text:
    (No. 50385.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ALAN F. STROMBLAD, Appellee.

      Opinion filed December 4, 1978.

      William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Lee T. Hettinger and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Zaven Peter Tokatlian, Ronald D. Alwin, Assistant Public Defenders, of counsel), for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Defendant, Alan Stromblad, was found guilty following a jury trial in the circuit court of Cook County of a violation of Illinois obscenity law (Ill. Rev. St at. 1973, ch. 38, par. 11—20(a)(1)). The complaint charged defendant with selling a magazine entitled “Fuck Studs,” with knowledge of its nature and content or with reckless failure to conduct a reasonable inspection thereof which would have revealed its nature and content. Judgment was entered on the verdict and defendant was placed on probation for one year. The appellate court, with one justice dissenting, reversed on the basis of an error in the jury instructions (55 Ill. App. 3d 511), and remanded the cause for a new trial. We allowed the State’s petition for leave to appeal under Rule 315 (65 Ill. 2d R. 315).

Officer George Carey, a Chicago policeman, was the State’s only witness. On November 12, 1974, the officer entered the West Town Adult Book Store at 3429 W. North Avenue in Chicago. Magazine racks were located throughout the store and a checkout counter was in the rear. He paid a $1 admission fee to the defendant, who was behind the counter and the only other person present. After looking at various magazines, he picked up the magazine entitled “Fuck Studs,” walked to the counter and put it down facing the defendant. Defendant looked at it and requested an extra $4, the $1 admission fee being deducted from the $4.95 price of the magazine. The defendant then placed the magazine in a paper bag. The officer removed the magazine from the paper bag, identified himself as a police officer and held the magazine in front of the defendant. The officer asked defendant if he would sell a magazine “like this” to a minor. Defendant said he would not; he was careful about people of a youthful age coming into the store. The officer put the magazine back into the bag, took it to the police station and later submitted it to an assistant State’s Attorney who presented the magazine to a judge. The officer stated that the judge examined this magazine from the first page to the last and then authorized issuance of an arrest warrant for the seller of this merchandise, on the grounds that there was probable cause to believe a violation of the obscenity laws had been committed.

The magazine was introduced and admitted as an exhibit without objection. Defendant’s motion for a directed verdict was denied.

Defendant testified that he was employed at the store as a clerk and that, after the owner opened the store each morning, he would remain in charge until closing time. He had worked in the store since August 1974 and had worked in another adult book store prior to that time. He kept records of all sales, made sure he had the proper money and once in a while took inventory. He would call the distributor, go “down there” and take one or two of the new publications, depending on how the stock was moving. He recounted the officer’s visit on November 12, 1974. He described the store’s contents, the selections of soft core, erotic magazines, comic books and “what-not.” He said that the hard-core publications were in front of the counter. There were approximately 300 magazines. After browsing around, the officer selected the particular book, and put it in front of defendant. After noting the price, defendant charged the officer $4 extra. Defendant admitted the conversation regarding sales to minors. The officer left saying he would have the book reviewed by a board. Defendant was arrested on a warrant a week later.

The magazine contained the admonition “Adults Only” and a price of $4.95, which was on the face side just above the colored photograph of a nude man and woman engaged in an act of coitus. The book as a whole was comprised of 48 pages, nearly all of which contained color or black-and-white photographs showing a nude man and woman actually engaging in a variety of sexual activities, including coitus, fellatio, and cunnilingus. In most photographs the focal point is the exposed genitals of the persons engaging in sexual activity. The book contains a text entitled “Sex Feast,” which culminates in a description of a sex orgy involving two males and two females.

Defendant raised five issues in the appellate court. One was whether the trial court erred by failing to include the phrase “utterly without redeeming social value” in the definition of obscenity given in the jury instructions, while including a more restrictive instruction. The appellate court held that the error in the obscenity instruction was dispositive of the case, and found it unnecessary to address the other issues raised by the defendant. It reversed the judgment of the circuit court and remanded the cause to that court.

It is clear under our decisions that the instruction defining obscenity was erroneous. (People v. Ridens (1974), 59 Ill. 2d 362, 373; People v. Gould (1975), 60 Ill. 2d 159, 164.) Therefore, the sole issue on this appeal is whether the error in the instructions requires reversal and remandment for a new trial.

In Memoirs v. Massachusetts (1966), 383 U.S. 413, 418, 16 L. Ed. 2d 1, 6, 86 S. Ct. 975, 977, a three-justice plurality of the United States Supreme Court defined obscene matter as follows: “(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.” In Miller v. California (1973), 413 U.S. 15, 24, 37 L. Ed. 2d 419, 431, 93 S. Ct. 2607, 2615, the court refused to adopt part (c) of the definition of the Memoirs plurality, and selected instead a new standard, “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” The Illinois obscenity statute (Ill. Rev. Stat. 1969, ch. 38, par. 11—20) was enacted after Memoirs but before Miller. This court in People v. Ridens (1974), 59 Ill. 2d 362, 373, held that this statute, as construed, adheres to part (c) of the Memoirs definition. The court subsequently confirmed that the Miller version of part (c) could not be used in Illinois. (People v. Gould (1975), 60 Ill. 2d 159, 164.) The instructions given at defendant’s trial improperly contained the more restrictive Miller version of part (c), but failed to include the Memoirs definition of “utterly without redeeming social value.”

We hold that the error in instructions entitles defendant to a new trial before a properly instructed jury. The United States Supreme Court was faced with a similar question in Marks v. United States (1977), 430 U.S. 188, 51 L. Ed. 2d 260, 97 S. Ct. 990. The defendant there was charged with the transportation of obscene material in interstate commerce. The conduct charged had occurred before the United States Supreme Court adopted the Miller standards, but the defendant was convicted by a jury which was instructed under Miller. The court held that the due process clause precluded application of the Miller standards to the extent they may impose criminal liability for conduct not punishable under Memoirs. The defendant was entitled to the Memoirs instructions directing the jury to acquit unless it finds the materials involved are “utterly without redeeming social value,” and the cause was remanded for a new trial. The court specifically rejected the approach adopted by the court of appeals, which had refused to reverse the conviction on the grounds that an examination of the record indicated that the material was obscene under either the Memoirs or Miller standards. The Supreme Court stated:

“But even if we accept the court’s conclusion, under these circumstances it is not an adequate substitute for the decision in the first instance of a properly instructed jury, as to this important element of the offense under 18 U.S.C. sec. 1465.” Marks v. United States (1977), 430 U.S. 188, 196 n.11, 51 L. Ed. 2d 260, 268 n.11, 97 S. Ct. 990, 995 n.11.

The error in the instructions here was in a definition essential for the jury to make a legally permissible determination of defendant’s guilt or innocence. It was not a mere technical defect. The jury was misinstructed on a fundamental issue and therefore lacked a tool necessary for the performance of its function of determining whether the prosecution had proved defendant guilty of the offense charged. (See People v. Jenkins (1977), 69 Ill. 2d 61, 66; Bollenbach v. United States (1946), 326 U.S. 607, 613, 90 L. Ed. 350, 355, 66 S. Ct. 402, 405.) Under these circumstances, the defendant is entitled to a new trial before a properly instructed jury.

In reaching this conclusion we have not evaluated the evidence. As the United States Supreme Court noted in Bollenbach v. United States (1946), 326 U.S. 607, 614, 90 L. Ed. 350, 355, 66 S. Ct. 402, 406:

“In view of the Government’s insistence that there is abundant evidence to indicate that Bollenbach was implicated in the criminal enterprise from the beginning, it may not be amiss to remind that the question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedure and standards appropriate for criminal trials

In recent cases this court has reversed convictions without evaluating the evidence to determine if the error is harmless where the jury has not been correctly instructed on an essential element of the State’s case. In People v. Trinkle (1977), 68 Ill. 2d 198, 203-04, and People v. Viser (1975), 62 Ill. 2d 568, 581-83, convictions for attempted murder were reversed for failure to properly instruct the jury on the necessary intent element. See also Screws v. United States (1945), 325 U.S. 91, 106-07, 89 L. Ed. 1495, 1505-06, 65 S. Ct. 1031, 1038 (reversing for failure to correctly instruct on an intent element); United States v. Pope (6th Cir. 1977), 561 F.2d 663, 670-71 (reversing for failure to adequately inform the jury that “intent to distribute” was an essential element of the offense); United States v. King (10th Cir. 1975), 521 F.2d 61, 63 (reversing for failure to instruct that one element of conspiracy is an overt act).

The State urges us to apply the rule set forth in People v. Truelock (1966), 35 Ill. 2d 189, 192, that “ ‘[e] ven though error may have been committed in giving or refusing instructions it will not always justify reversal when the evidence of defendant’s guilt is so clear and convincing that the jury could not reasonably have found him not guilty.’ (People v. Ward, 32 Ill. 2d 253, 256.)” (Emphasis added.) In the instant case the error was so fundamental that we refrain from evaluating the evidence and exercise the option recognized in Truelock of reversing the conviction.

Our duty to undertake an independent review of the facts in obscenity cases to determine whether the material involved is protected by the first amendment (Jacobellis v. Ohio (1964), 378 U.S. 184, 187-90, 12 L. Ed. 2d 793, 797-99, 84 S. Ct. 1676, 1677-79; People v. Ridens (1974), 59 Ill. 2d 362, 373; see also Cox v. Louisiana (1965), 379 U.S. 536, 545, 13 L. Ed. 2d 471, 478, 85 S. Ct. 453, 459) operates as a check on a jury’s discretion in determining what material is obscene (Jenkins v. Georgia (1974), 418 U.S. 153, 160-61, 41 L. Ed. 2d 642, 649-51, 94 S. Ct. 2750, 2754-55; Jacobellis v. Ohio (1964), 378 U.S. 184, 187-88, 12 L. Ed. 2d 793, 797-98, 84 S. Ct. 1676, 1677-78; Smith v. United States (1977), 431 U.S. 291, 301, 52 L. Ed. 2d 324, 335, 97 S. Ct. 1756, 1763-64) and serves to protect the exercise of first and fourteenth amendment values (Miller v. California (1973), 413 U.S. 15, 25, 37 L. Ed. 2d 419, 431, 93 S. Ct. 2607, 2615; Kois v. Wisconsin (1972), 408 U.S. 229, 232, 33 L. Ed. 2d 312, 316, 92 S. Ct. 2245, 2247). In light of the fact that the jury’s finding of obscenity here was not based upon proper instructions concerning the definition of obscenity to be applied, there is no proper finding of obscenity to review. Although the magazine here in question may well be found obscene under the more restrictive Miller standard, it is not within the authority of this court to sanction a deviation from the Memoirs definition espoused by the Illinois obscenity statute. Any change in the law is the legislature’s function.

For these reasons the judgment of the appellate court reversing the conviction and remanding for a new trial is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: MR. JUSTICE KLUCZYNSKI

license: Public Domain

text:
    (No. 50170.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. FRANK E. MAZZONE et al., Appellants.

      Opinion filed December 4, 1978.

      L. Robert Artoe, of Chicago, for appellants.
    William J. Scott, Attorney General, of Springfield, and Edward Petka, State’s Attorney, of Joliet (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Steven Teplinsky, Assistant State’s Attorney, of counsel), for the People.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Defendants, Frank E. Mazzone and Lockport Theatre Corporation, were found guilty of obscenity in violation of section 11—20 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 11—20) after a jury trial in the circuit court of Will County. The trial court entered judgment and assessed a $500 fine against Mazzone and $1,000 fine against the Lockport Theatre Corporation in November 1975. The appellate court, in a 2-to-l decision, affirmed in October 1977. (52 Ill. App. 3d 859.) We granted defendants’ petition for leave to appeal under Rule 315 (65 Ill. 2d R. 315) in January 1978. The case was argued orally before this court on June 26, 1978.

The State filed a motion to abate the appeal on July 26, 1978, due to the death of Mazzone and the involuntary dissolution of the Lockport Theatre Corporation. Documents filed in support of and in opposition to the motion indicate that the corporate defendant was dissolved in December 1976, prior to the decision in the appellate court but after the appeal was filed. Mazzone died in April 1978 after the petition for leave to appeal was allowed by this court but before the State filed its briefs and before oral argument. Robert Artoe, attorney for defendants, was aware of Mazzone’s death when it occurred in April 1978 but did not bring the matter to the attention of this court during oral argument on June 26, 1978. Artoe says he brought the matter to the attention of the State’s Attorney and Attorney General; however, the Attorney General states he was not aware of the death or dissolution until July 25, 1978. Artoe states he was unaware of the dissolution of the corporation. It appears also that Artoe proceeded with the appeal contrary to the instructions of the attorney for the executor of Mazzone’s estate to dismiss the appeal.

Because of the above facts, the threshold issue now before us is whether the death of Mazzone and the involuntary dissolution of the Lockport Theatre Corporation abate the appeal and, if so, whether all the proceedings abate ab initio. The State moved to abate the appeal but argues that the conviction and appellate court judgment should stand. Counsel for defendants contend that all proceedings abate. We shall first address the issues as they relate to Mazzone.

In O’Sullivan v. People (1892), 144 Ill. 604, this court refused to enter a judgment on a pending writ of error after the death of the defendant. At issue was a conviction for murder and a prison term imposed on the defendant. The rationale employed in reaching that result, however, applies equally to the fines imposed as punishment on the individual defendant here. This court stated that the purpose of criminal prosecutions is to punish the defendant. Once the defendant has ceased to be, an appeal cannot effectively confer vindication or. impose punishment. The court refrained from performing a useless act and refused to consider the appeal. The court noted also that a criminal action is unlike a civil action for damages, whose purpose is to determine a plaintiff’s right to recovery. The People in a criminal prosecution, in contradistinction to the plaintiff in a civil action, acquire no property rights which survive the defendant who is the object of the criminal sanction.

O’Sullivan did not address the question whether the appeal alone abates or whether all the proceedings abate ab initio. However, the great majority of courts which have considered the question have concluded that the death of a defendant pending an appeal of a fine abates not only the appeal but all the proceedings ab initio. (State v. Stotter (1946), 67 Idaho 210, 175 P.2d 402; State v. Bradley (1940), 229 Iowa 92, 293 N.W. 858; State v. Blake (1977), 53 Ohio App. 2d 101, 371 N.E.2d 843; State v. Clark (1977),---S.D.---, 260 N.W.2d 370; Crooker v. United States (8th Cir. 1963), 325 F.2d 318; United States v. Knetzer (S.D. Ill. 1954), 117 F. Supp. 917 (citing O’Sullivan v. People (1892), 144 Ill. 604); see also Annot., 83 A.L.R.2d 864 (1962), citing older cases.) The rationale is that the fine was imposed by way of punishment of the defendant and upon his death there is no justice in punishing his survivors for his offense. State v. Stotter (1946), 67 Idaho 210, 213-14, 175 P.2d 402, 403-04; State v. Blake (1977), 53 Ohio App. 2d 101, 371 N.E.2d 843, 845; Crooker v. United States (8th Cir. 1963), 325 F.2d 318, 321; United States v. Knetzer (S.D. Ill. 1954), 117 F. Supp. 917, 918; see Comment, Corporate Dissolution and the Anti-Trust Laws, 21 U. Chi. L. Rev. 480, 485 (1954).

The United States Supreme Court recently has injected some confusion into this area of law. In Durham v. United States (1971), 401 U.S. 481, 28 L. Ed. 2d 200, 91 S. Ct. 858, the defendant died after he had filed his petition for writ of certiorari but before the Supreme Court had acted on the petition. The court granted the petition, vacated the judgment below and remanded the cause to the district court with directions to dismiss the indictment. Three dissenters would only have dismissed the petition as moot. Mr. Justice Blackmun, also dissenting, stated without further explanation that the situation of a defendant dying pending a petition for writ of certiorari is different from his death pending an appeal as a matter of right and stated he would merely have dismissed the petition for certiorari.

In Dove v. United States (1976), 423 U.S. 325, 46 L. Ed. 2d 531, 96 S. Ct. 579, the Supreme Court rendered a one-paragraph per curiam decision dismissing a petition for writ of certiorari. The defendant died before the Supreme Court had taken any action on the petition. The court overruled Durham to the extent it is inconsistent with Dove. Mr. Justice White dissented without opinion.

In contrast to both Durham and Dove, this court had already exercised its discretion and allowed the petition for leave to appeal before Mazzone died. Mazzone was given a right to present his appeal to this court; thus the matter is closely analogous to initial appeals as of right, and the reasons justifying abatement ab initio there apply equally here. For these reasons we conclude that all the proceedings against Mazzone abate ab initio.

We turn now to consider the effect of the involuntary dissolution of the Lockport Theatre Corporation. None of the cases cited involved a corporate defendant; however, the dissolution of a corporation is analogous to the death of an individual. (See Markus v. Chicago Title & Trust Co. (1940), 373 Ill. 557, 561.) Upon the dissolution of the corporation, it is no longer able to maintain an action, absent a statutory exception, and all matters pending at the time of the dissolution abate (see Chicago Title & Trust Co. v. Forty-One Thirty-Six Wilcox Bldg. Corp. (1937), 302 U.S. 120, 125, 82 L. Ed. 147, 150-51, 58 S. Ct. 125, 127). Section 94 of the Business Corporation Act (Ill. Rev. Stat. 1977, ch. 32, par. 157.94) provides no basis for survival of a criminal prosecution after the dissolution of a corporation, since it speaks in terms of the survival of remedies, claims, and liabilities, which are words of art in civil litigation, whose language and functions are distinct from criminal prosecutions. Thus the dissolution of the corporation requires the abatement of the pending appeal.

The dissolution of a corporation suggests problems and raises questions not presented by the death of an individual defendant from natural causes. A holding that the dissolution of a corporation pending appeal abates the proceedings ab initio leaves room for a corporation to escape the consequences of a criminal fine through voluntary dissolution. (See Comment, Corporate Dissolution and the Anti-Trust Laws, 21 U. Chi. L. Rev. 480 (1954); 32 Chi. Kent L. Rev. 321, 325 (1954).) Dissolution is a viable alternative to the payment of fines, since as pointed out by one commentator:

“Dissolution of a corporation does not ipso facto affect the assets, the controlling group, or the controlling group’s control of the assets. Since the control may be exercised through other legal media, corporate dissolution may have little or no significance.” Comment, Corporate Dissolution and the Anti-Trust Laws, 21 U. Chi. L. Rev. 480, 486 (1954).

In the instant case, Lockport Theatre Corporation was involuntarily dissolved under section 82a of the Business Corporation Act (Ill. Rev. Stat. 1975, ch. 32, par. 157.82a), which requires the Secretary of State to dissolve corporations that fail to file annual reports or pay franchise taxes. Such involuntary dissolution provides a vehicle for abuse similar to voluntary dissolution.

Because of the problems unique to corporations, we hold that the dissolution of the corporation abates the appeal but not all the proceedings ab initio. In the instant case both the appeal pending before us and the judgment of the appellate court below are abated since the corporation was dissolved after perfecting its appeal as of right but before the appellate court had rendered a decision on the merits. The judgment of the trial court against Lockport Theatre Corporation stands. The different nature of corporations as opposed to individuals justifies our different conclusions. Cf. Lehnhausen v. Lake Shore Auto Parts Co. (1973), 410 U.S. 356, 35 L. Ed. 2d 351, 93 S. Ct. 1001, upholding article IX-A of the 1870 Illinois Constitution, prohibiting the taxation of personal property by valuation as to individuals, against an attack by a corporation on equal protection grounds, and Muniz v. Hoffman (1975), 422 U.S. 454, 477, 45 L. Ed. 2d 319, 335, 95 S. Ct. 2178, 2191, noting in the context of deciding the right to a jury trial in criminal contempt proceedings that what might be considered a serious penalty for an individual may not be considered serious to a large corporation or labor union.

For the reasons stated above, the proceedings abate ab initio as to defendant Mazzone, and the appeals alone abate as to Lockport Theatre Corporation. The judgment of the appellate court is accordingly vacated, and the judgment of the circuit court of Will County is affirmed as to Lockport Theatre Corporation and vacated as to Mazzone.

Appellate court vacated; circuit court affirmed in part and vacated in part.


author: MR. JUSTICE CLARK

text:
    (No. 50344.
    CHRISTIAN ACTION MINISTRY, Appellee, v. DEPARTMENT OF LOCAL GOVERNMENT AFFAIRS, Appellant.

      Opinion filed December 4, 1978.

      ■William J. Scott, Attorney General, of Springfield (Paul J. Bargiel, Patricia Rosen, and Paul V. Esposito, Assistant Attorneys General, of Chicago, of counsel), for appellant.
    Gottlieb and Schwartz, of Chicago (Ellis Shaffer and David Sugar, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

Christian Action -Ministry (hereafter Ministry), the plaintiff, filed in the circuit court of Cook County a complaint for administrative review of a decision by the defendant, the Department of Local Government Affairs (hereafter Department), denying tax-exempt status to certain real estate held and used by the Ministry. The circuit court, finding that the property was used for charitable purposes (Ill. Rev. Stat. 1975, ch. 120, par. 500.7) and that the Ministry was the equitable owner, held the property was tax exempt. The appellate court affirmed (56 Ill. App. 3d 102), and we granted leave to appeal (58 Ill. 2d R. 315).

The facts are not disputed. The Ministry, an Elinois not-for-profit corporation organized by several churches and performing charitable works, entered into a contract for warranty deed for the purchase of property located on Chicago’s west side on January 31, 1973. The Ministry paid $30,000 down and makes monthly payments of $2,500, occupies and uses the property exclusively for charitable purposes, and has Federal tax-exempt status. The contract provides that no title, legal or equitable, will pass to the Ministry until the deed is delivered or until the full purchase price is paid, and that the Ministry is responsible for real estate taxes. In December 1975, the Cook County board of appeals determined that the Ministry’s property was exempt (under Ill. Rev. Stat. 1975, ch. 120, par. 500.7) from taxation. The Department, as provided by section 119 of the Revenue Act of 1939 (Ill. Rev. Stat. 1975, ch. 120, par. 600), disapproved the board’s action in February 1976 and reaffirmed that disapproval two months later because the Ministry was not the title owner. Shortly after, the Ministry filed its complaint. The Department moved to strike the complaint and dismiss the cause on grounds that the Department’s denial of tax-exempt status was not subject to review under the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 110, pars. 264 et seq.). The Ministry responded that section 138 of the Revenue Act of 1939 (Ill. Rev. Stat. 1975, ch. 120, par. 619) authorizes jurisdiction to review the Department’s disapproval. The circuit court agreed with the Ministry, denied the motion, and overturned the disapproval.

Two issues are raised. First, whether the circuit court properly exercised jurisdiction under the Administrative Review Act. Second, whether the Ministry owned the property, which, it is undisputed, is used for charitable purposes, thus entitling it to tax-exempt status under section 19.7 of the Revenue Act of 1939 (Ill. Rev. Stat. 1975, ch. 120, par. 500.7).

The Department contends that the circuit court lacked jurisdiction under the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 110, par. 264 et seq.) to review the Department’s denial of tax exemption because section 138 of the Revenue Act of 1939 (Ill. Rev. Stat. 1975, ch. 120, par. 619) provides for judicial review pursuant to the Administrative Review Act only in cases involving “original assessments”; and that since this case did not involve an assessment, direct review by the circuit court was improper. The Ministry, on the other hand, contends that section 138 of the Revenue Act allows for direct review by the circuit court, pursuant to the Administrative Review Act, because section 138 does not distinguish exemption from assessment and does not specify “original assessment.” Rather, that section refers to “all final administrative decisions of the Department” as subject to review.

Section 9 of article VI of the 1970 Illinois Constitution provides: “Circuit Courts shall have such power to review administrative action as provided by law.” Section 138 of the Revenue Act provides:

“The circuit court for the county in which the property assessed, or some part of such property, is situated shall have the power to review all final administrative decisions of the Department in administering the provisions of this Act. The provisions of the ‘Administrative Review Act,’ approved May 8, 1945, and all amendments and modifications thereof, and the rules adopted pursuant thereto, shall apply to and govern all proceedings for the judicial review of final administrative decisions of the Department hereunder. The term ‘administrative decision’ is defined as in Section 1 of the ‘Administrative Review Act.’ ” Ill. Rev. Stat. 1975, ch. 120, par. 619.

The first sentence of section 138 lacks ambiguity. “The circuit court for the county in which the property assessed, or some part of such property, is situated shall have the power to review all final administrative decisions of the Department in administering the provisions of this Act.” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 120, par. 619.) Although section 138 is placed between two sections dealing with “original assessments,” the language of section 138 is clear. The Act referred to is unquestionably the Revenue Act of 1939 (Ill. Rev. Stat. 1975, ch. 120, par. 482 et seq.), and the Department is the defendant here (Ill. Rev. Stat. 1975, ch. 120, par. 482). The phrase “all final administrative decisions” is neither limited nor qualified. Indeed, section 138 expressly adopts as the definition for “administrative decision” the definition set out in section 1 of the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 110, par. 264):

“ ‘Administrative decision’ or ‘decision’ means any decision, order or determination of any administrative agency rendered in a particular case, which affects the legal rights, duties or privileges of parties and which terminates the proceedings before the administrative agency.”

There is no question that a legal duty or privilege of the Ministry was affected here: it was denied a charitable tax exemption and was, as a result, responsible for real estate taxes. Moreover, the Department’s disapproval terminated all proceedings before it.

We have repeatedly stated, very recently in People v. Moore (1978), 69 Ill. 2d 520, 523, that the “language of a statute must be given its plain and ordinary meaning. ‘*** the intention of the legislature should be ascertained and given effect. [Citations.] This is to be done primarily from a consideration of the legislative language itself, which affords the best means of its exposition, and if the legislative intent can be ascertained therefrom it must prevail and will be given effect without resorting to other aids for construction. [Citations.] There is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of the statute imports.’ ” (Franzese v. Trinko (1977), 66 Ill. 2d 136, 139-40. Accord, Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 350.) The Department objects to the broad interpretation the appellate court gave to the phrase “all final administrative decisions of the Department in administering this Act” (56 Ill. App. 3d 102, 104), and it cites two decisions of this court in support of its objection: American College of Surgeons v. Korzen (1967), 36 Ill. 2d 340, and People ex rel. Hillison v. Chicago, Burlington & Quincy R.R. Co. (1961), 22 Ill. 2d 88. Those cases lend support to the Department’s position; and the appellate court’s attempt to distinguish them is ineffectual. Given the intent of the legislature and our analysis above, however, we disagree with the Department. Although we do not change the rule in Hillison, we find it necessary to modify it (22 Ill. 2d 88, 92-93), and overrule Korzen (36 Ill. 2d 340, 342-43), and their progeny, to the extent that language in those cases limited judicial review under the Administrative Review Act to original assessments. As analyzed above, the legislature did not intend limiting section 138 of the Revenue Act of 1939 to original assessments.

In Hillison (22 Ill. 2d 88, 90-91) the county collector appealed an order sustaining the taxpayer-railroad’s objection to property taxes. The railroad objected because its property had been assessed by the Department of Revenue at 100% of full cash value while local property, “after giving effect to the multiplier certified by the Department of Revenue, was assessed at no more than 55% of full value, ” and this constituted constructive fraud. The collector argued that the tax-objection procedure — i.e., a taxpayer’s defense or objection to a tax in an application for judgment filed by a collector in circuit court — is not available to a taxpayer; only judicial review under the Administrative Review Act is (Ill. Rev. Stat. 1957, ch. 120, par. 619, ch. 110, par. 264 et seq.). This court found the tax-objection procedure proper. Before Hillison and since, this court has affirmed the holding that tax objection is “an appropriate means of review” of the “equalization” process where fraud is alleged. (People ex rel. Boylan v. Illinois Central Gulf R.R. Co. (1978), 72 Ill. 2d 387; e.g., People ex rel. Callahan v. Gulf, Mobile & Ohio R.R. Co. (1956), 8 Ill. 2d 66, 69; People ex rel. Kohorst v. Gulf, Mobile & Ohio R.R. Co. (1961), 22 Ill. 2d 104, 108-09; People ex rel. Cain v. Illinois Central R.R. Co. (1965), 33 Ill. 2d 232.) The most recent case is Boylan, above, which reaffirmed the prior cases: “[T]he Department’s equalization function is properly challenged in tax-objection proceedings where constructive fraud is alleged.” 72 Ill. 2d 387, 391.

We are not inclined to change that rule now for several reasons. Before the clear language of section 138 of the Revenue Act of 1939 went into effect (1947) and the Administrative Review Act was promulgated (1945), the tax-objection procedure was an available means of reviewing an allegedly fraudulent exercise of the equalization function. (E.g., People ex rel. Tedrick v. Allied Oil Corp. (1944), 388 Ill. 219.) Moreover, the equalization function involves only “a mathematical operation which does not involve discretionary judgment factors,” and is not “susceptible to meaningful judicial review as envisioned in the Administrative Review Act” (People ex rel. Boylan v. Illinois Central Gulf R.R. Co. (1978), 72 Ill. 2d 387, 391), as would be final administrative decisions regarding original assessments or exemptions. Also, precedent has “established the inapplicability of the Administrative Review Act to the Department’s equalization function.” (72 Ill. 2d 387, 391.) This precedent has been repeatedly approved by this court and acquiesced in by. the legislature since the latter has never seen fit to “set us right.” (72 Ill. 2d 387, 392.) We note, too, that this procedure is, in effect, a defense of fraud to the filing of an application for judgment rather than an outright attempt to initiate judicial review such as envisioned by the Administrative Review Act or as encompassed in an equity suit.

In Korzen, the taxpayer, a not-for-profit organization, sued to enjoin the coHection of taxes on property which the Cook County assessor and board of appeals had approved as charitably exempt but the Department of Revenue had not. This court, on the basis of Hillison, determined that the taxpayer’s equity suit was proper and that the Administrative Review Act, which the coUector argued was the taxpayer’s only recourse under section 138 of the Revenue Act of 1939, was appropriate only for decisions relating to original assessments of property. Korzen must be overruled because the legislature intended the Administrative Review Act to encompass aH final decisions of the Department of Local Government Affairs (Ill. Rev. Stat. 1975, ch. 120, par. 619), including, we believe, exemptions. Questions about the propriety of an exemption or denial of exemption clearly lend themselves to meaningful judicial review. (See our analysis of the second issue below.)

Moreover, the reasoning of Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, which eliminated the Owens doctrine, suggests that judicial scrutiny by way of equity is improper where administrative review is available. Owens-Illinois Glass Co. v. McKibbin (1943), 385 Ill. 245, 259, which antedates the Administrative Review Act, permitted equitable relief even after and where the Act was applicable. Owens determined:

“From the foregoing resume the enjoining of the collection of illegal taxes constitutes an exception to the general rule that equity will not take jurisdiction of a cause when there is an adequate remedy at law. It is established that where a tax is unauthorized by law, or where it is levied upon property exempt from taxation, equity wül take jurisdiction and enjoin the collection of the tax. This constitutes an independent ground of equitable relief, and in such cases it is not necessary that special circumstances exist to authorize issuing an injunction.” (Emphasis added.) (385 Ill. 245, 256.)

This court in Illinois Bell, where the taxpayer in an equity suit claimed an exemption under the Messages Tax Act (Ill. Rev. Stat. 1971, ch. 120, par. 467.1 et seq.), reasoned that permitting “unlimited freedom to seek judicial review of the merits” where the legislature has established an express procedure for judicial review “would severely undermine the legislative purpose manifest in its enactment.” (60 Ill. 2d 350, 357; see Calderwood Corp. v. Mahin (1974), 57 Ill. 2d 216.) This court concluded that the anomaly of allowing the taxpayer to seek judicial relief in equity “even though his administrative remedy might accomplish the same result *** ought not, in our judgment, to persist.” (60 Ill. 2d 350, 359.) We find that reasoning persuasive here and conclude the Department incorrectly urges us to apply Korzen. We hold the circuit court had jurisdiction to exercise administrative review. See J. Hilbert, Illinois Property Tax Exemptions: A Call for Reform, 25 DePaul L. Rev. 585, 611 (1976).

We now reach the second issue: whether the Ministry owned the property, which is indisputably used for charitable purposes, and is therefore entitled to tax-exempt status. “All property described in Sections 19.1 through 19.24 to the extent therein limited, is exempt from taxation.’’(Ill. Rev. Stat. 1975, ch. 120, par. 500.) Section 19.7 provides:

“All property of institutions of public charity, all property of beneficent and charitable organizations, whether incorporated in this or any other state of the United States, and all property of old people’s homes, when such property is actually and exclusively used for such charitable or beneficent purposes, and not leased or otherwise used with a view to profit ***.” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 120, par. 500.7.)

(Accord, Hoffman v. Lehnhausen (1971), 48 Ill. 2d 323, 326, and Coyne Electrical School v. Paschen (1957), 12 Ill. 2d 387, 397: charitable use and ownership by a charitable organization are the requirements for a charitable tax exemption on property.) The appellate court held that the Ministry has “a sufficient interest in the property to warrant granting it a tax exemption. We do not believe the contract provision relating to the retention of legal and equitable title by the sellers is determinative of [the Ministry’s] ability to qualify for a tax exemption. Regardless of the status of title, [the Ministry] has a substantial monetary interest in the property and is liable for the payment of real estate taxes. We cannot perceive any difference in kind between the conventional purchase money mortgage arrangement, which the Department concedes would qualify [the Ministry] for tax-exempt status, and the contract for warranty deed used here, which would justify disparate treatment for tax purposes.” (56 Ill. App. 3d 102, 105.) We agree; and we disagree with the Department’s contention that only legal title will satisfy section 19.7’s requirement of ownership. The United States Supreme Court has stated that where “beneficial interest has passed to a vendee, the retention of legal title does not give a significant difference from the situation of a deed with a lien retained or a mortgage back to secure the purchase money.” S.R.A., Inc. v. Minnesota (1946), 327 U.S. 558, 569, 90 L. Ed. 851, 860, 66 S. Ct. 749, 756, where legal title was retained by the Federal government but the buyer was purchasing property under a contract for deed; Minnesota successfully argued that the contract buyer was the actual owner and therefore the property was subject to a property tax the Federal government was otherwise exempt from; cf. People ex rel. Williamson v. City of Toulon (1921), 300 Ill. 408, 413-14.

Had the Ministry arranged a mortgage loan for the property, it would have qualified for the tax-exempt status. To penalize a charitable institution for failing to acquire customary forms of financing and, hence, for making the alternative arrangement of a contract for sale of property in order to carry on its good works, runs counter to the stated objective and policy consideration of encouraging charitable activity. Although statutes granting tax exemptions on property must be strictly construed in favor of taxation (e.g., Small v. Pangle (1975), 60 Ill. 2d 510, 514, and People ex rel. County Collector v. Hopedale Medical Foundation (1970), 46 Ill. 2d 450, 462), we believe that equitable ownership of property, used exclusively for charitable purposes, by a charitable organization is readily accommodated by section 19.7 of the Revenue Act of 1939 (Ill. Rev. Stat. 1975, ch. 120, par. 500.7). To deny the Ministry’s property this status runs counter to the policy of fostering charitable activity. The facts plainly demonstrate substantial interest in the property justifying a determination of tax-exempt status on the basis of equitable ownership: $30,000 initially paid down on the property; monthly payments since March 1, 1973; contractual responsibility for real estate taxes. Although the Department relies on People ex rel. McCullough v. Logan Square Presbyterian Church (1911), 249 Ill. 9, 11 (where this court construed language, “ ‘*** when the said buildings and the land on which said buildings are located *** are owned by the congregation ***,’ ” to mean legal title, and thus denied a religious exemption), we prefer to rely on People ex rel. Williamson v. City of Toulon (1921), 300 Ill. 408, 413-14. In Williamson, this court expressed a willingness to accept the proposition that equitable title to property used as a public park warranted a tax exemption but the city failed to show it held equitable title. (See People ex rel. Wagner v. Freeport Masonic Temple, Inc. (1931), 347 Ill. 180, 181-82, 187, overruled on other grounds in People ex rel. Thompson v. Dixon Masonic Building Association (1932), 348 Ill. 593, 596.) We also call attention to two cases of other jurisdictions which have found that charitiable tax-exempt status on property, used for charitable purposes only and purchased by contract for sale, was permitted “even under the rule of strict construction of tax exemptions” statutes: Village of Hibbing v. Commissioner of Taxation (1944), 217 Minn. 528, 534, 14 N.W.2d 923, 926; Ritchie v. City of Green Bay (1934), 215 Wis. 433, 437, 254 N.W. 113, 114-15. We are not expanding the area of qualification for tax exemptions. Where the legislature requires legal ownership, that obviously must be respected. Where it does not, actual ownership, legal or equitable, is proper. The facts in this case evidence ownership such as contemplated by the legislature.

For the reasons stated, the judgments of the circuit and appellate courts are affirmed.

Judgments affirmed.


author: MR. JUSTICE MORAN MR. JUSTICE RYAN,

text:
    (No. 50638.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. EVERETT GODSEY, Appellant.

      Opinion filed December 4, 1978.

      RYAN and UNDERWOOD, JJ„ dissenting.

      James N. De Wulf, of Moline, for appellant.
    William J. Scott, Attorney General, of Springfield, and Edward Keefe, State’s Attorney, of Rock Island (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and James E. Hinterlong, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
   MR. JUSTICE MORAN

delivered the opinion of the court:

After a jury trial in the circuit court of Rock Island County, defendant, Everett Godsey, was found guilty of five arson-related offenses, each of which involved the residence of defendant’s brother-in-law, Thomas Grom. The jury entered separate guilty verdicts on the following charges: (1) February 1, 1976, arson; (2) February 9, 1976, burglary with intent to commit arson; (3) February 10, 1976, solicitation to commit arson; (4) February 13, 1976, arson; and (5) March 4, 1976, solicitation to commit arson. Defendant was sentenced to concurrent terms of 1 to 10 years’ imprisonment for the February 1 arson, the February 9 burglary, the February 13 arson, and the March 4 solicitation. (No judgment of conviction was entered on the February 10 solicitation charge because the trial court deemed the solicitation merged in the completed offenses of burglary (February 9) and arson (February 13). The correctness of this conclusion is not before us.) Defendant appealed from the judgments entered on the verdicts, and the appellate court, in a 2-1 decision, affirmed (57 Ill. App. 3d 364). We granted the defendant leave to appeal.

We hold that, under the circumstances of this case, the State’s references to defendant’s wife’s refusal to testify before the grand jury were prejudicial to the defendant and constituted reversible error. Consequently, we do not consider the merits of other issues raised by defendant.

In Grunewald v. United States (1957), 353 U.S. 391, 1 L. Ed. 2d 931, 77 S. Ct. 963, the prosecution cross-examined a criminal defendant by asking the same questions which defendant had refused to answer upon the advice of counsel when he had appeared before the grand jury. The jury was instructed that the fifth amendment plea could be used only to reflect upon defendant’s credibility, not to imply his guilt. The court held that a defendant’s refusal to testify when compelled to appear before a grand jury was not sufficiently inconsistent with later exculpatory testimony to permit its use for impeachment purposes. In reversing the conviction and remanding for a new trial, the court emphasized the prejudice to the defendant which resulted from the likelihood that the jury impermissibly inferred from the defendant’s invocation of the fifth amendment privilege that he was either guilty of a crime or committing perjury. Grunewald v. United States (1957), 353 U.S. 391, 421, 1 L. Ed. 2d 931, 952, 77 S. Ct. 963, 982.

In United States v. Hale (1975), 422 U.S. 171, 45 L. Ed. 2d 99, 95 S. Ct. 2133, the court reached the same conclusion with regard to the impeachment of a defendant who had chosen to remain silent at the time of his arrest. There, it was held that the assertion, upon arrest, of the right to remain silent is not sufficiently inconsistent with later exculpatory trial testimony to permit using it for impeachment purposes. The court reasoned that a person’s “failure to offer an explanation during the custodial interrogation can as easily be taken to indicate reliance on the right to remain silent as to support an inference that the explanatory testimony [during trial] was a later fabrication.” (United States v. Hale (1975), 422 U.S. 171, 177, 45 L. Ed. 2d 99, 105, 95 S. Ct. 2133, 2137.) Again, the court, in ordering a new trial, stressed the intolerably prejudicial impact on the jury, which would be likely to infer guilt from the previous silence.

The danger of prejudice to a criminal defendant also exists when the person impeached by prior silence is a defense witness. The situation first arose in United States v. Tomaiolo (2d Cir. 1957), 249 F.2d 683. There, defendant was indicted for various crimes arising out of a bank robbery. Subsequent to the indictment, defendant’s brother was called before the grand jury, where he invoked the fifth amendment and refused to testify. At defendant’s trial, the brother was called as a defense witness. On cross-examination, the prosecution brought out the brother’s refusal to testify before the grand jury and contended that the brother’s prior assertion of the privilege against self-incrimination impeached his credibility because it was inconsistent with his exculpatory trial testimony. The court held that where a grand jury witness reasonably believes that he may be implicated in crime, his reliance on the constitutional privilege against self-incrimination is in no way inconsistent with later nonincriminatory testimony. The court, in determining that there was no basis for the impeachment, observed that reference to the grand jury testimony “would almost certainly lead the jury to think that [the brother] claimed the privilege before the grand jury because he was somehow connected with the robbery, for that is the almost inevitable result of the claim of the Fifth Amendment.” (United States v. Tomaiolo (2d Cir. 1957), 249 F.2d 683, 692.) The court concluded that, because of the importance of the witness to the defense and because the witness was defendant’s brother, the improper impeachment seriously prejudiced the defendant.

United States v. Rubin (5th Cir. 1977), 559 F.2d 975, furnishes the most thorough inquiry into the propriety of impeaching a defense witness by referring to his prior refusal to testify before the grand jury. In Rubin, the defendant was indicted on multiple counts related to the embezzlement of union funds. Two union organizers testified for the defense only to corroborate evidence which showed that defendant was responsible for disbursing funds for general organizing purposes. On cross-examination, the prosecution elicited from the two defense witnesses answers intended to show that their earlier refusal to testify before the grand jury was inconsistent with their corroboration of defendant’s exculpatory position. The court first determined that the grand jury silence failed to convey the threshold inconsistency with the witnesses’ exculpatory trial testimony that was necessary to permit the use of the silence to impeach their testimony. The court reasoned that if a grand jury witness justifiably believes that his testimony might supply evidence which could be used against him, his silence is “insolubly ambiguous.” It may be nothing more than the witness’ proper reliance on his constitutional privilege against self-incrimination, a privilege understandably invoked in grand jury inquiries by the innocent as well as by the guilty. As a result, no basis exists for the use of the grand jury silence for impeachment purposes. (Accord, United States v. Williams (8th Cir. 1972), 464 F.2d 927, 930-31; United States v. Glasser (2d Cir. 1971), 443 F.2d 994, 1005; State v. Boscia (1967), 93 N.J. Super. 586, 600-01, 226 A.2d 643, 650 (involving reference to a witness’ refusal to waive the privilege before the grand jury).) This holding, of course, does not apply if a defense witness has conveyed the impression during direct examination that he willingly cooperated with the prosecution in all aspects of its investigation or that he gave the same testimony before the grand jury which he gave at trial. See Doyle v. Ohio (1976), 426 U.S. 610, 619 n.11, 49 L. Ed. 2d 91, 98 n.11, 96 S. Ct. 2240, 2245 n.11; United States v. Sing Kee (2d Cir. 1957), 250 F.2d 236, 240; United States v. Fairchild (5th Cir. 1975), 505 F.2d 1378, 1383.

The Rubin court then discussed the risks of prejudice to the defendant which inevitably result from improperly using grand jury silence for impeachment purposes.

“First, where the jury learns that the witness’s silence was an exercise of the privilege against self-incrimination, there is a danger the jury will improperly infer guilt on the part of the witness and, depending on the circumstances, transfer that inference to the defendant. [Citations.] Second, without an understanding of the uncertainties a witness faces in testifying before a grand jury, a juror may well attribute undue significance to the fact a witness offered no response to the prosecutor’s questions before that tribunal and may thereupon disbelieve the witness’s trial testimony.” (United States v. Rubin (5th Cir. 1977), 559 F.2d 975, 983.)

Despite its conclusion that the impeachment was improper, the court refrained from reversing the conviction because the testimony of the two witnesses was largely cumulative and only tangential to the theory of defense and because no possibility existed, under the circumstances, that any inference of the witnesses’ guilt would be transferred to the defendant.

In the case at bar, it was the defendant’s wife whose prior silence before the grand jury was the object of impeachment. Defendant’s wife had been called by the defense primarily to rebut the uncorroborated testimony of defendant’s ex-girlfriend, who had been a principal State’s witness, and to establish an alibi for one of the offenses. On cross-examination, the prosecution sought to impeach her testimony by the following repeated references to her grand jury silence:

“Q. I would like to call your attention to the 7th day of July 1976 in the morning on the fourth floor of the Rock Island County Courthouse before the Rock Island County Grand Jury. Do you remember being called as a witness?
A. Yes, I do.
Q. Do you remember being sworn as a witness?
A. Yes, I do.
Q. By the foreman of the Grand Jury?
A. Yes.
Q. And do you remember whether or not I was questioning you?
A. Yes, you was.
Q. And there was a court reporter there too?
A. Yes.
Q. Isn’t it a fact that I asked you the question, ‘Do you know a person named Thomas Crom.’ And that you answered, T refuse to answer on the grounds it might-incriminate me. ’
A. Yes, I remember.
Q. Did you say this?
A. Yes.
Q. And is it a fact that I asked, ‘Is Thomas Crom your brother-in-law?’ And you answered, ‘I refuse to answer.’
A. Yes.
Q.- Isn’t it a fact that I asked you, ‘Have you ever discussed with your husband the fires which occurred on the residence of Thomas Crom located at 102 15th Avenue, Silvis Heights, Illinois?’ And you said, ‘I refuse to answer for the same reason.’
A. Yes.
Q. Isn’t it a fact that I asked you, ‘Have you ever discussed with Ova Godsey the fires which occurred at that residence.’ And you answered, ‘I refuse to answer.’
A. Yes.
Q. Isn’t it a fact that I asked you, ‘Does your husband own a shotgun.’ And you answered, T refuse to answer.’
A. Yes.
Q. Isn’t it a fact I asked you, ‘Has your husband ever gone hunting?’ And you answered, T refuse to answer.’
A. Yes.
Q. Isn’t it a fact that I asked you, ‘Do you know anything about any shooting which occurred on the night of February 16 or the early morning hours of February 17, 1976, involving your husband.’ And you refused to answer.
A. Yes.”

It is clear that there was no justification whatsoever for the admission of such testimony for impeachment purposes. Irrespective of the prejudicial impact on the jury, no attempt was made by the prosecution to establish any threshold inconsistency between the grand jury silence and the testimony of defendant’s wife at trial. None of the questions which defendant’s wife refused to answer before the grand jury were even asked of defendant’s wife at trial. There was no suggestion that defendant’s wife abused or improperly asserted her fifth amendment privilege before the grand jury. With no proper foundation for the use of the grand jury silence to impeach the credibility of the defendant’s wife, we find that the admission of such testimony was error.

The State urges that the defendant waived consideration of this evidentiary error on appeal by failing to make a contemporaneous objection at trial. Supreme Court Rule 615(a) provides that errors “affecting substantial rights may be noted although they were not brought to the attention of the trial court.” (58 Ill. 2d R. 615(a).) This court has stated that this rule, commonly referred to as the “plain error” rule, is to be applied as a means of ameliorating the harshness of the strict application of the waiver rule. (People v. Howell (1975), 60 Ill. 2d 117, 120-21; People v. Manzella (1973), 56 Ill. 2d 187, 195-96.) “[W] here the magnitude of the error may result in substantial prejudice to the right of the defendant to a fair trial, we have nevertheless on proper occasions considered the error as though it had been properly preserved for appeal.” (56 Ill. 2d 187, 195.) Because the improper use of grand jury silence to impeach a defense witness may substantially prejudice a defendant’s right to a fair trial by leaving the jury with the indelible impression that the witness was implicated in criminal activity or because such implication might be transferred to the defendant, we will consider the impact of the error on defendant’s trial.

Defendant maintains that reference to the defendant’s wife’s grand jury silence not only violated accepted rules of evidence and seriously prejudiced defendant, but that the error transgressed his constitutional rights. A defendant, however, is not entitled to the protection of the privilege against self-incrimination where the prosecutorial abuse is of another’s exercise of the privilege. The privilege against self-incrimination is a personal one and cannot be vicariously asserted by a defendant through a defense witness. United States v. Rubin (5th Cir. 1977), 559 F.2d 975, 984. Also see McCormick, Evidence sec. 120, at 254-55 (2d ed. 1972).

Our holding, of course, does not preclude a defendant from predicating objection 'to the abuse of the defense witness’ privilege on nonconstitutional grounds. Nor does it imply that the use of inadmissible impeachment testimony will be less prejudicial to a defendant than an error which violates a constitutional right. It merely means that before we can determine that a nonconstitutional error in the admission of impeachment testimony was reversible error, the defendant must show that the error could have contributed to his conviction. People v. Sullivan (1978), 72 Ill. 2d 36, 44; People v. Weathers (1975), 62 Ill. 2d 114, 120-21.

Here, we must appraise the prejudicial impact of the improper impeachment on four separate convictions. (Judgment was not entered on a fifth conviction.) We are mindful of the injustice which can result from conjecturing that improper testimony, which may have substantially influenced a jury to the prejudice of a defendant, did not contribute to the jury verdict. Under ordinary circumstances, we would review the offenses separately to determine which convictions, if any, may have resulted from the prejudicial impeachment use of defendant’s wife’s grand jury silence. Two factors, however, prevent us from using such an approach in this case.

First, the record reveals quite clearly that the State’s trial strategy was to treat the separate offenses as projections of one common scheme. Because each of the offenses related to arson involving the residence of defendant’s brother-in-law, most of the incriminating evidence which was introduced to prove the commission of one offense also tended to implicate the defendant in the commission of the other offenses. Moreover, admissions which defendant had made to State’s witnesses of varying credibility tended to implicate him in a general vendetta against his brother-in-law, rather than to implicate him in the commission of any specific offense. The cumulative result was that weak, circumstantial cases against the defendant as to the February 1 arson and the February 9 burglary were bolstered by stronger evidence implicating the defendant in the February 13 arson and the March 4 solicitation.

It is in this context that we weigh the prejudicial impact of the improper impeachment. The testimony of the defendant’s wife was not directed toward all of the charges, nor was it as critical to the defense of some charges as it was to the defense of others. The record discloses the following: The wife’s testimony was not directed at all to the February 1 arson. Her testimony impacted on the February 9 burglary only to the extent that it tended to impeach the uncorroborated testimony of defendant’s ex-girlfriend, who was the principal State’s witness as to this offense. With regard to the March 4 solicitation, her testimony was of minimal force in rebutting the testimony of two State’s witnesses. However, as to the February 13 arson, the defendant’s wife was the linchpin in the defense. Her testimony served the dual function of providing an alibi and of contradicting the testimony of the ex-girlfriend. In the summations, both the State and the defense pitted the testimony of the ex-girlfriend against the testimony of defendant’s wife. The impeachment of defendant’s wife not only undermined the defense of those charges to which she directly testified, but it tended to enhance the credibility of the ex-girlfriend, whose testimony permeated the entire case. Though the improper impeachment of defendant’s wife was most prejudicial to the defense in regard to the February 13 arson, in such a trial setting, the prejudicial impact on the jury may well have spilled over onto the other charges. We do not dispute that there may be sufficient evidence to convict defendant of some of the offenses charged, but where we cannot determine with any assurance the extent to which a highly prejudicial error permeated the entire case, we cannot affirm any of the convictions.

Second, we cannot overlook in this case the likelihood that the jury not only inferred guilt on the part of defendant’s wife from her refusal to testify before the grand jury, but that the inference was also transferred to the defendant. The likelihood is most acute in precisely this type of case; that is, one in which the relationship between the defense witness and the defendant is extremely close and one in which the defense witness’ prior fifth amendment plea was directed toward the same criminal involvement as that for which defendant is on trial. Here, it would have been quite natural for the jury to draw the inference from a wife’s refusal to testify before the grand jury that she was sheltering not so much her guilt, but that of her husband. When such inference is drawn, the prejudice to defendant would not be limited to only those charges which were affected by the improperly discredited trial testimony of defendant’s wife. The inference would directly stigmatize the defendant and prevent him from securing a fair and impartial trial on any of the charges.

For the reasons stated, we hold that the substantial prejudice caused by the improper impeachment of defendant’s wife requires that the convictions be reversed, and that defendant be granted a new trial.

The judgments of the appellate and circuit courts are reversed and the cause is remanded to the circuit court of Rock Island County for a new trial.

Reversed and remanded.

MR. JUSTICE RYAN,

dissenting:

Because of the majority’s extremely liberal application of the plain error principle, I must respectfully dissent.

We have only recently reaffirmed the heretofore generally accepted understanding that failure to object to erroneous trial proceedings constitutes a waiver of the error. The plain error doctrine is an exception to this general rule and is not meant to be a general saving clause to preserve all errors that may appear in the record, whether or not they have been brought to the attention of the trial court. (People v. Precup (1978), 73 Ill. 2d 7, 16.) This exception was carved out of the waiver doctrine as a matter of grace so that the court of review could take notice of errors appearing on the record which deprived the accused of a substantial means of enjoying a fair and impartial trial. (People v. Burson (1957), 11 Ill. 2d 360, 370-71.) In a sense, any trial error impinges upon a litigant’s right to a fair trial. However, the deprivation which has heretofore commanded the court’s attention under the plain error exception has been of such a serious nature as to be spoken of in the context of due process. Thus, in Burson, this court, in discussing the waiver rule, stated:

“However, this is a rule of administration and not of jurisdiction or power, and it will not operate to deprive an accused of his constitutional rights of due process.” (11 Ill. 2d 360, 370.)

This court has also held the plain error exception applicable in criminal cases where the evidence is closely balanced. (People v. Pickett (1973), 54 Ill 2d 280, 283.) Until a recent liberalization of the plain error exception by the appellate courts of this State, and by the majority of the court in this case, plain error was applied in only a limited number of cases and for the limited purpose of ameliorating the hardship occasioned by an unyielding adherence to the waiver doctrine.

Recently, plain error has been urged in a vast number of cases both in this court and in our appellate courts. The frequency of this occurrence can, to a great degree, be explained by the fact that in most criminal appeals the defendant is represented by counsel that did not represent him in the trial court. In reviewing the record, if appellate counsel finds error that was not preserved by objection in the trial court, he can only seek review of that error under the plain error exception. We cannot fault appellate counsel for urging plain error in these circumstances. Indeed, it is his duty to his client to do so. Considering the recent liberal interpretation of plain error in this State, it is doubtful if he could, in the face of such a record, file an Andersmotion and brief informing the court that there are no meritorious issues to review. (See Anders v. California (1967), 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396.) However, the fact thpt the courts of review are being constantly requested to consider unobjected-to trial error as plain error does not require that our heretofore limited application of the exception be expanded. Just as the appellate advocate may consider it his duty to represent his client by urging plain error, I consider it our duty to define, with some exactitude, the boundaries of the exception. This we have heretofore done. I see no reason for expanding these limits. Unless we adhere to the previously limited application of the plain error exception, the courts of review in this State will be asked to consider every unobjected-to trial error which the appellate advocate may uncover in combing through the record.

Inasmuch as a trial judge is not conversant with the defendant’s trial counsel’s trial plan, he cannot, in the absence of an objection, safely involve himself in every situation that may appear to constitute error. It is not at all unusual for a defense attorney to intentionally permit a prosecutor to conduct objectionable cross-examination and thereby open the door for a very helpful redirect examination. It is the obligation of counsel to present objections to procedures and to the admissibility of evidence. (ABA Standards, The Function of the Trial Judge, sec. 5.7 (1972).) The commentary to this standard states at page 71:

“This standard is intended to admonish the trial judge to exercise self-restraint and fairness in permitting counsel for the prosecution and for the defense to perform their duties. Within appropriate limits they should be free from judicial interference.”

Admittedly, the cross-examination set out in the majority opinion was erroneous, but in the absence of an objection the trial judge could not have safely terminated it. This cross-examination certainly opened the door for redirect examination concerning other conversations that may have taken place between the prosecutor and the defendant’s wife, or some explanation by the wife for her refusal to answer, which would not otherwise have been admissible. So far as the trial judge would have known, defense counsel might have wanted to pursue redirect examination which such cross-examination made proper.

The opinion seems to hold that since the error was raised in the post-trial motion it was properly preserved although not objected to at the trial. To be properly preserved, the error must be objected to at the trial and raised in the post-trial motion. The purpose of requiring the objection at the trial is to permit the trial court to prevent error or to correct it so that the defendant may receive a fair trial and so that it will not be necessary to grant a new trial. If the defendant does not raise the error until the post-trial motion, the error can only be corrected by the same sacrifice of judicial economy that would be involved by raising the issue for the first time on review; that is, by the granting of a new trial.

Also, by permitting the defendant to silently allow error to enter the record and then to raise the issue in a post-trial motion is, to a degree, permitting him to insure himself against an unsuccessful trial. Such a procedure permits the defendant to allow erroneous evidence to be admitted, unobjected to, knowing that he is creating an issue which he can later raise as a ground for a new trial should he be convicted.

I do not think that the decisions of this court should encourage such tactics. Permitting them to succeed is not playing fair with the trial judge and permits the defendant to gain the advantage of obtaining a reversal of his conviction based upon his own failure to act. (See Dean v. Keith’s & Ralph’s Tavern, Inc. (1975), 25 Ill. App. 3d 970, 972.) I would hold that the defendant has waived the error now complained of by failing to object thereto during the trial.

MR. JUSTICE UNDERWOOD joins in this dissent.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 50383.
    NORTHWESTERN UNIVERSITY, Appellee, v. THE CITY OF EVANSTON, Appellant.

      Opinion filed December 4, 1978.

      Jack M. Siegel, corporation counsel, of Chicago, for appellant.
    Michael C. Weston and James M. Perry, of Evanston, and James W. Kissel, Frederic F. Brace, Jr., and Shalom L. Kohn, of Sidley & Austin, of Chicago, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Plaintiff, Northwestern University, brought suit against the city of Evanston in the circuit court of Cook County seeking a declaration that a city zoning ordinance forbidding commercial activity, including professional sports, in the university district was unconstitutional. The circuit court dismissed the complaint for failure to exhaust local and administrative remedies. The appellate court reversed (55 Ill. App. 3d 609), finding that, in light of the history of dispute over the ordinance, Northwestern “has fully exhausted its remedies before the Evanston zoning authorities and *** further endeavor before these bodies would be futile.” (55 Ill. App. 3d 609, 618.) We granted leave to appeal and we now reverse.

The zoning ordinance challenged applies to the university district (U—2), an area which includes Northwestern’s 55,000-seat Dyche Stadium and 11,226-seat McGaw Hall. Uses not permitted in the U—2 district include “the use of any building, stadium or other facility for professional athletics, sports or games, or other commercial purposes.” In 1970, a predecessor provision which also forbade the use of a stadium for commercial purposes was in effect. At that time, Northwestern and the Chicago Bears Football dub reached an agreement whereby the Bears would play a professional football game with the Philadelphia Eagles in Dyche Stadium on September 27, 1970. Fearing difficulties because of the zoning provision, the Bears brought suit against Northwestern and Evanston and obtained a temporary injunction from the circuit court of Cook County which permitted the game to be played. The appeal of that order was dismissed as moot because the game had already taken place.

Also in 1970, and again in 1971, Evanston sought to enjoin the university from permitting professional tennis tournaments to be held in McGaw Hall. Both tournaments were held and both lawsuits were dismissed by agreement and without prejudice.

In March 1971 Northwestern filed an application with the Evanston zoning board of appeals, requesting a variation for the purpose of hosting future professional tennis matches. The board recommended to the Evanston city council that the variations be granted but the council did not act on the recommendation.

After the present ordinance, which more specifically forbids professional athletics in the U — 2 district, became effective, Northwestern entered into an agreement with the Chicago Professional Sports Corporation whereby the Chicago Bulls and Milwaukee Bucks, professional basketball teams, would play a game in McGaw Hall on October 18, 1975. Northwestern then sought a declaratory judgment in the circuit court holding the ordinance unconstitutional. The game was cancelled, and the complaint was dismissed without prejudice on December 8, 1975. The court noted that Northwestern might again seek judicial relief if the local bodies did not proceed “sufficiently expeditiously” on the application and petition hereinafter described.

On November 21, 1975, Northwestern had filed an application for a variation with the zoning board of appeals seeking authority to use Dyche Stadium and McGaw Hall for professional athletic contests or other commercial purposes. The university also filed a separate petition for a zoning amendment with the Evanston zoning amendment committee, asking that the zoning ordinance be amended to permit a wide variety of commercial and noncommercial activities, including “professional or amateur athletic contests, Fourth of July shows, speeches by notable persons, meetings, convocations, commencements, entertainments, expositions and exhibitions.” On April 5, 1976, before Northwestern’s case was heard by either the zoning board of appeals or the zoning amendment committee, officers of the Chicago Sting Soccer Club, a professional soccer team, approached Northwestern with a proposal to play a game in Dyche Stadium on June 13, 1976. Northwestern filed the present complaint on April 19, 1976, seeking a declaration that the use restrictions on the U — 2 district are unconstitutional insofar as they do not permit professional athletics or other commercial uses. The complaint also asked the court to enjoin Evanston from interfering with the scheduling, planning or playing of the Sting game on June 13. Subsequent to the filing of the complaint, the Sting game was cancelled.

The zoning amendment committee held public hearings on Northwestern’s petition on May 6, July 1, and September 2, 1976. Counsel for the university presented no witnesses, but rather submitted a document he characterized as a “statement of facts.” The document was in fact a memorandum that consisted largely of arguments, for the unconstitutionality of the ordinance which counsel intended to submit to the circuit court in this then-pending suit. The university offered to produce additional material on request and alleges here that it did furnish a schedule of past events in the stadium and fieldhouse when asked to do so by the committee. At the conclusion of the September 2 hearing, the committee voted to recommend that the Evanston city council deny the university’s petition for amendment. The committee noted that Northwestern had “presented no evidence in support of the petition,” because “the petition and position paper consist of allegations, conclusions and opinion,” and “do not constitute evidence.”

The zoning board of appeals held a public hearing on Northwestern’s application for a variation on February 17, 1976, at which the matter was continued to April 20 to allow objectors to gather evidence. In the interim, at a hearing at which Northwestern did not appear, the board, at the instance of the objectors, issued six discovery subpoenas against Northwestern. When the university refused to comply, the board decided not to consider the application for variation while the subpoena question was pending. Northwestern did not appear at the April 20 hearing, and the matter was continued to May 13. Northwestern did not appear on that date, but sent the “statement of facts” presented to the zoning amendment committee and a letter requesting a continuance until July. The matter was continued to September 21. In July the circuit court granted Northwestern’s motion to quash the subpoenas on the ground that the board had no authority to issue discovery subpoenas. At the hearing on September 21, the board tried to elicit from Northwestern’s counsel facts or arguments showing how the university met the standards for a variation prescribed in the ordinance. Counsel, however, was content to rely on his contention that the ordinance was unconstitutional, a matter admittedly not within the board’s competence. At the conclusion of the September 21 meeting the board voted to recommend that the city council deny Northwestern’s application for a variation.

On November 1, 1976, the Evanston city council denied both Northwestern’s petition for an amendment and its application for a variation. On November 2, Evanston filed a motion in the circuit court asking that Northwestern’s suit be dismissed for failure to exhaust local and" administrative remedies. The court granted this motion on December 21, 1976.

The principal question before us is whether Northwestern has complied with the established rule that a property owner who complains that an otherwise valid zoning ordinance is arbitrary and unreasonable as applied to his property must exhaust his administrative remedies before seeking judicial relief. When he complains, however, that the ordinance is void as a whole or in its terms, he need not exhaust these remedies. (Bright v. City of Evanston (1956), 10 Ill. 2d 178; Bank of Lyons v. County of Cook (1958), 13 Ill. 2d 493.) The city argues that Northwestern was obliged to exhaust its administrative remedies because it did not chaHenge every section of the zoning ordinance, an interpretation of the Bright doctrine which we believe too restrictive. Despite the language in Bright that a plaintiff must attack the ordinance “as a whole” or “in its entirety” to dispense with exhaustion (10 Ill. 2d 178, 184-85), later decisions have held it sufficient that a plaintiff attack the ordinance or statute “in its terms” (Bank of Lyons v. County of Cook (1958), 13 Ill. 2d 493, 495; Pierce v. Carpentier (1960), 20 Ill. 2d 526, 530) or “on its face” (Walker v. State Board of Elections (1976), 65 Ill. 2d 543, 552; Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 548). It would be rare indeed for a plaintiff to have standing to challenge every section of a zoning ordinance unless, for example, he attacked the ordinance for failure to comply with essential elements of a prescribed enactment process, as in Cosmopolitan National Bank v. City of Chicago (1963), 27 Ill. 2d 578. We hold, therefore, that a plaintiff who challenges the validity of an ordinance on its face need not exhaust administrative remedies.

Obviously, however, one who merely alleges that an ordinance is unconstitutional on its face does not thereby avoid the exhaustion requirement. If such were the case, the requirement would be meaningless. In order to come within this exception, a plaintiff must point to language in the ordinance which, without more, reasonably can be said to violate a specific constitutional guarantee. Northwestern claims that this zoning ordinance is unconstitutional on its face because it permits the university to maintain athletic facilities but prohibits it from using those facilities for professional sports or other commercial purposes. The university asserts that this distinction is inherently arbitrary because it can have no possible relation to an impact on the surrounding neighborhood. That proposition, however, is not self-evident. On the surface, at least, there would appear to be substantial differences between the impact of a predictable number of intramural or intercollegiate athletic events and an unpredictable number of commercial athletic events. Whether other aspects of the differing impact of commercial versus noncommercial uses are significant would require proof above and beyond the circumscribed bounds of surface unconstitutionality. In Bright the plaintiff complained that an ordinance permitting him to construct a single-family dwelling on his property but prohibiting him from constructing an apartment house was arbitrary and unconstitutional. This court held that plaintiff attacked the ordinance only as applied. (10 Ill. 2d 178, 186.) The situation before us is fundamentally similar, and we hold that the university was obliged to exhaust its administrative remedies.

We cannot agree with the appellate court’s conclusion that those remedies had been exhausted. In reaching its conclusion that court overlooked what we regard as the dispositive fact: when this suit was filed on April 19, 1976, Northwestern’s petition for an amendment to the ordinance and its application for a variance were both pending before the zoning authorities, which, indeed, had not yet held hearings on the merits. Under these circumstances, the university cannot be said to have exhausted its administrative remedies at the time this suit was filed. It is true that in dismissing its earlier action the circuit court had indicated Northwestern might again bring suit if the administrative proceedings did not move “sufficiently expeditiously.” Since the same judge subsequently granted the city’s motion to dismiss the later suit, however, he clearly did not regard the interval from November 21, 1975, to April 19, 1976, as constituting an unreasonable delay by the local authorities sufficient to permit Northwestern to disregard the exhaustion requirement. We cannot say that the court erred in so ruling.

The appellate court based its holding that Northwestern had exhausted its remedies before the zoning authorities partly on “[t] he history of the litigation surrounding this ordinance.” (55 Ill. App. 3d 609, 618.) That history persuaded the court that “further endeavor before these bodies would be futile.” (55 Ill. App. 3d 609, 618.) A party will not, of course, be required to exhaust his administrative remedies when it would be patently useless to seek relief before local bodies. (Van Laten v. City of Chicago (1963), 28 Ill. 2d 157, 159; County of Lake v. MacNeal (1962), 24 Ill. 2d 253, 260.) However, the facts of this case do not demonstrate that such action would be useless. The only pre-1975 effort by Northwestern to secure from local zoning authorities the desired changes was its 1971 application to permit professional tennis matches. While the zoning board of appeals had recommended allowing the requested variance, the city council apparently did not act, and the matter seems not to have been pursued. We simply do not agree that the history of controversy between Northwestern and Evanston over the zoning ordinance is such that, in November 1975, the university’s resort to the local authorities was patently useless and therefore unnecessary. The exhaustion requirement cannot be avoided simply because relief may be, or even probably will be, denied by the local authorities. Bank of Lyons v. County of Cook (1958), 13 Ill. 2d 493, 497.

Nor does the fact that the local zoning authorities and the city council denied Northwestern’s petition and application after the initiation of this lawsuit justify us in holding that the university exhausted its local remedies retroactively, although this seems to have been an unarticulated premise of the appellate court’s decision. We believe, however, that such a holding would have pernicious consequences as a precedent. It would in effect be a holding that a party may pursue administrative and judicial remedies simultaneously so long as the administrative proceedings are concluded before there has been a hearing on the merits in the lawsuit. Such a holding would allow a party to file a lawsuit and then satisfy the exhaustion requirement by putting in a perfunctory appearance before the local bodies, reminding them of the pendency of the suit, on which the party’s real effort was focused. Indeed, our review of the record indicates that this is not an unfair characterization of the university’s conduct in this case. We decline to hold that such conduct satisfies the exhaustion requirement.

The appellate court and the parties considered the dispositive issue to be what kind of evidentiary showing a party must make before local zoning authorities to satisfy the exhaustion requirement. On the view that we take of the case, however, we need not reach this issue.

Accordingly, the judgment of the appellate court is reversed, and the order of the circuit court dismissing the complaint is affirmed.

Appellate court reversed; circuit court affirmed.