervisors. In its plain and ordinary sense, “immediate” means “acting or being without the intervention of another object, cause, or agency” or, when applied to persons, “having no individual intervening: being next in line or relation.” Webster’s Third New International Dictionary 1129 (1986).

Our research has also disclosed a more recent and more closely analogous case interpreting the Federal provision using the narrower construction we now adopt in construing our own statute. In Rabouin v. Colorado Department of Law (D. Colo. 1990), 754 F. Supp. 171, a former assistant Attorney General brought suit against the Colorado Department of Law and the Attorney General of Colorado and others. She alleged that she was passed over for a promotion, was denied opportunities for advancement, and was subject to a racially hostile environment. She was not subject to the civil service laws or personnel rules of the State of Colorado. In the context of a summary judgment proceeding, the court construed the Federal “personal staff” exemption of title YII narrowly, stating that it is intended to exempt those who are chosen by an elected official and who are in a close, personal, and immediate relationship with the elected official. It applies only to those individuals who are in highly intimate and sensitive positions of responsibility on the staff of the elected official. Rabouin, 754 F. Supp. at 174, citing Owens v. Rush (10th Cir. 1981), 654 F.2d 1370, 1375.

The Rabouin court considered that plaintiff was the most junior level of attorney in the office; she was several supervisory levels below the Attorney General and had no policy-making authority. Far from being a “first line advisor” to the Attorney General, plaintiff was but one of some 140 staff attorneys in the office, and she had minimal contact with the Attorney General. The court concluded that plaintiff made a sufficient showing of a factual dispute regarding the immediate and personal relationship required under the narrow exemption. 754 F. Supp. at 174.

In the case at bar, the parties agree that claimant was not a supervisor, and plaintiff concedes this in his brief. At the hearing on the initial motion to dismiss held on August 21, 1989, the State’s Attorney stated that claimant was fired because of the manner in which she negotiated a case contrary to the wishes of her supervisors. He stated that “assistant state’s attorneys [sic] do not set policy in the office.” At the hearing on the motion for summary judgment, the State’s Attorney agreed that claimant was not a supervisor and agreed to the statement made in her answer to the complaint which stated: “Defendant was never a supervisor, unit or division chief or a deputy chief in any of the Divisions of the State’s Attorney’s Office.” The statement also averred that claimant “did not participate in policy formation or the implementation of the broad goals of the office,” nor did she “make decisions about the operation of the office.”

The State’s Attorney argued that all assistant State’s Attorneys were members of the immediate personal staff whether they were supervisors or not and that they affected policy regardless of their position within the office. Plaintiff equates policy-making as implicit in the duties of an assistant State’s Attorney as an agent of his office in the ordinary handling of cases. The State’s Attorney agreed at the hearing that there was no question of fact, but that there was a question of law and that the motion could be decided by the court on the basis of the claimant’s statement quoted above.

Our narrow construction of the Illinois statute and the persuasiveness of Rabouin lead us to conclude that, on the agreed facts, claimant was not a supervisor and was therefore not a “first line advisor.” The pleadings, arguments, and undisputed facts in the record show that there were intervening supervisors between her and the State’s Attorney. She was not in a close, personal and immediate relationship with the State’s Attorney and did not operate at the highest level of policy-making staff in the office. As a matter of law, we hold that claimant was not exempt from the protection of the Act since she was not a member of the “immediate personal staff” of the State’s Attorney. She should therefore be allowed to pursue her claim before the Commission.

For the foregoing reasons, the judgment of the circuit court is reversed, and the cause is remanded for further proceedings before the Illinois Human Rights Commission.

Reversed and remanded.

BOWMAN, J., concurs.

JUSTICE DOYLE,

dissenting:

I respectfully dissent from the majority’s conclusion that the claimant was not a member of the “immediate personal staff” of the State’s Attorney. In doing so, I readily concede that the Act has a broad remedial purpose and that the exemption at issue should be given narrow application. Nevertheless, it is evident that the legislature recognized that individuals occupying certain positions should not be afforded relief under the Act. Just as we are careful to effectuate the broad remedial purpose of the Act, so must we be deliberate in giving meaningful application to those expressly crafted exceptions to that purpose.

Section 2 — 101(A)(2)(c) of the Act exempts members of the immediate personal staff of an elected public official. Unfortunately, there is no statutory definition of the phrase “immediate personal staff.” The majority emphasizes the difference between the language of the Act and a similar exemption in title VII wherein the term “personal staff” is used. The opinion characterizes the word “immediate” as a restrictive qualifier and concludes that the word implies a legislative intent to exempt only those employees who “interact directly with the elected official without some intervening layer of supervisors.” I cannot attribute such a narrow, mechanical meaning to the term “immediate.” The question of whether someone is a member of the immediate personal staff cannot and should not be determined by such a limited, although superficially tempting, litmus test. The mere intervention of a supervisor, or lack thereof, will not, in many cases, die-tate the true relationship between the claimant and the State’s Attorney, which relationship I believe to be critical in deciding whether to deny certain individuals the protection of the Act.

I am also troubled by the implication present in the majority opinion that the office of State’s Attorney is commonly structured in a hierarchical fashion. While that may be true in some more populated counties in our State, by and large, the majority of counties have much smaller and more intimate State’s Attorney’s offices which lack the structure of their larger counterparts. More importantly, there is a broad range of size and organization present in the various State’s Attorney’s offices statewide. In some there are many intermediate supervisors; in some there are a few; and in some there are none.

This brings me to my second concern with the approach espoused by the majority. It does not establish a rule that is applicable across the board. Those assistant State’s Attorneys who serve in a small office with no supervisor between them and the State’s Attorney will be excluded from the protection of the Act while assistant State’s Attorneys performing essentially the same functions in larger offices will be able to obtain relief under the Act. I cannot believe that was a result intended by the legislature in creating the exemption at issue here.

Furthermore, pursuant to the majority’s holding, we may now be generating a potential field of litigation for the purpose of determining whether someone is a supervisor or subject to supervision in a variety of different organizational settings throughout the various State’s Attorney’s offices. I believe the better approach is to resolve the question in terms of the general relationship of assistant State’s Attorneys to State’s Attorneys as defined by statute and the practical realities of the State’s Attorney’s office.

Section 4 — 2003 of the Counties Code provides that assistant State’s Attorneys are “to be named by the State’s attorney of the county, and when so appointed shall take oath of office in like manner as State’s attorneys, and shall be under the supervision of the State’s attorney.” (Ill. Rev. Stat. 1989, ch. 34, par. 4 — 2003.) The legislative purpose in creating the office of assistant State’s Attorney was to provide an official who should have full power to act in the case of the absence or sickness of the State’s Attorney, or in the case of his being otherwise engaged in the discharge of the duties of office, in the same manner and to the same extent that the State’s Attorney could act. (People v. Nahas (1973), 9 Ill. App. 3d 570, 576.) An assistant State’s Attorney is generally clothed with all the powers and privileges of the State’s Attorney, and all acts done by him or her in that capacity must be regarded as if done by the State’s Attorney. People v. Audi (1978), 61 Ill. App. 3d 483, 485; Nahas, 9 Ill. App. 3d at 575-76.

Our supreme court has held that an assistant State’s Attorney is not a mere agent to perform a particular act or duty but is an officer for the performance of the general duties of the office of State’s Attorney. (People ex rel. Landers v. Toledo, St. Louis & Western R.R. Co. (1915), 267 Ill. 142, 146.) The position of assistant State’s Attorney is an office and not a mere employment. (People ex rel. Landers, 267 Ill. at 145.) Assistant State’s Attorneys exercise some portion of the sovereign power of the State, and the duties of the position are continuous without regard to the particular person who holds the office. People ex rel. Landers, 267 Ill. at 145-46.

I believe this foregoing language properly characterizes the position of assistant State’s Attorney as an integral part of the State’s Attorney’s office and one that occupies a status comparable to the State’s Attorney in many respects. Assistant State’s Attorneys represent the State in criminal and civil matters, exercise discretion in various aspects of a criminal prosecution, maintain contact with the public and work directly with other branches of local government such as law enforcement, the court system and county officials.

It is apparent that the position of assistant State’s Attorney, whether in a rural or metropolitan county, is one uniquely tied to the office of State’s Attorney. The State’s Attorney depends upon the assistant State’s Attorneys to carry out under public scrutiny many functions that would otherwise be undertaken by himself or herself. In my view, it is this closely dependent partnership which transcends the usual concept of an employer-employee arrangement and sets the position of assistant State’s Attorney apart from other employees in the State’s Attorney’s office. In light of the nature of the position of assistant State’s Attorney and the unique relationship of that position to the State’s Attorney, I would conclude that an assistant State’s Attorney is a part of the State’s Attorney’s immediate personal staff and thus exempt from the provisions of the Act.

Finally, I disagree with the majority’s partial reliance on Federal court decisions construing a similar exemption under title VII. Because the two acts are not the same and, as the majority recognizes, are only “loosely analogous,” I would not primarily be guided by the Federal decisions construing title VII. This is so notwithstanding the fact that of those cases addressing the question all have held that an assistant State’s Attorney is part of the “personal staff” and thus exempt from title VII coverage. See Teneyuca v. Bexar County (5th Cir. 1985), 767 F.2d 148; Ramirez v. San Mateo County District Attor ney’s Office (9th Cir. 1981), 639 F.2d 509; Wall v. Coleman (S.D. Ga. 1975), 393 F. Supp. 826.

For the foregoing reasons, I would affirm the order of the circuit court granting summary judgment in favor of the State’s Attorney of Lake County.