author: MR. JUSTICE GOLDENHERSH MR. JUSTICE RYAN,

text:
    (No. 49800.
    ILLINOIS POWER COMPANY, Appellant, v. GEORGE E. MAHIN, Director of Revenue, et al., Appellees.

      Opinion filed May 26, 1978.

    — Rehearing denied September 29, 1978.

      UNDERWOOD and KLUCZYNSKI, JJ., took no part.
    RYAN, J., dissenting.
    William T. Hart, Christopher B. Nelson, and Joseph P. Collins, of Schiff, Hardin & Waite, of Chicago, for appellant.
    William J. Scott, Attorney General, of Springfield (Paul J. Bargiel, Assistant Attorney General, and Bonny Sutker Barezky, Special Assistant Attorney General, of Chicago, of counsel), for appellees.
    Isham, Lincoln & Beale, of Chicago, for amicus curiae Commonwealth Edison Co.
   MR. JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendants, George E. Mahin, Director of Revenue for the Department of Revenue, and Alan J. Dixon, Treasurer of the State of Illinois, appealed from the decree of the circuit court of Macon County entered in plaintiff’s action seeking to enjoin the further collection, and for the refund, of taxes assessed by the Department of Revenue, hereafter the Department, and paid by plaintiff under protest. The appellate court reversed (49 Ill. App. 3d 713), and we allowed plaintiff’s petition for leave to appeal.

Involved here are the Gas Revenue Tax Act (Ill. Rev. Stat. 1971, ch. 120, par. 467.16 et seq.) and the Public Utilities Revenue Act (ch. 120, par. 468 et seq.), which in nearly identical language provide:

“ ‘Gross receipts’ means the consideration received for [gas] [electricity] distributed, supplied, furnished or sold to persons for use or consumption and not for resale and for all services rendered in connection therewith, including [receipts] [amounts received] from minimum service charges, and [shall include] [includes] cash, services and property of every kind or nature, and shall be determined without any deduction on account of the cost of the service, product or commodity supplied, the cost of materials used, labor or service costs, or any other expense whatsoever. ***” Ill. Rev. Stat. 1971, ch. 120, pars. 467.16, 468.

Contending that under the foregoing definitions the proceeds of the transactions were taxable, the Department assessed taxes on contributions made by customers to plaintiff in aid of construction, advances received by plaintiff for construction, and sums collected by plaintiff for the rental of equipment and appliances. Under protest, plaintiff paid the taxes thus assessed, and the additional taxes allegedly due for subsequent transactions. Between the dates of December 1, 1972, and May 31, 1977, plaintiff had paid under protest a total of $734,350.32.

The circuit court held that payments received by plaintiff as advances for construction, contributions in aid of construction, and rentals for furnishing or renting equipment or appliances could not be subjected to the taxes, and enjoined defendants “from collecting, assessing or in any manner imposing Public Utilities Revenue Acts or Gas Revenue Act taxes, interest or penalties by reason of funds obtained by the plaintiff as a result of any of the following transactions: (a) electric advances for construction; (b) electric contributions in aid of construction; (c) gas advances for construction; (d) gas contributions in aid of construction; (e) electric equipment rentals; (f) gas equipment rentals; (g) electric appliances rentals; and (h) gas appliance rentals.”

The appellate court reversed, holding that under the plain language of the statutes, “gross receipts” included not only the receipts from the sales of gas and electricity but also the consideration received for all services rendered and all contributions, advances and rental payments. 49 111. App. 3d 713, 718.

Plaintiff is a public utility providing electric and gas service to customers in an area of Illinois encompassing approximately 15,000 square miles. It has on file with the Illinois Commerce Commission schedules of rates, and rules and regulations. It appears from the testimony that the contributions in aid of electrical construction were most frequently required by plaintiff in connection with replacement of overhead lines with underground installations. With relation to gas sales and distribution, the advances and contributions were most frequently made in connection with the installation of excess footage to new subdivisions. Although for accounting purposes both contributions and advances in aid of construction are treated as capital and so shown on plaintiff’s balance sheet, they are not taken into consideration in fixing the base upon which plaintiff’s rate structure is determined. Contributions in aid of construction, whether for electricity or gas, are not refundable. Customer advances for construction are carried as a deferred credit, and if at some point plaintiff determines that an advance is no longer refundable, the item is transferred from the customer advance account to the contributions-in-aid-of-constraction account. Exhibits received in evidence show that approximately two-thirds of the customers’ advances for electrical construction and 10% of the advances for gas construction made during the audit period were refunded.

Plaintiff contends that the legislative history and long-standing interpretation of the Public Utilities Revenue Act and the Gas Revenue Tax Act show that they were not intended to tax the transactions here involved. It states correctly that as originally enacted the public utilities tax act (Ill. Rev. Stat. 1937, ch. 120, pars. 468 to 481) applied tó electric, gas and telephone utilities, that it contained in the definition of gross receipts the phrase “and for all services rendered in connection therewith” (Ill. Rev. Stat. 1937, ch. 120, par. 468), and also provided that ‘The words ‘transmitting telegraph or telephone messages’ shall include the leasing or rental of equipment or property for the transmission of telegraph or telephone messages” (Ill. Rev. Stat. 1937, ch. 120, par. 468). Referring to the 1945 enactments of the Messages Tax Act (Ill. Rev. Stat. 1945, ch. 120, par. 467.1 et seq.), the Gas Revenue Tax Act (Ill. Rev. Stat. 1945, ch. 120, par. 467.16 et seq.), and the Public Utilities Revenue Act (Ill. Rev. Stat. 1945, ch. 120, par. 468 et seq.), it points out that only the Messages Tax Act contained a reference to “the furnishing, for a consideration, of services or facilities (whether owned or leased), or both” (Ill. Rev. Stat. 1945, ch. 120, par. 467.1). It argues that these statutes, contemporaneously enacted, must be considered in pan materia and clearly demonstrate the legislative intent that under the Public Utilities Revenue Act and the Gas Revenue Tax Act no tax apply to the furnishing of “services or facilities.” Plaintiff argues too that the administrative interpretation over a period of 35 years during which the Department failed to assert that advances, contributions and rentals were includable in “gross receipts” must be considered of great importance in construing the statute. It is the Department’s position that under the plain language of the statutes the taxes apply, and that the alleged failure on the part of the Department to properly enforce the statutes cannot now bar the State from collecting the revenues that are due under their provisions.

We do not find it necessary to resort to the techniques suggested by plaintiff for statutory interpretation. The language of the statutes must be given its plain and ordinary meaning. “It is a primary rule in the interpretation and construction of statutes that 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.” (Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 350.) The explicit language of the statutes provides that “gross receipts means the consideration received,” not only for the gas or electricity furnished or sold, but also the consideration received “for all services rendered in connection therewith.” The fact that a part of the consideration is received in the form of a contribution or an advance for purposes of construction does not render it any the less the consideration for the gas or electricity “distributed, supplied, furnished or sold.” Similarly, the fact that a portion of the consideration is received in the form of rental payments for equipment or appliances used in the furnishing, distribution or consumption of the gas or electricity does not serve to alter its character as a portion of the consideration.

We do not find persuasive the argument that the General Assembly intended that only in the Messages Tax Act was the term “gross receipts” to include the proceeds from the leasing or rental of equipment and property. This provision appears to recognize that telephones are ordinarily supplied by the utility, and there is no incongruity in holding that the leasing or rental of equipment and appliances by suppliers of gas and electricity constitute “services rendered in connection” with the sale or distribution of'their products.

We have considered plaintiff’s argument that the long-standing interpretation by the Department must be given consideration and find apposite the following language from Martin Oil Service, Inc. v. Department of Revenue (1971), 49 Ill. 2d 260, 269: “It is undeniable that weight should be given a contemporaneous construction placed on an ambiguous statute by the officers charged with the duty of administering it. We do not believe the statute is ambiguous. Even if ambiguity is assumed, the rule obviously cannot be invoked to prevent those officers from rectifying an erroneous construction. An administrative construction of a statute is not binding if it is erroneous. Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 77 L. Ed. 796, 807; Superior Coal Co. v. Department of Revenue, 4 Ill. 2d 459, 468.”

For the reasons stated, the judgment is affirmed.

Judgment affirmed.

UNDERWOOD and KLUCZYNSKI, JJ., took no part in the consideration or decision of this case.

MR. JUSTICE RYAN,

dissenting:

I must dissent from the majority in this case. I believe that the statutes are ambiguous and do not clearly encompass the type of funds here involved, and I disagree with the majority’s holding that the Department of Revenue’s interpretation of the statutes for 35 years may be rejected at the whim of the Department, absent any legislative expression.

The statutes themselves do not specifically include either construction contributions or equipment or appliance rentals in their definitions of “gross receipts.” I think it is certainly debatable whether these types of payments are encompassed in “consideration received for [gas] [electricity] *** and for all services rendered in connection therewith ***” (Ill. Rev. Stat. 1971, ch. 120, pars. 467.16,468).

The majority opinion is bottomed on the premise that the language of the statute is clear and therefore requires no construction. I cannot agree. If it is clear that the statute imposes a tax on the transactions here in question, then it is apparent that for 35 years the Department has not been collecting millions of dollars in taxes from utilities to which the State of Illinois was “clearly” entitled. It is hard to believe that such an oversight would have gone unnoticed and that someone would not have been called to politically account for such a sizeable abandonment of State revenue.

Also, if it is clear that such transactions fall within the statutory definition of “gross receipts,” why would the legislature find it necessary to include in the Messages Tax Act not only the definition of “gross receipts ” that is found in the Gas Revenue Tax Act and in the Public Utilities Revenue Act, but also language which specifically includes proceeds from leasing or rental of equipment or property (Ill. Rev. Stat. 1975, ch. 120, par. 467.1). The majority opinion attempts to explain this additional language by saying that it is a recognition that telephones are ordinarily supplied by the utility. It appears to me that if providing telephones were a part of the services traditionally supplied by the utility, such a service would more likely be recognized as falling within the language, “all services rendered in connection therewith” in the definition of “gross receipts” and that it would not have been necessary to specifically provide that income from such rentals is taxable. Since the legislature did include this special provision in the Messages Tax Act, I must conclude that it was the intent of the legislature that income from this source is not otherwise taxable and that it was necessary to specifically provide for its taxation. The failure of the legislature to include similar provisions in the Gas Revenue Tax Act (Ill. Rev. Stat. 1975, ch. 120, par. 467.16), and the Public Utilities Revenue Act (Ill. Rev. Stat. 1975, ch. 120, par. 468), indicates to me that it was the intention of the legislature that income from these sources was not to be taxed under these acts. If we accept the majority’s explanation that the special provision in the Messages Tax Act is a recognition that telephones are ordinarily supplied by the utility, it would appear that the absence of the special language including such transactions in the other two acts also is a recognition that these transactions are not customarily a part of the job of furnishing gas or electricity.

One of the plaintiff’s arguments is that the Department of Revenue for 35 years interpreted the statutes as not authorizing a tax of this type and should not be permitted to suddenly reverse its position. The majority rejects this contention, noting that while administrative interpretations are usually given weight, erroneous interpretations are not binding. The majority ignores the fact that for 35 years the legislature acquiesced in the Department’s previous interpretation, and has not objected to this day. In my opinion, such a long period of legislative acquiescence in the previous interpretation that no tax should be imposed on these payments is the strongest indication of the correctness of that construction. To allow the Department of Revenue to suddenly change its position after all this time, in the absence of any legislative action, is to allow a nameless, faceless, administrative body, not responsible to the electorate or the legislature, to impose taxation at its whim. If the previous interpretation of the statutes were in fact erroneous, the legislature is the proper body to point out the error, not the Department of Revenue, and not this court, at least under these circumstances. Our constitution (Ill. Const. 1970, art. IX, sec. 1) vests the exclusive power to raise revenue in the General Assembly, the representatives of the People, and not in an administrative body.

For these reasons I dissent from the majority opinion.


source: Caselaw Access Project

author: MR. JUSTICE GOLDENHERSH

license: Public Domain

text:
    (No. 49842.
    INOLEX CORPORATION, Appellee, v. EDWARD J. ROSEWELL, County Treasurer, et al., Appellants.

      Opinion filed May 16, 1978.

    — Rehearing denied September 29, 1978.

      KLUCZYNSKI, J., took no part.
    Bernard Carey, State’s Attorney, of Chicago (Paul P. Biebel, Jr., Deputy State’s Attorney, and Henry A. Hauser and Michael F. Baccash, Assistant State’s Attorneys, of counsel), for appellants.
    Herman Smith and Donald I. Resnick, of Arvey, Hodes, Costello & Burman, of Chicago, for appellee.
   MR. JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendants, Edward J. Rosewell, county treasurer and ex officio county collector, Thomas M. Tully, county assessor, Stanley T. Kusper, county clerk, and Harry H. Semrow and Seymour Zaban, commissioners of the board of appeals of Cook County, appealed from the injunction order entered by the circuit court of Cook County upon allowance of the motion of plaintiff, Inolex Corporation, for summary judgment on count II of its amended complaint. The appellate court affirmed (50 111. App. 3d 600), and we allowed defendants’ petition for leave to appeal.

The pleadings are adequately described in the opinion of the appellate court and will be reviewed here only to the extent necessary to discuss the issues. It was alleged in the amended complaint that plaintiff leases a parcel of land owned by Northwestern University; that in November 1974 it received from the defendant county collector real estate back-tax bills for the years 1970, 1971 and 1972, purportedly assessed pursuant to section 26 of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, par. 507); that the “attempted valuations and assessments to plaintiff” of the taxes were void for failure to comply with sections 97, 104 and 221 of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, pars. 578, 585, 702); and that no notice was given plaintiff as required by the provisions of sections 97, 121 or 221 of the Revenue Act (Ill. Rev. Stat. 1973, ch. 120, pars. 578, 602, 702).

Plaintiff and defendants filed motions for summary judgment. The circuit court denied defendants’ motion, allowed plaintiff’s motion, and entered an order which provides that defendants “are hereby permanently enjoined from assessing, levying or collecting the said void back taxes from the plaintiff.” It also provided that “Nothing in this order shall be deemed to adjudicate the right of the assessor to levy a lawful back tax for all the years involved in this litigation for the properties involved herein.”

The injunction order was entered by the circuit court prior to our decision in North Pier Terminal Co. v. Tully (1976), 62 Ill. 2d 540. The appellate court, although recognizing that North Pier Terminal Co. was dispositive of plaintiff’s contentions concerning defendants’ failure to comply with sections 97 and 125 of the Revenue Act, held that the failure to give proper notice of the assessments in violation of sections 97, 121 and 221 of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, pars. 578, 602, 702) was “a recognized basis for equitable jurisdiction” (50 Ill. App. 3d 600, 602) and that the circuit court did not err in ordering the injunction.

Defendants contend that plaintiff’s failure to include in its motion for summary judgment the alleged failure of the defendant assessor to give the statutory notice waived the point. Plaintiff asserts that defendants did not brief and argue the question of the alleged waiver before the appellate court and may not, therefore, raise the question in this court. The proper adjudication of the issue presented in this appeal requires our consideration of the effect of the alleged failure to give notice, and we do not therefore further consider or discuss the question of waiver. Hux v. Raben (1967), 38 Ill. 2d 223.

Defendants contend that the injunction order must be reversed for the reason that the opinion in North Pier Terminal Co. v. Tully (1976), 62 Ill. 2d 540, “is squarely on all fours with the case at bar.” Plaintiff contends that “statutorily required notice and opportunity to be heard are ‘jurisdictional,’ and that a tax without such notice or opportunity for hearing is ‘unauthorized by law.’ ” Although our opinion in North Pier Terminal Co. is controlling with respect to the issues concerning the addition of the assessment of the omitted property to the assessment books following their certification by the assessor and the board of appeals, there remains the question whether the alleged failure to give notice of the assessment was a sufficient basis for granting equitable relief.

Section 314 of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, par. 795) in pertinent part provides:

“A failure to give any notice required by this Act shall not impair or affect the validity of any assessment as finally made.”

The rule here applicable is that the collection of taxes will be enjoined only where the tax is either unauthorized by law or levied upon exempt property. (La Salle National Bank v. County of Cook (1974), 57 Ill. 2d 318; Clarendon Associates v. Korzen (1973), 56 Ill. 2d 101.) We have considered the authorities cited by plaintiff and find apposite here the following language from North Pier Terminal:

“We emphasize, however, that we are discussing only the power of the assessor to function. We are not deciding the validity of the tax as levied on the assessments in question. The defects of which the plaintiffs complain are essentially procedural irregularities in the assessment process which, while they may have a bearing on the question of the validity of the taxes levied, do not establish the lack of authority of the assessor to act. Thus, as noted in the cases cited below, the taxes are not ‘unauthorized by law.’
This court has long held that if ‘officers authorized to make the assessment make it, then mere irregularities in the proceedings under which it was made cannot give a court of chancery jurisdiction . to restrain its collection. ’ Gray v. Board of School Inspectors, 231 Ill. 63, 74. See also Chicago, Burlington & Quincy R.R. Co. v. Frary, 22 Ill. 34; Reynolds v. Milk Grove Special Drainage District, 134 Ill. 268; Owens-Illinois Glass Co. v. McKibbin, 385 Ill. 245; Goodyear Tire & Rubber Co. v. Tierney, 411 Ill. 421.
We conclude that the taxes involved in this case are not ‘unauthorized by law’ and that a basis for equitable relief as defined in Clarendon is not present. Plaintiffs had an adequate remedy at law by way of paying the taxes under protest and filing objections to the application for judgment. The trial court therefore erred in granting equitable relief.” 62 Ill. 2d 540, 548-49.

For the reasons stated, the judgments of the appellate and circuit courts are reversed and the cause is remanded to the circuit court of Cook County with directions to dismiss count II of plaintiff’s amended complaint, and for further proceedings under count I.

Judgments reversed; cause remanded, with directions.

MR. JUSTICE KLUCZYNSKI took no part in the consideration or decision of this case.


author: MR. JUSTICE CLARK

text:
    (No. 49728.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. PEPPE PARK, Appellee.

      Opinion filed May 26, 1978.

    — Modified on denial of rehearing September 29, 1978.

      KLUCZYNSKI, J., took no part.
    William J. Scott, Attorney General, of Springfield, and Allen W. Large and William P. Strange, State’s Attorneys, of Lawrenceville (Donald B. Mackay, Melbourne A. Noel, Jr., Assistant Attorneys General, and Bruce D. Irish and Keith P. Vanden Dooren, of the Illinois State’s Attorneys Association Prosecutors’ Appellate Service, of Mt. Vernon, of counsel), for the People.
    Michael J. Rosborough, Deputy Defender, and John H. Reid, Assistant Defender, of the Office of the State Appellate Defender, of Mt. Vernon, for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The defendant, Peppe K. Park, was convicted of one count of possession of “more than 2.5 grams but not more than 10 grams of any substance containing cannabis,” a Class B misdemeanor (Ill. Rev. Stat. 1973, ch. 5614, par. 704(b)). The Appellate Court, Fifth District, reversed because it found that the State had failed to “prove beyond a reasonable doubt that the substance defendant possessed was cannabis” (49 Ill. App. 3d 40, 43), and we granted the State’s petition for leave to appeal. We affirm.

On April 25, 1974, on the basis of a tip from the Lawrence County sheriff’s office, Lawrenceville Police Chief Steve Foster and Patrolman Don Wolfe proceeded to the Lawrenceville High School parking lot to apprehend the defendant, apparently in the belief that he was involved in an illegal drug transaction. Wolfe found the defendant standing among a group of other students next to Barney Bass’ car. Wolfe then approached the defendant and told him to empty his pockets. The defendant complied, but Wolfe found no contraband among the contents of Park’s pockets. Nonetheless, on Chief Foster’s instructions, Wolfe transported the defendant to the Lawrenceville city hall, while Lawrence County Sheriff Richard Hunnicutt escorted Bass to city hall in Bass’ car. Shortly after their arrival, while searching Bass’ car, Hunnicutt observed a yellow envelope on the pavement near Bass’ feet.

At trial, Bass admitted that he had taken the envelope from his car, but claimed .that the defendant had put it there. Wolfe and Foster testified that, after being advised of his Miranda rights, defendant admitted having been in possession of the envelope and admitted that it contained marijuana. Defendant testified that he had not been so advised, that he had not made any such admission, and that he had never seen the yellow envelope before Foster showed it to him at city hall.

Harry Hardin, a licensed, registered pharmacist, testified that he had weighed the envelope in question and determined its weight to be six grams. However, the only direct evidence that the envelope contained cannabis was the testimony of Deputy Sheriff Billy Carrico. The day before the trial (four months after defendant’s arrest), Carrico had been summoned to the Lawrenceville city hall to examine the contents of the envelope and determine whether they contained cannabis. The State offered to have Carrico testify as to the results of his testing the substance with his “Narco test kit.” However, because the State was unable to explain the probative value and reliability of the results of the “Narco test kit,” the court excluded all evidence regarding the use of the kit. The State now argues that exclusion of the results of the “Narco test kit” was error. .In light of our disposition of the case, we do not reach that issue. The court did, however, permit Carrico to testify that, as an expert, he could identify marijuana by “feel, smell, texture and looks.”

To establish Carrico’s expertise, the State elicited his testimony that he had been a deputy sheriff for about four years, and that on at least 40 occasions during that period he had handled what he believed to be marijuana. However, because of the manner in which the State framed its next question (“Q. In any of these 40 instances, have these drugs been identified positively by experts as being marijuana? A. That’s correct”), we only know that Carrico’s identification of a substance as being marijuana had been proved correct on as few as 1 of the 40 occasions (2.5%). Carrico further admitted that he was not trained to identify marijuana, but was relying upon having seen what he believed to be marijuana on several occasions. Despite defendant’s arguments to the contrary, the trial court considered this experience sufficient to establish Carrico’s expertise in the identification of marijuana, and permitted Carrico to tell the jury that, in his opinion, the substance in the envelope was marijuana.

After an exhaustive review of the question, we feel constrained to disagree with the trial court’s ruling on this issue. As this court observed seven years ago:

“Knowledge of the characteristics and effects of the drug commonly called marijuana, which is obtained from the leaves of the female hemp plant, cannabis sativa, has developed rapidly in the last decade.” (People v. McCabe (1971), 49 Ill. 2d 338, 342.)

The pace of that knowledge explosion has not slowed during the past seven years, and one of the areas of knowledge affected has been that of the reliability of certain means of identifying marijuana. Statistics from the State Crime Laboratory in our neighboring State of Wisconsin are quite startling in this regard. “During the period March 1970 to March 1971, 1674 samples of marihuana, morphologically identified as such, were submitted to the Wisconsin Crime Laboratory for confirmatory testing. Only 85.6 percent of these were in fact marihuana. Therefore, 14.4 percent, or one in every seven samples, turned in as suspected marihuana were not marihuana.” (Stein, Laessig, & Indriksons, An Evaluation of Drug Testing Procedures Used by Forensic Laboratories and the Qualifications of Their Analysts, 1973 Wis. L. Rev. 727, 770 (hereinafter Drug Testing Procedures).) At the very least, these statistics demonstrate that even if it is possible, as Carrico claimed, to reliably identify cannabis in the manner he claimed to have used (feel, smell, sight and touch), such means are highly prone to error in the hands of anyone but an expert, because of the number of plants whose gross morphological characteristics closely resemble Cannabis sativa L. See Drug Testing Procedures, at 770-71.

Thus, the admissiblity of Carrico’s opinion that the substance in question was marijuana hinges upon whether, despite his complete lack of training on the subject, Carrico’s limited experience as a deputy sheriff qualified him to reliably identify the substance in question as cannabis through the means he allegedly used to reach that conclusion. As a threshold matter, we note that the burden of establishing the qualifications of an alleged expert witness is that of the proponent of his testimony — in this case the State. As Professor Wigmore has so emphatically stated:

“The possession of the required qualifications by a particular person offered as a witness, must be expressly shown by the party offering him. This follows from the nature of the situation and is universally conceded.” (Emphasis in original.) (2 J. Wigmore, Evidence 640-41 (3d ed. 1940).)

That the defendant had an opportunity to cross-examine Carrico as to his qualifications therefore did not eliminate or in any way reduce the State’s burden of establishing those qualifications. Also, while the question of whether the State had met that burden was a matter within the discretion of the trial court, its decision is subject to reversal if it constituted an “abuse of discretion.” (People v. Fiorita (1930), 339 Ill. 78, 89.) Here, we conclude that while the trial court diligently pursued this question with counsel in chambers, its admission of Officer Carrico’s “expert” testimony was an abuse of discretion.

Although the resolution of this issue requires us to venture into fields of human knowledge as to which we, as judges, possess no special expertise, we are not without benchmarks in our journey. By 1942, the qualifications of expert witnesses had been reviewed in over 200 reported cases in Illinois. (King & Pillinger, A Study of the Law of Opinion Evidence in Illinois 58 (1942).) Examination of this wealth of judicial experience is central to our analysis of the question presented by this case. The rule which we derive from those cases is that the degree and manner of knowledge and experience required of an alleged expert is directly related to the complexity of the subject matter and the corresponding likelihood of error by one insufficiently familiar therewith. Thus, in People v. Palmer (1932), 351 Ill. 319, 324, prior ownership and marketing of hogs was sufficient practical experience and special knowledge to render an opinion as to value of a pregnant sow; in People v. Hayes (1960), 20 Ill. 2d 319, a police officer with 15 years’ experience with stolen auto parts was qualified to testify that certain stolen auto parts were worth more than $50; in State v. Ajster (1925), 318 Ill. 230, 234, prior drinking of liquor qualified a witness to testify that a certain beverage contained more than .5% alcohol on the basis of its taste; in Webster Manufacturing Co. v. Mulvanny (1897), 168 Ill. 311, 314, steam fitters with some experience in running engines “but not to any great extent” were competent to testify to the cause of an explosion in a steam pipe connecting a steam engine with a boiler; and in Keating v. People (1896), 160 Ill. 480, 487, a paying teller of a bank was qualified to render an opinion of the genuineness of a bank note. On the other hand, in People v. Jennings (1911), 252 Ill. 534, 547, fingerprint experts were qualified to render opinions where one had 6 years of study and over 2,000 prior identifications; another had 6 years’ study, extensive study on the subject under a Scotland Yard inspector, and 2,500 prior identifications; another had 6 years’ experience, studied at Scotland Yard, passed an examination on the subject, and started the first Bureau of Identification in Washington, D.C.; and the final expert had 27 years in the Bureau of Identification, 6 years’ study of prints, and over 6,000 prior identifications. However, significantly, in People v. Fiorita (1930), 339 Ill. 78, 89, a police employee was not qualified as a ballistics expert merely by engaging in identification of guns for several months where he had no other experience or education; but in People v. Green (1963), 28 Ill. 2d 286, 288, a microanalysis expert was qualified by his college education, extensive study in the field, and over 2,000 prior analyses. And we note also that police officers may not be presumed to possess the requisite expertise to identify a narcotic substance. See People v. Sanford (1962), 24 Ill. 2d 365 (identification of heroin).

Thus, while the value of pregnant sows and stolen auto parts might be readily assimilated with only limited experience, the ability to draw fine distinctions between fingerprints and ballistic markings requires more thorough and systematic study. The positive identification of cannabis without the aid of chemical and microscopic analysis falls into the latter category, because it simply is far too likely that a nonexpert would err in his conclusions on this matter, and taint the entire fact-finding process. Cross-examination often is a clumsy, counterproductive and therefore ineffective means of purging that taint. Accordingly, we hold that Carrico’s statement that the substance was in fact marijuana should not have been admitted and did not help to establish this element of the State’s burden. See People v. Williams (1962), 25 Ill. 2d 562.

We next consider whether the remainder of the evidence was sufficient to establish beyond a reasonable doubt that the substance in question contained cannabis.

We agree with the appellate court’s finding that the . evidence was not sufficient to meet the State’s burden of proof on this question. While we have no doubt that the State produced evidence from which the jury could have concluded that the defendant believed the substance contained cannabis, the defendant was not charged with possession of a substance which he believed to contain cannabis. Rather, he was charged with possession of a substance which in fact contained cannabis. The State therefore was required to prove the actual identity of the substance in question beyond a reasonable doubt. People v. Sanford (1962), 24 Ill. 2d 365, 368 (State must prove substance was heroin).

While we agree with the general proposition put forward by the State (and conceded by the defendant) that circumstantial evidence can be used to establish that a substance contains cannabis (see, e.g., People v. Robinson (1958), 14 Ill. 2d 325, 332 (identification of narcotic substance by circumstantial evidence)), we do not agree that the particular circumstantial evidence adduced in this case was sufficient.

Park’s own alleged admission was insufficient to convict him of the offense charged. Even assuming that Park’s alleged statement was admissible (an issue which neither we nor the appellate court reach), its probative value or weight is limited, in the absence of substantial evidence that this 17-year-old defendant had some means of knowing that the substance in question contained cannabis. Although neither the State nor the defendant has cited it, the well-established rule governing this situation is that requiring substantial, independent corroboration of the defendant’s alleged admission of the elements of the corpus delicti. (See People v. Hubbard (1967), 38 Ill. 2d 104, 110.) The reasons for this ancient rule are many, but underlying them all is the general problem of the trustworthiness of such alleged admissions and a reluctance to indulge in the fiction that the jury can accurately determine the weight to be given them. (See generally Bergen v. People (1856), 17 Ill. 425, 427.) Here, the “corroborating circumstances” (as well as the circumstantial evidence taken as a whole) were plainly insufficient.

This becomes readily apparent upon comparison of this case to the cases cited by the State. It is undisputed that there was no proof of any sort of “sale” of drugs at a high price suggesting that the principals had taken steps to assure themselves of the identity of the substance. (Cf. People v. Harrison (1962), 26 Ill. 2d 377, cert denied (1963), 373 U.S. 928, 10 L. Ed. 2d 426, 83 S. Ct. 1531; United States v. Lawson (7th Cir. 1974), 507 F.2d 433, cert. denied (1975), 420 U.S. 1004, 43 L. Ed. 2d 762, 95 S. Ct. 1446; United States v. Fiotto (2d Cir. 1972), 454 F.2d 252; United States v. Agueci (2d Cir. 1962), 310 F.2d 817.) Neither is the quantity involved so large as to support a similar inference (cf. People v. Rege (1976), 64 Ill. 2d 473; United States v. Bentvena (2d Cir. 1963), 319 F.2d 916); nor is there any evidence of the effect of the substance upon a human subject (cf. People v. Robinson (1958), 14 Ill. 2d 325, 332; United States v. Dolan (4th Cir. 1976), 544 F.2d 1219; Ewing v. United States (9th Cir. 1967), 386 F.2d 10). In short, the State would have us cure its lack of diligence in preparing its case by overlooking the substantial possibility that, on the basis of the evidence presented, the substance in question was not cannabis. This we cannot do.

One of the chief safeguards of our liberty is the requirement that, before punishing an individual as a criminal, the executive branch of government must prove to the satisfaction of the judicial branch of government that the individual has violated the laws enacted by the legislative branch of government. Any relaxation of this standard poses the gravest possible threat to our most basic institutions. While we must also take care not to unnecessarily impede the State from dealing effectively with the vexatious problems of illegal drug traffic which plague our society (see generally People v. McCabe (1971), 49 Ill. 2d 338, 354 (Ryan, J., dissenting); see also section 1 of the Cannabis Control Act (Ill. Rev. Stat. 1973, ch. 5614, par. 701)), the requirement that the State provide more substantial evidence than it did here is but a minor burden.

To determine accurately that a particular substance contains cannabis, all that is necessary is microscopic examination combined with the Duquenois-Levine test. When observed at 60x magnification through an ordinary-compound microscope, cystolith “hairs” are visible on leafy material from Cannabis sativa L. While certain other plants also have such cystolith hairs, apparently none of them has been demonstrated to test positive under the Duquenois-Levine test. That test requires only readily available prepackaged materials and is easy to perform. The substance in question is dissolved in hydrochloric acid and combined with the Duquenois reagent (vanillin dissolved in a solution of acetaldehyde and alcohol). If the mixture produces a violet color, chloroform is added to the mixture and if the violet color is then confined to the bottom two layers of the resulting mixture, the test is positive for cannabis. Although substances other than cannabis may produce a “false positive” with this test, apparently none of them has been demonstrated to have cystolith hairs. Thus, in combination, the two tests are highly reliable. (See Nakamura, Forensic Aspects of Cystolith Hairs of Cannabis and Other Plants, 52 J.A. Off’l Anal. Chem. 5 (1969). See also Drug Testing Procedures, at 746-71; State v. Wind (1973), 60 Wis. 2d 267, 270 n.3, 208 N.W.2d 357, 360 n.3.) The existence and widespread use of such tests (see generally Annot., 75 A.L.R.3d 717 (1977)) make all the more troublesome the manner in which the State sought to meet its burden of proof in the instant case.

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

Judgment affirmed.

MR. JUSTICE KLUCZYNSKI took no part in the consideration or decision of this case.


text:
    (No. 49398.
    NANCY CAROL ROBBINS, Adm’x, Appellee, v. THE PROFESSIONAL CONSTRUCTION CO. et al., Appellants.

      Opinion filed May 26, 1978.

      KLUCZYNSKI, J., took no part.
    O’Brien, Garrison, Berard, Kusta & De Witt, of Joliet (James E. Garrison, of counsel), for appellants.
    Edward G. Vogt and Jack R. Beaupre, of Kankakee, for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

Plaintiff, Nancy Carol Robbins, as administratrix of the estate of the decedent, Alfred Lee Robbins, brought this wrongful death action in the circuit court of Kankakee County to recover damages for pecuniary injuries suffered by decedent’s widow and next of kin. See Ill. Rev. Stat. 1971, ch. 70, par. 2.

This action arose from a fatal automobile accident which occurred on the morning of September 8, 1971, at the intersection of Route 17 and Warner Bridge Road, just west of the city of Kankakee. At approximately 7:20 a.m. Bonita Kirchener was driving her automobile westbound on Route 17, just east of the Warner Bridge Road intersection. The weather was clear and the pavement dry. As she approached the intersection she applied her brakes and her vehicle skidded into the eastbound lane of traffic, where her vehicle collided with a truck driven by defendant Harold Pulliam and owned by Pulliam’s employer, defendant Professional Construction Company. Skid marks from the truck at the scene of this collision were 89 feet long; another set of skid marks, presumably from the Kirchener vehicle, was 29 feet long. The speed of each vehicle at the time of this first collision, however, is not readily ascertainable from the record.

The impact of the first collision tilted the truck to the right, causing the wheels on the left side of the truck temporarily to lose contact with the road. The truck then swerved right, proceeding at least partially along the shoulder for approximately 50 feet, veered sharply back to the left, across the eastbound lane of traffic and into the westbound traffic, where it collided with the oncoming car driven by the decedent. There was testimony tending to establish that, at the point of impact, the truck was traveling between 40 and 60 miles per hour and that decedent’s car was traveling at between 20 and 25 miles per hour, as he tried to pull off the road to avoid the collision. Examination of the truck after the accident revealed part of its steering mechanism to be broken, though precisely how and when it broke remains unknown.

In a partial pretrial settlement, Kirchener paid plaintiff $23,500 in return for a covenant not to sue. At trial, in addition to the aforementioned evidence regarding the occurrence, evidence was introduced regarding decedent’s putative future earnings. That evidence indicated that decedent’s employment had not been continuous over the last several years, but other evidence indicated that decedent’s potential future contributions to his family would have been at least $3,000 per year (over his expected working life of 33 years).

The jury returned a verdict for plaintiff and against defendants in the amount of $25,000, which the court reduced by $23,500 to reflect the amount already received by plaintiff in the pretrial settlement with Kirchener, a potential defendant. (The propriety of this reduction is not at issue.) Defendants filed a post-trial motion requesting judgment notwithstanding the verdict, but did not alternatively request a new trial if their motion for judgment notwithstanding the verdict were denied. Plaintiff moved to set aside this verdict in favor of a new trial on the question of damages only, on the grounds that the damages were inadequate. Alternatively plaintiff requested a new trial on all issues. The court denied defendants’ motion, granted plaintiff’s motion for a damages trial, and conditionally granted plaintiff’s motion for a new trial on all issues in the event that the order granting a new trial limited to damages was reversed, set aside, or vacated. See 111. Rev. Stat. 1971, ch. 110, par. 68.1(6).

Defendants sought to appeal the trial court’s actions. However, defendants neither filed a record in the appellate court nor moved for an extension of time in which to file the record, until after the time provided for such motions by Rule 306(e) had expired. In addition, defendants failed to accompany their motion for an extension with a short record. (See 58 Ill. 2d Rules 306(e), 328.) While this motion was pending, the appellate court dismissed the appeal.

In the ensuing damages trial the jury returned a verdict for plaintiff and against defendants in the amount of $120,000. The circuit court entered judgment on this verdict after reducing it by $23,500 to reflect the aforementioned pretrial settlement. The defendants then filed a post-trial motion requesting, inter alia, a new trial on all issues, including the issue of liability. The court denied the motion, and on appeal, the Appellate Court, Third District, affirmed, with one judge dissenting. (45 Ill. App. 3d 524.) The appellate court’s holdings were as follows: (1) The earlier “denial” of defendants’ “petition for leave to appeal” authorized the appellate court to refuse to address the merits of the order granting plaintiff a new trial on the question of damages. Alternatively, the court would uphold that order on the merits. (2) Defendants waived their right to request a new trial on the question of liability by failing to request such relief either after the first trial or within 30 days of the trial court’s order granting plaintiff a new trial on the question of damages. Alternatively, even if the defendants had not waived the issue, they were not entitled to a new trial on the question of liability. (3) Defendants were not entitled to judgment notwithstanding the verdict. (Defendants apparently do not contest this holding.)

Defendants seek reversal of the appellate court’s judgment on the following grounds: (1) The appellate court’s “denial” of defendants’ earlier petition for leave to appeal the trial court’s order granting plaintiff a damages trial did not foreclose the appellate court’s review of that order on appeal following the damages trial. (2) The trial court improperly awarded plaintiff a damages trial. (3) Defendants did not waive their right to request a new trial on the question of liability. (4) Defendants were entitled to a new trial on all questions, including liability. We disagree with defendants’ contentions (1) and (3), and therefore need not address the merits of points (2) and (4).

Rule 306 governs appeals from orders of the circuit court granting a new trial limited to the question of damages. It provides in part as follows:

“Rule 306. Appeals From Orders of the Circuit Court Granting New Trials (a) Procedure.
(1) Petition for Leave to Appeal. An appeal may be taken from an order of the circuit court granting a new trial only on the allowance by the Appellate Court of a petition for leave to appeal. The petition shall contain a statement of the facts of the case, supported by references to the record, and of the grounds for the appeal. It shall be duplicated, served, and filed in the Appellate Court in accordance with the requirements for briefs within 30 days after the entry of the order.
(2) Cross Appeal Unnecessary. If the petition is granted, all rulings of the trial court on the post-trial motions are before the reviewing court without the necessity of a cross appeal.
* * *
(d) Excerpts from Record or Abstract. Excerpts from record or an abstract, as required by Rule 342, shall be designated, served, and filed. If excerpts are to be employed, the petitioner’s designation shall be made with the petition and the respondent’s designation with the answer. If an abstract is to be employed, it shall be filed with the petition, and the additional abstract, if any, shall be filed with the answer.
(e) Extensions of Time. The above time limits may be extended upon notice and motion, accompanied by an affidavit showing good cause, filed within the original time or any previously granted extension. A motion to extend the time for filing the petition and record shall be accompanied by a short record as provided in Rule 328.”

The appellate court concluded that its disposition of the defendants’ first appeal justified its declining to review the circuit court’s order granting plaintiff a new trial on the question of damages. Defendants claim that this court’s decision in Hall v. Chicago & North Western Ry. Co. (1955), 5 Ill. 2d 135, directly contradicts the appellate court’s holding on this issue. We disagree.

Hall held only that this court could itself review the propriety of a circuit court’s order granting a new trial on appeal following the second trial. Hall did not suggest that an appellate court which had already considered the issue once could again address the new trial issue in a second appeal following a new trial. Although there is some dicta in Kavanaugh v. Washburn (1944), 387 Ill. 204, 211, which suggests that the new trial issue may be addressed by the appellate court in the second appeal, we decline to follow that dicta.

Kavanaugh was based largely on the assumption that an appellate court’s ruling on a petition for leave to appeal would deal only with the propriety of the new trial order, and that the likely existence of other related issues in a subsequent appeal rendered it impractical to prohibit reconsideration of the new trial issue in such subsequent appeals. The court conceded that “[i] t will be granted that the course of procedure charted by this opinion is involved and confusing, but it seems to be the only available course under the pertinent statutes.” (387 Ill. 204, 212.) The admittedly “involved and confusing” course of procedure charted in Kavanaugh no longer is appropriate under our current rules.

First, if it grants the petition, the scope of the appellate court’s review no longer is confined to the propriety of the circuit court’s order granting a new trial. Rather, upon granting the petition, the appellate court may review all rulings of the trial court. (See 58 Ill. 2d Rules 306(a)(2), 366(b)(2)(v).) Second, even if it denies the petition, we see no reason to permit relitigation of the propriety of the circuit court’s order granting a new trial.

Neither due process (cf. Baumgardner v. Boyer (1943), 384 Ill. 584, 586-91) nor the appeal as of right from final decisions of the circuit court (Ill. Const. 1970, art. VI, sec. 6) requires full briefing, oral argument and a lengthy judicial opinion each time the propriety of a circuit court’s order granting a new trial is challenged. In a slightly different but analogous context, this court has expressly provided for summary treatment in appropriate cases. (See generally 58 Ill. 2d R. 23.) Under the circumstances, the appellate court’s reliance upon its previous summary dismissal of defendants’ petition was more than adequate to dispose of defendants’ right to review in this case.

FinaUy, we also conclude that the defendants’ failure to request a new trial on the question of liability following the jury’s general verdict for plaintiff in the first trial precludes defendants from seeking such relief following the outcome of the second trial, which was limited to the question of damages. Section 68.1(5) of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 68.1(5)) provides:

“Any party who fails to seek a new trial in his post-trial motion, either conditionally or unconditionally, as herein provided, waives the right to apply for a new trial, except in cases in which the jury has failed to reach a verdict.”

However, defendants contend that the trial court’s order granting plaintiff a new trial on the question of damages was, in effect, a directed verdict for plaintiff on the question of liability. Thus, defendants suggest that, according to the rationale of this court’s decision in Keen v. Davis (1967), 38 Ill. 2d 280, they need not have requested anew trial on the question of liability following the first trial. We disagree.

In Keen v. Davis this court held that a party need not file a post-trial motion requesting judgment notwithstanding the verdict following the circuit court’s direction of a verdict in favor of that party’s opponent. The ratio decidendi of Keen was that, in directing a verdict for one party, the circuit court already had passed upon precisely the same questions as would have been raised by an opposing party’s motion for judgment notwithstanding the verdict. That reasoning is not applicable to the instant case. A circuit court’s order setting aside a jury’s general verdict for plaintiff and granting plaintiff a new trial on the question of damages is not substantially equivalent to a directed verdict for plaintiff on the question of liability. A directed verdict is a complete removal of an issue from the province of the jury, and therefore only is proper where “all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.) Where the jury already has reached a general verdict in favor of plaintiff, setting aside that verdict in favor of a new trial on the question of damages does not remove the question of liability from the province of the jury, because the first jury’s verdict on that question remains intact.

As this court held in Paul Harris Furniture Co. v. Morse (1956), 10 Ill. 2d 28, 46-47, the circuit court may set aside a jury’s inadequate general verdict for plaintiff in favor of a new trial on the question of damages only where (1) the jury’s verdict on the question of liability is amply supported by the evidence; (2) the questions of damages and liability are so separate and distinct that a trial limited to the question of damages is not unfair to the defendant; and (3) the record suggests neither that the jury reached a compromise verdict, nor that, in some other identifiable manner, the error which resulted in the jury’s awarding inadequate damages also affected its verdict on the question of liability. Accordingly, the circuit court’s order setting aside the jury’s general verdict for plaintiff in favor of a new trial on the question of damages was not substantially equivalent to a directed verdict for plaintiff on the question of liability, but merely was an affirmance of the jury’s verdict on that question. Therefore the narrow exception to section 68.1(5) of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 68.1(5)) created by Keen v. Davis is not available to the defendants, who thus have waived their right to request a new trial on the question of liability.

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

Judgment affirmed.

MR. JUSTICE KLUCZYNSKI took no part in the consideration or decision of this case.


author: MR. JUSTICE UNDERWOOD MR. JUSTICE CLARK, MR. CHIEF JUSTICE WARD, MR. JUSTICE MORAN,

text:
    (No. 50286.
    — Writ awarded.)
    THE PEOPLE ex rel. THE ILLINOIS JUDICIAL INQUIRY BOARD et al., Petitioners, v. HARRY D. HARTEL, JR., Judge, et al., Respondents.

      Opinion filed July 14, 1978.

    — Rehearing denied September 29, 1978.

      CLARK, J., concurring in the decision.
    GOLDENHERSH, J., took no part.
    WARD, C.J., and MORAN, J., specially concurring.
    Milton I. Shadur, Michael L. Shakman, and James A. Carney, of Chicago (Devoe, Shadur & Krupp, of counsel), for petitioners.
    Charles J. O’Laughlin, Michael J. Rovell, Kathleen J. Purcell, and Steven B. Berlin, of Chicago (Jenner & Block, of counsel), for respondent Charles A. Alfano.
   MR. JUSTICE UNDERWOOD

delivered the decision of the court and the following opinion in which MR. JUSTICE RYAN and MR. JUSTICE KLUCZYNSKI join:

Pursuant to our Rule 381 (58 Ill. 2d R. 381) we allowed the Judicial Inquiry Board leave to file an original petition for mandamus or prohibition. That petition seeks to compel Judge Harry D. Hartel, Jr., of the Lake County circuit court to vacate his order commanding the Board to produce the fruits of its investigation of the conduct of Judge Charles A. Alfano (defendant). The petition also seeks to prohibit any future attempts to compel disclosure of the Board’s actions regarding Judge Alfano or the results thereof.

Charles Alfano is an associate judge of the circuit court of Cook County. On September 5, 1977, he was arrested by Officer Whitmore of the Lake County sheriff’s department and charged with battery and obstructing a police officer from performing his duties, both misdemeanor offenses. Those charges are presently pending before the circuit court of Lake County in a case entitled People v. Charles Alfano. After his arrest, the Judicial Inquiry Board began an investigation to determine whether the incidents giving rise to that arrest constituted a basis for the filing of a complaint before the Courts Commission. That action was independent of any other investigation by the State’s Attorney or police. In the course of that investigation, which is still pending, the Board has obtained certain statements and documents relevant to the incident. One person has testified before the Board while under oath. The Board has not disclosed any information to the State’s Attorney, and its chairman states in an affidavit that the Board will not make any future disclosure to that office. In November defendant moved the trial court to order “that the files of the Judicial Inquiry Board be produced for defendant’s inspection or, in the alternative, that they be produced for inspection by this Court in camera and those portions thereof which contain material exculpatory to defendant be produced for defendant’s inspection.” He alleged as grounds for his motion that:

“1. The Judicial Inquiry Board has conducted an extensive investigation into this case. The investigator for the Judicial Inquiry Board has interrogated substantially all of the witnesses including several who have refused to submit to interrogation by this defendant.
2. The investigator for the Judicial Inquiry Board has from time to time revealed to witnesses friendly to defendant the substance of what other witnesses have stated. In certain instances statements exculpatory to defendant have been revealed. In other instances statements of what occurred which are at variance with prior statements of witnesses adverse to defendant have been revealed.”

Simultaneously, a subpoena duces tecum was served on the Board’s chairman ordering him to appear and produce the “investigative file in the matter of Charles A. Alfano, including reports of all witnesses interviewed.”

Following a hearing on defendant’s motion to produce the Board’s file and the Board’s motion to quash the subpoena duces tecum, an order was entered by Judge Hartel on December 14, 1977, denying the motion to quash and directing the Board to produce at the time of trial all substantially verbatim statements made by any person named on the State’s list of witnesses in the criminal proceeding, to make available to defendant at the conclusion of any witnesses’ direct trial testimony the statements of that witness, and, in addition, to produce within 14 days for the court’s inspection all evidence obtained by the Board during its investigation, the court to deliver to respondent any evidence which “tends to negate the defendant’s guilt or which is of an exculpatory nature. ” It is that order vacation of which is sought in this action.

The Judicial Inquiry Board was created by article VI, section 15(b), of the Illinois Constitution. It is an integral part of Illinois’ system of judicial discipline. Under section 15(c) the Board is authorized to conduct investigations, to receive or to initiate complaints concerning a judge, and to file with the Courts Commission complaints in those cases in which the Board has determined that a reasonable basis exists to charge a judge with misconduct or disability. The Courts Commission, established by section 15(e), hears complaints filed by the Board and determines the discipline, if any, to be imposed. That discipline may include removal of the judge from office. Of particular importance here is the provision in section 15(c) that “[a]ll proceedings of the Board shall be confidential except the filing of a complaint with the Courts Commission.” (Emphasis added.) 111. Const. 1970, art. VI, sec. 15(c).

The Board urges that the confidentiality provision of section 15(c) precludes the disclosure ordered by the trial court; that such disclosure would unconstitutionally impede the Board’s performance of its duties; that because the material required to be disclosed has not been disclosed to the prosecution and is unavailable to it, the due process principles relied upon by the trial judge are inapplicable; and that, assuming judicially compelled production would be appropriate in some circumstances, that production would require the showing of a compelling and - particularized need which has not been demonstrated here.

In contrast to the Board’s contention that its confidentiality is absolute, Judge Alfano contends the principle reason for the confidentiality provision of 15(c) was the protection of judges against unfavorable publicity resulting from irresponsible and unfounded charges or complaints, and that, since it is he who is requesting disclosure, the need for confidentiality is substantially diminished. It is clear that protection of judges from such charges and complaints was an important consideration in the adoption of the confidentiality provision by the Constitutional Convention. (6 Record of Proceedings, Sixth Illinois Constitutional Convention 867.) Other elements, including the encouragement and protection of witnesses, must also be evaluated however, and we cannot conclude, simply because the judge under investigation consents to disclosure, that the Board’s files may automatically be opened to inspection. See In re Mikesell (1976), 396 Mich. 517, 534, 243 N.W.2d 86, 94; McCartney v. Commission on Judicial Qualifications (1974), 12 Cal. 3d 512, 520-21, 526 P.2d 268, 274, 116 Cal. Rptr. 260, 266.

By no means the least of the factors requiring consideration is the fact that the confidentiality which we are asked to breach here is not of the ordinary common law or statutorily provided variety. It is an expressly stated mandate of our constitution that “All proceedings of the Board shall be confidential ***.” (Emphasis added.) Its intent is unmistakable, it is impervious to legislative or judicial change, and it must be implemented except as overriding Federal due process requirements compel us to do otherwise.

The Board argues that if we conclude some form of judicially compelled disclosure is permissible, the prerequisites thereto are akin to those in situations where disclosure of the identities of government “informers” is sought or where production of transcripts of the testimony of witnesses before a grand jury is requested, and that those prerequisites have not been met here. Neither of those privileges is constitutionally based, and, of course, neither is absolute. The informer’s privilege must yield to the requirements of a fair trial. (Roviaro v. United States (1957), 353 U.S. 55, 1 L. Ed. 2d 639, 77 S. Ct. 623; People v. Lewis (1974), 57 Ill. 2d 232), and the “indispensable secrecy of grand jury proceedings” referred to in United States v. Johnson (1943), 319 U.S. 503, 513, 87 L. Ed. 1546, 1555, 63 S. Ct. 1233, 1238, has suffered increasing diminution in the Federal courts. While the Supreme Court in United States v. Procter & Gamble Co. (1958), 356 U.S. 677, 2 L. Ed. 2d 1077, 78 S. Ct. 983, and Pittsburgh Plate Glass Co. v. United States (1959), 360 U.S. 395, 3 L. Ed. 2d 1323, 79 S. Ct. 1237, acknowledged the existence of instances when a particularized showing of a compelling necessity would require piercing the veil of grand jury secrecy, the policies against disclosure were generally reaffirmed. The showing of the compelling and particularized need required by Procter & Gamble and Pittsburgh Plate Glass was held to have been satisfied by government concessions and the peculiar facts in the later case of Dennis v. United States (1966), 384 U.S. 855, 16 L. Ed. 2d 973, 86 S. Ct. 1840, but the suggestion in that opinion of a more liberalized approach to disclosure questions has prompted a dichotomy in the lower Federal court decisions on similar questions. That divergence is typified, perhaps, by Bast v. United States (4th Cir. 1976), 542 F.2d 893, emphasizing that where it is necessary to breach the secrecy of grand jury proceedings, it should be done “discreetly and limitedly” and only upon a showing of a particularized need, and Harris v. United States (D.C. Cir. 1970), 433 F.2d 1127, holding that a defendant is automatically entitled to relevant grand jury testimony of a witness who testifies at trial. We note, however, that even the cases ordering production of privileged material have not done so in the course of an ongoing, uncompleted investigation by a governmental agency as in the case before us. (In re Bonanno (2d Cir. 1965), 344 F.2d 830, 834.) In fact, the Federal courts generally refuse to allow pretrial inspection of grand jury minutes simply for the purpose of preparing for trial. Annot., Accused’s Right to Inspection of Minutes of Federal Grand Jury, 3 A.L.R. Fed. 29, 63 (1970).

Some of the reasons for secrecy in grand jury proceedings, in Judicial Inquiry Board proceedings and in concealing the identities of government informers are similar, but there are additional factors militating against disclosure of Board affairs. The Supreme Court in its recent opinion Landmark Communications, Inc. v. Virginia (1978), 435 U.S. 829, 56 L. Ed. 2d 1, 98 S. Ct. 1535, recognized that confidentiality was uniformly regarded as an important factor in the effective operation of State judicial disciplinary commissions in that it encouraged “the willing participation of relevant witnesses by providing protection against possible retaliation or recrimination,” protected judges “from the injury which might result from publication of unexamined and unwarranted complaints,” maintained confidence in the judiciary by avoiding publicity regarding groundless claims of judicial misconduct made by disgruntled litigants, facilitated the commission’s work by encouraging the “voluntary” resignation or retirement of judges as to whom complaints justifying removal were under consideration since their resignation or retirement would avoid the publicity attendant upon a formal charge or hearing, and made possible the adjustment of minor complaints which might appropriately be called to the judge’s attention without publicity. Other than as it generally confirms the value of the confidentiality bestowed upon commission proceedings, that opinion is not particularly relevant to the issue here, however, for it held only that the first amendment did not permit the criminal punishment of a third party (a newspaper owner) who is a stranger to proceedings before a judicial review commission for publishing truthful information regarding confidential proceedings of that commission.

Other cases concerning judicial disciplinary proceedings also emphasize the need for confidentiality. In reconciling potentially conflicting provisions of its State constitution, the Supreme Court of Florida observed in Forbes v. Earle (Fla. 1974), 298 So. 2d 1, 4:

“The purpose [of its judicial qualifications commission] is to process complaints concerning the judiciary from any and all sources, while requiring confidentiality as a means to protect both the complainant from possible recriminations and the judicial officer from unsubstantiated charges. Confidentiality is also necessary for the Commission to carry out its responsibility to make suitable recommendations concerning judicial personnel problems that affect court efficiency. Eliminating the confidentiality of these proceedings would also eliminate many sources of information and complaints received by the Commission not only from lay citizens and litigants but also from lawyers and judges within the system.”

Similarly, the Supreme Court of Michigan recently stated:

“In In the Matter of Mikesell, 396 Mich. 517, 534, 243 N.W.2d 86, 94 (1976), this Court addressed the policy reasons for limiting disclosure and discovery in judicial fitness proceedings:
‘[T] he confidentiality provisions *** protect witnesses and citizen complainants. If the respondent and others similarly situated were allowed to discover the name of every complainant, including those who will not appear and those whose complaints have been dismissed, the free flow of information to the Commission would be curtailed. The Commission carefully investigates all complaints and this Court would not want to discourage citizen complainants from voicing their ideas.’ ” In re Del Rio (1977), 400 Mich. 665, 686-87, 256 N.W.2d 727, 735; see also McCartney v. Commission on Judicial Qualifications (1974), 12 Cal. 3d 512, 520-21~526 P.2d 268, 274, 116 Cal. Rptr. 260, 266.

The case before us differs, of course, from those we have cited. It is not the typical one of a criminal defendant seeking production of evidence in the hands of the prosecuting attorney or an agency within his control. We note that even if that were the case here, Judge Alfano, charged only with misdemeanor offenses, would not be entitled as of right to the discovery provided by our criminal discovery rules which apply only to offenses punishable by imprisonment in the penitentiary. (58 Ill. 2d R. 411, 412; People v. Schmidt (1974), 56 Ill. 2d 572.) It would indeed be anomalous if in these circumstances, where the crimes with which defendant is charged are not sufficiently serious to entitle him to discover evidence in the possession of his adversary, he could force disclosure of constitutionally privileged evidence in the hands of a third party.

Nor is this case like the judicial disciplinary cases earlier referred to in which the respondent judge seeks production from the charging body. Here no complaint has been filed with the Courts Commission by the Board, nor is it certain that one ever will be filed. Rather, the judge is defending himself in the circuit court, against criminal charges — misdemeanors—and may obtain, we are told, as a result of an agreement with the prosecutor, all of the liberal discovery which our rules provide for those charged with felonies. Additionally, however, he seeks in the proceedings before us to compel the Judicial Inquiry Board — an independent, autonomous body created by a constitution which classifies its proceedings as confidential — to interrupt its ongoing investigation of his conduct and deliver to him, or to the circuit court for its in camera inspection, the material gathered by the Board in the course of that investigation. Production is sought on the basis of his assertion, apparently unsupported by testimony or affidavit, that an unidentified investigator for the Board has questioned “substantially all of the witnesses [unidentified] including several [unidentified] who have refused to submit to interrogation by this defendant.” It is further asserted that the unidentified investigator “has from time to time revealed to witnesses [unidentified] friendly to defendant the substance [unexplained] of what other witnesses [unidentified] have stated,” and that conflicting statements of unidentified witnesses adverse to defendant have been revealed. In our opinion such triple hearsay clearly fails to establish a basis for the extensive production embraced within the trial court’s order. We earlier discussed the cases dealing with grand jury and informer privileges simply to demonstrate that, even as to them, the production here sought would be denied. There is among those cases, and the many others examined by us, none which would compel mid-inquiry, pretrial production even of grand jury minutes based upon an unverified motion which states only conclusions based upon multiple hearsay statements by unidentified persons. That motion is merely a “rummaging *** for exculpatory scraps.” United States v. Soto (7th Cir. 1958), 256 F.2d 729, 734.

We believe defendant and the trial court failed to recognize the unique nature of the case before us, and the differing due process considerations applicable to it. Our concept of the due process guaranteed by our constitutions equates it with fundamental fairness. (In re Murchison (1955), 349 U.S. 133, 99 L. Ed. 942, 75 S. Ct. 623; Palko v. Connecticut (1937), 302 U.S. 319, 82 L. Ed. 288, 58 S. Ct. 149; see J. Nowak, R. Rotunda & J. N. Young, Handbook on Constitutional Law 501 (1978).) One of the reasons for permitting the limited disclosure of normally privileged grand jury testimony and informers’ identities in the usual case is that the information disclosed is already known to the prosecutor or readily accessible to him. When a defendant can demonstrate a substantial need for that information which is already known or available to his adversary, considerations of basic fairness tend to favor its disclosure to him, absent compelling reasons to the contrary. But in the case before us the prosecutor has no greater access to the information and statements sought by defendant than does defendant. As to that information the scales are not unequally balanced and no advantage rests with the prosecution. Consequently there exists substantially less compulsion to break the seal of confidentiality with which our constitution has clothed the Board proceedings.

We do not believe, however, the confidentiality provision of section 15(c) can be regarded as erecting an impenetrable barrier to any disclosure, no matter how essential that disclosure might be to a correct conclusion of the criminal proceedings in which the judge under investigation is a defendant. Such an interpretation could not withstand scrutiny in the light of due process requirements of the Federal Constitution and its supremacy clause for “[t] he impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts ***.” (United States v. Nixon (1974), 418 U.S. 683, 707, 41 L. Ed. 2d 1039, 1063, 94 S. Ct. 3090, 3107; Reynolds v. Sims (1964), 377 U.S. 533, 584, 12 L. Ed. 2d 506, 540, 84 S. Ct. 1362, 1393.) In Nixon the Supreme Court considered whether a. subpoena should be quashed because it demanded tapes of confidential conversations between the President and his close advisors which were asserted to be privileged from disclosure. The court there found the Presidential privilege to be “fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution.” (418 U.S. 683, 708, 41 L. Ed. 2d 1039, 1064, 94 S. Ct. 3090, 3107.) Nonetheless, held the court, “the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts.” (418 U.S. 683, 712, 41 L. Ed. 2d 1039, 1066, 94 S. Ct. 3090, 3110.) “We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality [as contrasted to questions of national security], it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” (418 U.S. 683, 713, 41 L. Ed. 2d 1039, 1066-67, 94 S. Ct. 3090, 3110.) We regard the holding and discussion in Nixon as dispositive of the contention that the 15(c) confidentiality provision cannot be subordinated to Federal due process needs. Nor does the fact that the Board’s investigation is independent from that of the police and State’s Attorney, and that the latter have no greater access to its results than does the defendant, totally insulate the Board from due process requirements. While the holding in Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, that failure to disclose favorable evidence to a criminal defendant upon his request violated due process involved only evidence in the prosecutor’s possession, other decisions have extended the obligation of disclosure to embrace evidence in the possession or control of other governmental agencies. (United States v. Loman (7th Cir. 1977), 551 F.2d 164; United States v. Deutsch (5th Cir. 1973), 475 F.2d 55; United States v. Bryant (D.C. Cir. 1971), 439 F.2d 642.) While the governmental agencies in the cited cases were, perhaps, more closely related to the prosecuting agency than is the Judicial Inquiry Board, the Board is still an agency of the prosecuting sovereign. Although having no connection with the prosecutor’s office, there are similarities between the duties of that office and the Board’s function in the discharge of its important responsibilities in maintaining the high standards of judicial conduct which our rules impose. In the infrequent cases where a judge is a defendant in a criminal case the Board will undoubtedly be conducting an investigation, as it is here, to determine whether the conduct on which the criminal charge is based should also be the basis for a complaint before the Courts Commission. If in the course of that investigation the Board comes into possession of evidence or material which in the Board’s opinion on its face plainly negates defendant’s guilt, it would, in our judgment, be contrary to the due process philosophy underlying Brady to deny production of that evidence upon defendant’s request. We accordingly hold that as to evidence or material in the Board’s possession which on its face plainly negates defendant’s guilt, and only as to such material or evidence, the confidentiality provisions of section 15(c) must yield to Federal due process requirements, and that, upon defendant’s request, its production and delivery to him may be ordered. Responsibility for determining the character of such material must remain with the Board, for to permit inspection of all material by defendant would reduce the privilege to a sham. Nor would an in camera inspection by the court be desirable for the purpose of isolating that which we hold must be produced. The producible material is only that which on its face plainly negates guilt, and we do not doubt the Board’s competency to make that determination. Precluding court inspection also avoids the possibility that lawyers would be reluctant to cooperate in Board investigations because they know their statements may be examined by judges.

The writ of mandamus is accordingly awarded directed to Judge Hartel to vacate his December 14 production order.

Writ awarded.

MR. JUSTICE CLARK,

concurring in the decision:

This case requires us to balance the competing needs of two separate and distinct adjudicative processes, the • criminal justice process and the judicial disciplinary process. In its current posture, this case has been interfering with the effective operation of both processes. Therefore, for the reasons which follow, I concur in the award of the writ on the terms stated in the plurality opinion. However, my approach to this case differs in some respects from that stated in the plurality opinion.

Section 15(c) of article VI of our constitution provides in part, “All proceedings of the [Judicial Inquiry] Board shall be confidential except the filing of a complaint with the Courts Commission.” In my opinion, this provision was intended exclusively for the protection of judges under investigation. The majority report (which is not contradicted in this respect by the minority report) of the Committee on Judiciary on Recommendations in Proposal Number 2 states: “To protect judicial officers against irresponsible charges and complaints, all proceedings of the Inquiry Board are to be confidential except the filing by it of a complaint with the Courts Commission.” (6 Proceedings 867.) The committee further amplified this language later in the report:

“The requirement that proceedings antecedent to the filing of a formal complaint be confidential has already been noted. In addition, the requirement that a majority of all members of the Inquiry Board must concur in a decision to file a complaint underscores the seriousness of such an action. There is too much at stake to permit public complaints to be filed by less than a majority of the entire membership of the Inquiry Board. Even a subsequent vindication of the judge by the Courts Commission will not undo the damage of a complaint based upon inadequate investigation or insufficient evidence.” (Emphasis added.) (6 Proceedings 871.)

I find it persuasive that, in explaining the intent of the confidentiality provision, the drafters made no mention of an intent to protect witnesses and complainants. I therefore would construe the above-quoted language of section 15(c) of article VI of the Constitution as a protection of the judge under investigation, which that judge may waive.

Our inquiry does not end here, however, for the ability of the judge to waive the confidentiality of the Board’s proceedings does not imply a corresponding right to compel their disclosure. As the plurality opinion correctly points out, the confidentiality of complaints and testimony presented to the Board serves important purposes, not the least of which is the encouragement of candor through protection against retribution. A qualified privilege against the premature disclosure of the complaints and testimony before it therefore is essential to the effectuation of the Board’s constitutional mandate and may be implied therefrom.

It is extremely significant in this regard that the Constitution gives the Board the power and duty to “adopt rules governing its procedures” (Ill. Const. 1970, art. VI, sec. 15(d)). The drafters noted that “[t]he investigative procedures of the Inquiry Board are not spelled out. These are properly left to the Board’s rules.” (6 Proceedings 871.) I would be inclined to give great deference to a thoroughly considered and carefully drafted rule providing reasonable standards and procedures for the disclosure to a judge under investigation of information obtained through that investigation. I also would find significant the approach of the many other jurisdictions which have dealt with various aspects of this problem, in reviewing the reasonableness of any such rule. See generally Landmark Communications, Inc. v. Virginia (1978), 435 U.S. 829, 846-48, 56 L. Ed. 2d 1, 15-16, 98 S. Ct. 1535, 1545-46 (citations to provisions in several jurisdictions).

Since no such rule is now before us, the application of the Board’s qualified privilege to the facts of this case must be analyzed generally in terms of the purposes of the privilege and the competing needs of the criminal justice process. The Board’s need for some degree of confidentiality stems primarily from its dependence upon the trust of individuals who otherwise might fear retribution at the hands of an accused judge. Compelled disclosure of the Board’s records will, to some degree, undermine that trust. However, since the only instance when such disclosure can be compelled would be the rare case involving a judge against whom criminal proceedings had been instituted regarding the same or related misconduct, potential complainants and witnesses can be assured that it is highly unlikely that their testimony will be revealed.

In addition, a judge accused of criminal (including misdemeanor) misconduct is not entitled to indiscriminately demand to see everything in the Board’s file on him, as was done in the instant case. Thus, on the facts of this case, and in light of the complete lack of particularity with which the accused judge’s original demand was stated, I agree that the discovery permitted in this case should be limited to “evidence or material in the Board’s possession which on its face plainly negates defendant’s guilt.” (72 111. 2d at 238.) However, I am not persuaded that, in a proper case, the scope of discovery afforded a judge accused in a criminal proceeding need not be somewhat broader to effectuate fully the truth-finding and exculpatory functions of the criminal justice process. In my opinion, therefore, in a proper case, discoverable material would include any information or material in the Board’s possession which tends to negate defendant’s guilt or which would undermine substantially the credibility of a potential witness against the defendant at trial. I would expect the Board to comply fully with both the letter and spirit of this standard, and to submit any material regarding which a reasonable basis for disagreement exists (as to its discoverability) to the court for its in camera inspection.

For the foregoing reasons, I concur in the award of the writ on the terms stated in the plurality opinion.

MR. JUSTICE GOLDENHERSH took no part in the consideration or decision of this case.

MR. CHIEF JUSTICE WARD,

specially concurring:

The construction of the written law, whether in statutory or constitutional form, is at times admittedly an uncertain and difficult art. The drafters of our constitution and the voters who approved it, however, would be astonished and perturbed to learn that this court has made it possible for the Judicial Inquiry Board to withhold from a criminal trial exculpatory evidence, requested by an accused judge or ordered by a trial court, which could produce a reasonable doubt of guilt. This is because the plurality says the Board need only produce upon the accused judge’s request “evidence or material in the Board’s possession which on its face plainly negates defendant’s guilt.” (72 Ill. 2d at 238.) This disclosure standard of plainly negating guilt is of course completely arbitrary and without precedent in any jurisdiction. I consider it to be offensive to the Federal command of due process and fair trial and of course to the commands of our constitution as well. An additional problem arises when one attempts to determine what is meant by the described standard. The plurality states confidently: “The producible material is only that which on its face plainly negates guilt, and we do not doubt the Board’s competency to make that determination.” (72 Ill. 2d at 238.) Many will say, however, that it is a standard easily stated but difficult to interpret and to apply. Whether the Board will have experienced difficulties of interpreting and applying in cases of nondisclosure propbably will never be known, for its decision not to disclose cannot be reviewed.

The fundamental of construction is to determine intent. The plurality opinion here fastens on the word “confidential” with a literalness I am sure never was intended. I would point out that this literal interpretation also creates the following offensive anomalies so far as the policy of this court is concerned as to disciplinary proceedings against judges and against lawyers. Our Rule 766 (65 Ill. 2d R. 766) declares that the proceedings before the inquiry, hearing and review boards of the Illinois Attorney Registration and Disciplinary Commission shall be private and confidential, subject to certain specified exceptions. Court records will show, however, that the Commission, which was created by our Rule 751 (58 Ill. 2d R. 751) and which operates under this court’s direction, has responded to subpoenae duces tecum for investigative records in matters which involved complaints filed before the Commission against attorneys. The plurality focuses on the words “all proceedings of the [Judicial Inquiry] Board shall be confidential” and states that a judge who is an accused in a criminal proceeding cannot obtain exculpatory evidence unless the evidence in the Board’s possession “on its face plainly negates defendant’s guilt.” But an adversary of an attorney against whom a complaint has been filed can, by subpoena, secure evidence in the possession of the Commission despite our rules declaring that the proceedings before the Commission shall be confidential. It seems to me that this court will be vulnerable to a charge of giving one meaning to confidentiality when applied to attorneys and another meaning when applied to judges. We will not be able to evade this criticism by saying that one direction making proceedings confidential is set out in a rule of court and the other is set out in the Constitution, for that cannot be a critical distinction. The requirement of fair trial is not to be frustrated by either a rule of court or by a constitution. It should also be pointed out that Rule 766 states that, at the request of the attorney against whom the complaint has been filed, the proceedings shall be public. This court, in promulgating the rule, recognized that the confidentiality provision was for the benefit of the attorney who might be complained against and could be waived by him. The plurality concludes differently in this case involving a judge and a confidentiality provision.

In New York Times Co. v. Jascalevich (Aug. 1, 1978), 47 U.S.L.W. 3066, 3067, Justice White, sitting as circuit justice, stated that there was no constitutional privilege for newsmen to withhold subpoenaed documents material to the defense of a criminal case. The circumstances considered by Justice White, though not in precise alignment with those here, resemble them. Justice White’s denial of the stay applied for supports the position that the plurality opinion here seriously errs in limiting the right to prepare a defense.

I would also observe that the principal opinion speaks of the “encouragement and protection of witnesses” (72 Ill. 2d at 230) as a consideration in denying the production even of evidence that would exculpate an accused. Concern for the safety of witnesses is hardly a factor when the evidence is exculpating, unless we act on a devastating assumption that the People will undertake to harass and intimidate witnesses.

I suppose it is inevitable that there will be cases in which the Judicial Inquiry Board will file complaints with the Courts Commission after the trial of a judge in which exculpatory evidence under the plurality’s view was withheld from the trial court or jury and the judge was found guilty. Discovery will be available to the judge in the Courts Commission proceeding, and he may in a given case then obtain exculpating evidence which, if it had been available earlier, would almost certainly have resulted in his acquittal in the criminal proceeding. That will be an irony to ponder when and if it occurs.

Notwithstanding my disagreement with much of what the plurality opinion states, I consider that the order of the trial court was too broad that directed the Board to make available all statements that a witness gave earlier to the Board. I think that the trial court’s order should have been confined to statements that were material, relevant and usable to impeach.

MR. JUSTICE MORAN,

also specially concurring:

While I believe a writ of mandamus should issue in this case, I differ from my colleagues on the command of the writ and the reasons for it. I believe, as does Mr. Justice Clark, that a criminal defendant is entitled to a broader scope of discovery than that permitted in the plurality’s opinion but, in contrast to Mr. Justice Clark, feel this is a proper case for that broader scope. The trial court’s order, requiring disclosure, attempted to strike a proper balance between the confidentiality requirement of article VI, section 15(c), of the Illinois Constitution and the defendant’s guarantee of a fair trial under the fifth and sixth amendments to the United States Constitution. It is the procedural aspects of the order that I would modify.

The Board, in its brief, has enumerated policy reasons for required confidentiality, reasons additional to that of protecting judicial officers from irresponsible charges and complaints. Mr. Justice Clark has aptly observed that neither the reports of the constitutional convention nor relative debates indicate that the confidentiality requirement of section 15(c) was intended to serve any purpose other than to protect the judicial officer under investigation. Additional" purposes for the confidentiality requirement must be inferred from the nature of the Board’s duties.

There is no question that the Board can fulfill its responsibilities only if complainants and witnesses freely come forward with information. Such free flow of information depends, in part, on a person’s expectation of confidentiality to shield him from possible recrimination by an individual subject to investigation. It is this countervailing need to protect complainants and witnesses so as to encourage the voluntary disclosure of information which necessitates the balancing of defendant’s right to a fair criminal trial against the implied policy which justifies nondisclosure. In balancing these needs, the plurality has emphasized the constitutional guarantee of confidentiality, forgetting, however, that “[t]he right to the production of all evidence at a criminal trial similarly has constitutional dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial the right ‘to be confronted with the witnesses against him’ and ‘to have compulsory process for obtaining witnesses in his favor.’ Moreover, the Fifth Amendment also guarantees that no person shall be deprived of liberty without due process of law. It is the manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all relevant and admissible evidence be produced.” United States v. Nixon (1974), 418 U.S. 683, 711, 41 L. Ed. 2d 1039, 1066, 94 S. Ct. 3090, 3109.

In addressing the defendant’s right to disclosure, the plurality has extensively discussed the law regarding discovery in the criminal setting. The prosecutor’s equal or greater access to the same information is, however, in my opinion, here irrelevant, for it is defendant’s right in a criminal trial to the production of all available evidence with which we are here concerned.

The plurality limits disclosure to evidence which “on its face plainly negates defendant’s guilt.” In my opinion, due process requires disclosure of all information or material in the Board’s possession (excluding the Board’s work product) which tends to exculpate the defendant, as well as statements by a complainant or witness which would undermine the credibility of that person’s testimony against the defendant at his criminal trial.

As to exculpatory evidence, the need for confidentiality is minimal. Complainants and witnesses who give exculpatory testimony before the Board have little reason to fear recrimination. Moreover, the need of a criminal defendant for any evidence which might tend to exculpate him is particularly acute. As this court has stated in the past, for the policy of confidentiality to be soundly based, it must be more desirable to risk concealment of the truth than to disrupt the values that such policy supports. (See People ex rel. Noren v. Dempsey (1957), 10 Ill. 2d 288, 293.) Here, the need for confidentiality does not outweigh defendant’s need for that which might vindicate him in his criminal trial.

As to statements which undermine the credibility of a witness who testifies against the defendant at a criminal trial, discoverability should also be allowed. The policy of protecting a witness’ expectation of privacy must yield as to those matters to which he has testified in the criminal proceeding. (Accord, People v. Johnson (1964), 31 Ill. 2d 602, 606, regarding the disclosure of secret grand jury testimony.) Evidence which strikes at the credibility of a witness in a criminal case is as crucial to the defendant as that which tends to exculpate his guilt.

It was previously noted that the trial court’s order attempted to balance the countervailing constitutional provisions discussed. The order compelled the Board to, within 14 days, deliver to the court for its inspection all material acquired during the Board’s investigation. That which tended to exculpate the defendant was to be released to the defendant. The order further required that, at the time of trial, the Board was to produce all statements made by any person named in the State’s list of witnesses in the criminal proceeding, the statements to be made available to the defendant for impeachment purposes at the conclusion of a witness’ direct trial testimony. I believe, however, that the order is procedurally too broad.

To accommodate the confidentiality requirement to the fullest, while, simultaneously, effectuating defendant’s right to a fair criminal trial, the initial determination of whether there exists any exculpatory evidence (not just evidence which “on its face plainly negates defendant’s guilt”) should be made by the Board. Where such evidence exists, the Board, on proper order of the court, should release it to the defendant forthwith. If Board members disagree on whether certain material or evidence is, in fact, exculpatory, the disputed material or evidence should be submitted to the trial court for its in camera inspection and its ultimate determination. In this regard, Mr. Justice Clark and I take similar positions.

Statements made before the Board by a witness who testifies in the criminal proceedings should be made available for the court’s in camera inspection. The court should determine that portion of the statement which is relevant to the witness’ in-court testimony and turn only that portion over to defendant’s counsel for possible impeachment purposes.

These procedures, in my opinion, would assure the confidentiality of material that should not be disclosed and afford the defendant his constitutional right to a fair criminal trial.

I would, therefore, award the writ directing the trial court to modify its order to conform to the views here expressed.