author: MR. JUSTICE CLARK MR. JUSTICE WARD,

text:
    (No. 52948.
    THE PEOPLE ex rel. THOMAS J. DIFANIS, States’s Attorney, Appellee, v. JOAN BARR et al., Appellants.

      Opinion filed December 19, 1980.

      WARD and UNDERWOOD, JJ., dissenting.

      Arnold F. Blockman, of Hatch, Blockman & McPheters, of Champaign, and James Kuehl, of Finch & Kuehl, of Urbana, for appellants.
    Thomas J. Difanis, States’s Attorney, of Urbana (Joseph D. Pavia, Assistant State’s Attorney, of counsel), for appellee.
    Ronald D. Rotunda, of Champaign, for amicus curiae Illinois News Broadcasters Association.
    William E. Feurer, of William E. Feurer, Ltd., of Springfield, for amicus curiae Illinois Press Association.
   MR. JUSTICE CLARK

delivered the opinion of the court:

Thomas J. Difanis, as State’s Attorney of Champaign County, brought a declaratory judgment action against the nine defendants, who are members of the Urbana city council. The plaintiff sought a declaration that the defendants violated the Open Meetings Act (Ill. Rev. Stat. 1977, ch. 102, par. 41 et seq.) when, on October 23, 1978, they met and conferred shortly before a special session of the Urbana city council. The circuit court of Champaign County entered judgment in favor of the plaintiff. The appellate court affirmed. (78 Ill. App. 3d 842.) We allowed the defendants’ petition for leave to appeal. 73 Ill. 2d R. 315.

The parties entered into a stipulation of facts which reveals that an Urbana city council meeting was scheduled for Monday, October 23, 1978, at 7:30 p.m. On Friday, October 20, 1978, two members of the city council, defendants John Peterson and Bob Hurt, decided to hold a party caucus prior to the city council meeting. The caucus meeting was scheduled for October 23, 1978, at 6 p.m. in the home of a member of the city council. Attendance at the meeting was voluntary. The nine defendants attended the 6 p.m. meeting. Eight of the defendants are members of the Champaign County Democratic party, and one defendant has no political affiliation. There are 15 members of the Urbana city council, nine of whom are Democrats. Eight persons constitute a quorum of the council.

The meeting was called to discuss matters the city council would consider at its meeting later that night, as well as party matters and an election to be held in November 1978. No agenda was prepared for the 6 p.m. meeting, and no votes were taken. It is further stipulated that the defendants were not meeting as a duly constituted committee of the Urbana city council and they received no compensation for attending the hour-long meeting. One defendant, Donald Wort, arrived approximately 15 minutes before the end of the meeting and participated in a discussion of matters not on the city council agenda. Of the five matters on the formal agenda for the 7:30 p.m. city council session, four were discussed at the 6 p.m. meeting. Three votes were taken at the city council session on matters discussed at the 6 p.m. meeting. On a vote to approve a ward map recommended by a committee of the council, the nine defendants voted as a bloc. The measure thereupon was passed by the council nine votes to four. On the other two votes taken, concerning a community-development-agency appointment and approval of a “planned unit development” project, the defendants did not vote in a uniform manner. The fourth agenda matter discussed at the 6 p.m. meeting concerned the mayor’s appointments to the Public Works Commission. The stipulated facts show that the discussion at the 6 p.m. meeting involved “reasons for holding up the Mayor’s nominations.” This matter was not brought up at the council session. Finally, the defendants stipulated that they have had “caucuses of this nature in the past and will continue to have caucuses of this nature in the future.”

Section 2 of the Open Meetings Act provides in part:

“All meetings of any legislative, executive, administrative or advisory bodies of the State, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue, shall be public meetings ***. This Act does not apply to the General Assembly or to committees or commissions thereof.” (Ill. Rev. Stat. 1977, ch. 102, par. 42.)

The defendants contend first that the 6 p.m. meeting does not fall within the ambit of the Act. The defendants argue that the meeting was called primarily as a political caucus and not as a formal “meeting” of the city council. We disagree.

Section 1 of the Open Meetings Act states:

“It is the public policy of this State that the public commissions, committees, boards and councils and the other public agencies of this State exist to aid in the conduct of the people’s business. It is the intent of this Act that their actions be taken openly and that their deliberations be conducted openly.” (Ill. Rev. Stat. 1977, ch. 102, par. 41.)

This clearly enunciated public policy would be poorly served were we to carve out exceptions other than those expressly stated in the Act (see Ill. Rev. Stat. 1977, ch. 102, par. 42) for informal political caucuses where, as here, public business was deliberated and it appears that a consensus on at least one issue was reached outside of public view. Moreover, an expression of certain exceptions in a statute is construed as an exclusion of all others. Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541, 557; City Savings Association v. International Guaranty & Insurance Co. (1959), 17 Ill. 2d 609, 612; 1971 Ill. Att’y Gen. Op. 51, 53.

Indeed, in 1967 the General Assembly amended the Act to delete the word “official” before the word “meeting” in sections 1 and 2. Palpably, the amendment was intended to include unofficial or informal meetings within the coverage of the Act. In Sacramento Newspaper Guild, Local 92 v. Sacramento County Board of Supervisors (1968), 263 Cal. App. 2d 41, 69 Cal. Rptr. 480, a luncheon meeting was held at which several county officials, including the five county supervisors, met privately with labor officials to discuss a strike of the social workers union. Newspaper reporters sought but were denied admission to the gathering. In affirming the trial court’s preliminary injunction order except to the extent it prevented attorneys for the county from discussing privileged matters with county officials, the court stated:

“An informal conference or caucus permits crystallization of secret decisions to a point just short of ceremonial acceptance. There is rarely any purpose to a nonpublic pre-meeting conference except to conduct some part of the decisional process behind closed doors. Only by embracing the collective inquiry and discussion stages, as well as the ultimate step of official action, can an open meeting regulation frustrate these evasive devices. As operative criteria, formality and informality are alien to the law’s design, exposing it to the very evasions it was designed to prevent. Construed in the light of the Brown Act’s objectives, the term ‘meeting’ extends to informal sessions or conferences of the board members designed for the discussion of public business. The Elks Club luncheon, attended by the Sacramento County Board of Supervisors, was such a meeting.” (Sacramento Newspaper Guild, Local 92 v. Sacramento County Board of Supervisors (1968), 263 Cal.

App. 2d 41, 50-51, 69 Cal. Rptr. 480, 487.) Thus, to allow the nine defendants to circumvent the Act simply because they designate their meeting as an informal gathering or informal caucus would be to thwart the intent of the Act.

A related argument raised by the defendants is that the nine defendants do not constitute a “legislative body” or “subsidiary body” which is subject to the Act. This argument misapprehends both the wording of the statute and reality. The statute states that “[a] 11 meetings of any legislative, executive, administrative or advisory bodies *** and any subsidiary bodies of any of the foregoing including but not limited to committees or subcommittees *** shall be public meetings ***.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 102, par. 42.) We interpret the foregoing to mean that the Act was intended to apply to more than meetings of full bodies or duly constituted committees. Thus, “body” must necessarily be interpreted to mean an informal gathering of nine members of a legally constituted public body. The trial court decided that the Open Meetings Act would apply to meetings of three or more persons. Since the instant case involved nine public officials, we need not and do not make any decision as to whether three persons automatically trigger application of the Act.

It should be emphasized that it is not the province of this court to pass on the wisdom or desirability of legislation. (Garcia v. Tully (1978), 72 Ill. 2d 1, 10.) As long as the means chosen by the legislature to achieve a desired end are lawful and inoffensive to the State and Federal constitutions, our inquiry may proceed no further. Thus, whether, as the defendants argue, the instant means chosen by the General Assembly to eliminate secrecy in government and permit the free flow of information to the public might restrict the ability of public officials, either as minority blocs or majority groups, to support or oppose legislation, is not within our power to alter. The Act, by its express terms, does sacrifice the ability of public officials to act and deliberate privately to what the General Assembly obviously perceives to be the more important governmental interest of opening the processes of government to public scrutiny. Such a legislative judgment is peculiarly within the domain of the General Assembly. While there appear to be obvious problems of enforcement inherent in the Act, that consideration does not render the Act invalid. Nor may it affect our scrutiny of it. The Act is not intended to prohibit bona fide social gatherings of public officials, or truly political meetings at which party business is discussed. Rather, the Act is designed to prohibit secret deliberation and action on business which properly should be discussed in a public forum due to its potential impact on the public. Thus, the items discussed in the meeting in the instant case regarding a new ward map, the appointments of public officers for two separate agencies, and a housing development not only concerned public business but were scheduled to be dealt with that very evening. Moreover, the stipulated facts show that several other items discussed that evening were matters that the city council would need to consider sometime in the future, for example, the burning of leaves within city limits, the treatment of cable television, and the possibility of rescinding an ordinance which required an appointed comptroller. Therefore, it is reasonably clear and definite that the meeting at issue in this case violated the intent and the terms of the Open Meetings Act. The defendants have challenged the Act on its face as violative of equal protection and due process of law. We need not consider these broad-based attacks, however. Instead, we will only decide whether, under the narrow facts presented, the Act violates the constitutional rights of these nine defendants.

The first of defendants’ four constitutional arguments is that the Open Meetings Act as applied to defendants denies them the equal protection of the law under the fourteenth amendment to the United States Constitution and article I, section 2, of the Illinois Constitution of 1970. The defendants claim that, since the General Assembly is exempted from coverage under the Act, Democratic members of the General Assembly may attend caucuses without risking prosecution whereas Democratic local officials run the risk of being prosecuted under the Act for attending political caucuses. This argument must fail for the reason that the factual foundation is incorrect. We have previously discussed the subject matter of the 6 p.m. meeting, as set forth in the stipulation of facts. While a few of the matters discussed could be considered political in nature, in that they concerned the November 1971 election and strategy related to that election, we have previously rejected, as did the circuit court, the premise that the meeting was conducted solely, or even primarily, as a political caucus. It clearly was not. Most of the 14 matters discussed concerned city council business. Certainly, a true political caucus is beyond the purview of the Act; the Act comes into play only where public business which could eventually come up for decision before the full body is deliberated or acted upon in private. Thus, the defendants’ argument that they could be susceptible to prosecution simply for participating in a political caucus is erroneous.

The defendants argue that the General Assembly, in contravention of its own stated policy of open deliberations and open actions, has exempted itself from coverage under the Open Meetings Act. The defendants further argue that, while a rational relationship to a legitimate governmental interest may exist for making a distinction between the General Assembly and other bodies, any such interest would be subordinated to the General Assembly’s stated purpose of conducting public business in the open. The General Assembly’s exemption might appear inconsistent with the public policy behind the Act were it not for article IV, section 5(c), of the 1970 Constitution, which provides:

“(c) Sessions of each house of the General Assembly and meetings of committees, joint committees and legislative commissions shall be open to the public. Sessions and committee meetings of a house may be closed to the public if two-thirds of the members elected to that house determine that the public interest so requires; and meetings of joint committees and legislative commissions may be so closed if two-thirds of the members elected to each house so determine.”

The defendants argue that the Constitution only requires that formal sessions be conducted openly and that meetings of committees and commissions need not be open to the public. This argument is incorrect, however. Article IV, section 5(c), expressly requires that sessions, meetings of committees, joint committees and legislative commissions shall be open to the public. It is true that informal meetings of members of the General Assembly are thus not required to be conducted openly. Under the well-established standards regarding equal protection of the laws, the legislature may differentiate between persons similarly situated (Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 578); equal protection requires only that there be a reasonable and rational basis for the classifications which justify different procedures for treating the two groups. People v. Pembrock (1976), 62 Ill. 2d 317, 321; People v. Sherman (1974), 57 Ill. 2d 1, 4; People v. McCabe (1971), 49 Ill. 2d 338, 341; People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 534.

It is conceivable that the General Assembly concluded that the relatively smaller size of other bodies covered by the Act and their generally greater proximity to their constituents justified a difference in treatment. Due to its compliance with the well-entrenched rational-basis standard we may not preempt a legislative judgment.

The next constitutional contention raised by the defendants is that the Open Meetings Act, as applied to these defendants, is a denial of due process of law under the fourteenth amendment to the United States Constitution and article I, section 2, of the Illinois Constitution of 1970. Those constitutional provisions read in pertinent part:

“*** nor shall any State deprive any person of life, liberty, or property, without due process of law; ***.” (U.S. Const., amend. XIV, sec 1.)
“Section 2. Due Process and Equal Protection
No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.” (Ill. Const. 1970, art. I, sec. 2.)

In particular the defendants argue that the Open Meetings Act is vague, uncertain and indefinite with regard to the phrase “meetings of a legislative body.”

A statute is impermissibly vague when “men of common intelligence must necessarily guess at its meaning.” (Broadrick v. Oklahoma (1973), 413 U.S. 601, 607, 37 L. Ed. 2d 830, 837, 93 S. Ct. 2908, 2913, quoting Connally v. General Construction Co. (1926), 269 U.S. 385, 391, 70 L. Ed. 322, 328, 46 S. Ct. 126, 127.) A criminal statute violates due process if it fails to give adequate notice as to what action or conduct is proscribed. (People v. Schwartz (1976), 64 Ill. 2d 275, 280; People v. Vandiver (1971), 51 Ill. 2d 525.) “Impossible standards of specificity, however, are not required.” People v. Schwartz (1976), 64 Ill. 2d 275, 280, citing Jordan v. De George (1951), 341 U.S. 223, 231, 95 L. Ed. 886, 892, 71 S. Ct. 703, 707-08.

We think that the Open Meetings Act, as applied to these defendants, is not impermissibly vague for two reasons. First, after the 1967 amendments deleted the word “official” where it had appeared before the word “meetings,” no guessing was required to prohibit all meetings of members of legislative bodies, where deliberations were conducted or actions taken on public business. Secondly, the clear import of section 2 of the Act is that any subdivision of a legislative body, “including but not limited to committees and subcommittees” supported by tax revenues, is subject to the Act. Ill. Rev. Stat. 1977, ch. 102, par. 42.

In Broadrick v. Oklahoma (1973), 413 U.S. 601, 37 L. Ed. 2d 830, 93 S. Ct. 2908, and its companion case, United States Civil Service Com. v. National Association of Letter Carriers (1973), 413 U.S. 548, 37 L. Ed. 2d 796, 93 S. Ct. 2880, the Supreme Court upheld, respectively, a State and a Federal statute against several constitutional challenges. The statutes involved in those cases prohibited certain public employees from participating in political parties or campaigns. We think the court’s statements in Broadrick v. Oklahoma (1973), 413 U.S. 601, 607-08, 37 L. Ed. 2d 830, 837-38, 93 S. Ct. 2908, 2913-14, in rejecting the due process attack in those cases are particularly appropriate in this case:

“Whatever other problems there are with section 818, it is all but frivolous to suggest that the section fails to give adequate warning of what activities it proscribes or fails to set out ‘explicit standards’ for those who must apply it. Grayned v. City of Rockford [(1972), 408 U.S. 104, 108, 33 L. Ed. 2d 222, 227, 92 S. Ct. 2294, 2299]. In the plainest language, it prohibits any state classified employee from being ‘an officer or member’ of a ‘partisan political club’ or a candidate for ‘any paid public office.’ It forbids solicitation of contributions ‘for any political organization, candidacy or other political purpose’ and taking part ‘in the management or affairs of any political party or in any political campaign.’ Words inevitably contain germs of uncertainty and, as with the Hatch Act, there may be disputes over the meaning of such terms in section 818 as ‘partisan,’ or ‘take part in,’ or ‘affairs of’ political parties. But what was said in [United States Civil Service Com. v. National Association of Letter Carriers (1973), 413 U.S. 548, 578-79, 37 L. Ed. 2d 796, 816, 93 S. Ct. 2880, 2897], is applicable here: ‘there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.’ Moreover, even if the outermost boundaries of section 818 may be imprecise, any such uncertainty has little relevance here, where appellants’ conduct falls squarely within the ‘hard core’ of the statute’s proscriptions and appellants concede as much. See Dombrowski v. Pfister [(1965), 380 U.S. 479, 491-92, 14 L. Ed. 2d 22, 31, 85 S. Ct. 1116, 1123-24]; United States v. National Dairy Products Corp. [(1963), 372 U.S. 29, 9 L. Ed. 2d 561, 83 S. Ct. 594]; Williams v. United States [(1951), 341 U.S. 97, 95 L. Ed. 774, 71 S. Ct. 576];Robinson v. United States [(1945), 324 U.S. 282, 286, 89 L. Ed. 944, 947, 65 S. Ct. 666, 669] ; United States v. Wurzbach [(1930), 280 U.S. 396, 74 L. Ed. 508, 50 S. Ct. 167].” (Emphasis added.)

The same is true in the instant case. Therefore, the Act, as applied to these defendants, is neither vague, indefinite nor uncertain, and thus comports with minimum due process requirements.

The defendants’ penultimate contention is that the Open Meetings Act violates the State constitutional provision which prohibits special or local legislation “when a general law is or can be made applicable” (Ill. Const. 1970, art. IV, sec. 13). We find no merit in this contention, since we have already held that a legitimate governmental interest in treating smaller governmental bodies differently from the General Assembly exists with regard to the public’s access to governmental deliberations and actions. Bridgewater v. Hotz (1972), 51 Ill. 2d 103, 111-12.

Thus, the exemption of the General Assembly from coverage under the Act is not akin to an attempt to enact reforms “one step at a time” (Grace v. Howlett (1972), 51 Ill. 2d 478, 487, quoting Williamson v. Lee Optical of Oklahoma, Inc. (1955), 348 U.S. 483, 489, 99 L. Ed. 563, 573, 75 S. Ct. 461, 465) but, rather, is an instance where a general law recognizes a distinction between two classes which warrants different treatment. (McRoberts v. Adams (1975), 60 Ill. 2d 458, 462.) The Open Meetings Act is intended to create a practicable means of opening the deliberative processes of government to public view. The General Assembly is already affected in this area by article IV, section 5(c), of the 1970 Constitution, which requires that sessions and meetings of committees, joint committees and legislative commissions will, subject to two exceptions, be open to the public. In its substantive effect, then, the Open Meetings Act exemption refers only to private meetings between General Assembly members; however, the size of the General Assembly and the volume of public business it deals with, compared to the size and volume of substantially all of the bodies covered by the Act, reveal why it is reasonable for a distinction to be made between the General Assembly and other bodies. Recognition of the different nature of the General Assembly under the Act does not violate the special legislation provision of the 1970 Constitution.

Finally, the defendants contend that the Open Meetings Act, as applied to them, violates their rights of freedom of speech and assembly under both the Federal and State constitutions. The defendants argue that the Act is overly broad and raises the specter of public officials fearing to discuss political or public business at any time outside of a formal public forum, lest they be prosecuted under the Act.

A governmental purpose to control or prevent activities constitutionally subject to State regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. (Zwickler v. Koota (1967), 389 U.S. 241, 250, 19 L. Ed. 2d 444, 451, 88 S. Ct. 391, 396; NAACP v. Alabama ex rel. Flowers (1964), 377 U.S. 288, 307, 12 L. Ed. 2d 325, 338, 84 S. Ct. 1302, 1314; People v. Klick (1977), 66 Ill. 2d 269, 273; People v. Ridens (1974), 59 Ill. 2d 362, 370.) A statute is overly broad if it may reasonably be interpreted to prohibit conduct which is constitutionally protected. People v. Klick (1977), 66 Ill. 2d 269, 273, citing Grayned v. City of Rockford (1972), 408 U.S. 104, 114-15, 33 L. Ed. 2d 222, 231, 92 S. Ct. 2294, 2302.

It is a well recognized constitutional principle that the government may adopt reasonable time, place and manner regulations which do not discriminate among speakers or ideas, in order to further an important governmental interest unrelated to the restriction of communication. (Buckley v. Valeo (1976), 424 U.S. 1, 18, 46 L. Ed. 2d 659, 687, 96 S. Ct. 612, 634, and cases cited therein.) We conclude that the General Assembly has adopted reasonable regulations with regard to public officials’ rights of speech and assembly when those rights are balanced against the extremely important governmental interest of the public’s right of access to public information. The Open Meetings Act does not prohibit political discussions between or among members of public bodies; thus there is no chilling effect upon political discussion. Moreover, we agree with the Attorney General’s opinion that “whether a gathering falls within the definition of meeting as used in the Act, would depend upon the peculiar facts in each situation. It is unlikely that the causal non-preaxranged conversation among less than, or even all, of the members of a particular body in a coffee shop, during which the business of the body was discussed, would constitute a meeting within the terms of the Act. I assume such a gathering is primarily a social gathering and business is discussed only incidentally between certain individuals and not among the group as a whole. Of course, if any decisions or agreements to make decisions are made, such a gathering would be a meeting within the terms of the Act.” (1974 Att’y Gen. Op. 123, 126.) The Act is only addressed to meetings designed to discuss or reach an accord with regard to public business which properly should be deliberated or acted upon in an open forum. In short, the Act requires that public business must be conducted publicly. We perceive this limitation to be reasonable when viewed in relation to a public official’s obligation to carry out the public trust honorably and in good faith. Moreover, we think the Act clearly does not prohibit consultation between an official and his staff so that the official may offer views for discussion and debate in a private setting. (See People ex rel. Cooper v. Carlson (1975), 28 Ill. App. 3d 569 (staff members not subject to Act). Thus the Open Meetings Act is a reasonable attempt to balance the right of the press and the people to view the deliberative and decision-making processes of government first-hand with the right of public officials to speak their minds freely and associate with whomever they choose. The Act places a limited and reasonable regulation upon officials by requiring them to speak of public business with their fellow officials only when they are in a public forum, and sufficient notice under the Act has been given. (Ill. Rev. Stat. 1977, ch. 102, par. 42.02.) We agree with the appellate court that public officials’ desire to consult privately must give way to the open conduct of the public’s business “or else the people risk having their business done in secret, with the possibility that private deals will supplant the public interest.” (78 Ill. App. 3d 842, 845.) We are unable to say therefore that the balance struck by the General Assembly is unreasonable.

In the instant case, nine public officials, a majority of a 15-member city council, had a prearranged meeting to discuss matters set to be discussed in a public meeting later that same night. Their conduct fell within the “hard core” of the Act’s proscriptions. Whether the Act applies to other meetings and whether it is constitutional in other settings or as applied to other public officials must await further determination. We conclude only that the Act applies to the meetings held by these defendants and that the Open Meetings Act (Ill. Rev. Stat. 1977, ch. 102, par. 41 et seq.) is constitutional as applied to these defendants.

Accordingly, for the reasons stated, the judgment of the appellate court is affirmed.

Judgment affirmed.

MR. JUSTICE WARD,

dissenting:

The majority leaves a cloud of constitutional doubt hanging over this important statute.

The statute expressly states that it shall apply to meetings of executive as well as legislative bodies and raises serious questions as to whether it violates the constitutional assurances of separation of governmental powers. Is the Act to apply to meetings of the governor’s cabinet, for example, or to meetings of officials of the Attorney General’s office or State’s Attorneys offices? The statute was amended in 1979 to make it inapplicable to “that portion of meetings of law enforcement agencies, committees or commissions involved in the investigation of criminal activities which are concerned with or are to discuss informant sources, the hiring or assignment of undercover personnel, the purchase and assignment of undercover autos, or actual ongoing, prior or future investigations, or any budgetary considerations specifically concerning any of the foregoing.” Ill. Rev. Stat. 1979, ch. 102, par. 42(h).

But what about meetings of officials of the Attorney General’s office or the State’s Attorneys offices with discussions not regarding criminal investigations, but prosecutions? Topics discussed might be flaws or merits in the particular case, trial strategy, summoning of witnesses and their suspected unreliability, caliber of defense counsel or trial judges and the like. It is to be noted that the Act states that its intent is that “deliberations be conducted openly.” Ill. Rev. Stat. 1977, ch. 102, par. 41.

The Act fairly bristles with questions regarding the separation of powers and other constitutional areas. The opinion of the majority implicitly acknowledges constitutional problems, stating that the decision here is only “under the narrow facts presented” (83 Ill. 2d at 202) and that “[w] hether the Act applies to other meetings and whether it is constitutional in other settings or as applied to other public officials must await further determination” (83 Ill. 2d at 211). But the deep and troubling problems will not go away. I believe it is a disservice not to address the problems and permit the legislature, if the Act is in fact determined to be unconstitutional, to take fresh legislative action.

As a general proposition it is said that a court, of course, will avoid constitutional questions if possible and will decide only the question before it. But this court on its own initiative will consider constitutional problems and will if necessary declare legislation unconstitutional. People ex rel. Peoria Civic Center Authority v. Vonachen (1975), 62 Ill. 2d 179.

There is a severability provision in the act here (Ill. Rev. Stat. 1977, ch. 102, par. 45) but if the legislature intended the provisions of the Act as a whole piece of legislation, as unquestionably was the case here, the entire act would fall. People ex rel. Peoria Civic Center Authority v. Vonachen (1975), 62 Ill. 2d 179.

MR. JUSTICE UNDERWOOD joins in this dissent.


source: Caselaw Access Project

author: MR. JUSTICE UNDERWOOD MR. JUSTICE CLARK,

license: Public Domain

text:
    (No. 53061.
    CATERPILLAR TRACTOR CO., Appellee, v. THE INDUSTRIAL COMMISSION et al. (Clara D. Johnson, Appellant).

      Opinion filed December 19, 1980.

      CLARK, J., and GOLDENHERSH, C.J., dissenting.
    Harvey 8c Stuckel, of Peoria (David W. Stuckel, of counsel), for appellant.
    Robert F. Fahey, of Peoria, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Claimant, Clara D. Johnson, filed an application for an award under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.) for injuries she allegedly received bending to lift a part from a tub while employed with Caterpillar Tractor Company at its Mossville facility. An Industrial Commission arbitrator awarded compensation for temporary total incapacity for work and for partial permanent loss of the use of her legs, finding claimant sustained accidental injuries arising out of and in the course of her employment. The Commission affirmed. On certiorari to the circuit court of Peoria County, the Commission’s decision was reversed, the circuit court finding the award of the Industrial Commission to be contrary to the manifest weight of the evidence. Claimant has appealed to this court pursuant to Rule 302(a) (73 Ill. 2d R. 302(a)).

The claimant testified that on August 9, 1976, while at her employment at a burr bench and washing tank, she bent over a tub to lift out a part she would work on and felt a sudden pain in her back. Neither its weight nor a description of the part is disclosed in the record. She complained to a fellow worker of the injury and asked her line supervisor if she could go to the first aid department. There she received heat treatment to her back and went home before completing her shift. The following day she consulted her family physician, who placed her in a hospital. She underwent a lumbar laminectomy at the hospital and testified that she has continuing pain in her back and both legs.

The claimant had a history of prior difficulties with her back which were not job related. The trouble started when she wrenched her back while playing with her grandchild at home in June 1975. She was hospitalized three times, for a total of 31 days, and missed about 18 weeks of work in the 13 months prior to August 2, 1976, when she returned to work following her most recent absence.

The only other witness to testify was the claimant’s line supervisor, Roger W. Jackson. He testified that when the claimant asked if she could go to the first aid department she stated that she did not hurt her back at work. A dispensary note prepared by the nurse who saw the claimant reads in part: “States this is the fifth time in past year it has happened and she didn’t do it at work.”

The family doctor wrote “no history of accident” in the hospital record. On an application form for nonoccupational group benefits the claimant circled “no” in answer to the question, “Was an accidental injury involved?” The family doctor completed the doctor’s side of the form and checked “no” to the question, “In your opinion was the patient’s disability caused by an injury at work?’ ’

The claimant was asked what constituted an accident in her mind, and she responded, “To me an accident is if you fall or something falls on you, or you drop something or you are in a car wreck.”

The issue before the trial court and here is whether the decision of the Industrial Commission is against the manifest weight of the evidence, since only in that case will its decision be set aside. (United Airlines, Inc. v. Industrial Com. (1980), 81 Ill. 2d 85; Phelps v. Industrial Com. (1979), 77 Ill. 2d 72; Walden v. Industrial Com. (1979), 76 Ill. 2d 193.) The standard to be applied in the present case was stated by us in Corn Products Refining Co. v. Industrial Com. (1955), 6 Ill. 2d 439, 442-43:

“It is well settled that a claimant under the Workmen’s Compensation Act must prove by direct and positive evidence, or by evidence from which the inference can be fairly and reasonably drawn, that the accidental injury arose out of and in the course of his employment. [Citation. ] The burden is upon the applicant to establish by a preponderance of competent evidence all of the essential elements of his right to compensation [citation]; and even though there is evidence in the record which, if undisputed, would sustain a finding for the applicant, such evidence is not sufficient if, upon consideration of all the testimony and circumstances shown in the record, it appears that the manifest weight of the evidence is against such finding. [Citations.] ”

This court has cited Corn Products with approval, most recently in Caterpillar Tractor Co. v. Industrial Com. (1978), 73 Ill. 2d 311. See also Deere & Co. v. Industrial Com. (1970), 47 Ill. 2d 144.

In the present case the claimant’s uncorroborated testimony is contradicted not only by the testimony of her line supervisor and various documents, but also by her prior written statements. The claimant answered “no” to the question, “Was an accidental injury involved?” on an application form for nonoccupational group benefits. We note, too, the absence of any explanation of the reason claimant’s coworker, to whom claimant said she complained, was not called as a witness. Nor was there any medical testimony connecting the work episode to which claimant testified with the laminectomy and ensuing disability. This court has in several cases set aside awards of the Commission as being against the manifest weight of the evidence where the only evidence that the injury arose out of and during the course of employment was the uncorroborated testimony of the claimant which was contrary to prior written statements by the claimant. (Rockford Clutch Division, Borg-Warner Corp. v. Industrial Com. (1967), 37 Ill. 2d 62; Electro-Motive Division, General Motors Corp. v. Industrial Com. (1962), 25 Ill. 2d 467; Mechanics Universal Joint Division, Borg-Warner Corp. v. Industrial Com. (1961), 23 Ill. 2d 441; Fisher Body Division, General Motors Corp. v. Industrial Com. (1960), 20 Ill. 2d 538; United States Steel Corp. v. Industrial Com. (1956), 8 Ill. 2d 407; Com Products.) Claimant’s testimony as to what she considered an accident to be seems a less than adequate explanation of her prior inconsistent written statement. In United States Steel the court stated, “Obviously statements in formal written documents cannot be tendered at face value for the purpose of obtaining benefits, and then lightly explained away when they stand in the way of claims for other benefits of an inconsistent nature.” 8 Ill. 2d 407, 413-14.

We have repeatedly held that even though a claimant’s testimony about an alleged accident might be sufficient, standing alone, to justify an award, it is not enough where a consideration of all the facts and circumstances shows the manifest weight of the evidence is against it. (Allis-Chalmers Manufacturing Co. v. Industrial Com. (1961), 23 Ill. 2d 497.) Although in the present case the claimant’s testimony, when taken alone, might justify an award, consideration of the entire record indicates the award is against the manifest weight of the evidence. In this respect this case differs from Pheoll Manufacturing Co. v. Industrial Com. (1973), 54 Ill. 2d 119, in that there the claimant had made no prior inconsistent statements and such other testimony as there was did not contradict her claim.

Claimant also urges the award should be sustained as an aggravation of her preexisting condition. She obviously had a severe back problem as indicated by the amount of time immediately prior to the date in question during which she was hospitalized or missed work because of her back condition, which had been diagnosed as an acute and chronic low-back syndrome.

While the existence of prior back problems does not deprive the claimant of the right to an award (International Vermiculite Co. v. Industrial Com. (1979), 77 Ill. 2d 1), the connection between the employment and subsequent problems must be established. The mere fact that the employee was at work or engaged in some work-related activity when the episode occurred is not alone sufficient to support an award. (County of Cook v. Industrial Com. (1977), 68 Ill. 2d 24; Illinois Bell Telephone Co. v. Industrial Com. (1966), 35 Ill. 2d 474.) Given the fact that such medical evidence as is present here indicates the absence of any connection between claimant’s back problem and her employment, and the inconsistent actions of claimant, we believe the circuit court did not err in setting aside the award of the Industrial Commission as contrary to the manifest weight of the evidence.

The judgment of the circuit court is accordingly affirmed.

Judgment affirmed.

MR. JUSTICE CLARK,

dissenting:

I dissent because the majority has resolved anew the conflicting evidence in this case and has substituted its inferences for the inferences the Commission made. First, it is clear that the claimant, was under a misapprehension about what constitutes an accident. The majority quotes her: “To me an accident is if you fall or something falls on you, or you drop something or you are in a car wreck.” (83 Ill. 2d at 216.) This answer shows that the claimant probably did not consider what happened to her to be an accident. It is significant that she was never specifically asked whether she considered her lifting incident to be an “accident.” Her response to that question would resolve any doubt about why her answers on forms and her statements were inconsistent with her contention here that she suffered an accidental injury at work. As her answer stands, I think the arbitrator and the Commission were justified in finding that the claimant suffered an injury at work which arose out of her employment, since it occurred when she was lifting a part out of a tub. The arbitrator and Commission obviously discounted the claimant’s inconsistent statements in light of all the evidence and the likelihood that the claimant did not fully understand what was meant by the term “accident.” The arbitrator and the Commission have resolved any conflicts and ambiguities in favor of the claimant and have found that her injury was compensable. The circuit court and the majority are incorrect to inject their interpretation of the conflicts and ambiguities in the evidence into the case.

Moreover, the majority concedes that the claimant has a “severe back problem” (83 Ill. 2d at 218), and there is no medical evidence of deterioration to the point where any activity might cause harm (see County of Cook v. Industrial Com. (1977), 68 Ill. 2d 24, 33; Greater Peoria Mass Transit District v. Industrial Com. (1980), 81 Ill. 2d 38, 43). The fact that the claimant had recently received medical treatment for her back problem and had been permitted to return to work indicates that no deterioration was occurring but, instead, her condition was improving. Thus, the Commission was correct to find that the claimant’s condition was aggravated by the lifting she was required to do at work (Greater Peoria Mass Transit District v. Industrial Com. (1980), 81 Ill. 2d 38, 43; Riteway Plumbing v. Industrial Com. (1977), 67 Ill. 2d 404, 412) and that her resulting injury was compensable. I would reverse the circuit court.

MR. CHIEF JUSTICE GOLDENHERSH joins in this dissent.


author: MR. JUSTICE RYAN MR. JUSTICE CLARK,

text:
    (No. 53171.
    LLOYD O. ROGERS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Superior Equipment Manufacturing, Appellee).

      Opinion filed December 19, 1980.

      CLARK and WARD, JJ., dissenting.
    Michael D. Ryan, of Ryan, Grabb, Cini & Bennett, of Mattoon, for appellant.
    Armstrong, Erickson & Davis, Ltd., of Decatur (Garry E. Davis and Jonathan R. Erickson, of counsel), for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

Lloyd O. Rogers, the employee, while on a parking lot of Superior Equipment Manufacturing, the employer, after leaving work, was struck by a malfunctioning automobile, that was driven by his wife. An arbitrator for the Industrial Commission denied the employee compensation under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.), finding that he had failed to prove that he sustained an accidental injury arising out of and in the course of his employment. The Industrial Commission affirmed the arbitrator’s decision, and the circuit court of Coles County confirmed the decision of the Industrial Commission. The employee has appealed to this court. 73 Ill. 2d R. 302(a).

Rogers, after finishing work at about 3:35 p.m. on April 25, 1977, “punched out” his time card at the employer’s “clock house” located adjacent to a parking lot owned by the employer and used by the employees for parking their automobiles. Rogers was expecting his wife to pick him up in the parking lot after work. After leaving the “clock house,” he saw his wife parked in her automobile in the parking lot a short distance away. As he was walking towards his wife’s car in the parking lot he suddenly heard a loud noise, sounding, as he said, like a hundred automobile engines, and he saw his wife’s automobile bearing down on him. It struck him, causing serious injuries. The evidence indicates that the automobile had malfunctioned, causing it to strike Rogers. There is no evidence that the employer, or the condition of its parking lot, was in any way responsible for the malfunction of the vehicle or the accident.

Accidental injuries to employees sustained on an employer’s parking lot within a reasonable time before or after work are generally held to be sustained “in the course of” employment. (De Hoyos v. Industrial Com. (1962), 26 Ill. 2d 110; Carr v. Industrial Com. (1962), 26 Ill. 2d 347; Aaron v. Industrial Com. (1974), 59 Ill. 2d 267.) Under such conditions, the employee is held to be at his place of employment to the same extent as though he were at the place where his work was actually performed. However, as this court noted in Aaron, not all parking-lot injuries are compensable.

Although one’s presence on the parking lot may put him at his place of employment to satisfy the requirement that the injury be sustained in the course of employment, it does not, by itself, establish that the accident arose out of the employment. As this court has held, not only must the claimant establish that the accidental injury was incurred in the course of employment, he must also prove that the accidental injury arose out of his employment. The accident must be shown to have resulted from a risk incidental to the employment. (Quarant v. Industrial Com. (1967), 38 Ill. 2d 490, 492.) The term “arising out of employment” refers to the causal link between the employment and the injury. (W.K.I.D. Broadcasting Co. v. Industrial Com. (1969), 42 Ill. 2d 236, 239.) For an injury to come within the Act, it must have had its origin in some risk connected with, or incidental to, the employment so that there is a causal connection between the employment and the injury. Ordinarily, the injury does not arise out of the employment unless the danger causing the injury is peculiar to the work and the risk is not one to which the public generally is subjected. Chmelik v. Vana (1964), 31 Ill. 2d 272; Jones v. Industrial Com. (1980), 78 Ill. 2d 284.

The claimant contends that the facts are undisputed and that the question of whether the injury arose out of and in the course of the employment is therefore one of law and we need not consider whether the holding of the Industrial Commission is against the manifest weight of the evidence. Relying on De Hoyos v. Industrial Com. (1962), 26 Ill. 2d 110, claimant contends that he is entitled to recovery as a matter of law. We do not agree. It is true that in De Hoyos the claimant was held as a matter of law to be entitled to compensation for injuries sustained when he slipped and fell on a parking lot which was covered with snow and ice and which was under the control and maintenance of the employer. However, in our case, the injury was not caused by a condition of the parking lot, or by any activity of the employer. We cannot therefore say as a matter of law that the injury arose out of the employment.

In Fisher Body Division, General Motors Corp. v. Industrial Com. (1968), 40 Ill. 2d 514, the employee was injured when the battery in his car blew up in his face as he was attaching jumper cables from a booster battery in order to start his car. The court distinguished that case from the cases where the employees are injured crossing a parking lot which has become slippery with ice and snow as in De Hoyos v. Industrial Com. (1962), 26 Ill. 2d 110, and Carr v. Industrial Com. (1962), 26 Ill. 2d 347, and from cases where an employee is struck by a car during a mass exodus of vehicles at quitting time, such as in Chmelik v. Vana (1964), 31 Ill. 2d 272. The court noted that those conditions caused a degree of exposure to a risk of common accident beyond that to which the general public is subjected, but held in the case before it that neither the duties of his employment nor the fact that his car was in the parking lot significantly increased the danger of injury from working on his own car.

Jones v. Industrial Com. (1980), 78 Ill. 2d 284, is another parking-lot case in which the injury was held noncompensable. In that case an employee, when alighting from his car on his employer’s parking lot, accidentally closed a car door on his hand. This court stated that the possibility of slamming a car door on his hand was not peculiar to his employment, nor was it a risk to which he was exposed to a greater degree than the general public.

It was incumbent upon the Industrial Commission to determine from the evidence in the case whether the danger causing the injury to the claimant was peculiar or incidental to his employment. In light of this court’s holding in Jones v. Industrial Com. (1980), 78 Ill. 2d 284, and in Fisher Body Division, General Motors Corp. v. Industrial Com. (1968), 40 Ill. 2d 514, we cannot say that the Industrial Commission’s holding that the claimant’s injury, caused by being run down by his wife’s malfunctioning automobile, did not arise out of his employment is against the manifest weight of the evidence. The judgment of the circuit court of Coles County is therefore affirmed.

Judgment affirmed.

MR. JUSTICE CLARK,

dissenting:

I dissent because I think this case is very similar to Chmelik v. Vana (1964), 31 Ill. 2d 272, wherein the plaintiff employee’s negligence action was dismissed because the injury he sustained was held to be exclusively compensable under the Workmen’s Compensation Act (Ill. Rev. Stat. 1961, ch. 48, par. 138.5(a)). Chmelik was injured as he left work when he walked across the parking lot provided by his employer and was struck by Yana’s automobile and suffered serious injury. The court held that the injury occurred “in the course of” Chmelik’s employment, referring to the time, place and circumstances of the injury.

The court, in holding also that the accidental injury “arose out of” Chmelik’s employment, stated:

“Ordinarily, an injury does not arise out of the employment unless the danger causing the injury is peculiar to the work and the risk is not one to which the public generally is subjected, (Lagomarcino-Grupe Co. of Iowa v. Industrial Com. 383 Ill. 95;) however, if an employee is exposed to a risk common to the general public to a greater degree than other persons by reason of his employment, the accidental injury is said to arise out of his employment. Payne and Dolan v. Industrial Com. 382 Ill. 177; Hinckley & Schmitt v. Industrial Com. 391 Ill. 577; Cudahy Packing Co. v. Parramore, 263 U.S. 418, 68 L. Ed. 366.” (Chmelik v. Vana (1964), 31 Ill. 2d 272, 277-78.)

The court then refuted the plaintiff’s arguments:

“First, that the use of the parking lot is in no manner connected with the employer-employee relationship, and, second, that employees using the lot are exposed to no greater perils than the general public. We do not agree with either contention. As to the first, it is more than clear that the parking lot was provided and used as an incident of the employment. The lot was used as an adjunct of the employer’s plant, it was furnished and maintained by the employer to facilitate arrival and departure from work, and it was contemplated that employees would use the lot in going to and from their employment. As to the second contention, it would be sufficient to say there is no showing that the public used the lot or were exposed to its perils. But even if such a showing had been made, it would be of little avail to plaintiff. The regular and continuous use of the parking lot by employees, most particularly at quitting time when there is a mass and speedy exodus of the vehicles on the lot, would result in a degree of exposure to the common risk beyond that to which the general public would be subjected. Cf. Biggs v. Farnsworth, 336 Ill. App. 417; Cunningham v. Metzger, 258 Ill. App. 150; Murphy v. Meittinen, 317 Mass. 633, 59 N.E.2d 252.
We conclude that the accidental injury here did arise out of and in the course of the employment ***.”31 Ill. 2d 272, 279-80.

In the instant case, the facts are virtually identical, except for the fact that the claimant’s wife was the operator of the car which struck the claimant and the car malfunctioned. The majority has not explained, however, why the outcome should be different from Chmelik as a result. Certainly it appears that, if the claimant’s wife had struck and injured a different employee, the injuries would be compensable under the Act. Thus, I do not understand why the majority concludes that, although an employee was accidentally struck by a car driven by his wife as the employee was crossing an employer-controlled parking lot at the end of the work shift, his injuries are not compensable under the Act. While it is true that deference should be given to the Commission’s fact-finding expertise, we should not do so at the cost of disregarding our own precedent.

MR. JUSTICE WARD joins in this dissent.


author: MR. JUSTICE KLUCZYNSKI

text:
    (No. 52670.
    NATIONAL BOULEVARD BANK OF CHICAGO et al., Appellants, v. THE VILLAGE OF SCHAUMBURG, Appellee.

      Opinion filed December 1, 1980.
    Rehearing denied January 29, 1981.

    Jay A. Canel and William J. Harte, of Chicago (Rudnick & Wolfe, of counsel), for appellants.

      Jack M. Siegel, of Chicago, for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Plaintiff Eugene Matanky is the beneficial owner of property held in trust by plaintiff National Boulevard Bank of Chicago. Plaintiffs instituted this declaratory judgment action subsequent to a denial by defendant, the village of Schaumburg, of Matanky’s request to rezone the subject property. The circuit court ruled that plaintiffs had overcome the presumption of validity of the village’s zoning ordinance as applied to the subject property, and the court also found that plaintiffs’ proposed use, a combination of multifamily and single-family uses, was reasonable. The appellate court reversed the judgment of the circuit court, ruling that plaintiffs had not met their burden of proof on the question of the reasonableness of the proposed use (76 Ill. App. 3d 388), and we allowed plaintiffs leave to appeal.

The subject property is a vacant 26.5-acre parcel located immediately south of Schaumburg Road and approximately 800 feet west of Roselle Road in the village of Schaumburg. The property is approximately 860 feet long at its northern and southern boundaries and 1,350 feet deep. Abutting the property on the south and west sides axe single-family residential areas known as the Woods and Timbercrest subdivisions. These subdivisions contain residences with values ranging from $60,000 to in excess of $100,000. To the north of the property, across Schaumburg Road, is a housing project for the elderly. These buildings are set back 700 feet from Schaumburg Road and are partially screened by a grove of trees. Abutting the property to the east is an area zoned T-l (Transitional District). This area contains the Town Square Shopping Center and substantial undeveloped land. South of this shopping center, separated from the subject property by a school and park, are the Town Square Apartments. There are also multifamily developments in the general area of the subject property. One development, consisting of combined multifamily and single-family uses, provided a model for plaintiffs’ alternate proposal which the circuit court found reasonable. The subject property was zoned R-l, permitting one single-family residence on every 2lh acres of land. The village agreed that the R-l classification was an unreasonable use of the property. The remaining issue at trial was the reasonableness'of plaintiffs’ proposed use.

Plaintiffs had initially proposed to build 66 three-story buildings, each containing six units. The density of this proposed development was 14.9 units per acre. Plaintiffs submitted and rely upon an amended proposal, however, which includes 56 six-flat buildings and 20 single-family lots bordering the west and south perimeters of the property, that portion of the property which abuts the single-family subdivisions. Access to the multifamily units would be from Schaumburg Road, and landscaping and berming would be utilized to buffer the development from existing uses.

Plaintiff Matanky was the first witness to testify. In addition to matters not relevant to this appeal, plaintiff testified that he purchased the subject property for $500,000. He intended to sell each six-flat module for a price of $155,000 to $160,000, the price varying with locations. He further stated that there was an excellent market for single-family homes and that Schaumburg had been a very good suburb for both single-family and multifamily developments.

Thomas Buckley, a city planner, was the next witness called by plaintiffs. It was his opinion that the highest and best use of the property was multifamily development. Buckley had examined the plans proposed for plaintiffs’ development and was of the opinion that these plans came within his definition of the highest and best use. It was his opinion that the proposed use would not depreciate the surrounding uses. Buckley testified that the subject property was physically adaptable to single-family develop: ment and that the most predominant use in the area, without regard to the subject property, is single-family development.

Plaintiffs’ architect, Stuart Wexler, testified that the site could feasibly be developed with single-family residences or townhouses, but these uses would not provide plaintiffs as high a return on their investment.

Paul Box, a traffic engineer, and Carl Kupfer, a civil engineer, were also called by plaintiffs. Box testified that present conditions on Schaumburg Road were inadequate to handle the 2,800 trips á day that would result under plaintiffs’ proposed development. He was of the opinion, however, that this traffic problem would be alleviated by a pending county proposal to widen Schaumburg Road. Kupfer testified that the available utilities would be adequate to serve the proposed use, single-family development, or townhouse development.

William McCann, a real estate appraiser, testified on behalf of plaintiffs that, under the R-l zoning classification, the property had a value of $250,000. He stated that if plaintiffs’ initial proposed use were allowed, the property would have a value of $1,267,000 and, under the amended proposal now relied upon, the property would have a value of $1,235,000. He stated that if the property were developed as a single-family subdivision on lots the size of the abutting developments, the value of the subject property would be $665,000. He further testified that the site was suitable for townhouse development and single-family development and that there was a need and demand for single-family homes and an excellent market for townhouses in Schaumburg.

Defendant called as its first witness William Lawrence, a city planner. It was Lawrence’s opinion that either of the proposed uses would have an adverse effect upon the adjoining single-family developments. He testified that, in his opinion, the highest and best use of the property would be a moderate-density development of five to six dwelling units per acre, consisting of single-family units along the abutting developments and townhouses in the remaining area. It was his opinion that there was a greater demand for single-family development in the area and that the subject property takes its character from the subdivisions to the south and to the west, discounting the effect of the Town Square Shopping Center and Apartments and other multifamily developments in the general vicinity of the property. Lawrence further testified that the property was suitable for single-family development if properly screened from the shopping center, and he believed the property would accommodate 80 homes.

The director of village planning, Allan Saunders, was also called by defendant. He testified that it was his opinion that the highest and best use of the property would be single-family development, which could be accomplished with screening from the shopping center. He believed that plaintiffs’ plan was incompatible with the adjacent subdivisions, that the proposed use would create traffic problems, and that high-density developments in the village should be located near Woodfield Mall, a major shopping center. On cross-examination, he conceded that there were areas in the village where single-family developments adjoined multifamily developments.

Joseph Zgonina, the village engineer, testified that plaintiffs’ proposed use would generate 2,400 to 2,500 automobile trips per day, while the low-density use suggested by the village planning expert would generate 1,000 trips per day. He objected to the internal circulation system of the modified proposal as well as the original proposed use. He stated that, from a traffic-safety standpoint, there would be points of conflict within the development where vehicles would be attempting to enter and exit parking spaces and enter and exit the development.

Albert Gundelach, a real estate appraiser, testified on behalf of defendant that, in his opinion, the highest and best use of the subject property would be single-family residential at 10,000-square-feet-per-lot density. He stated that there was an extremely strong demand for single-family homes and that approximately 80 homes could be placed on the subject property. He estimated the value of the property for single-family use to be $720,000, while the value under plaintiffs’ proposed use would be $1,000,000. He further testified that the proposed development would have a depreciatory effect on the adjacent subdivisions, estimating that depreciation would be five to six percent for the homes nearest the perimeter.

Four homeowners from an adjacent subdivision objected to plaintiffs’ proposal. It was their opinion that the proposed use would have an adverse impact on their property values, would not be aesthetically appealing, and would increase traffic congestion. Several of these homeowners, including two who had relied upon the zoning prior to purchase, stated they would not have purchased in the area if the proposed development had existed.

The trial court found, and defendant agreed, that the R-l zoning classification is arbitrary, unreasonable and oppressive as applied to the subject property, and that it is not reasonably related to the public health, safety and morals of the community. The trial court then ruled that plaintiffs had met their burden of proving that the proposed alternate use was reasonable, finding that traffic conditions would be alleviated by a proposed widening of the road and further finding that the adjacent single-family residences would not depreciate in value if the property were developed with a buffer of single-family homes. The appellate court, after consideration of the evidence, ruled that plaintiffs had not met their burden of proving by clear and convincing evidence that the zoning ordinance was, as to plaintiffs, arbitrary and unreasonable and without substantial relation to public health, safety, morals or welfare. For reasons which follow, we affirm the judgment of the appellate court.

Plaintiffs argue, relying principally upon the decision of this court in Bauske v. City of Des Plaines (1957), 13 Ill. 2d 169, that the appellate court usurped the function of the trial court and reevaluated the credibility of the witnesses. In addition, plaintiffs argue that the effect of the appellate court decision is to require plaintiffs to prove that the intermediate zoning uses between R-l and the proposed use are unreasonable, contrary to Aurora National Bank v. City of Aurora (1976), 41 Ill. App. 3d 239.

As noted by the appellate court, in the usual zoning case a plaintiff property owner is required to show by clear and convincing evidence that the existing classification is invalid and that the use proposed is reasonable. In the present case, where the municipality admits the inappropriateness of the existing classification, plaintiffs must still show by clear and convincing evidence the invalidity of the ordinance insofar as it prohibits the use proposed. The question to be resolved is whether the municipality’s denial of rezoning to permit the proposed development is reasonably related to the health, safety, morals and welfare of the community.

We agree with the appellate court that the evidence presented in the case creates, at best, a legitimate difference of opinion as to the reasonableness of prohibiting the proposed use. Although the witnesses of the parties were in disagreement over the highest and best use of the property, all agreed that the property was suitable for single-family development. Plaintiffs’ expert witness, Thomas Buckley, testified that the predominant use in the area is single-family development. Plaintiff Matanky himself testified that there was a demand for single-family development in the area, and all witnesses agreed that the property could be economically developed as a single-family development. Plaintiffs do not contend, nor could they, that the village cannot reasonably restrict the population density as necessary to protect the public welfare. We therefore hold that the denial of plaintiffs’ request to rezone the property was reasonably related to the protection of the public health, safety, morals and welfare of the community, and that plaintiffs have not demonstrated by clear and convincing evidence that the proposed use was reasonable.

Nor do we agree that the opinion of the appellate court is in conflict with Aurora National Bank v. City of Aurora (1976), 41 Ill. App. 3d 239. Although testimony by the witnesses for the municipality may indicate that the proper classification of plaintiffs’ property is R-6, this question was not the issue presented to the court. As was stated in Schultz v. Village of Lisle (1972), 53 Ill. 2d 39, 42, in addressing a similar contention:

“The question which was presented to the trial court and which is before this court is the reasonableness of permitting the requested use of plaintiffs’ property. In testing the validity of the zoning ordinance in this case we are only concerned with the validity of the ordinance insofar as it prohibits this proposed use. The general rules, of course, apply, in that the person attacking the ordinance must prove by clear and convincing evidence that the zoning ordinance is, as to him, arbitrary and unreasonable and without substantial relation to public health, safety, morals, or welfare. [Citations.] ”

We do not believe that this burden has been met.

For the reasons stated, we affirm the judgment of the appellate court.

Judgment affirmed.