author: JUSTICE GOLDENHERSH

text:
    (No. 56436.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. SKOWRAN REID, Appellant.

      Opinion filed January 24, 1983.

    Tyrone C. Fahner, Attorney General, of Springfield, and J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Michael B. Weinstein and Michael V. Accettura, Assistant State’s Attorneys, of Springfield, of counsel), for the People.
    Daniel D. Yuhas, Deputy Defender, and Gary S. Rapaport, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

In a bench trial in the circuit court of McLean County, defendant, Skowran Reid, was convicted of attempted armed robbery (Ill. Rev. Stat. 1979, ch. 38, pars. 8 — 4, 18 — 2) and sentenced to 10 years’ imprisonment. Defendant appealed the sentence, and the appellate court, by Rule 23 order (73 Ill. 2d R. 23), affirmed (102 Ill. App. 3d 1208). We allowed defendant’s petition for leave to appeal. 85 Ill. 2d R. 315(a).

Defendant approached Diane Smith, who had just parked her automobile in the parking lot of a food store in Bloomington. Defendant was carrying a “walking stick” which he had carved. The stick was approximately 3V2 feet long and two inches thick. Defendant demanded Ms. Smith’s purse, but Ms. Smith replied that she was not going to give it to him. Defendant then raised the stick, drew it back as if it were a baseball bat, and made a short stroking movement to indicate that he would use the weapon if she did not relinquish her purse. Ms. Smith then exclaimed, “You are not going to hit me ***,” and defendant turned and walked away.

At the sentencing hearing, the People argued that because defendant had two previous burglary convictions he should be given a minimum sentence of seven years’ imprisonment. Counsel for defendant argued that defendant should receive the minimum permissible sentence. As mitigating factors defense counsel argued that the victim did not appear to have any lasting psychological problems from this incident, defendant’s father had died recently and defendant’s mother and sister needed his support, defendant had successfully completed parole the last time he was sentenced to prison, and that “there was no physical harm, touching of the victim.” Defense counsel characterized the incident as an exchange of gestures between the defendant and the victim and noted that the victim was never touched nor did she lose anything during this incident.

The circuit court judge noted that probation was not available to defendant, but stated that even if it were he would not grant him probation due to his prior criminal history. The circuit court continued:

“I believe that the, in evaluation of the evidence at trial and a consideration of the P.S.I. together dictate or recommend the imposition of a penitentiary sentence. I believe that the Defendant planned the offense that he committed, or a similar offense. We know that the evidence was such that harm was threatened; that an effort at intimidation by way of the use of a weapon was made.
Your remarks may be appropriate in the sense, Mr. O’Rourke [defense counsel], in that the Defendant may have picked a victim which, who was somebody who didn’t want to be a victim and wasn’t a very willing one, and sort of turned the tables on the situation, and by the strength of her own character and determination prevented herself from being robbed.”

The circuit court noted that this was defendant’s third felony conviction within a four-year period and that he was in the penitentiary a good part of that period of time. The trial court stated that it believed that defendant was not truthful at trial and it was permissible for the court to take this into consideration in determining an appropriate sentence. The circuit court sentenced defendant to 10 years in the Illinois Department of Corrections.

On appeal, defendant argued that the circuit court erred in sentencing him because it “considered the fact that defendant threatened to strike the victim with a heavy stick or club in attempting to rob her as an aggravating factor which threatened physical harm to the victim.” The appellate court reviewed this court’s decisions in People v. Conover (1981), 84 Ill. 2d 400, and People v. Brownell (1980), 79 Ill. 2d 508, and noted that a factor necessarily inherent in the offense charged may not be considered as an aggravating factor for the reason that the General Assembly must have presumed the existence of the factor when it determined the appropriate range of punishment for the commission of that crime. The appellate court stated that regardless of whether it was appropriate to consider the threat of harm as an aggravating factor, the circuit court did not do so. The appellate court stated further that even if the circuit court’s comments could be interpreted to indicate that it was considering the threat of force or physical harm as an aggravating factor, “the statement of the court does not give any indication that consideration of the threat of serious harm was a major consideration in the imposition of the sentence.” The appellate court concluded that even if the statements were improper, they did not require reversal.

We agree with the appellate court that the circuit court’s comments do not show that it considered the threat of harm an aggravating factor. The court’s comments immediately following the mention of harm being threatened indicate that its comments were in response to defense counsel’s suggestion that no harm had occurred and that the incident amounted to little more than an exchange of words or gestures.

It is clear from the record that the circuit court imposed the 10-year sentence primarily because of defendant’s criminal record, and not because force was used in the commission of the offense. The court stated that even if it could impose probation, it would not consider probation due to defendant’s two prior felony convictions. It is equally clear that the court also considered defendant’s lack of truthfulness at trial as a factor in aggravation. We find no indication that the use of force was considered a factor in aggravation, and the judgment of the appellate court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: JUSTICE MORAN

license: Public Domain

text:
    (No. 56275.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. CHARLES W. RICHARDS, Appellee.

      Opinion filed January 24, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield, and John A. Barra, State’s Attorney, of Peoria (John X. Breslin, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Daniel D. Yuhas, Deputy Defender, of the Office of the State Appellate Defender, of Springfield (Jeffrey D. Foust, Assistant Defender, and John M. Wray, law student, of counsel), for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

The defendant, Charles W. Richards, was indicted for burglary and, before trial, moved to suppress certain evidence allegedly obtained in an illegal search. The circuit court of Peoria County granted defendant’s motion. The appellate court affirmed (103 Ill. App. 3d 1120), and we allowed the State leave to appeal.

This appeal raises but one question. Does an arrestee retain a reasonable and justifiable expectation of privacy in his personal effects once the police have legitimately viewed, inventoried and placed them in a police inventory envelope?

The testimony at the suppression hearing revealed the following facts. On January 12, 1980, a Peoria County detective, Robert Lucas, investigated a burglary at the residence of George W. Mullen in Peoria Heights. Among the items reported stolen were several firearms, a television set, and various pieces of jewelry, including a unique necklace. The necklace had a pendant made out of a 1925 silver dollar. Part of the coin had been cut out so that only the head of the liberty figure and the year remained. The detective’s investigation revealed that defendant had applied for employment at Mullen’s gasoline service station; that Harold J. Ramsey had helped the Mullens move into their home; and that both defendant and Ramsey resided at the Peoria County Work Release center.

On January 16, 1980, Lucas contacted the center and learned that defendant and Ramsey were last seen leaving the center for work on the morning of the burglary. At that time, both were released for a weekend furlough. The director at the center told Lucas that since that time, defendant had violated the center’s work-release rules and had been arrested. Lucas then discovered that defendant was being held at the Tazewell County jail because of an overflow of inmates at the Peoria County jail. The record does not reveal the date of this incarceration.

At the time of detention, pursuant to the standard lockup procedure, the Tazewell County jail officer searched and inventoried all of defendant’s personal effects. The items were then placed in a manila envelope with defendant’s name on it. A necklace was among the items inventoried.

In furtherance of the burglary investigation, Lucas telephoned the Tazewell County jail and inquired about the inventoried property of defendant. A jail officer described the necklace, which matched the description of the necklace taken in the burglary. On the next day, Lucas brought Mrs. Mullen to the jail to look at the necklace. Pursuant to his request, the desk sergeant retrieved Richards’ property envelope, opened it and removed the contents. Mrs. Mullen identified the necklace as a piece of jewelry taken from her home.

Lucas then took defendant into a private room, gave him the Miranda warnings, displayed the necklace, and questioned him about the burglary. Initially, defendant denied involvement in any burglary. Lucas reminded him that the necklace was among his personal effects. Afterward, defendant made various oral and written inculpatory statements concerning the January 12 burglary.

Defendant moved to suppress the necklace, contending it was obtained in an unlawful warrantless search, and to suppress the inculpatory statements as fruits of the invalid search.

The State argues that the defendant lacked a reasonable expectation of privacy in the necklace after it was legally viewed and inventoried by the police and remained in police custody. The defendant concedes the inventory temporarily reduced his privacy interest in the necklace, but maintains that when it was placed into the police inventory envelope for safekeeping, his expectation of privacy was renewed.

It is fundamental that, in order to invoke the fourth amendment protection, the defendant must demonstrate an unreasonable government intrusion into his legitimate expectations of privacy. (Smith v. Maryland (1979), 442 U.S. 735, 61 L. Ed. 2d 220, 99 S. Ct. 2577; United States v. Chadwick (1977), 433 U.S. 1, 53 L. Ed. 2d 538, 97 S. Ct. 2476.) A protectable expectation of privacy must be both reasonable and justifiable. People v. Campbell (1977), 67 Ill. 2d 308, 316, cert. denied (1978), 435 U.S. 942, 55 L. Ed. 2d 538, 98 S. Ct. 1521.

In United States v. Edwards (1974), 415 U.S. 800, 39 L. Ed. 2d 771, 94 S. Ct. 1234, the police arrested the defendant late at night and charged him with attempting to break into a post office. The defendant’s personal effects, except his clothes, were inventoried and he was placed in a cell. The police investigation revealed that the attempted entry was made at a wooden window, and several paint chips were left scattered on the window sill. The next morning the police ordered the defendant to remove his clothing and examined it. They found paint chips identical to those discovered on the window sill. The defendant moved to suppress admission of this evidence, claiming the police seized his clothes without a warrant. The district court denied his motion, but the court of appeals reversed, saying that the warrantless siezure after the inventory search had been completed was a violation of the defendant’s fourth amendment rights. The Supreme Court reversed, finding that the fourth amendment did not apply in these circumstances. The majority reasoned that the legal arrest substantially diminished the accused’s legitimate expectations of privacy in his person and clothing. These expectations were thus overridden by countervailing police interest in weapons, means of escape and evidence of crime. The majority cautioned, however, that merely because the warrant requirement was inapplicable in that case, the police were still subject to constitutional constraints. A second look “must [still] be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures.” United States v. Edwards (1974) , 415 U.S. 800, 808 n.9, 39 L. Ed. 2d 771, 778 n.9, 94 S. Ct. 1234, 1239 n.9.

After Edwards, cases addressing similar factual situations to the case at bar have reasoned that a second inspection of personal effects, when previously exposed to police view under unobjectionable circumstances, does not invade any substantial privacy interest. United States v. Phillips (8th Cir. 1979), 607 F.2d 808; United States v. Oaxaca (9th Cir. 1978), 569 F.2d 518, cert. denied (1978), 439 U.S. 926, 58 L. Ed. 2d 319, 99 S. Ct. 310; United States v. Jenkins (2d Cir. 1974), 496 F.2d 57, cert. denied (1975), 420 U.S. 925, 43 L. Ed. 2d 394, 95 S. Ct. 1119; State v. Bryant (La. 1975), 325 So. 2d 255; People v. Perel (1974), 34 N.Y.2d 462, 358 N.Y.S.2d 383; State v. Nesmith (1979), 40 N.C. App. 748, 253 S.E.2d 594; People v. Rivard (1975), 59 Mich. App. 530, 230 N.W.2d 6.

For example, in United States v. Jenkins (2d Cir. 1974), 496 F.2d 57, the accused’s money was inventoried for safekeeping following an arrest for a traffic violation. Less than one week later, a second inspection of the money by a Federal agent revealed that the serial numbers of those bills coincided with marked bills stolen in a recent robbery. The court rejected the defendant’s argument that Edwards was inapplicable because the second look was for the purpose of obtaining evidence of a different crime than that for which the arrest was made. The court said that this second inspection was not an intrusion into an area that the defendant could reasonably expect would remain private. It concluded that no reasonable expectations of privacy were invaded and no search occurred when the police officers simply looked again at what they had already law-folly seen.

In fact, the Edwards holding has been interpreted to mean “that at least when (i) an object lawfully came into plain view at the time of a search upon the arrestee’s arrival at the place of detention, (ii) later investigation establishes that this item is of evidentiary value, and (iii) the item remains in police custody as a part of the arrestee’s inventoried property, then it is permissible for the police, without a warrant, to retrieve that object and thereafter deal with it as an item of evidence.” (2 W. LaFave, Search and Seizure sec. 5.3(b), at 315 (1978).) Cases decided before Edwards have also followed this reasoning. United States v. Grill (5th Cir. 1973), 484 F.2d 990, cert. denied (1974), 416 U.S. 989, 40 L. Ed. 2d 767, 94 S. Ct. 2396; Evalt v. United States (9th Cir. 1967), 382 F.2d 424; Baskerville v. United States (10th Cir. 1955), 227 F.2d 454.

The appellate court refused to extend Edwards and its progeny to the case at bar, but instead relied upon the reasoning and rationale found in People v. Lafayette (1981), 99 Ill. App. 3d 830, cert. granted (1982), 459 U.S. 986, 74 L. Ed. 2d 381, 103 S. Ct. 339, and Brett v. United States (5th Cir. 1969), 412 F.2d 401, cert. denied (1969), 396 U.S. 921, 24 L. Ed. 2d 202, 90 S. Ct. 252. In Lafayette, the defendant was arrested for disturbing the peace. He was ordered to empty his pockets, and his personal effects were inventoried. The police then searched the defendant’s shoulder bag to inventory its contents and found amphetamines in the shoulder bag. The court affirmed suppression of the amphetamines, saying that the shoulder bag carried an expectation of privacy independent of the arrestee’s body and clothing.

In Brett, the defendant was arrested for importing, transporting, and concealing heroin. At the jail, he was given prison garb and his personal effects and clothing were put in a bag in the prisoner’s property room. Three days later a narcotics agent requested the jail guard to inspect the contents of the property bag. The guard searched the defendant’s pants pockets and found cellophane papers, containing traces of heroin, in the watch pocket. The court found this search invalid, but distinguished its facts from situations like the case at bar, saying that the search in Brett “was not a later look at items which had remained in police custody after having been discovered in an earlier and valid search, as in Baskerville v. United States, 227 F.2d 454 (10th Cir. 1955).” Brett v. United States (5th Cir. 1969), 412 F.2d 401, 405.

Unlike Lafayette and Brett, the case at bar did not involve a search for items the defendant had concealed in a container, or a further inspection of defendant’s personal effects to discover something not previously seen by the police. The defendant argues, though, that an arrestee retains an expectation of privacy in places and goods even after they are exposed to the authorities, citing Michigan v. Tyler (1978), 436 U.S. 499, 56 L. Ed. 2d 486, 98 S. Ct. 1942, and State v. Simpson (1980), 95 Wash. 2d 170, 622 P.2d 1199.

In Tyler, firemen conducted a search to discover evidence of arson on the defendant’s property several days after the fire was extinguished. Under these circumstances, the court said, a warrant was required even though the firemen had been at the site during the fire. (See also People v. Holloway (1981), 86 Ill. 2d 78.) Tyler, like Brett, involved a search to discover new evidence not previously-seen, which makes it factually inapposite to the instant case.

In Simpson, the defendant was arrested on a warrant for forgery. At the jail, the defendant’s personal possessions, including keys to his truck, were inventoried and placed in a property box. Later that day, the police, suspecting the truck had been stolen, removed the truck keys from the property box, returned to the truck, and opened its door to find the vehicle identification number. A check of that number revealed the truck was stolen. The court ruled that this was an unlawful search since the defendant retained a legitimate expectation of privacy in the locked truck and the vehicle identification number concealed within it.

Both Tyler and Simpson involved searches for evidence not previously seen by the police. Other cases relied on by defendant similarly involved searches for evidence not in the plain view of the police during the inventory. United States v. Chadwick (1977), 433 U.S. 1, 53 L. Ed. 2d 538, 97 S. Ct. 2476 (search of foot locker); United States v. Simmons (7th Cir. 1977), 567 F.2d 314 (search of purse); People v. Helm (1981), 89 Ill. 2d 34 (search of purse); People v. Bayles (1980), 82 Ill. 2d 128, cert. denied (1981), 453 U.S. 923, 69 L. Ed. 2d 1005, 101 S. Ct. 3160 (search of suitcase at scene of auto accident); People v. Hamilton (1979), 74 Ill. 2d 457 (search of locked briefcase at hospital); People v. Smith (1980), 103 Cal. App. 3d 840, 163 Cal. Rptr. 322, cert. denied (1981), 451 U.S. 993, 68 L. Ed. 2d 854, 101 S. Ct. 2336 (search of purse).

In the instant case, defendant had not sought to preserve his expectation of privacy in the necklace by concealing it in a container. Rather, he carried it on his person. At the time of his arrest, he was searched and the necklace was found and inventoried as part of a lawful inventory search. At this time, the necklace legitimately came into the plain view of the jail officer and thereafter remained in the possession, custody and control of the police.

The second look was not conducted to search for and discover evidence previously concealed in some way from the inventory officer. For this reason, the cases involving such searches are not applicable here. Rather, the instant case, like Edwards, Jenkins, and their progeny, involved a second look at personal effects previously exposed to police view under unobjectionable circumstances. Under the circumstances in this case the defendant did not have a reasonable and justifiable expectation of privacy in the necklace. We agree with the statement made in Jenkins that no reasonable expectations of privacy are invaded and no search occurs when police officers simply look again at what they had already lawfully seen. Here, as in Jenkins, there was no search. For these reasons, the order suppressing the evidence gathered pursuant to the second examination of the necklace was improper.

The judgments of the appellate and circuit courts are reversed and the cause is remanded to the circuit court of Peoria County for further proceedings.

Reversed and remanded.


author: JUSTICE CLARK

text:
    (No. 56135.
    GENE BAGWELL, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Inland Steel Coal Company, Appellee).

      Opinion filed February 4, 1983.

      Feiger, Quindry, Molt, Harvey, Fyie & Hawkins, of Fairfield (Morris Lane Harvey, of counsel), for appellant.
    Carter Harrison and Elmer Jenkins, of Benton, for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

An arbitrator awarded permanent total disability compensation to claimant, Gene Bagwell, for an accidental back injury he suffered which arose out of and in the course of his employment with respondent, Inland Steel Company. The Industrial Commission sustained the arbitrator’s decision, finding that claimant was entitled to receive $153.73 per week for life. (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(f).) The circuit court of Franklin County confirmed the decision of the Industrial Commission, and this court affirmed the decision of the circuit court. (Inland Steel Coal Co. v. Industrial Com. (1980), 81 Ill. 2d 61.) Following the decision in this court, the claimant filed a petition for lump-sum payment of his award pursuant to section 9 of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.9). The Industrial Commission denied the claimant’s petition for lump-sum payment, and the circuit court of Franklin County confirmed the decision of the Industrial Commission. It is from that decision that petitioner appeals.

Section 9 of the Workers’ Compensation Act provides in pertinent part:

“Any employer or employee or beneficiary who shall desire to have such compensation, or any unpaid part thereof, paid in a lump sum, may petition the Commission, asking that such compensation be so paid. If, upon proper notice to the interested parties and a proper showing made before such Commission or any member thereof, it appears to the best interest of the parties that such compensation be so paid, the Commission may order the commutation of the compensation to an equivalent lump sum, which commutation shall be an amount which will equal the total sum of the probable future payments capitalized at their present value upon the basis of interest calculated at 3% per annum with annual rests.
In cases indicating complete disability no petition for a commutation to a lump sum basis shall be entertained by the Commission until after the expiration of 6 months from the date of the injury.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 48, par. 138.9.

Petitioner asserts that the Industrial Commission improperly denied his petition for a lump-sum payment because it erroneously interpreted section 9 to require that a lump-sum commutation be in the best interests of both parties. Petitioner contends that the Commission should only look to the petitioner’s best interests to determine if a lump-sum should be awarded. Petitioner relies on Johns-Manville Perlite Corp. v. Industrial Com. (1970), 47 Ill. 2d 476, for that proposition.

In Johns-Manville, the court allowed a lump-sum commutation, finding that petitioner sufficiently proved such an award was in his best interests. The petitioner in that case was awarded a specific award of 2105/6 weeks at $51 a week. The court noted that an award on arbitration abates with the death of the petitioner and stated that, because the death of the petitioner was imminent (petitioner was suffering from terminal cancer), the employer could expect to gain by objecting to the settlement. The court, in referring to section 9, stated, “This section has been interpreted to mean that if it appears to be for the best interests of the petitioner, the Commission may order commutation of the award.” (47 Ill. 2d 476, 478.) Three cases were cited in support of that statement. In all three cases that were cited the employers (respondents to the petitions) did not contest the employee’s petition for a lump sum. (Lincoln Water & Light Co. v. Industrial Com. (1928), 332 Ill. 64; Schwarm v. George Thomson & Sons Co. (1917), 281 Ill. 486; T. J. Forschner & Co. v. Industrial Board (1917), 278 Ill. 99.) The court in those three cases did not state that the respondent’s best interests were irrelevant; it just stated that the petitioner was not required to prove that it was in the best interests of both parties to have the award paid in a lump sum and since none of the respondents objected to the petition for a lump-sum payment in those cases, the Industrial Commission and the court focused on whether the petitioner proved that it was in his best interests that a lump sum be awarded. The court in Johns-Man-ville erroneously interpreted these three cases to mean that the respondent’s best interests were irrelevant. It is clear upon a careful examination of the cases upon which Johns-Manville relies that the respondent’s best interests are relevant. To the extent that Johns-Manville holds that a respondent employer’s best interests are irrelevant we today overrule it.

In Schwarm, the respondent employer appeared and was represented by counsel but did not desire to show that it was not to its best interest to have the compensation commuted to a lump sum. The Industrial Commission determined that it would be in the petitioner’s best interests to make the award in a lump sum and since the employer did not object, it assumed that it was also in the employer’s best interests as well. The court, in referring to the Industrial Commission’s decision as to whether a lump sum should be awarded, stated, “The legislature has lodged this discretion entirely with the Industrial Board, and when any facts are shown which in the judgment of the Industrial Board warrant it in commuting the compensation allowed to a lump sum on the ground that such commutation is in the best interest of the parties, its action is final and can be reviewed only as in other cases for errors of law. Facts were proven in this case which satisfied the Industrial Board that it was for the best interests of the parties that an award in a lump sum should be made, and as no error of law is presented for review the judgment of the circuit court is affirmed.” (Emphasis added.) 281 Ill. 486, 489.

In the instant case the Industrial Commission correctly interpreted section 9 to require that the best interests of both parties be served before a lump-sum payment will be awarded. The clear language of the statute states that the best interests of both parties are to be considered. The word “parties” cannot be construed to apply only to the petitioner.

Since we have determined that both parties’ best interests are to be considered in determining whether an award should be commuted to a lump sum, it is necessary to address petitioner’s next contention regarding what he considers to be an internal conflict in the statutory scheme of the Workers’ Compensation Act. The Industrial Commission decided that a lump-sum commutation was not proper in this case because it was not in the respondent’s best interests. The Commission compared the instant case to the case of Walter Ingstrup & Co. v. Industrial Com. (1944), 385 Ill. 341. In both cases the petitioners were awarded weekly payments under section 8(f) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(f)). An award under section 8(f) is subject to certain contingencies that would cause payments to either cease or be modified if petitioner is able to return to work or if the petitioner dies. The respondent has certain rights if either one of these contingencies occurs. Petitioner contends that due to the contingencies in section 8(f) it would never be in the best interests of the respondent to pay the award in a lump sum. Therefore, given the language in section 9 (Ill. Rev. Stat. 1977, ch. 48, par. 138.9) which indicates that the legislature clearly contemplated that awards under section 8(f) could be commuted to a lump sum (section 9 refers to “cases indicating complete disability” and section 8(f) is the section which deals with complete disability), the two sections, the petitioner asserts, are logically inconsistent. The petitioner’s basic premise is erroneous. Some respondents would rather pay a lump sum which is discounted to its present value than administer weekly or monthly payments, even though there is a chance that an injured employee may return to work and the award will be modified or the employee will die and the payments will cease. Where it is clear that the respondent objects to the payment of a lump sum because it feels that its best interests will not be served, however, the Commission must examine the evidence to see if the respondent has shown that indeed it would not be in its best interests to award a lump sum.

Lump-sum awards are the exception and not the rule. (Lincoln Water & Light Co. v. Industrial Com. (1928), 332 Ill. 64, 68.) And since whether an award of a lump sum is in a party’s best interests is a question of fact (see Schwarm v. George Thomson & Sons Co. (1917), 281 Ill. 486), if the Industrial Commission determines that it is not in a party’s best interests, that decision, as a finding of fact, should be confirmed unless against the manifest weight of the evidence (Motor Wheel Corp. v. Industrial Com. (1979), 75 Ill. 2d 230, 236-37). In this case we do not find the Industrial Commission’s finding is against the manifest weight of the evidence.

Accordingly, for all the reasons stated, the judgment of the circuit court confirming the decision of the Industrial Commission denying claimant’s petition for a lump-sum award is affirmed.

Judgment affirmed.


author: JUSTICE WARD

text:
    (No. 55848.
    THE CELOTEX CORPORATION, Appellee, v. THE POLLUTION CONTROL BOARD et al., Appellant.

      Opinion filed February 4, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield (Douglas P. Karp and Philip L. Willman, Assistant Attorneys General, of Chicago, of counsel), for appellant.
    John L. Parker, of John L. Parker & Associates, Ltd., of Chicago (H. Gerald Reynolds, of Tampa, Florida, of counsel), for appellee.
   JUSTICE WARD

delivered the opinion of the court:

This appeal is from a decision by the Illinois Environmental Protection Agency (the Agency) to deny an operating permit for the Celotex Corporation. The Agency’s decision to deny the permit was affirmed by the Illinois Pollution Control Board (the Board). The appellate court considered the denial on a petition for direct review and reversed the Board. (100 Ill. App. 3d 520.) (Under the Environmental Protection Act (Ill. Rev. Stat. 1977, ch. 111½, par. 1041), review proceeds directly to the appellate court.) We granted the Agency leave to appeal under Rule 315 (73 Ill. 2d R. 315).

Celotex owns and operates a roofing felt plant in Peoria. The plant uses two coal-fired boilers to generate steam for heating and electricity. Gases from the boilers pass through dust collectors and are discharged through a common stack.

Celotex operated the boilers from at least 1968 to March 17, 1978, pursuant to operating permits issued by the Agency and its predecessor, the Air Pollution Control Board. An operating permit had been denied in 1975; however, the Agency and the Board were subsequently ordered to issue the permit in Celotex Corp. v. Pollution Control Board (1977), 53 Ill. App. 3d 662, because Air Pollution Rule 204(c)(1)(A) (Ill. P.C.B. Rules & Regs., ch. 2, R. 204(c)(1)(A)), a sulfur dioxide emission standard upon which the Agency and the Board based the denial, had been declared invalid in Commonwealth Edison Co. v. Pollution Control Board (1974), 25 Ill. App. 3d 271, aff'd (1976), 62 Ill. 2d 494.

On March 13, 1978, prior to the expiration of the permit issued through the court’s order, Celotex applied to the Agency for a renewal of the operating permit. In so doing, Celotex used the Agency’s standard application form. Under the application heading “DATA AND INFORMATION INCORPORATED BY REFERENCE FROM CURRENT OPERATING PERMIT,” Celotex answered “no” to the question, “HAS THE OPERATION AS DESCRIBED IN THE REFERENCED OPERATING PERMIT BEEN MODIFIED ***?” Further, Celotex certified that “ALL PREVIOUSLY SUBMITTED INFORMATION REFERENCED IN THIS APPLICATION REMAINS TRUE, CORRECT AND CURRENT ***.”

On April 14, 1978, the Agency sent Celotex a letter requesting current information. The letter asked whether a letter of intent Celotex prepared in 1974 stating that it proposed to buy 30,000 tons of coal annually with a 1% maximum sulfur content still expressed Celotex’ intention. Too, it asked for proximate coal analyses and annual tonnages from each supplier as well as data regarding the disposal of solid waste material. There was also a question asking whether the fly ash reinjection units were currently in use, and if they were not, the date of their disconnection and whether they had been removed from the plant. The letter closed with a warning that a failure to supply the information by May 12,1978, might entail denial of the permit.

Celotex responded by a letter dated May 8, 1978. Celotex did not submit the requested information, saying that it considered the Agency’s request to be untimely. The letter also stated, “Besides, we cannot understand why you would need the additional information, since our previous permit application papers were deemed sufficient for you to issue us an operating permit. As indicated in our renewal application filed March 13, 1978, the operation as described in the operation permit has not been modified.” Eventually, however, Celotex did submit some data concerning its use of coal.

As it had warned it might, the Agency on May 18, 1978, denied Celotex’ application for renewal of its permit. The Agency said that, if the permit were renewed, section 9(a) of the Environmental Protection Act (hereafter the Act) (Ill. Rev. Stat. 1977, ch. 111½, par. 1009(a)), and Air Pollution Rules 103(b), 202(b), 203(g)(1)(B) and 204(c)(1)(A) (Ill. P.C.B. Rules & Regs., ch. 2, Rules 103(b), 202(b), 203(g)(1)(B), 204(c)(1)(A)) would be violated.

Section 9(a) of the Act prohibits the emission of any contaminant into the atmosphere in violation of pollution standards adopted by the Board under the Act. Rules 202(b), 203(g)(1)(B) and 204(c)(1)(A) are emission standards adopted by the Board for existing emission sources. Rule 202 sets visual emission standards. Part (a) of Rule 202 sets standards for certain new sources, while part (b) sets a standard for all other sources. With certain exceptions, Rule 202(b) prohibits the emission of smoke or other particulate matter having an opacity of over 30%. Rule 203(g)(1)(B) is a particulate-emission standard for solid fuel combustion sources. It limits the emission of particulate matter in any one-hour period. Rule 204(c)(1)(A) also applies to solid fuel combustion sources. It establishes an hourly limit upon the emission of sulfur dioxide.

Rule 103(b), on the other hand, is not an emission standard. It is the rule governing operating permits. It provides in relevant part:

“(2) Existing Emission Sources:
Prohibition. No person shall cause or allow the operation of any existing emission source or any existing air pollution control equipment without first obtaining an Operating Permit from the Agency. . .
* * *
(3) Application. An application for an Operating Permit shall contain, as a minimum, the data and information specified in paragraph (a)(2) of this Rule 103. Each application shall list all individual emission sources for which a permit is sought. Any applicant may seek to obtain from the Agency a permit for each emission source, or such emission sources as are similar in design or principle of operation or function, or for all emission sources encompassed in an identifiable operating unit. To the extent that the above specified data and information has previously been submitted to the Agency pursuant to this Rule 103, the data and information need not be resubmitted; provided, however, that the applicant must certify that the data and information previously submitted remains true, correct and current. An application for an Operating Permit shall contain a description of the startup procedure for each emission source, the duration and frequency of startups, the types and quantities of emissions during startup, and the applicant’s efforts to minimize any such startup emissions, duration of individual start-ups, and frequency of startups. The Agency may adopt procedures which require data and information in addition to and in amplification of the matters specified in the first sentence of this paragraph (b)(3), which are reasonably designed to determine compliance with this Chapter, and ambient air quality standards, and which set forth the format by which all data and information shall be submitted.” Ill. P.C.B. Rules & Regs., ch. 2, R. 103(b).

The Agency’s letter of denial stated that Celotex’ failure to supply all the additional information requested by the Agency left the Agency with insufficient data to complete its analysis and consideration of the permit application. Too, the letter said that opacity readings of the plant conducted on January 18, 1978, April 19, 1978, and April 20,1978, showed a violation of Rule 202(b).

The letter also stated that, because Celotex did not submit facts to prove its actual emission levels, the Agency used data previously submitted along with standard emission factors in its calculations. The standard factors were taken from a United States Environmental Protection Agency Publication entitled “Compilation of Air Pollution Emission Factors,” which publication is commonly called AP — 42. Based upon those calculations, the Agency concluded that the Celotex boilers will emit particulate matter and sulfur dioxide in excess of the standards set out in Rule 203(g)(1)(B) and Rule 204(c)(1)(A).

As we have noted, the Board upheld the denial of Celotex’ application. It recognized, though, that the denial could not be based upon Rules 204(c)(1)(A) and 203(g)(1)(B) of the Board, because those rules have been held to be invalid. See Ashland Chemical Co. v. Pollution Control Board (1978), 64 Ill. App. 3d 169; Illinois State Chamber of Commerce v. Pollution Control Board (1978), 67 Ill. App. 3d 839, appeal dismissed (1979), 78 Ill. 2d 1.

The appellate court judged that neither could the denial be based upon Rules 202(b) and 103(b). The court decided that all of Rule 202 was invalid, because in adopting the opacity standard, the Board had failed to consider the economic reasonableness of the rule as required by the Act (Ill. Rev. Stat. 1977, ch. 111½, par. 1027(a)). The permit could not be denied under Rule 103(b), the court said, because Celotex’ certification of the currentness of the previously submitted data obviated the necessity of providing “current information.” In view of its invalidation of Rule 202, the court concluded that the recorded violations of that rule would not justify a demand by the Agency for current information.

Accordingly, the court reversed the Board’s order that affirmed the denial. The court remanded the cause to the Board to give the Board an opportunity to validate Rule 202 in accordance with the Act.

The Agency makes five contentions before us: (1) the appellate court was without jurisdiction to consider an attack upon the validity of Rule 202; (2) Celotex is estopped to challenge the validity of the rule; (3) the appellate court erred in deciding that the rule is invalid; (4) the court’s invalidation of the entire rule was overly broad; (5) the appellate court erred in deciding that the permit could not be denied for the failure to submit the requested information. We will consider the points in the above sequence.

Under the Act a decision by the Agency to refuse a permit may be contested in a hearing before the Board. (Ill. Rev. Stat. 1977, ch. 111½, par. 1040.) The Act provides that, after such a contest, one who has been denied a permit may obtain review in the appellate court by filing a petition for review within 35 days. (Ill. Rev. Stat. 1977, ch. 111½, par. 1041.) Here, Celotex filed a petition for review within 35 days of the Board’s decision to deny the permit, which decision was based in part upon the Agency’s view that granting a permit would violate Rule 202(b). The Agency contends that, although the petition for review was timely filed, the appellate court lacked jurisdiction to consider Celotex’ challenge to the validity of the rule in its review of the denial of the permit.

The sections of the Act involved are sections 29 and 41. Section 29 provides:

“Any person adversely affected or threatened by any rule or regulation of the Board may obtain a determination of the validity or application of such rule or regulation by petition for review under Section 41 of this Act.” (Ill. Rev. Stat. 1977, ch. 111½, par. 1029.)

Section 41 provides:

“Any party to a Board hearing, any person who filed a complaint on which a hearing was denied, any person who has been denied a variance or permit under this Act, and any party adversely affected by a final order or determination of the Board may obtain judicial review, by filing a petition for review within thirty-five days after entry of the order or other final action complained of, pursuant to the provisions of the ‘Administration Review Act,’ approved May 8, 1945, as amended and the rules adopted pursuant thereto, except that review shall be afforded directly in the Appellate Court for the District in which the cause of action arose and not in the Circuit Court. Review of any rule or regulation promulgated by the Board shall not be limited by this section but may also be had as provided in Section 29 of this Act.” Ill. Rev. Stat. 1977, ch. 111½, par. 1041.

The Agency’s jurisdictional objection is based upon its contention that section 29 sets forth the exclusive method for challenging a regulation. Under that section, one can contest the validity of a regulation by filing a petition for review within 35 days after the Board’s adoption of the regulation. If one does not proceed within that period, the Agency argues, he has “slept on his rights” and may not dispute the validity of the regulation in a proceeding following the denial of a permit. The only course available in that event, it is contended, is to request the Board to change the regulation pursuant to section 28 of the Act (Ill. Rev. Stat. 1979, ch. 111½, par. 1028), or to seek an individual variance. Under section 35 of the Act (Ill. Rev. Stat. 1977, ch. 111½, par. 1035), a variance may be granted “whenever it is found, upon presentation of adequate proof, that compliance with any rule or regulation, requirement or order of the Board would impose an arbitrary or unreasonable hardship.”

Rule 202 was adopted several years prior to Celotex’ assertion that the regulation is invalid. The Agency says that because Celotex did not follow the statutory method of review, which it contends is the exclusive method, the appellate court lacked jurisdiction to review the regulation.

We are not persuaded that section 29 provides an exclusive review procedure. Professor David P. Currie, a principal draftsman of the Act and the first chairman of the Board, has stated that the normal method for challenging a pollution regulation is by way of a defense in a proceeding to enforce the rule. (D. Currie, Rulemaking Under the Illinois Pollution Law, 42 U. Chi. L. Rev. 457, 473 (1975).) He considers that section 29 provides an additional method for challenging regulations. Its provisions allow one to test a regulation without having to risk being charged with its violation. 42 U. Chi. L. Rev. 457, 473-74.

The Act provides for judicial review of denials of permits. There is nothing in the statute to indicate that the General Assembly intended to deprive one of an opportunity to challenge a regulation that is being applied to deny him a permit simply because he did not contest the regulation immediately after its adoption. The absurdity of holding otherwise becomes completely clear if the requested applicant was not in business within 35 days of the adoption of the regulation.

The language of section 41 itself indicates that section 29 was intended as an added and not an exclusive provision for judicial review. Section 41 states that review of a regulation is not limited to review under section 41 “but may also be had as provided in Section 29 of th[e] Act.”

In Central Illinois Public Service Co. v. Pollution Control Board (1976), 36 Ill. App. 3d 397, the court rejected this argument of the Agency. There a utility company, having been denied an operating permit by the Agency and the Board, petitioned for judicial review. In the appellate court, the company sought to challenge the constitutionality of certain water-pollution-control rules. The court held that section 29 was not an exclusive method for challenging the rules and that the constitutionality of the rules could be tested in a proceeding reviewing the denial of a permit. The court noted that section 29 provides that a person may obtain a determination of a rule’s validity by petition within 35 days of its adoption, but the Act nowhere says that the person must file this petition or lose the right to challenge the rule. The Agency’s contention that the court in Central Illinois established only an exception to the exclusivity of section 29, an exception limited to constitutional challenges, has no basis, as a reading of the court’s opinion shows. See 36 Ill. App. 3d 397, 402-03.

The Agency also cites Rockford Drop Forge Co. v. Pollution Control Board (1980), 79 Ill. 2d 271, to support its contention. Specifically, the Agency refers to this court’s statement:

“We agree that but for section 29 there could be no review of rules issued by the Board. That is so because section 41, taken alone, provides for review under the Administrative Review Act, and section 2 of the latter statute provides for review only of ‘decisions’ of an agency, a term which section 1 defines as excluding rules. Ill. Rev. Stat. 1977, ch. 110, pars. 264, 265. See Currie, Rule Making Under the Illinois Pollution Law, 42 U. Chi. L. Rev. 457, 473-75 (1975).” 79 Ill. 2d 271, 277.

When read alone, the quoted portion of the opinion may seem to support the Agency’s position. When read in context, however, it is obvious that the passage is inapplicable. Rockford Drop Forge involved a petition by 22 Illinois companies for direct review of noise-abatement rules adopted by the Board. On review in the appellate court, the companies raised constitutional objections to the validity of the Act itself. The appellate court refused to consider those arguments. The court said, “Unlike the ordinary appeal involving a decision by an administrative agency *** this petition is before our court pursuant only to the specific provisions of section 29 of the Environmental Protection Act.” (71 Ill. App. 3d 295, 297.) The court noted that section 29 speaks of a petition to review the validity or application of a rule or regulation rather than of the validity of the Act. Recognizing that it was not a trial court of original jurisdiction, and that only section 29 was applicable in the circumstances before it, the court concluded that it lacked authority to consider the challenges to the Act.

When on appeal to this court, this court decided that a consideration of the validity of the Act is proper when a court is reviewing the validity of rules and regulations. The passage cited above by the Agency was preceded by this:

“The court below stated that the basis for its refusal to consider the forging companies’ constitutional objections to the Act was that the court lacked jurisdiction to do so. The court reasoned that judicial review of a rule, as contrasted with an enforcement order, was authorized only by section 29 of the Act; that that section speaks only of the validity or application of a rule; and that an inquiry into the validity of a rule does not include a consideration of the validity of the statute under which the rule was promulgated.” (79 Ill. 2d 271, 277.)

In that context, it is clear that when this court said, “We agree that but for section 29 there could be no review of rules issued by the Board,” the court was expressing its agreement only with the assertion that section 29 was the single provision allowing a petition for direct review of a rule itself. Whether the validity of a rule could be considered in a petition for review of the denial of a permit was simply not involved. It should be noted also that while the Administrative Review Act specifically excludes rules and regulations from the definition of “decision,” the exclusion does not apply if “a rule [or] regulation *** is involved in a proceeding before the agency and its applicability or validity is in issue in such proceeding ***.” Ill. Rev. Stat. 1977, ch. 110, par. 264.

We reject too the Agency’s argument that Celotex should be estopped from attacking the regulations. The basis of the contention is that without complaint against the regulations Celotex has obtained operating permits in the past for its Peoria plant, and has, it appears from the opinion in Celotex Corp. v. Pollution Control Board (1978), 65 Ill. App. 3d 776, once applied for a variance from Rule 202 for a paper mill in Quincy. Neither action provides a ground for estoppel, and the decisions cited by the Agency, Continental Paper Grading Co. v. Howard T. Fisher & Associates, Inc. (1953), 1 Ill. 2d 37, and Edward P. Allison Co. v. Village of Dolton (1962), 24 Ill. 2d 233, are distinguishable.

In effect, the Agency is arguing that simply because Celotex previously did not violate Rule 202, and because at one time it requested that one of its plants be excused from its operation, it has forfeited its right to challenge the legality of the rule when the rule is invoked against Celotex. It is of course true that issues, such as an attack upon the validity of a statute, may be waived explicitly or through inference. This court in Continental Paper Grading Co. v. Howard T. Fisher & Associates, Inc. (1953), 1 Ill. 2d 37, 44-45, observed:

“The record before us shows that a constitutional question as to the validity of the Illinois Architectural Act was put in issue in this case by Fisher’s amendment to its answer and Continental’s reply thereto. However, the record further affirmatively shows that upon a direct, unequivocal inquiry by the trial court prior to submission of the matter to the court for its consideration, Fisher unequivocally withdrew its contention of unconstitutionality and affirmatively stated in open court, from the evidence, they considered the act constitutional. It is clearly established by the decisions of this and other courts that the right to question the validity of a statute may be waived, either by act or omission, by participating in litigation which by fair inference acknowledges the validity of the statute, or by any course of conduct which shows an intention to waive any question as to the validity of the statute, or where it would be unjust to others to permit objection to afterward be made. (Jenisek v. Riggs (1942), 381 Ill. 290; People v. Gibbs (1932), 349 Ill. 83; Chicago Sandoval Coal Co. v. Industrial Com. (1922), 301 Ill. 389.) In civil proceedings, the acts of the parties to the litigation which by fair inference acknowledge the validity of a statute are binding, and will preclude such parties from attacking such statute as unconstitutional.”

Measured by the foregoing, the conduct of Celotex did not constitute a waiver of the question of the validity of Rule 202(b).

Too, we deem that the proposition that one who accepts the benefits of a statute is generally barred from challenging its validity (Edward P. Allison Co. v. Village of Dolton (1962), 24 Ill. 2d 233) is not available to the Agency. We consider that if it be judged that there was an acceptance of the provisions of Rule 202(b), it was involuntary within the meaning of the rule. 24 Ill. 2d 233, 236.

Proceeding from this determination that the appellate court did have jurisdiction to consider the validity of Rule 202, we will examine the appellate court’s decision that the rale is invalid.

The Act provides, “In promulgating regulations under this Act, the Board shall take into account *** the technical feasibility and economic reasonableness of measuring or reducing the particular type of pollution.” (Ill. Rev. Stat. 1977, ch. 111½, par. 1027(a).) In Commonwealth Edison Co. v. Pollution Control Board (1974), 25 Ill. App. 3d 271, aff'd in relevant part (1976), 62 Ill. 2d 494, the appellate court held that Rule 203(g)(1) (including parts A, B, C, and D) (the particulate-emission standard) and Rule 204(c)(1)(A) (the sulfur dioxide emission standard) were not promulgated in accordance with the above statutory provision and were arbitrary and unreasonable. The court explained that there were substantial technical and economic problems involved in simultaneously complying with the two rules. It then concluded:

“Upon a complete review of the record, we are compelled to conclude that Rules 203(g)(1) and 204(a)(1) and (c)(1)(A) were not promulgated in accordance with the law and must be viewed as arbitrary and unreasonable.” 25 Ill. App. 3d 271, 285.
“From our reading of the record, we are unable to state that the Board took into account the technical feasibility of these rules. In so ruling, we are not commenting on the wisdom of the rules. That is not our province. Without any evidence that the needed systems are beyond the conceptually workable state of development, it cannot be said that the Board’s rules rest upon any evidence of statutory compliance. See Incinerator, Inc. v. Pollution Control Board (1974), 59 Ill. 2d 290.
We further hold that there is no evidence that the Board took into account the economic reasonableness of these rules for a substantial number of the generating units in this State. The testimony at the hearings indicated the cost of the sulfur-removal systems would be great. Rather than presenting a formula indicating a balance between cost and pollution control or giving some concrete cost projections, the Board in its opinion offered general statements that there must be a ‘balancing [of] the benefits of the contemplated rule against its costs’ and that greater costs may be needed to be absorbed ‘when the need for pollution abatement is greater.’ ” 25 Ill. App. 3d 271, 287-88.

The appellate court in Commonwealth Edison had reviewed the rules pursuant to a petition for direct review. The court “reversed” the Board’s adoption of both Rule 203(g)(1) and Rule 204(c)(1)(A) and remanded to give the Board an opportunity to adopt the rules upon a consideration of any new evidence or to adopt substituted rules.

This court affirmed the appellate court’s action. (62 Ill. 2d 494.) It was noted that after the rules were promulgated the Board had held further inquiry hearings concerning the regulation of sulfur dioxide emissions and that the Board had obtained much new information. Too, it was observed that the Act had recently been amended to authorize the use of intermittent control systems as an alternative to meeting the sulfur dioxide emission standard. This court noted, too, that new hearings were to be conducted by the Board.

Upon remand following the Commonwealth Edison proceedings in the appellate court and this court, the Board issued an order that purportedly “validate[d]” the rules. Again, however, the rules were held to be void by the appellate court on the grounds that after the remand the Board had held no hearings on the rules, had refused to have an environmental-impact study prepared regarding the rules, and apparently had not considered the use of the intermittent control systems described in this court’s opinion in Commonwealth Edison. (Illinois State Chamber of Commerce v. Pollution Control Board (1978), 67 Ill. App. 3d 839, appeal dismissed (1979), 78 Ill. 2d 1; Ashland Chemical Co. v. Pollution Control Board (1978), 64 Ill. App. 3d 169.) It does not appear that the Board has repromulgated the standards that were set out in those rules.

The relationship between the rule we consider here, Rule 202 (the opacity standard relied upon by the Board in denying Celotex a renewal permit), and Rule 203(g)(1) (the particulate standard invalidated for a failure to consider its technical feasibility and economic reasonableness) is close and substantial. We judge that the earlier invalidation of Rule 203(g)(1) requires the invalidation of Rule 202 insofar as it applies to emission sources governed by Rule 203(g)(1) because of that relationship.

In adopting the rules, the Board made no separate determination that Rule 202 was economically reasonable. Instead, its determination that Rule 202 was economically reasonable was based upon its finding that the standards set in Rule 203 were economically reasonable. This was expressed by the Board in its opinion accompanying the adoption of the rules. The Board stated:

“The numerical standard for opacity, 40% in the APCB regulations, has been lowered for most sources to 30% on the basis of Agency evidence (R. 30, 31, 496, 501) that this level will generally be achieved or bettered by facilities complying with the numerical standards for particulate matter in Rule 203. Since we have found compliance with the latter economically reasonable, it follows that the corresponding opacity standard is reasonable too.” In re Emission Standards (1972), 4 Ill. P.C.B. Ops. 298, 310.

Accordingly, Rule 202(c)(3) provides that “Rules 202(a) and 202(b) shall not apply if it is shown that the emission source was, at the time of such emission, in compliance with the applicable mass emission limitations of Rule 203.” (Ill. P.C.B. Rules & Regs., ch. 2, R. 202(c)(3).) In the opinion of the Board issued at the time it adopted the rules, the Board explained that the above exception to Rule 202 was made “[i]n order to ensure the reasonableness of [the opacity] limitations.” In re Emission Standards (1972), 4 Ill. P.C.B. Op. 298, 310.

It appears, then, that the economic reasonableness of Rule 202 was not directly considered. Instead, the Board’s conclusion that Rule 202 was reasonable was premised upon the economic reasonableness of the particulate standards in Rule 203. However, a portion of Rule 203, subparagraph (g)(l), has been held invalid because of the Board’s failure to consider its economic reasonableness. In such circumstances Rule 202 must be held invalid too for the same reason, insofar as it applies to those sources regulated by Rule 203(g)(l).

The Agency argues, however, that the invalidation of Rule 203(g)(l) should not affect the validity of Rule 202. It points out that in Commonwealth Edison the appellate court invalidated Rules 203(g)(l) and 204(c)(1)(A) because of difficulties in complying with those rules simultaneously. From this the Agency concludes that Rule 203(gXl) was not itself held economically unreasonable and, therefore, the standards in Rule 202, though based upon those in Rule 203, should remain effective. This argument is not convincing. The appellate court in Commonwealth Edison held Rule 203(g)(l) void for all purposes as arbitrary, unreasonable, and not promulgated in accordance with the statute. The court reversed the adoption of the Rule; it did not hold it invalid only when the standard in Rule 204(c)(1)(A) is also to be enforced. In such circumstances, the standard in Rule 202 may not be enforced in place of the invalid rule.

The Agency also argues that the reasonableness of Rule 202(b) was established in United States Steel Corp. v. Pollution Control Board (1978), 64 Ill. App. 3d 34. That decision offers little comfort to the Agency. The case involved a challenge to several regulations, including Rule 202(b). The decision, though, involved the proper standard for review of Board regulations. The petitioners challenged the validity of the Rules on the basis that they were not supported by the manifest weight of the evidence. The court decided that this standard was improper, and that regulations may be overturned only if they are arbitrary, capricious or unreasonable. The court concluded that as the petitioners had not argued in their initial briefs that the rules were arbitrary, capricious or unreasonable, they had “waived, and thereby failed to establish, the point that the regulations they challenge are arbitrary, capricious or unreasonable.” (64 Ill. App. 3d 34, 40.)

The Agency points out that, at the conclusion of the opinion in United States Steel, the court commented that it had considered all of the arguments made to it and that none of the rules involved had been shown to be arbitrary, capricious or unreasonable. The Agency then points to an argument in a brief in that case in which a party asserted that Rule 202(b) is technically unreasonable. That argument, however, concerned the reasonableness of applying Rule 202(b) to coke ovens, not the economic reasonableness that is concerned here.

We do agree, though, with the Agency’s contention that the appellate court’s invalidation of all of Rule 202 was overly broad. Parts (a) and (b) of Rule 202 establish opacity standards, while other parts set out certain exceptions to parts (a) and (b), provide compliance dates, and set criteria for determining violations of parts (a) and (b). Rule 202(a) sets forth visual emissions standards for certain new emission sources, and Rule 202(b) sets a visual emission standard for all other emission sources. Rule 203(gXl) sets particulate-emission standards and limitations only for fuel-combustion emission sources using solid fuel exclusively. Other parts of Rule 203 govern other sources, such as incinerators and portland cement manufacturing processes. Rule 202, therefore, applies to many sources not governed by Rule 203(g)(l), but regulated by other parts of Rule 203.

Rules and regulations validly promulgated by an administrative agency have the force and effect of law, and like statutes, rules are presumed valid. (Eastman Kodak Co. v. Fair Employment Practices Com. (1981), 86 Ill. 2d 60, 71; Northern Illinois Automobile Wreckers & Rebuilders Association v. Dixon (1979), 75 Ill. 2d 53, 58.) Not all of Rule 203 has been held invalid; only part (g)(1) has been struck. We see no basis for holding Rule 202 invalid except as that rule applies to sources regulated by Rule 203(g)(l). Because Celotex is a source regulated by Rule 203(g)(l), Rule 202(b) may not be applied to deny Celotex a permit. As did the appellate court, we remand the matter to the Board to allow it to validate the rule in accordance with the statutory requirement, or to adopt a substitute rule.

The final issue is whether the Agency could deny the renewal permit because Celotex did not submit all the information the Agency had requested. The Agency argues that denial was proper because the failure to submit the information deprived the Agency of the material it needed to evaluate the application. It points out that section 39 of the Act (Ill. Rev. Stat. 1977, ch. 111½, par. 1039) provides that the Agency shall issue permits only after the applicant has proved that the facility will not violate the Act or the Board’s regulations. The Agency contends that without the current information, Celotex’ application lacks such proof.

We agree with the appellate court that Celotex had no duty to resubmit information that it already had furnished and certified as current. Rule 103(a)(2) sets out the minimum information necessary in a permit application. Rule 103(b)(3), which we quoted above, provides, “To the extent that the above information has previously been submitted to the Agency pursuant to this Rule 103, the data and information need not be resubmitted; provided, however, that the applicant must certify that the data and information previously submitted remains true, correct and current.”

The Agency argues, however, that it could reject the certification and demand that data be resubmitted because it had found violations of Rule 202(b). We need not consider whether current data may be required after a violation is claimed. We reject the Agency’s contention here, as Rule 202 has been held invalid as applied to sources like Celotex. We do not consider that the Agency can rely upon a void rule to request current information.

Of course the Agency can still request information that has not already been submitted, if such information is necessary to show compliance with valid rules. Rule 103(b) provides, “The Agency may adopt procedures which require data and information in addition to and in amplification of the matters specified in [the rule] which are reasonably designed to determine compliance with this Chapter and ambient air quality standards.” We recognize that even in cases where the application is for the renewal of a permit, a change in the rules or in the Agency’s methods of interpreting data might necessitate a request for information that has not already been submitted.

We have difficulty, though, applying the above conclusions here. The appellate court, it appears, presumed that the Agency’s request for current data asked only for information that already had been furnished and was certified as current. (100 Ill. App. 3d 520, 522.) Therefore, the court decided that Celotex had no duty to submit the data. We do not feel so certain. It is obvious from the Agency’s letter that some of the requested material had already been submitted, but it is not certain that all of it was submitted. The Board’s opinion, which dealt with the Rule 103(b) ground for denial in a very cursory fashion, sheds no light on our problem. Although the record contains the data in the Agency files already submitted by Celotex, to sift through it to determine whether that data included the material requested requires a measure of scientific expertise that the Board, rather than this court, should exercise.

Moreover, it is unclear whether the requested information was necessary to determine compliance with rules other than Rule 202, which we consider now, and Rules 203(g)(1)(B) and 204(c)(l)(A), which have been held invalid. We agree with Celotex that a renewal permit should not be denied for a failure to submit information needed to determine compliance only with invalid rules. Celotex says that the requested material related solely to those invalidated regulations. The Agency maintains, though, that the data was needed to determine compliance with other particulate and sulfur dioxide standards. This, too, we deem is a matter for determination by the Board.

Accordingly, we judge that the issue of the denial of a renewal permit on the basis of a failure by Celotex to submit all the requested information should be considered by the Board on the remand. The permit can be denied only if the information was not already submitted and certified as current, and only if without the information the application was insufficient to show compliance with rules of the Board other than those which were invalidated.

For the reasons given, the judgment of the appellate court, which reversed the order of the Pollution Control Board and remanded, is affirmed, except that portion of the judgment invalidating Rule 202. The cause is remanded to the Board for further proceedings consistent with this opinion.

Affirmed and remanded, with directions.


text:
    (No. 56047.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JAMES W. BAKER, Appellee.

      Opinion filed February 4, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield, and Bruce W. Black, State’s Attorney, of Pekin (Martin N. Ashley, Raymond F. Buckley, Jr., and Stephen E. Norris, of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.
    Robert Agostinelli, Deputy Defender, and Frank W. Ralph, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

This is an appeal from a judgment of the appellate court reversing an order of the circuit court of Tazewell County that revoked the defendant’s probation. (101 Ill. App. 3d 1114.) A divided appellate court held that the defendant did not knowingly, understanding^ and effectively waive his right to counsel where the circuit court failed to give proper admonishments. We granted the People’s petition for leave to appeal on March 30, 1982. 73 Ill. 2d R. 315.

On October 12, 1978, the defendant was charged in a two-count information with the offenses of aggravated assault and unlawful use of a weapon. Pursuant to negotiations between the public defender of Tazewell County and the Tazewell County State’s Attorney, the circuit court sentenced the defendant to a one-year term of probation. The probation was conditioned upon the voluntary commitment of the defendant to the Danville Veterans’ Administration Hospital for psychiatric treatment and upon his serving 90 days’ imprisonment in the Tazewell County jail.

On March 20, 1979, the defendant left the Veterans’ hospital without first receiving the consent of the adult probation officer of Tazewell County. That same day a petition was filed in the circuit court of Tazewell County charging the defendant with violating the conditions of his probation and seeking a revocation.

On March 22, the public defender was again appointed to represent the defendant and on April 6, 1979, did appear with the defendant at a hearing to determine the defendant’s fitness.

The hearing on the petition to revoke the defendant’s probation was set for May 14, 1979. On the 14th, just prior to the hearing, the defendant requested that the court discharge the public defender and continue the case to permit the defendant to be represented by another attorney who had agreed to take the case. The State objected to a continuance, pointing out that two doctors from the Danville Veterans’ Administration Hospital, who the defendant requested be in attendance, were present and ready to testify.

The circuit court denied the defendant’s request to discharge his attorney and indicated that the court “would like Mr. Bernardi [the public defender] to cross-examine witnesses for the State.” The defendant objected to the public defender’s continued representation and told the court that Mr. Bernardi “could possibly do more damage than good.”

The court then cautioned the defendant that, if it discharged the defendant’s counsel and denied the defendant’s request for a continuance, the defendant would, in effect, be representing himself. After the defendant stated that he understood this, the circuit court discharged counsel and denied the defendant’s request for a continuance. The court then directed the State to proceed with its case. The State presented three witnesses. The defendant did not cross-examine any of them, nor did he offer any evidence on his own behalf. The court denied several additional motions by the defendant for a continuance, and the defendant was found guilty of violating his probation.

The issue presented for our review is whether the defendant knowingly, understanding^ and effectively waived his right to counsel at the probation-revocation proceedings.

The guidelines in Supreme Court Rule 401 set forth what is required when a defendant elects to waive counsel in a criminal proceeding at the trial level in this State.

“Rule 401. Waiver of Counsel
(a) Waiver of Counsel. Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and
(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court.” (73 Ill. 2d R. 401(a).)

The trial judge must, in open court, inform the defendant and determine that he understands the nature of the charge, the minimum and maximum possible sentences, and his right to counsel.

In People v. Barker (1975), 62 Ill. 2d 57, this court indicated that at a probation-revocation proceeding the important question was not “whether the failure to comply with Rule 401(a) of itself renders the waiver ineffective, but whether, considering the entire record, the defendant was shown to have knowingly and understanding^ waived his right to counsel.” (62 Ill. 2d 57, 59.) After examining the record the court concluded that there had been no showing of a knowing and understanding waiver of counsel.

In reaching that decision the court in Barker said that there must be a “definitive standard by which a knowing and understanding waiver of counsel in a probation revocation proceeding may be determined. The circuit court should not permit the offender to waive counsel unless it determines, by addressing him in open court, that the offender understands: (1) the purpose of the revocation proceedings and the nature of the violation of the condition of probation upon which it is based; (2) that he has the right of confrontation, cross-examination and representation by counsel and that if he is indigent he has the right to appointed counsel; (3) the minimum and maximum sentence which may be imposed if the probation is revoked.” (Emphasis added.) 62 Ill. 2d 57, 59.

Two appellate court decisions have been handed down following our opinion in Barker. In People v. Voight (1977), 52 Ill. App. 3d 832, the defendant was not advised of the nature of the charges or the potential penalty that could be imposed should he be found guilty of violating his probation. The appellate court said, “Even though the defendant was advised of his right to counsel either private or appointed, the admonitions do not in other respects conform to the standards described in People v. Barker 62 Ill. 2d 57, 338 N.E.2d 385, and consequently the procedure casts doubts on the effectiveness of any waiver of counsel.” (52 Ill. App. 3d 832, 837.) In People v. Roberts (1978), 56 Ill. App. 3d 126, the appellate court quoted Barker and stated that “the [circuit] court did not directly advise defendant as to the minimum and maximum sentence which could be imposed,” and concluded that, “[b]ecause the record does not show that defendant knew and understood the minimum and maximum sentence which could be imposed if probation were revoked, it fails to show a knowing and understanding waiver of counsel.” (56 Ill. App. 3d 126, 127-28.) The appellate court, therefore, reversed the sentence.

In the instant case, the following admonishments were given, after the defendant moved to discharge his counsel and moved for a continuance to obtain new counsel:

“THE COURT: All right. Again, the motion to discharge counsel, that if, if I didn’t allow you to discharge your attorney and would deny you a continuance, you would in effect be submitting here to representing yourself here today. Do you understand that, sir?
THE DEFENDANT: Yes, sir.
THE COURT: All right. And full well realizing that, do you wish the, again, the Court to discharge your attorney of record?
THE DEFENDANT: Yes.
THE COURT: All right. Mr. Bernard!, you will be discharged then from the cause at this time. And your motion for a continuance in order to obtain counsel is heard and denied. I call for evidence on behalf of the "People.”

Looking to the guidelines set forth in Barker, we find this dialogue to be insufficient in establishing a knowing, understanding and effective waiver of counsel. The defendant was not advised of the purpose of the proceedings or the nature of the alleged violation. The defendant was not advised of his rights to confront and cross-examine the State’s witnesses. And the court failed to explain the minimum and maximum sentence that could be imposed upon revocation of probation.

The dissenting voice in the appellate court opinion in this case suggests that a circuit court judge should not have to give the admonishments to which we have just spoken, because the defendant had already procured counsel. That argument fails to recognize that the court in the instant case had allowed the defendant’s motion to discharge counsel. Granted it was of the defendant’s own volition and that he was acting on his own; however, because the defendant wanted to and did discharge his counsel does not mean that he should not be completely and fully informed as to the ramifications of acting on his own behalf without the benefit of an attorney to represent him.

The State cites People v. Myles (1981), 86 Ill. 2d 260, in support of its contention that Rule 401 admonitions at the probation-revocation hearing were unnecessary. The State had misread Myles; the circumstances of Myles are not at all analogous to the situation here. Admonitions were not necessary in Myles because the defendant continued to be represented by counsel. In Myles, this court determined that the defendant was using the argument that his right to counsel of his own choosing was violated as a weapon to indefinitely thwart the prosecution. In Myles appointed counsel had, at the arraignment, requested permission to withdraw as the defendant’s attorney because the defendant no longer desired his services. The court denied counsel’s request until such time as another attorney appeared to represent the defendant, and continued the case for two weeks in order to permit the defendant to secure another attorney. Counsel in Myles was eventually permitted to withdraw when he explained to the court that he had received telephone threats urging him to resign. The public defender was appointed, and the case was continued to give the new counsel time to prepare. However, the defendant refused to cooperate with his assistant public defenders and instructed them not to represent him. In finding that the failure to give Rule 401(a) admonitions was not in error, the court said: “Here defendant clearly and repeatedly declined to undertake his own representation. Thus, Rule 401(a) was inapplicable. Defendant’s refusal to heed the advice or employ the services of appointed counsel did not necessitate that the circuit court admonish defendant in accordance with Rule 401(a).” (86 Ill. 2d 260, 269.) However, this court also made it clear that had the defendant in Myles waived counsel entirely and elected to represent himself, admonishments would have been required.

In the case at bar, the defendant renounced counsel. The public defender was discharged and the defendant proceeded without counsel. Admonishments should have been given.

In People v. Hessenauer (1970), 45 Ill. 2d 63, this court refused to infer a defendant’s full understanding of his right to counsel from the fact that he had previously requested and been appointed counsel. The court said that waiver would not be found unless it was shown that the judge “specifically offered, and the accused knowingly and understandingly rejected, the representation of appointed counsel.” (45 Ill. 2d 63, 68.) Self-representation is fraught with dangers. Any defendant may choose to proceed pro se. However, it is the obligation of the court to see that the choice is an informed one. The State, in its reply brief, states that “the defendant clearly demonstrated his ability to understand by his intelligent and responsive answers at the fitness hearing.” The following is a sample of the conversation between the public defender and the defendant at that fitness hearing:

“Q. And do you know what month it is?
A. No.
* * *
Q. Do you remember being placed on probation?
A. Yes.
* * *
Q. At this time do you feel that you are in need of psychiatric treatment of some kind?
A. Yes.
* * *
Q. O.k. And you, would it refresh your recollection that if I were to tell you that the petition charges that on March 20, 1979 that you left Danville Veterans Administration Hospital without your consent, without the consent of the Adult Probation Office? Do you remember that now?
A. I remember leaving, yes.
Q. Do you remember that, reading a petition that charged you with that?
A. No.
Q. Were you aware that that was a condition of your probation, that you not leave without the permission of your probation officer?
A. I was aware of that, but I assumed that he had already given consent.
Q. You were aware of that then?
A. Yes.
Q. Do you understand that you have the right to have a hearing on that petition to revoke your probation?
A. Yes.
Q. And do you understand that at that hearing I assist you?
A. I guess.
Q. In presenting any evidence that you have, right? Do you understand that?
A. No.
Q. Now that it’s been read to you, do you understand the allegation that has been made against you?
A. No.”

We question the State’s characterization of those remarks as a clear demonstration of the defendant’s ability to understand.

Without proper admonitions there can be no effective waiver of counsel. The defendant did not knowingly, understandingly and effectively waive his right to counsel. The appellate court judgment reversing the order of the circuit court of Tazewell County that revoked the defendant’s probation is affirmed. We remand for a new probation-revocation hearing.

Affirmed and remanded.