author: JUSTICE SULLIVAN

text:
    THE CITY OF CHICAGO, Plaintiff-Appellant, v. LOUIS PRUS et al., Defendants-Appellees.
    First District (5th Division)
    No. 82 — 1863
    Opinion filed August 19, 1983.

      Stanley Garber, Corporation Counsel, of Chicago (Jerome A. Siegan, Edmund Hatfield, and Philip L. Bronstein, Assistant Corporation Counsel, of counsel), for appellant.
    John W. Lally, of Chicago, for appellees.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This appeal is from an order finding unconstitutional an ordinance of the city of Chicago prohibiting the use of “For Sale” and “Sold” signs in designated residential areas of the city. Plaintiff contends that: (1) the trial court erred in ruling that it had the burden of proving that the ordinance is valid; and (2) the finding is against the manifest weight of the evidence.

In 1979, plaintiff filed seven two-count quasi-criminal complaints alleging that defendant violated a section of the Chicago Fair Housing Ordinance which provides in relevant part:

“In order to *** eliminate as far as legislatively permissible, all forms of discrimination and segregation in the field of housing, it shall be an unfair housing practice and unlawful for any owner, lessee, sub-lessee, assignee, managing agent, or other person, firm or corporation having the right to sell, rent, lease or sublease any housing accommodation, within the City of Chicago, or any agent of any of these, or any real estate broker
licensed as such by the City of Chicago.
* * *
H. To construct, place, maintain or install a ‘For Sale’ sign or ‘Sold’ sign of any shape, size or form on premises located in Residential Districts, zoned R1 through R8 under Chapter 194A of this Code.” (Chicago, Ill., Municipal Code, ch. 198.7b, par. 4(h) (1973).)

Defendant moved to dismiss the complaints on the ground that the ordinance impermissibly infringed upon his right of free speech guaranteed by the first amendment of the United States Constitution (U.S. Const., amend. I) and protected from invasion by State action under the fourteenth amendment (U.S. Const., amend. XIV; Bigelow v. Virginia (1975), 421 U.S. 809, 811, 44 L. Ed. 2d 600, 605, 95 S. Ct. 2222, 2227). The trial court, relying principally on Daugherty v. City of East Point (N.D. Ga. 1978), 447 F. Supp. 290, rejected plaintiff’s offer of proof that Chicago suffers from instability as a result of rapid racial change in its neighborhoods; that such transition is caused in part by tactics such as “For Sale” signs; and that the ordinance in question helps promote the continued viability of stable, racially integrated neighborhoods. In effect, by granting defendant’s motion to dismiss, the trial court held that the ban on “For Sale” signs was unconstitutional as a matter of law. We reversed and remanded the action for an evidentiary hearing (City of Chicago v. Prus (1981), 99 Ill. App. 3d 473, 425 N.E.2d 426), stating that, under Linmark Associates, Inc. v. Township of Willingboro (1977), 431 U.S. 85, 52 L. Ed. 2d 155, 97 S. Ct. 1614, plaintiff must be afforded an opportunity “to show that the purported harm caused by the posting of ‘For Sale’ signs could not be avoided by any means other than an ordinance banning them.” (99 Ill. App. 3d 473, 476, 425 N.E.2d 426, 428.) We expressed no opinion therein on the constitutionality of the challenged ordinance, nor did we specify the proof necessary to establish the governmental interest involved; however, we noted that “only an emergency situation threatening a sudden and perhaps wrenching change in a neighborhood could justify derogation from protected commercial speech by means of a ban ordinance” (99 Ill. App. 3d 473, 477, 425 N.E.2d 426, 429), and that such determinations must be made on a case-by-case basis.

On remand, a hearing was held at which Ed Marciniak, an urbanologist, testified for plaintiff that he was executive director of the Chicago Commission on Human Relations from 1960 to 1968, and deputy commissioner of the city’s Department of Planning from 1968 to 1972. From 1964 to 1967 the commission received 59 complaints which he or a commission staff member investigated. He did not specify the subject matter of the complaints, nor did he indicate the number which were determined to be without foundation after investigation. However, where there was a basis for the complaint, he would find numerous “For Sale” signs in the area. During 1964, he had several occasions to view the southeast side of Chicago in his capacity as director of the commission, and noted signs of racial violence and a rapid, radical change in the racial composition of neighborhoods in that area. He defined “panic peddling” as an effort to frighten homeowners into selling in an area which may be undergoing racial or ethnic change. The practice usually involves real estate brokers who create fear or exploit prejudices to obtain property listings. Homeowners are sometimes induced to sell to the broker at less than market value, and the broker then resells the home for more than its market value. Panic peddlers use a variety of techniques, including door-to-door solicitation; dissemination of literature stating that a member of a minority group has purchased a home nearby; racial steering; telephone solicitations; obtaining numerous listings, then placing signs to frighten other residents of the area into selling; “wrong number” phone calls in which the caller indicates that he thought he was calling “the black family that just moved in”; purchasing a home in the area and selling it on contract to a minority buyer; telling owners that the FHA had inspected certain property, implying that it would be sold to a black or Hispanic, that the police could no longer patrol the area effectively, and that the influx of minorities would affect the schools.

Marciniak further testified that between 1950 and 1970, panic peddling was taking place primarily in the southwestern, southeastern and eastern portions of the city, and arose because of the dual housing market. The white and minority populations were served by different brokers, and hoúses in one market would not be shown to persons served by the other market. In this way, those who controlled the white real estate market were able to confine the movement of minority groups to areas adjoining existing minority communities rather than allowing movement throughout the city and suburbs. This dual market was able to maintain itself through connections between the real estate industry and the insurance and mortgage industries; prospective minority buyers would find that they could not obtain the necessary mortgage or insurance to purchase a home in a “white” area. During this time, the minority population was increasing, and brokers serving that population had to “open up” new areas, that is, transfer properties from the white real estate market to the minority market. Marciniak stated that had there been effective tools at that time to open the entire market to all persons, there would not have been the massive racial transition in concentrated areas that characterized the period. However, because of existing conditions, brokers serving the minority market practiced panic-peddling techniques in order to obtain listings in predominantly white areas adjoining minority neighborhoods. As a result of the activities of brokers who specialized in areas undergoing racial and ethnic change, community organizations were formed which attempted to stabilize the situation.

According to Marciniak’s testimony, “For Sale” and “Sold” signs have two purposes: commercial advertisement and informing white homeowners that a broker serving the minority market is operating in the area. Such signs are an important tool of panic peddling, and were used extensively, for example, in the Austin area from 1960 to 1970. The ordinance in question was needed when first passed in November 1971, and appears to have been effective because instances of panic peddling have declined since 1970, and there has been a significant slowing of massive racial transitions. Marciniak admitted that the use of signs is only a problem in predominantly white areas adjacent to predominantly minority communities, and that a single sign or a few signs in an otherwise stable community will not of themselves cause a sudden change — it is their use in conjunction with other techniques that causes panic in an area near a minority neighborhood. Marciniak also stated that in the past several years “For Sale” signs had begun to appear again, and he had heard that, in some areas, there was a proliferation of them, and there is one area of the city that has been going through a rapid change since 1977. In his opinion, the ban on signs would be necessary even if other sections of the Chicago Fair Housing Ordinance were strictly enforced. He further indicated that a sudden, wrenching change may be caused by an increase in arson, door-to-door solicitation, moving minority families into predominantly white communities, the use of “For Sale” signs by a broker known to be a panic peddler, or a major depression. Currently, these factors operate collectively to cause change, but, in Marciniak’s opinion, any one factor alone could have the same result.

Jeanine Stump, a member of the Northwest Austin Council, testified that the organization was founded in 1967 as part of a community effort to stabilize the area. There were many homes for sale at that time, and there were as many as 10 “For Sale” signs in a single block of 40 homes. In addition to the signs, residents were the object of intensive solicitation by brokers both in person and by phone or mail. Some solicitation letters might say “Don’t get caught over a barrel. Sell your home now,” while others listed all the homes for sale or recently sold in the area. The organization members went out into the neighborhood and talked to residents, trying to calm their fears, but many felt that the “white flight” could not be stemmed. Brokers were asked to take their signs down and cease their mass solicitations, but they refused. The organization then joined with other community groups in asking the city to institute a ban on signs; once the ordinance went into effect, the panic subsided and the change had become more gradual. Ms. Stump further stated that although the brokers were using all of the panic-peddling techniques during this time, the mass solicitation stopped about the time that the ban went into effect; that efforts of the organization had stabilized the area and there had been no sudden changes, although a few signs had recently appeared; and that when such signs had been placed, members of the organization had notified the police of the ordinance violation and the signs had been removed.

James Keck testified that he purchased a home in 1951 for $16,800, but sold it in 1969 for $14,500 when he thought the neighborhood was going to change; that he had been contacted through the mail, by phone, and in person by a number of brokers; that there were many “For Sale” signs in the area, perhaps one or two per block, for six months before he sold; and that the signs frightened him because he thought the area was going to change overnight. He further stated that the decisive factor in selling his home was the fact that his children were being harassed by some minority-group children who had moved into the area.

Marie Maher testified that she lived in the North Austin area for 56 years and was a member of the Northeast Austin Organization founded in 1971 to help stabilize the area. In 1970, “For Sale” signs began appearing in the area, as many as six per block. In conjunction with this, brokers were soliciting by mail, by phone, and in person, urging residents to sell “before they lost money.” She further stated that the solicitation and signs were disrupting the community and that the ban on signs helped ease residents’ fears, although solicitation was also curtailed at the same time. She also testified that the other panic-peddling tactics would have had the same unsettling effect on the community even in the absence of “For Sale” signs.

Charles Shanabruch, executive director of the Beverly Area Planning Association, testified that the association works with area realtors to prevent resegregation of the neighborhood and promote affirmative marketing. The organization opposes the use of “For Sale” signs because they have a destabilizing effect on a neighborhood. They also try to prevent the operation of realtors who engage in panic-peddling tactics such as solicitation and racial steering. When a panic peddler begins operating in the area, the organization reports the solicitation tactics to the city and holds community meetings to counteract the effects. Shanabruch stated that in the past three years, two signs were placed in the area, and the resident and realtor, involved cooperated when asked to remove them. He also stated that although a combination of panic techniques is needed to cause a sudden, wrenching change in an area, it was nonetheless his opinion that signs alone could cause a gradual resegregation of an integrated community.

Frank Tobin testified that he served as a priest in a parish near 99th and Jeffrey in the late 1960’s and early 1970’s. In 1968 the surrounding area was a relatively stable, predominantly white community, but by 1972 it was 80-85% black. He stated the change began in 1968-69 when “For Sale” signs began appearing, and the number of real estate agencies in the area increased from three or four to .40 or 50. Residents of the area were receiving two or three calls a day from realtors soliciting real estate listings, as well as door-to-door and mail solicitations. It was Tobin’s opinion that all of these factors disrupted the community,' instilling fear and panic. Tobin also indicated that because of their high visibility, signs were a significant factor in creating panic, and it might have been easier to control the situation if signs were banned. He further acknowledged the fact that although it is a combination of factors which cause a rapid change, including signs, solicitation, rumors, and the condition of the community and the economy, a proliferation of signs probably would not cause panic in a neighborhood that was not in the process of change.

Shirley Reed testified that an agent from Easy Life Real Estate attempted to solicit a listing on her grandfather’s home in Wicker Park in 1979 by making numerous telephone calls and telling him that blacks were moving into the area. She stated that in 1979 Wicker Park was predominantly black and Puerto Rican, but more white families had moved into the area recently. She also testified that although there were “For Sale” signs in the area, they would not have induced her grandfather to sell in the absence of the other panic tactics, and that she put an end to the calls by telling the agent that she owned the property and would not sell and that he should cease his solicitation.

Mary Frances Cast testified that she had lived in the Beverly-Morgan Park area since 1963. She further stated that she became very concerned about the stability of the area when as many as four “For Sale” signs appeared in block after block, and “was glad to see a ban on such signs.” Ms. Cast also testified that as a real estate agent she felt that the ban had not harmed the industry; in fact, it was her opinion that it had helped business because prospective purchasers now had to consult brokers to find out what was available. She further admitted that her agency uses signs in communities where they are permitted and that, they can be a useful selling device; however, because of the situation in the city, i.e., rapidly changing areas, Ms. Gast stated that signs do a great deal of harm to homeowners and property values. She could not name any area of the city that was currently undergoing a rapid racial change, but indicated that the suburbs of Bellwood and Country Club Hills were changing, although the process had slowed since the time each community enacted a ban on “For Sale” signs. She also stated that notwithstanding the fact that the signs were banned in Country Club Hills five years ago, the area was still changing.

Rose Clementi testified that she sold her home at 57th and Aberdeen for a substantial loss after a broker told her that if she did not sell immediately she would not be able to sell, and that many homes in the area had been sold already. He also mentioned the numerous signs in the area. Ms. Clementi further stated that she had no thoughts of selling, despite having seen the signs, until the broker approached and told her that blacks were moving into the neighborhood.

Sharon Schingoethe, a real estate broker who lives in the Northtown area, testified that one of the best methods for a realtor to get listings is to put up “For Sale” and “Sold” signs to make residents aware that he is selling in the area. She also stated that in the last few years prior to trial there had been a proliferation of signs in the Northtown and Edgewater areas, and there would be even more if the city did not enforce the ordinance and force people to remove them. It was her opinion that “For Sale” signs have a detrimental impact on the community because they create instability and panic in areas that are either in the process of change or near changing areas. She admitted that her agency used a sign in a changing area, at the insistence of the owner, after the initial trial court decision declared the ordinance unconstitutional; however, they removed the sign after one month because area residents complained and because children kept knocking the sign down. Two other signs were placed in the area at about the same time, but to her knowledge none of the buildings were sold and she did not know whether the signs caused a sudden, wrenching change in the neighborhood. Ms. Schingoethe also testified that in the two months prior to trial, 12 signs had appeared in a two-square-block area near her home. She further stated that in 1975 the area was predominantly white, but by 1977 the white population had decreased and the minority population had grown. She believed the change was caused by fears that the area would change, by older peopie wanting to sell after their children were grown, and by the fact that there is now less discrimination in selling. It was her further opinion that Wicker Park, which was predominantly black in 1979 when “For Sale” signs began appearing had also changed, as evidenced by a large exodus of blacks from the area as brokers bought buildings, renovated them, and sold them to white families. It was her belief, however, that the renovation had improved the area.

Joseph Battaglia testified that he worked for the Commission on Human Relations in 1979. He stated that the commission received complaints about “For Sale” signs during a meeting of the Wicker Park Neighborhood Council. Although people at the meeting said the signs were causing panic in the neighborhood, he did not speak to any individual who claimed to be afraid of a change in the neighborhood because of the signs. He further testified that the signs in question were placed by Easy Life Real Estate Co., that he contacted Louis Prus about the complaints, informing him that they violated the ordinance, and that Prus refused to remove them.

Willie Granderson testified that he was the director of fair housing in the city’s Department of Housing. He worked as an investigator from 1968 to 1972, receiving and investigating complaints about violations of the Chicago Fair Housing Ordinance which prohibits discrimination in housing, panic peddling, block-busting, and “For Sale” signs. He stated that in 1968 he investigated complaints alleging panic-peddling in Austin, West Englewood, South Shore, and Rose-land. During the years 1968-71, he observed numerous “For Sale” signs in those areas, as many as three or four per block, and that real estate offices opened in the area and created panic by solicitation, block-peddling and signs. It was his opinion that the signs speeded the spread of panic in the area and caused rapid racial change. He also testified that he visited the same areas after the ordinance was enacted and noted that the rapid change had slowed and some areas had stabilized; North Austin is now a stable, integrated community. Granderson further stated that, in the above areas, the rapid change was caused by heavy solicitation, panic-peddling and signs, all of which violate the Chicago Fair Housing Ordinance. He indicated, however, that although the ordinance is also intended to ensure that sellers and lessors do not discriminate, signs can legitimately be used to notify all prospective purchasers that property is for sale, notwithstanding the fact that the use of signs may sometimes result in uprooting a community. He also stated that from June 25, 1980, when the trial court first ruled that the ordinance was unconstitutional, until May 22, 1981, when that decision was reversed and remanded, the city did not enforce the ordinance, and “For Sale” signs appeared in many areas. He also acknowledged that, during those 11 months, no area underwent a sudden change, explaining that the various real estate boards cooperated with the city and did not place signs in areas adjacent to minority communities where they might cause panic.

Three residents of the Wicker Park area testified for defendant that they purchased their homes after seeing defendant’s signs advertising the availability of the property. Before that time, they had not contemplated buying, and had not consulted a broker or looked at newspaper advertisements. All three residents were of the opinion that although there were “For Sale” signs in the area, they were not causing panic, nor was the area undergoing rapid racial change.

Ann Kenis testified for defendant that she has lived near Howard and Western for five years and, in the two months prior to trial, “For Sale” signs had appeared in the area, as many as six or seven signs in a four-block area. She stated that the signs had not caused a sudden change in the demographics of the area and that she did not feel that they had had an adverse effect on her property.

Anita Rest, a real estate broker, testified that she had been active in the Wicker Park area for the past seven years and, since 1975, there had been a gradual change in the area; younger people were moving in and rehabilitating the area, causing a rise in property values. Although there were “For Sale” signs in the area, Ms. Rest stated that they had not caused panic or a mass exodus of a particular racial or ethnic group. She further stated that she was not a broker in 1968-71 and did not know what effect signs had then in conjunction with panic-peddling in various areas of the city.

Albert Weinberg, a real estate broker who was active in the Lawndale, Garfield Park and Austin areas from 1948 to 1966 when they were undergoing racial change, testified for defendant. He stated that in 1948 Lawndale had an all-white population, but the people there were older. By 1968, the area was 95% black. It was his opinion that the change occurred because younger people were moving to the suburbs and there was no market for the homes of older people who wanted to sell because their families were grown. At the same time, the minority population of the city was increasing, and Lawndale was an attractive area in which they could obtain housing at fairly low prices. As a result, by 1959 the community was 60% black and many businesses began leaving the area. Weinberg believed that panic was caused by brokers who went door-to-door and urged owners to sell because minorities were buying in the area. Residents would receive calls in the middle of the night threatening their families if they did not sell. Some brokers bought homes in previously all-white areas and moved minority families in to create panic. According to Weinberg, signs were a minor factor in comparison to these other tactics; they were only effective after a block was 75-80% changed and served to panic the remainder of the residents into selling. He also stated that during this time the Roosevelt Road Businessmen’s Association was formed to try to stabilize the area and convince businesses to remain. The organization tried without success to convince those engaged in panic peddling to cease their activities. Weinberg further testified that all of this took place before the Fair Housing Ordinance was enacted in 1963; had the ordinance been in effect, it would have enabled them to put a stop to the personal contacts and racist literature, since it is the ban of scare tactics and solicitation techniques rather than the ban on “For Sale” signs that prevents panic. It was also his opinion that the prohibition on signs would not stop panic peddling because signs appear only after fears have been aroused and the racial change is almost complete; instead, Weinberg believed that vigorous enforcement of other provisions of the Fair Housing Ordinance as well as of the building code would eliminate most panic peddling.

Weinburg also acknowledged that the socio-economic factors which contributed to the rapid change in neighborhoods during the 1950’s and 1960’s exist today in certain areas, for example, Albany Park and Austin. In Albany Park, the change has been gradual despite the existence of “For Sale” signs because there had been no panic peddling. Austin is still in the process of transition, but the prohibition of “For Sale” signs has not slowed the pace of change. Similarly, in West Rogers Park, where Weinburg resides, no sudden change had occurred in the area despite the increasing use of “For Sale” signs during the year and a half prior to trial; the signs had had no effect on the value of his property. In his opinion, signs are an excellent tool for selling property; 90% of vacant lots are sold by placing a sign on them.

Joseph Battaglia, recalled by defendant as an adverse witness, testified that in 1979 there were areas of the city undergoing a rapid racial change. Wicker Park was one of those areas, but Battaglia would not have called the change “wrenching” because the community was becoming integrated. He further stated that although “For Sale” signs were used after the ordinance was declared unconstitutional, they did not cause any sudden and wrenching change because brokers were cooperating with local community groups when contacted and asked to remove the signs. Battaglia kept a long list of properties on which signs had been placed during the four months, before trial, but he was not aware of any area that had undergone a sudden and wrenching change during that time. It was his opinion that even if the ban on signs is declared unconstitutional, brokers can be prosecuted under existing laws for pandering to racism.

Ben Rosenthal, a real estate broker, testified for defendant that South Austin changed from 1975 to 1980 from a predominantly white to a predominantly black community despite the ban on “For Sale” signs and that the change had been a continuous process rather than sudden and wrenching. He also stated that North Austin was undergoing the same type of change, but at a more gradual pace, despite the fact that “For Sale” signs were being used in the area and, in his opinion, the use of signs was not contributing to the racial change. Rosenthal further stated that he lived in the South Shore area, a neighborhood that changed from predominantly white to predominantly black between 1959 and 1968. Although there were many “For Sale” signs in the area at that time, he believed they were only effective in combination with other factors. He also stated that the community had been relatively stable since 1972, but there had been a great deal of recent renovation, property values were increasing, and the area was gradually becoming integrated. In his opinion, the prohibition on signs may contribute to racial segregation. Rosenthal further testified that in North Austin, the community organizations are controlled by white residents and they actively discourage the use of signs and listing with brokers; that because of pressures from these organizations and individual residents, brokers are not showing properties north of North Avenue to prospective minority purchasers; and that such steering would not be possible if signs were used.

In summation, Rosenthal stated that brokers and homeowners have used signs on a select basis, but the market has remained stable and no neighborhood has undergone rapid change since the city stopped enforcing the ordinance. In addition, although there was a lot of panic peddling in the 1950’s and 1960’s, he stated that brokers had become more cautious since then, due principally to the pressures of community organizations and forces within the real estate industry itself. Rosenthal also acknowledged that there are alternatives to “For Sale” signs, and, while the ban was in effect, realtors used multiple listings and newspaper advertisements; however, in some areas and for some types of property, those methods of advertising were not as effective as signs.

The trial court found that 59 complaints were received from the entire city from 1964 to 1967, but there was very little evidence of written complaints from 1968 to November 1971, the date the ban on “For Sale” signs was passed. Other portions of the Fair Housing Ordinance were enacted in 1963, but there was no evidence that plaintiff attempted to enforce those provisions from 1964 to 1971. The court further noted that panic peddling involves numerous techniques which are prohibited by the Fair Housing Ordinance, and that “For Sale” signs are part of a general pattern of panic selling rather than an independent cause of sudden and wrenching changes. The evidence further established that signs were currently being used in various neighborhoods of the city, but there was no evidence that these neighborhoods had become unstable; in fact, Wicker Park, the area in which the violations in question occurred, has become a stabilized, rehabilitated community. In the light of this evidence, the trial court found that plaintiff had not met its burden of proving by a clear preponderance of the evidence that the city was undergoing a sudden, wrenching change and held that the ordinance in question is an impermissible infringement on defendant’s right of free speech. Defendant was found not guilty, and this appeal followed.

Opinion

Before reaching the merits of this appeal, we first must address defendant’s contention that the appeal should be dismissed because he was found not guilty and further prosecution of him is therefore barred by the constitutional prohibition against double jeopardy. This argument assumes the applicability of Supreme Court Rule 604 (87 Ill. 2d R. 604) governing the decisions which the State may appeal in criminal prosecutions. However, although a prosecution for violation of a municipal ordinance is quasi-criminal in character, it is civil in form (City of Danville v. Hartshorn (1973), 53 Ill. 2d 399, 292 N.E.2d 382), and the rules of civil procedure generally govern at trial and on appeal (Village of Arlington Heights v. Suchocki (1980), 89 Ill. App. 3d 985, 412 N.E.2d 561). It is established that, at least where, as here, the sole penalty for violation of the ordinance is a fine (Chicago, Ill., Municipal Code, ch. 198.7B, par. 12 (1982)), Supreme Court Rule 604 is inapplicable, and the municipality may appeal as in any civil case without violating the prohibition against placing a defendant twice in jeopardy for the same offense (Village of Park Forest v. Bragg (1967), 38 Ill. 2d 225, 230 N.E.2d 868; Village of Maywood v. Houston (1956), 10 Ill. 2d 117, 139 N.E.2d 233).

Defendant’s further argument, without citation to authority, that plaintiff’s request for outright reversal in its brief, rather than reversal and remándment, is somehow fatal to its right to appeal is similarly without merit. Should we find that the trial court’s decision must be reversed, we have the power to remand the action for further proceedings pursuant to Supreme Court Rule 366 (87 Ill. 2d R. 366), and we are in no way bound by the relief which appellant might prefer. Moreover, we do not agree, as defendant contends, that plaintiff is asking us “to act as judge and jury”; defendant stipulated below that he installed the signs in question, that the signs were within residential districts zoned R1 through R8, and that he did not remove the signs after notification of the violation. As the trial court noted, if the ordinance is constitutional, the above stipulations establish defendant’s guilt. Since the relevant facts are undisputed, further trial of this issue would be unnecessary and the only task of the trial court on remand would be determination of the fine to be imposed.

Turning to the merits of this appeal, we note preliminarily that recent decisions involving governmental restraints on commercial speech have reaffirmed that it is afforded a lesser degree of protection than other forms of expression (see, e.g., Bolger v. Youngs Drug Products Corp. (1983), 463 U.S__, 77 L. Ed. 2d 469, 103 S. Ct. 2875), and those decisions have further refined the four-part analysis applicable to commercial speech cases first announced in Central Hudson Gas & Electric Corp. v. Public Service Com. (1980), 447 U.S. 557, 566, 65 L. Ed. 2d 341, 351, 100 S. Ct. 2343, 2351, which stated:

“At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come -within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.”

In the instant case, there is no dispute, and Linmark Associates, Inc. v. Township of Willingboro (1977), 431 U.S. 85, 52 L. Ed. 2d 155, 97 S. Ct. 1614, clearly establishes that there is nothing unlawful about selling a home, nor is the simple announcement of that fact misleading, and that the State and its subdivisions have a substantial interest in promoting stable, racially integrated housing. However, the language in Linmark and subsequent citations thereto seem to go further and leave considerable doubt whether even a substantial interest is sufficient justification for restricting the information conveyed by “For Sale” signs. In Linmark, the court clearly relied on the fact that the evidence presented did not establish any direct relationship between a ban on “For Sale” signs and a lessening of the incidence of panic selling, that is, that the law was necessary to achieve the stated objective. It went on to note:

“The constitutional defect in this ordinance, however, is far more basic. The Township Council here, like the Virginia Assembly in Virginia Pharmacy Bd., acted to prevent its residents from obtaining certain information. That information, which pertains to sales activity in Willingboro, is of vital interest to Willingboro residents, since it may bear on one of the most important decisions they have a right to make: where to live and raise their families. The Council has sought to restrict the free flow of these data because it fears that otherwise homeowners will make decisions inimical to what the Council views as the homeowners’ self-interest and the corporate interest of the township: they will choose to leave town. The Council’s concern, then, was not with any commercial aspect of ‘For Sale’ signs — with offerors communicating offers to offerees— but with the substance of the information communicated to Willingboro citizens. If dissemination of this information can be restricted, then every locality in the country can suppress any facts that reflect poorly on the locality, so long as a plausible claim can be made that disclosure would cause the recipients of the information to act ‘irrationally.’ Virginia Pharmacy Bd. denied government such sweeping powers. As we said there in rejecting Virginia’s claim that the only way it could enable its citizens to find their self-interest was to deny them information that is neither false nor misleading:
‘There is . . . an alternative to this highly paternalistic approach. That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them .... But the choice among these alternative approaches is not ours to make or the Virginia General Assembly’s. It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us. 425 U.S., at 770.’
Or as Mr. Justice Brandéis put it: ‘If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression.’ Whitney v. California, 274 U.S. 357, 377 (1927) (concurring opinion).” 431 U.S. 85, 96-97, 52 L. Ed. 2d 155, 164-65, 97 S. Ct. 1614, 1620.

Based on this language, we held in City of Chicago v. Prus (1981), 99 Ill. App. 3d 473, 425 N.E.2d 426, that only the existence of an emergency situation would justify the use of a ban, that is, where the situation is such that the alternative remedy of public education and discussion is not viable. Our view is reinforced by the recent Supreme Court decision in Bolger v. Youngs Drug Products Corp. (June 21, 1983), 51 U.S.L.W. 4961, wherein the court affirmed a finding that the United States Postal Service’s ban on the unsolicited mailing of advertisements for contraceptive devices is unconstitutional. The court noted that the regulation denied parents truthful information bearing on their ability to discuss birth control and to make informed decisions on what information they might wish to impart to their children. Citing Linmark, the court held that “[bjecause the proscribed information ‘may bear on one of the most important decisions’ parents have a right to make, the restriction of ‘the free flow of truthful information’ constitutes a ‘basic’ constitutional defect regardless of the strength of the government’s interest.” (51 U.S.L.W. 4961, 4965.) The above language appears to afford almost full constitutional protection to “For Sale” signs, requiring even stricter scrutiny than seems to be necessary under the Central Hudson test. This interpretation is further advanced by Justice Blackmun’s explanation of Lin-mark in Central Hudson. After citing the above passage from Lin-mark, he noted that the decision therein “resolved beyond all doubt that a strict standard of review applies to suppression of commercial information, where the purpose of the restraint is to influence behavior by depriving citizens of information.” (447 U.S. 557, 577, 65 L. Ed. 2d 341, 358, 100 S. Ct. 2343, 2357 (Blackmun, J., concurring).) With these standards in mind, we must consider three questions: whether the evidence establishes a direct relationship between the ban on “For Sale” signs and the governmental interest in promoting stable, racially integrated housing; whether the ordinance is broader than necessary to accomplish that objective; and whether, even if the above elements are established, plaintiff has further shown that an emergency situation exists which makes the alternative recognized in Linmark inadequate.

Initially, plaintiff contends that the trial court erred in placing on it., the burden of proving the facts necessary to justify its ban on “For Sale” signs. It argues that an ordinance, like a statute, is presumptively valid, and the party challenging its constitutionality has the burden of proving its invalidity by clear and convincing evidence, citing Schuringa v. City of Chicago (1964), 30 Ill. 2d 504, 198 N.E.2d 326, and Greyhound Lines, Inc. v. City of Chicago (1974), 24 Ill. App. 3d 718, 321 N.E.2d 293. However, these cases involved challenges to the municipality’s exercise of its police powers, and alleged that the ordinance in question was arbitrary and unreasonable since it bore no reasonable relationship to the public health, safety or welfare. When faced with such challenges, we are willing to defer to the legislative determination of what best, serves the public; but where the challenge involves a violation of first amendment guarantees, the burden is on the governmental entity to justify its restrictions. (See, e.g., Bates v. State Bar of Arizona (1977), 433 U.S. 350, 53 L. Ed. 2d 810, 97 S. Ct. 2691.) Some courts have gone so far as to hold that a regulation which restricts the exercise of first amendment freedoms is presumptively invalid (International Society for Krishna Consciousness, Inc. v. Rochford (7th Cir. 1978), 585 F.2d 263); at the very least, where an ordinance or regulation arguably impinges upon first amendment rights, it is for the enacting body to justify it (Bayou Landing, Ltd. v. Watts (5th Cir. 1977), 563 E2d 1172, 1175, cert. denied (1978), 439 U.S. 818, 58 L. Ed. 2d 109, 99 S. Ct. 79, citing Linmark). Therefore, to the extent that the trial court’s determination is dependent upon a resolution of factual conflicts, the burden is on plaintiff, and the trial court’s findings will not be disturbed unless contrary to the manifest weight of the evidence.

With regard to the question whether an ordinance directly advances the stated governmental interest, Central Hudson indicates that an ordinance may not be sustained “if it provides only ineffective or remote support for the government’s purpose.” (447 U.S. 557, 564, 65 L. Ed. 2d 341, 350, 100 S. Ct. 2343, 2350.) We note that, in Metromedia, Inc. v. San Diego (1981), 453 U.S. 490, 69 L. Ed. 2d 800, 101 S. Ct. 2882, the Supreme Court stated that, even in the absence of proof on this issue, common sense may dictate in some situations that a relationship exists. There, the plaintiff challenged an ordinance regulating outdoor advertising displays, and the city argued that the regulations served the substantial governmental interest in improving traffic safety and the appearance of the city. The court noted the meager evidence of any connection between billboards and traffic safety, but stated that it “hesitate[d] to disagree with the accumulated, common-sense judgments of local lawmakers and of the many reviewing courts that billboards are real and substantial hazards to traffic safety. There is nothing here to suggest that these judgments are unreasonable.” (453 U.S. 490, 509, 69 L. Ed. 2d 800, 816, 101 S. Ct. 2882, 2893.) In Oklahoma Telecopiers Association v. Crisp (10th Cir. 1983), 699 F.2d 490, 501, the court relied on this language of Metro-media in holding that, despite the lack of evidence on the issue, the ban on advertising alcoholic beverages directly advanced the State’s interest in reducing the sale and consumption of such beverages, noting that “[t]he entire economy of the industries that bring these challenges is based on the belief that advertising increases sales. We therefore do not believe that it is constitutionally unreasonable for the State of Oklahoma to believe that advertising will not only increase sales of particular brands of alcoholic beverages but also of alcoholic beverages generally.” Similarly, here, plaintiff argues that common sense dictates that the proliferation of “For Sale” signs will cause panic selling. However, the Supreme Court clearly rejected this argument in Linmark, where it noted that “the record does not confirm the township’s assumption that proscribing such signs will reduce public awareness of realty sales and thereby decrease public concern over selling.” (431 U.S. 85, 95-96, 52 L. Ed. 2d 155, 164, 97 S. Ct. 1614, 1620.) It went on to note:

“While this assumption is certainly plausible, it is also possible that eliminating signs will cause homeowners to turn to other sources for information, so that their awareness of — and concern over — selling will be unaffected. Indeed, banning signs actually may fuel public anxiety over sales activity by increasing homeowners’ dependence on rumor and surmise. ***
The fact that sales volume remained unchanged in Willingboro in the first nine months after the ordinance was enacted suggests that it did not affect public concern over selling, if that concern was a significant cause of housing turnover.” (431 U.S. 85, 96 n.10, 52 L. Ed. 2d 155, 164 n.10, 97 S. Ct. 1614, 1620 n.10.)

It appears, then, that plaintiff may not rely upon any assumptions; it must prove that the ordinance directly affects its interest in promoting stable, racially integrated neighborhoods.

Here, an urbanologist testified that the use of “For Sale” signs has always been a part of a general pattern of panic-peddling techniques and that the signs alone can cause panic in an area near a minority neighborhood, but he presented no statistical data or examples to support this conclusion, and acknowledged that he knew of no situation where this had occurred. Several witnesses for plaintiff agreed that signs alone will not cause rapid racial changes; it is their use in connection with mass solicitation, rumors, and other tactics which cause panic. Other witnesses admitted that the number of “For Sale” signs in a given area had no bearing on their decision whether or not to sell: James Keck sold because of perceived threats to his children’s safety; Rose Clementi had seen numerous signs, but had no thoughts of selling until a broker approached her and told her that blacks were moving into the area and she soon would be unable to sell; Shirley Reed testified that her grandfather’s decision to sell was not influenced by the “For Sale” signs evident in the Wicker Park area, but by improper solicitation tactics.

Several witnesses further testified that the incidence of massive racial transitions had slowed since 1970, although no data was provided to support these conclusions, and attributed this phenomenon to the ban on “For Sale” signs. However, witnesses from several community organizations, testifying for plaintiff, stated that the ban on “For Sale” signs coincided with the cessation of mass solicitation techniques in their neighborhoods and the formation of community organizations established to educate the community and counteract the effects of panic peddling. These organizations currently hold neighborhood meetings, work closely with realtors in their efforts to prevent all forms of panic peddling, and report violations of other provisions of the Fair Housing Ordinance. These are precisely the channels mandated by the Supreme Court as a viable alternative to repression of information — public awareness and education. Moreover, although the witnesses in question attributed the change in the speed of transition to the ban on signs, there was no testimony which could separate this particular event from the other influences taking place at the same time. We could as well find from this evidence that the change was solely attributable to the cessation of other tactics or to the formation of community organizations.

Furthermore, it appears from the evidence that rapid racial changes have continued to occur despite the ban on “For Sale” signs, casting doubt on the efficacy of that measure. Ed Marciniak testified that one unnamed area of the city has been going through a rapid racial change since 1977, some three years before the initial trial court decision declaring the ordinance unconstitutional. He did not testify that the 1980 finding that the ordinance was unconstitutional had any effect on the rate of change in that area. Similarly, Sharon Schingoethe, a real estate broker, testified that racial changes occurred in Northtown between 1975 and 1977, while the ban was in effect, and was caused by fears that the area was changing. Finally, two employees of the city’s department of housing testified that after the ordinance was declared unconstitutional in 1980, the city did not enforce the ban, that “For Sale” signs have appeared in many areas, and that none of the city’s 77 neighborhoods have undergone any sudden changes during that time. Several witnesses for defendant also testified that various areas underwent racial changes while the ban was in effect, and that the increased use of “For Sale” signs has had no effect on the pace of that change. Plaintiff attempts to explain this apparent lack of effect of the recent use of “For Sale” signs by asserting that various realtors and real estate boards have cooperated with the city and community organizations and refrained from placing signs in areas where they might cause panic. If anything, this voluntary cooperation affirms the Linmark court’s conclusion that the problem is better solved by increased information and discussion than by a blanket prohibition of “For Sale” signs. In the light of the foregoing evidence, we believe that the ordinance provides at best ineffective and remote support for plaintiff’s admittedly substantial interest in promoting racially integrated neighborhoods.

Since we have determined that the trial court’s finding that the ordinance does not directly advance plaintiff’s interest is not against the manifest weight of the evidence, we need not consider whether the ban is broader than necessary to accomplish that objective; under the Central Hudson test, both elements must be established. However, we note that plaintiff’s own witnesses agreed that “For Sale” signs have no effect in neighborhoods that are not currently undergoing racial change or in close proximity to a changing area; the evidence does not establish how many of the city’s 77 neighborhoods are within this category. The testimony deals with five communities which underwent changes in 1968-72, two communities that are currently stable, integrated areas, two that are apparently in the process of change, and two that are currently changing from predominantly black to racially integrated. It appears, then, that the problems here are different from those encountered by the smaller communities considered in other cases involving a ban on “For Sale” signs (e.g., Linmark; Daugherty v. City of East Point (N.D. Ga. 1978), 447 F. Supp. 290), in that the city is comprised of not one community, but many. We cannot determine from the record before us whether a ban on “For Sale” signs throughout the entire city is too broad, or whether, if needed in some areas, a narrower ban would even be feasible; we therefore express no opinion thereon. However, , as noted above, it appears that the city and various communities therein have been able to prevent panic through the voluntary cooperation of brokers and real estate boards, and there is nothing in the record to indicate that this cooperation will not continue or that it will not effectively serve the municipality’s goal of promoting stable, racially integrated neighborhoods in conjunction with enforcement of other provisions of the Fair Housing Ordinance found constitutional in Chicago Real Estate Board v. City of Chicago (1967), 36 Ill. 2d 530, 224 N.E.2d 793.

Plaintiff further argues, however, that the evidence here is similar to that presented in Barrick Realty, Inc. v. City of Gary (N.D. Ind. 1973), 354 F. Supp. 126, aff’d (7th Cir. 1974), 491 F.2d 161, and the Supreme Court in Linmark refused to express any opinion on whether Barrick survived its decision that the Willingboro ordinance was unconstitutional. (431 U.S. 85, 95 n.9, 52 L. Ed. 2d 155, 163 n.9, 97 S. Ct. 1614, 1619-20 n.9.) However, that footnote related to a separate finding that the municipality had failed to prove that panic selling was prevalent in the community; the court expressed no opinion on whether the proof in Barrick was sufficient to establish that the ordinance directly advanced the municipality’s objectives. The trial court in Barrick recognized that “For Sale” signs alone are not the cause of panic selling but one of many tactics of panic peddlers, and appears to have accepted without question or any recitation of supporting evidence that a ban on signs would affect the level of panic. The Supreme Court’s rejection of this assumption in Linmark persuades us that more extensive analysis is required than that contained in Barrick. This is not to say that Barrick is irrelevant to our inquiry; other courts have interpreted Linmark’s reference to Barrick in the context of the last of the three questions we consider today, i.e., whether an emergency situation exists which justifies imposition of a ban rather than resort to the alternative remedy of public education and discussion. (See, e.g., Mayor of Baltimore v. Crockett (1980), 45 Md. App. 682, 415 A.2d 606, cert. denied (1981), 450 U.S. 967, 67 L. Ed. 2d 617, 101 S. Ct. 1485.) We turn now to this final inquiry.

Assuming arguendo that plaintiff has satisfied the Central Hudson test and established both that the ordinance directly advances its asserted interest and that it is not more extensive than necessary to accomplish that goal, it must also establish, under Linmark, that an emergency exists which precludes remedying the perceived evils by education and the dissemination of information. Plaintiff asserts that its ban was effective and has reversed the trend of massive racial transition which characterized the late 1960’s. The evidence supports the argument that the trend has been halted, although, as noted above,, the cause of this phenomenon is not readily apparent from the record. Nevertheless, it is clear that, for whatever reasons, witnesses were unable to cite a single area of the city undergoing sudden, wrenching change. In fact, the last evidence of such change was for the period 1968-71. Plaintiff contends, however, that it should not be “penalized” for the effectiveness of the ban, and that it is still needed to prevent a recurrence of panic selling. Leaving aside any question of the part the ban played in preventing panic selling, this argument assumes that once an emergency situation arises, a total ban on “For Sale” signs is authorized by Linmark, and that the ban may continue once the emergency has passed; that it can continue to assert the “emergency” exception into the indefinite future without ever resorting to the alternative noted in Linmark. We do not believe that Lin-mark can be so interpreted, in the light of its express disapproval of the methods employed by plaintiff and its holding that “only an emergency can justify repression.” (431 U.S. 85, 97, 52 L. Ed. 2d 155, 165, 97 S. Ct. 1614, 1620.) The strong language employed in that opinion does not sustain plaintiff’s assumption that, once it controls the situation, it may sit back and do nothing and expect the courts to condone its failure to develop alternatives to repression. Moreover, it appears that the opening of channels of communication advocated by Linmark has been accomplished, as evidenced by the fact that the city, community organizations and brokers are cooperating in efforts to prevent all of the tactics of panic peddling, and that the community organizations mentioned have been effective in combatting such tactics. In effect, plaintiff is now in the position of the village of Willingboro in Linmark; it fears that, if the ban is declared unconstitutional, panic selling will develop. Its experience since 1980, when the city ceased enforcing the ordinance, indicates that its fears are not well-founded, and we believe that the trial court's finding that plaintiff has failed to prove the existence of an emergency situation justifying a ban on “For Sale” signs is not against the manifest weight of the evidence.

We further note, as did the court in Linmark, that our conclusion does not leave the city defenseless in its efforts to promote integrated housing. It may continue the process of education already begun by the Department of Housing and the Commission on Human Relations, as well as pursuing its efforts to obtain the voluntary cooperation of real estate boards and brokers in preventing a return to the panic peddling which disrupted various neighborhoods in the late 1960’s. There is nothing in this record to indicate that this cooperation will not continue in the future, particularly in the light of the possibility that, if cooperation does not continue, and an emergency situation again develops, plaintiff might well be justified in reinstituting the ban on signs. Moreover, should panic selling recur, plaintiff may have less difficulty in proving that “For Sale” signs were a decisive factor, since it appears to have other factors under control. We also feel confident that the various community organizations will continue their efforts to open the channels of communication between residents and brokers, and to inform their neighbors of the viability of integrated communities. Of course, plaintiff remains free to enforce other, constitutionally permissible provisions of its Fair Housing Ordinance in order to prevent a recurrence of the panic selling which characterized the 1950’s and 1960’s.

Finally, we address two additional arguments of plaintiff. It asserts that the prohibition on realty “For Sale” and “Sold” signs contained in its zoning ordinance is additional justification for the ban contained in the Fair Housing Ordinance. We fail to see the relevancy of this fact; the complaints in the instant action do not assert a violation of the zoning ordinance, and plaintiff raises this question for the first time in its argument before this court. The trial court was not asked to pass on the validity of the zoning ordinance, and we will not address that question for the first time on appeal. We express no opinion on the validity of that ordinance, since it is not properly before us; however, we note that the ordinance in Linmark was part of a zoning ordinance, as were the provisions found unconstitutional in Daugherty v. City of East Point (N.D. Ga. 1978), 447 F. Supp. 290, and Mayor of Baltimore v. Crockett (1980), 45 Md. App. 682, 415 A.2d 606, cert. denied (1981), 450 U.S. 967, 67 L. Ed. 2d 616, 101 S. Ct. 1485. It appears that it is immaterial whether a ban is enacted through a separate ordinance or as a section of a zoning ordinance. If plaintiff’s point is that the zoning ordinance bars signs by realtors, but not those by individual homeowners, and is therefore reasonably related to its police power to regulate commercial activity in residential neighborhoods, we reiterate that we will consider that question when it is properly before us and the opposing party has had an opportunity to argue the validity of an ordinance which distinguishes between business entities and private individuals on the question of commercial speech.

Plaintiff also argues that there are alternative means of imparting information on the availability of property, including multiple listing services and newspaper advertisements. The same argument was raised in Linmark and rejected by the Supreme Court, which expressly found these alternatives unsatisfactory. 431 U.S. 85, 93, 52 L. Ed. 2d 155, 162, 97 S. Ct. 1614, 1618.

For the foregoing reasons, the judgement of the trial court is affirmed.

Affirmed.

WILSON, P.J., and LORENZ, J., concur.

      Other testimony confirms the Linmark court’s observation that a ban on signs only causes homeowners to turn to other sources of information. Among the panic-peddling techniques employed in Austin were solicitation letters listing all the homes for sale or recently sold in the area, a practice unaffected by the ordinance and at least as effective as posting signs on individual properties.


source: Caselaw Access Project

author: JUSTICE PERLIN

license: Public Domain

text:
    G. A. CARNEY, LTD., et al., Plaintiffs-Appellees, v. RICHARD BRZECZEK, Superintendent of Police, City of Chicago, Defendant-Appellant—(The People ex rel. Neil F. Hartigan, Intervening-Appellant).
    First District (2nd Division)
    No. 83 — 232
    Opinion filed August 16, 1983.

      Stanley Garber, Corporation Counsel, of Chicago (Jerome A. Siegan and Lynn K. Mitchell, Assistant Corporation Counsel, of counsel), for appellant Richard Brzeczek.
    Neil F. Hartigan, Attorney General, of Springfield (Patricia Rosen, Assistant Attorney General, of counsel), for intervenor-appellant.
    Law Offices of Patrick A. Tuite, Ltd., of Chicago (Patrick A. Tuite, of counsel), for appellees.
   JUSTICE PERLIN

delivered the opinion of the court:

Defendant, Richard Brzeczek, the superintendent of the Chicago police department, and intervener, Neil Hartigan, the Attorney General of Illinois, appeal a preliminary injunction issued by the circuit court restraining them, their agents, servants and employees, from arresting anyone for possessing and/or selling copies of the Minority News Review, a news magazine published by plaintiffs, G. A. Carney, Ltd., and Gregory A. Carney, that contain entry forms for the “Daily Devil,” a contest based on the numbers drawn in the Illinois State Lottery. (Ill. Rev. Stat. 1981, ch. 120, par. 1151 et seq.) The issue on appeal is whether the issuance of the injunction constituted an abuse of the circuit court’s discretion. For the reasons hereinafter stated, we conclude that the court erred in issuing the injunction and reverse.

On October 22, 1982, plaintiffs, G. A. Carney, Ltd., and Gregory A. Carney, its president, filed a complaint for injunctive relief against Richard Brzeczek, the superintendent of the Chicago police department, and his employees, agents or successors, seeking to enjoin them from arresting persons for distributing, selling or possessing copies of plaintiffs’ publication, the Minority News Review, containing entry forms for the “Daily Devil,” a contest based on the numbers selected in the Illinois State Lottery. Plaintiffs’ amended complaint alleged that on September 30, October 1 and October 2, 1982, Chicago police officers arrested six persons for distributing, selling or possessing copies of the Minority News Review and charged them with violating provisions of the Criminal Code of 1961 that prohibit gambling in the form of a lottery. (Ill. Rev. Stat. 1981, ch. 38, pars. 28 — 1(a)(7), 28 — 3.) On December 9, 1982, the circuit court entered a temporary restraining order enjoining such arrests. On December 16, 1982, a hearing commenced to determine whether a preliminary injunction should be granted. On January 5, 1983, the Illinois Attorney General was allowed to intervene. The hearing concluded on January 17, 1983.

At the hearing, Gregory A. Carney testified that he is the publisher and editor of the Minority News Review, a digest of information of interest to Blacks and Hispanics, which has been published periodically since July 1982 and which has an average circulation of 10,000 to 15,000 copies. The Minority News Review is distributed by City Wide Distributors to between 20 and 25 vendors for sale to the public. There are no present subscriptions, and no issues have yet been offered for sale directly from newsstands.

Carney stated that as a “circulation stimulant,” the vendors’ copies of the Minority News Review include an entry form for a contest entitled the “Daily Devil,” which is promoted as a “free shot at the lottery.” The contest allows players to pick various combinations of three or four numbers. The winning numbers for each day are the same numbers drawn that day in the Illinois State Lottery. Participants are eligible to win cash prizes. The “Daily Devil” does not have winning numbers on days the Illinois State Lottery does not draw winning numbers.

To enter the “Daily Devil” contest, a player must use a three-part entry form which is. attached to the Minority News Review. Copies of the publication with the entry form are available only on issues sold through vendors. The entry forms are not provided with complimentary copies nor will they be available on copies sold at newsstands because, according to the publisher, “they don’t have the facilities to take care of that.” Carney repeatedly stated that no one may enter the contest without purchasing the magazine at an authorized vendor. A vendor will not honor a blank entry form separate from the magazine.

The cover price of the Minority News Review is $1. The vendor will not sell or give away the entry form for the “Daily Devil” separate from the publication. The contest must be played at the time and place of purchase. The vendor, not the purchaser, completes the three-part entry form attached to the publication and makes “the proper entries for the reader and then give[s] the reader a copy of that particular entr[y] form.” The vendor retains the second copy for his own records and sends the third copy to the publisher.

If a contestant wins, he must return to the vendor where he played the “Daily Devil” to collect his prize. The vendor pays the winnings to the contestant from the proceeds of his sale of the magazine. After deducting his commission of 20 cents per copy, the vendor sends the balance of the net proceeds to the distributor. The distributor, in turn, deducts his commission of five cents per copy and gives the remaining funds to the publisher. The commissions are not affected by the outcome of the contest. Carney testified that he paid approximately $6,000 in prizes from July 1982 to September 30, 1982.

The contest rules printed on the three-part entry form state: “No Purchase Necessary. Free entry blanks can be obtained at the office of the publisher. No charge or obligation.” The publisher’s address does not appear on the entry form itself. The form provides that “employees of the publication and KK Features and their families are not eligible ***.” The address of KK Features, from whom Carney acquired the right to use the copyright “Daily Devil” contest, is listed on the entry form as Greenbrae, California.

The “office” of the publisher listed in the magazine, 20 East Delaware, Apartment 1105, Chicago, Illinois, is Carney’s studio apartment in a residence hotel. The name Minority News Review does not appear on the building directory. No telephone number for the publication may be found in the Chicago telephone directory. The Minority News Review has no employees and its contract writers do not work at Carney’s apartment.

Carney testified that if a person came to his office to obtain a free entry form when he was not in, that person could leave a message with the desk clerk and Carney would make arrangements to meet him later. Carney, however, will not send or accept any entry forms by mail. Cheryl Tillman, the manager of the hotel where Carney resides, testified that the hotel does not and will not distribute free “Daily Devil” entry forms for the publisher. She has instructed her staff not to assist anyone in entering the contest or in locating the “office” of the Minority News Review. An investigator for the Illinois Attorney General’s Office corroborated Tillman’s testimony.

Although he has sold more than 100,000 copies of the Minority News Review, Carney testified that he has given away only “two or three” free entry forms for the “Daily Devil.” In each instance, Carney filled out the form for the contestant. (Free entry forms must be completed at the office of the publisher.) Carney, however, had no records of the names, addresses, entry numbers or copies of the free entry forms he distributed. He stated that he kept records of winning entries only, which did not include any of the free entry forms he gave away. Carney could not estimate how many persons had played the “Daily Devil” since the contest began.

Two police officers testified that on September 30 and October 1, 1982, they arrested several persons for distributing, selling or possessing copies of the Minority News Review with the entry form for the “Daily Devil” attached. Both officers stated that they would not arrest anyone for possessing or selling the magazine without the entry form.

Carney testified further that he stopped publishing the Minority News Review from October 3, 1982, until December 12, 1982, three days after the temporary restraining order was issued, because vendors, fearing arrest, refused to accept the magazine for sale. When he ceased publication, Carney lost his advertising revenue.

At the conclusion of the hearing, the circuit court held that the “Daily Devil” was not an illegal lottery because it lacked consideration. The court found that a contestant could obtain a free entry form from the office of the publisher. The court ruled that plaintiffs were entitled to a preliminary injunction. A written order incorporating that decision was entered on January 27, 1983. On February 8, 1983, this court granted appellants’ motion to stay enforcement of the injunction pending appeal.

Appellants contend that plaintiffs failed to establish their right to a preliminary injunction. We must agree.

At the evidentiary hearing, plaintiffs had the burden of proving that they were entitled to injunctive relief. To meet this burden, plaintiffs were required to establish by a preponderance of the evidence that (1) they possessed a certain and clearly ascertained right which needed protection; (2) they would suffer irreparable injury without the protection of the injunction; (3) there was no adequate remedy at law for the injury; and (4) they were likely to succeed on the merits. Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 499, 422 N.E.2d 1166.

The trial court is vested with a large measure of discretion in the granting or refusal to grant a preliminary injunction and its determination will not be overturned on review absent a showing of the abuse of that discretion. (Hayden’s Sport Center, Inc. v. Johnson (1982), 109 Ill. App. 3d 1140, 1144-45, 441 N.E.2d 927.) A preliminary injunction is an extraordinary remedy and should be granted with the utmost care. 109 Ill. App. 3d 1140, 1145.

The sole role of an appellate court in addressing the grant or refusal of an interlocutory order is restricted to a determination of whether the trial judge correctly exercised his broad discretionary powers. (Wessel Co. v. Busa (1975), 28 Ill. App. 3d 686, 690, 329 N.E.2d 414.) Thus, a court of review looks to the sufficiency of the evidence not to determine controverted rights or to decide the merits of the case, but only for the limited purpose of ascertaining whether the trial court abused its discretion. (Hayden’s Sport Center, Inc. v. Johnson (1982), 109 Ill. App. 3d 1140, 1145, 441 N.E.2d 927.) In our judgment, the trial court in this instance abused its discretion.

Assuming, without deciding, that plaintiffs possessed a certain and clearly ascertained right which needed protection, they failed to establish by a preponderance of the evidence any of the other three elements necessary for the issuance of a preliminary injunction.

With respect to the requirement of irreparable injury, Carney testified that he had to cease publication of the Minority News Review for 10 weeks because the vendors, fearing arrest for gambling, refused to carry his magazine. Since he could not publish his magazine, Carney lost his advertisers. As the Attorney General has noted in his brief, however, Carney could have continued to publish the Minority News Review without the “Daily Devil” entry form attached and filed an action for a declaratory judgment to determine whether the contest was a legitimate promotional device. The availability of this action also indicates that Carney had an adequate remedy at law.

The principal issue in this appeal, however, is whether Carney demonstrated that he was likely to succeed on the merits. The resolution of that issue depends on whether Carney was conducting an illegal lottery.

A person commits gambling when he “[s]ets up or promotes any lottery or sells, offers to sell or transfers any ticket or share for any lottery.” (Ill. Rev. Stat. 1981, ch. 38, par. 28-1(a)(7).) A “lottery” is defined as “any scheme or procedure whereby one or more prizes are distributed by chance among persons who have paid or promised consideration for a chance to win such prizes, whether such scheme or procedure is called a lottery, raffle, gift, sale or some other name.” (Ill. Rev. Stat. 1981, ch. 38, par. 28 — 2(b).) Thus, the essential elements of any lottery are chance, consideration, and a prize. People v. Eagle Food Centers, Inc. (1964), 31 Ill. 2d 535, 538, 202 N.E.2d 473.

Carney does not dispute that two of these elements, chance and a prize, are present in his “Daily Devil” contest. Carney, however, maintains that no consideration was involved because the three-part entry form for the “Daily Devil” was provided “free” with the purchase of the Minority News Review, and because free entry forms were available at the office of the publisher.

With respect to Carney’s first argument, the Attorney General refers us to the opinion in People v. Jones (1981), 98 Ill. App. 3d 489, 424 N.E.2d 683. In Jones, the defendant was convicted of the offense of collection of a fee in a wagering contest. (Ill. Rev. Stat. 1979, ch. 8, par. 37 — 39.1(a).) The evidence disclosed that in return for a $5 fee to join defendant’s “social club,” a “member” could place wagers on horse races. On appeal from his conviction, defendant argued that the State was required to prove that the services were strictly for the purpose of gambling and he noted that there was some evidence that legitimate services were also offered by the club as part of the membership fee. The court rejected this argument, stating that “even if the payment of the $5 fee was shown to have entitled the payor to participation in other activities it is clear that the payment also constituted an indirect fee for the placement of a wager and thus violated the statute.” 98 Ill. App. 3d 489, 492.

Similarly, the $1 paid for the Minority News Review is an indirect payment to participate in a game of chance, even though it entitles the purchaser to a copy of the magazine. That the magazine itself may be worth the purchase price does not alter this conclusion. Thomas v. People (1871), 59 Ill. 160; Dunn v. People (1866), 40 Ill. 465.

The controlling fact in the determination of whether a given scheme or business is a lottery is determined by the nature of the appeal which the business makes to secure the patronage of its customers. If, as here, the controlling inducement is the lure of an uncertain prize, then the business is a lottery. (Kent v. City of Chicago (1939), 301 Ill. App. 312, 316, 22 N.E.2d 799. Accord, Almy Manufacturing Co. v. City of Chicago (1916), 202 Ill. App. 240, 244-45.) We note in this regard that the contest rules provide that although there is “[n]o limit to the number of entries,” “[ojnly one selection [is] allowed per entry blank.” It would appear that persons buying multiple copies of the same issue are paying consideration to enter the contest and not to read the magazine.

Carney also contends that no consideration need be paid to enter the contest because free entry forms were available at the office of the publisher. The evidence presented at the hearing strongly suggests that the offer of free entry forms was illusory. The publisher’s name and address do not appear on the three-part entry form itself; there is no listing for the Minority News Review in the Chicago telephone directory or in the directory of the building where Carney resides; the hotel staff does not and will not distribute free entry forms for the publisher and will not assist anyone in entering the contest or in locating the “office” of the Minority News Review; Carney, who has no employees, is not always at his office during normal business hours and will not send free entry forms through the mail; and although he claimed to have given away two or three free entry forms (an infinitesimally small number in relation to the number of issues sold), Carney could not produce any records to substantiate even this claim.

In determining whether consideration is required to play the “Daily Devil,” we do not “inquire into the the theoretical possibilities of the scheme, but *** examine it in actual practical operation.” (Iris Amusement Corp. v. Kelly (1937), 366 Ill. 256, 263, 8 N.E.2d 648.) In our judgment, the obstacles to obtaining a free entry blank are so formidable, the publisher’s offer of a free entry blank must be regarded as chimerical. This distinguishes the present contest from the “Magic Zingo” contest sponsored by the Chicago Tribune or the one upheld by our supreme court in People v. Eagle Food Centers, Inc. (1964), 31 Ill. 2d 535, 202 N.E.2d 473.

Finally, we observe that under the contest rules, only one free entry blank “per request per family per edition” is available. However, a contestant who purchases multiple copies of the same edition of the Minority News Review may submit several entry forms. Thus, it would appear that purchasers of multiple copies have a better chance to win than those persons who may have obtained a single free entry form. This is further evidence that the contest is an illegal lottery. Iris Amusement Corp. v. Kelly (1937), 366 Ill. 256, 8 N.E.2d 648.

For the foregoing reasons, we conclude that in this instance the circuit court erred in issuing the preliminary injunction. Accordingly, we reverse.

Reversed.

DOWNING, P.J., and HARTMAN, J., concur.


author: JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID LEE PAULEY, Defendant-Appellant.
    Fifth District
    No. 82 — 90
    Opinion filed September 2, 1983.
    Randy E. Blue and Daniel M. Kirwan, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John H. Ward, State’s Attorney, of Taylorville (Stephen E. Norris and Mark A. LaRose, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

David Lee Pauley, the defendant, was convicted by a jury in the circuit court of Christian County for the August 20, 1981, murder of 19-year-old Dottie Diane Rhodes. He was sentenced to 40 years’ imprisonment. An autopsy showed that the victim was killed by a gunshot wound in the face between 4:20 and 6:20 a.m. on the morning of August 20. The body was found that afternoon lying on an abandoned bridge over the South Fork River, about five miles southwest of Taylorville.

On the evening of August 19, the victim had gone with her sister, Debbie Christer, to the Victory Tavern in Pana, where the defendant was playing in a band. The defendant, who was acquainted with the victim, asked her to have breakfast with him after the band finished playing. She later arranged by phone for the defendant to pick her up at her sister’s house in Pana. After the defendant and another couple picked up the victim at her sister’s house, the group went to several different places together. At about 2:30 or 3 a.m., the victim and the defendant left the others and drove away in the defendant’s car.

The prosecution’s chief witness was 21-year-old Thomas Forrest, who was living at the time of the murder in a hearse parked in Newittville, about four miles from where the body was found. Forrest testified that in the early morning hours of August 20, he was awakened by knocking on the windows of the hearse and introduced by the defendant to a woman named “Dot.” He later identified the deceased as the woman who accompanied the defendant. Forrest stated he got into the defendant’s car, a pale blue 1971 Oldsmobile, and conversed with the defendant and the victim for 20 to 30 minutes. The defendant invited Forrest to accompany them to a party in Shelbyville; however, Forrest declined the invitation. The defendant then asked for a blanket, stating that “he was going to spend the rest of the night there at the lot with the girl.”

The defendant took the blanket and drove away, but returned a short time later and asked Forrest to loan him a sawed-off .410 shotgun. Forrest further testified that the defendant checked to see if the weapon was loaded, said he intended to commit an armed robbery and then left again in his car. The defendant returned to the hearse a third time, about 15 or 20 minutes later, and returned the shotgun to Forrest. Forrest testified that on Saturday, August 22, he disassembled and cleaned the shotgun.

Forrest consented to a search of his hearse and automobile on August 23, according to the testimony of Christian County sheriff’s investigator George Wise. Wise stated that he and other officers recovered Forrest’s shotgun, a blue blanket, loaded revolver, a large quantity of money and several bottles of pills. Wise seized and destroyed the drugs.

Corroborating witnesses offered by the prosecution included Terry Wadkins and Helen McDonald, who lived near the bridge. Wadkins testified that at 5:30 a.m. on the day of the murder, he heard a vehicle drive to the bridge. Shortly after that, he heard a shot and then heard the vehicle leave. He stated that although he did not see the car, it sounded like it had a hole in its muffler. Helen McDonald testified that she was awakened about 5:30 a.m. by the sound of an old car driving away from the bridge. She described the car as “maybe a dirty gray color” and occupied by only the driver, who “looked like a man.” Detective Donald Brown testified that he had examined the defendant’s car and found that there was a large hole in the muffler and that the crossover pipe was cracked. Detective Brown described the auto’s exhaust system as “very noisy.” In addition, Hazel Crisp, who lived with the defendant in a mobile home in Owaneco, testified that he got home on the morning of August 20 between 5:55 and 6:10 a.m.

Pathologist Edward Slifer was called as the first witness for the defense. He testified that he took oral, vaginal and rectal swabs of the victim during the autopsy and found semen in her vagina and on her underclothes. Deborah Fesser, an Illinois Department of Law Enforcement serologist, testified that she compared samples of the defendant’s pubic hair with two hairs found in the victim’s underwear. One of the hairs could have originated from the deceased, the other hair was dissimilar to the pubic hair of the deceased. Neither hair was similar to that of the defendant. The serologist stated she could not determine how long the hairs had been in the underwear. Thomas Forrest testified that he had refused police requests that he submit samples of his head and pubic hair for comparison testing.

After final arguments, the jury was instructed on the law and retired to deliberate. The jury returned with a verdict of guilty of murder. On appeal, the defendant argues that he was denied a fair trial by the remarks of the prosecutor during trial and during closing arguments.

The defendant makes four specific complaints about statements made by the two prosecutors. The defendant claims that the prosecutors: (1) repeatedly implied that he had the burden of disproving his guilt; (2) improperly appealed to the sympathy of the jury; (3) offered their personal opinions as to the defendant’s guilt; and (4) misstated or overstated important evidence.

The most serious issue presented is whether the prosecutor’s comments about the burden of proof were reversible error. (See generally United States v. Hastings (1983), 461 U.S. _, 76 L. Ed. 2d 96, 103 S. Ct. 1974; People v. Starks (1983), 116 Ill. App. 3d 384.) The following statements are presented by the defendant as examples of allegedly improper prosecution comments that the defendant was required to prove himself not guilty:

“MR. HOGAN [assistant State’s Attorney]: Now, the testimony, the State feels from that time on [2:30-3:00 a.m.], shows that Dottie Diane Rhodes was with David Pauley. There has

been no testimony she was ever with anybody else.

* * *

MR. HOGAN: There has been no explanation given as to the whereabouts of Dottie Rhodes or Mr. Pauley during this period of time.

* * *

MR. WARD [rebuttal by State’s Attorney]: Now then, what you do in a criminal case when you haven’t got a defense. You throw a smoke screen.

MS. SLEPICKA [defense counsel]: Your Honor, I’m going to object to that remark.

MR. WARD: Clutter the issues.

MS. SLEPICKA: The defense has to present no evidence in a case. Has to be no presentation of a defense in case.

MR. WARD: You did though.

MS. SLEPICKA: Your Honor, I object to that.

THE COURT: They don’t have to present anything, Mr. Ward.

MR. WARD: I know.

THE COURT: Let’s refrain from talking about—

MR. WARD: All right.

* * *

MR WARD: Then they want to impune [sic] apparently the integrity of Dottie Rhodes by introducing some evidence that she had sex with someone. They don’t tell us who. There is some indication that there was seminal fluid or semen or so forth in the vagina. I ask you, my friends, so what? What does it prove? Doesn’t prove anything at all.

MS. SLEPICKA: Your Honor, I’m going to ask the State refrain from saying the defense has to prove anything in this matter.

MR. WARD: I didn’t say that.

THE COURT: He’s commenting on the evidence.

MR. WARD: Commenting on your evidence.

THE COURT: Which he has a right to do.

* * *

MR. WARD: There has been some proof introduced by the defense about a couple of stray hairs of some unexplained origin found in these green pants that the young lady was wearing.

* * *

They haven’t told us whose hairs those were, where they came from. Just another item, my friends, introduced to confuse and confound you.

We have a pair of boots introduced by the defense for whatever probative value they may have. They don’t prove anything. There is some testimony that the defendant was wearing them earlier. Have nothing to do with the scene at the bridge. Many people went in and out of that bridge area. Did make footprints. Nothing says that Mr. Pauley’s boots couldn’t have gone in and out of there and made tracks. They’re unrelated to anything. Yet they’re here and part of the defense case. They have given those things to you for whatever little or no value they have. There simply isn’t, my friends, and hasn’t been presented to you any theory of how this young lady met her death other than that the State has given you.

* * *

MR. WARD: However, if you review all this material that you have put it all together [sic], is there any other explanation? I suggest that the witnesses testifying here for the defense have not given you any other theory—

MS. SLEPICKA: Your Honor, like to show a continuing objection to this.

THE COURT: Yes, Mr. Ward, the defense has to present nothing.

MR. WARD: I understand that. Just saying the defense witnesses have not made the theory, and we’re talking about circumstantial evidence. Do you in your own minds, have you concocted or can you imagine some other explanation how this young lady met her death other than what the prosecution has given you? I think not. No one has contradicted the testimony of Tom Forrest at all. It stands as given.

* * *

MR. WARD: We suggest to you that [the defendant is] responsible for [her death] and that there isn’t any other theory about her death than that that we have given you.”

The Hastings decision, a Supreme Court case which dealt with a similar prosecution comment, involved three defendants on trial in the United States District Court for the Southern District of Illinois on charges of kidnaping, transporting women across state lines for immoral purposes in violation of the Mann Act, and conspiracy. During the prosecutor’s summation, the following exchange took place:

“ ‘PROSECUTOR: Let’s look at the evidence the defendants put on here for you so that we can put that in perspective. I’m going to tell you what the defendants did not do. Defendants on cross-examination and—

DEFENSE COUNSEL: I’ll object to that, Your Honor. You’re going to instruct to the contrary on that and the defendants don’t have to put on any evidence.

PROSECUTOR: That’s correct, Your Honor.

THE COURT: That’s right, they don’t. They don’t have to.

PROSECUTOR: But if they do put on a case, the Government can comment on it. The defendants at no time ever challenged any of the rapes, whether or not that occurred, any of the sodomies. They didn’t challenge the kidnapping, the fact that the girls were in East St. Louis and they were taken across to St. Louis. They never challenged the transportation of the victims from East St. Louis, Illinois to St. Louis, Missouri, and they never challenged the location or whereabouts of the defendants at all the relevant times. They want you to focus your attention on all of the events that were before all of the crucial events of that evening. They want to pull your focus away from the beginning of the incident in East St. Louis after they were bumped, and then the proceeding events. They want you to focus to the events prior to that. And you can use your common sense and still see what that tells you ....’” (461 U.S. _, _, 76 L. Ed. 2d 96, 101-02, 103 S. Ct. 1074, 1077.)

The jury in Hastings found each defendant guilty on all counts. The United States Court of Appeals for the Seventh Circuit reversed the convictions and remanded for retrial, holding that the comments violated the defendants’ fifth amendment rights. The Supreme Court reversed and remanded, holding that the prosecutor’s comments were harmless beyond a reasonable doubt under Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.

In finding the error to be harmless, the court noted that three women victims described in detail the criminal acts of the defendants in raping and sodomizing them for three hours. The defendants were identified by the victims in a lineup after the crime. Neutral witnesses corroborated important aspects of the victims' testimony, especially one eyewitness. The court concluded, “*** a more compelling case of guilt is difficult to imagine.” 461 U.S. _, _, 76 L. Ed. 2d 96, 108, 103 S. Ct. 1974, 1982.

In a footnote to the majority opinion, Chief Justice Burger acknowledged that the court did not address whether or not the prosecution argument was proper. (United States v. Hastings (1983), 461 U.S____n.4, 76 L. Ed. 2d 96, 104 n.4, 103 S. Ct. 1974, 1979 n.4.) Although the majority focused solely on the harmless error analysis, Justice Stevens, in his concurrence, found the prosecutor’s comments free of constitutional error. (United States v. Hastings (1983), 461 U.S. _, _, 76 L. Ed. 2d 96, 109, 103 S. Ct. 1974, 1982 (Stevens, J., concurring).) Justice Stevens reasoned that a defendant’s election not to testify will almost certainly prejudice his case; and, although it is improper to ask the jury to draw an adverse inference from the defendant’s silence, the shield of the fifth amendment must not be “*** converted into a sword that cuts back on the area of legitimate comment by the prosecutor on the weaknesses in the defense case.” (United States v. Hastings (1983), 461 U.S. _, _, 76 L. Ed. 2d 96, 110, 103 S. Ct. 1974, 1984 (Stevens, J., concurring).) We agree with Justice Stevens’ analysis of this issue.

The Illinois Supreme Court has already held that the State may make reference to the uncontradicted nature of its case. (People v. Skorusa (1973), 55 Ill. 2d 577, 304 N.E.2d 630.) In that case, the prosecutor stated, “ ‘We have heard no evidence here from the stand of what the reason, from his side, for this death was.’ ” (People v. Skorusa (1973), 55 Ill. 2d 577, 584, 304 N.E.2d 630, 634.) Skorusa held that the strengths of the State’s case may be emphasized even when the only person who could have contradicted the State’s evi-. dence was the defendant himself. The Illinois Supreme Court rejected the defendant’s argument in that case that the State’s remarks were improperly intended to call the jury’s attention to the defendant’s failure to testify. People v. Skorusa.

Moreover, People v. Giangrande (1981), 101 Ill. App. 3d 397, 428 N.E.2d 503, relied upon by the defendant, is factually distinguishable from the case at bar. In Giangrande, the prosecutor made the following statement about how the victim’s body had been mutilated:

“ ‘What it means is, this man had the ability to do what Dr. Shalgos told you was necessary, told you any ordinary person couldn’t have done what was done. *** could be a hunter, could be a doctor, could be a butcher, but Michael Giangrande is a butcher—

MR. BRADLEY [defense counsel]: Objection.

MS. PROPES [prosecutor]: (Continuing) — and his wife was butchered. Now where’s the evidence that the defendant didn’t do it?

MR. BRADLEY: Objection. He has no obligation to prove anything, and for her to say that we need evidence that he didn’t do it is a total contradiction of law in this state.

THE COURT: It wasn’t said that you needed evidence.

MR. BRADLEY: She said, where’s the evidence.

THE COURT: I heard what was said, Mr. Bradley. Overruled.’ ” (People v. Giangrande (1981), 101 Ill. App. 3d 397, 401-02, 428 N.E.2d 503, 507.)

The appellate court found the remark “where’s the evidence?” to be more than a comment that evidence is uncontradicted. The court held that the comment may have improperly suggested to the jury that the defendant had a burden to introduce evidence and that the trial court’s failure to sustain an objection was error. In the case at bar, on the other hand, where two defense objections were sustained and the trial court expressly corrected the prosecutor when it appeared he might overstep the limits of proper comment, there is no reason to believe the defendant was prejudiced. (People v. Price (1979), 76 Ill. App. 3d 613, 394 N.E.2d 1256.) Also, the prosecution did not err by arguing that the defendant was trying to clutter the issues and confuse the jury. People v. Griggs (1977), 51 Ill. App. 3d 224, 366 N.E.2d 581.

In short, we are persuaded by the reasoning of Justice Stevens’ concurrence in United States v. Hastings and hold that the prosecutor’s arguments in the instant case did not amount to constitutional error. The prosecution’s comments did not shift the burden of proof to the defendant, nor did the remarks improperly draw attention to the defendant’s failure to testify or offer his own theory of the case. Instead, we find the remarks to be proper comment on the uncontradicted, albeit circumstantial, nature of the State’s case.

The defendant also contends that the prosecutor improperly appealed to the sympathy of the jurors by asking the victim’s sister if she had viewed the body at the funeral home. The defense portrays this questioning as an effort to distract and inflame the jury. However, the prosecutor expressly stated at the time that his purpose was identification. After a second objection was made to this line of questioning, it was sustained by the trial judge and the matter was abandoned by the prosecutor. In any event, the prosecutor’s questioning in the instant case differs sharply from the remarks made in the closing arguments of People v. Bartall (1982), 105 Ill. App. 3d 867, 435 N.E.2d 152, appeal allowed (1982), 91 Ill. 2d 572. In Bartall, the prosecutor said of the murder victim:

“ ‘She has brothers and sisters and a mom and dad. They don’t have Betty anymore. They don’t talk to Betty anymore. They buried her in the ground last year because he killed her.’ ” (People v. Bartall (1982), 105 Ill. App. 3d 867, 874, 435 N.E.2d 152, 158.)

The direct examination in the instant case did not approach the impropriety of the closing argument in Bartall. If in fact the remarks here were improper, any error was cured when the trial court sustained the defense objection.

Next, the defendant asserts that the prosecutor improperly gave his personal opinion on the issue of the defendant’s guilt or innocence when he stated:

“MR. WARD [State’s Attorney]: So that basically speaking the State believes it’s explained to you as best it can how this crime was committed. That this girl was not seen after she left her home and got into the car with David Pauley until she was found at this particular bridge dead. And we’re asking the jury to come in with a verdict of guilty because if we have to try to explain these facts we find [sic], we think this is the logical and ip fact it’s the only explanation that we can give you.
* * *
MR. WARD [State’s Attorney]: There is no reason to think that the man [Forrest] would come in here and lie to you.

These statements were not error. The prosecutor was merely telling the jury what the State believed the evidence to show and submitting the facts to the jury for its decision. (People v. Bost (1980), 80 Ill. App. 3d 933, 400 N.E.2d 734.) The State may also characterize its witnesses as honest and believable. (People v. Martinez (1977), 45 Ill. App. 3d 939, 360 N.E.2d 495.) In any event, the defendant waived this assignment of error by not objecting at trial or in his post-trial motion. People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233. People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.

Finally, the defendant alleges that the prosecution misstated or overstated the evidence. Several different examples are offered in-eluding prosecution statements that: the defendant telephoned the victim the night of the murder (she actually telephoned him); an ambulance driver at the scene did not know the bridge existed (he stated he had never been there before); the fatal shot was fired by Forrest’s .410 shotgun (testimony showed the weapon could have caused the victim’s death — not that it did); the defendant returned the blue blanket to Forrest when he returned the shotgun (there was no testimony by Forrest on this point). We have carefully examined all of the alleged misstatements of evidence offered by the defendant and conclude that any misstatements do not require reversal. Prosecution statements that the victim was murdered with Forrest’s .410 shotgun were a reasonable inference drawn from the evidence since the defendant was in possession of the weapon and in the company of the victim at the approximate time of her death. (People v. Kitchen (1977), 53 Ill. App. 3d 521, 368 N.E.2d 528.) Other alleged misstatements are inconsequential. In any event, these alleged errors were not properly preserved for our review. People v. Carlson; People v. Pickett.

For the foregoing reasons, the judgment of the circuit court of Christian County is affirmed.

Affirmed.

HARRISON, P.J., and JONES, J., concur.