author: JUSTICE REINHARD

text:
    CITIZENS UTILITIES COMPANY OF ILLINOIS, Plaintiff-Appellant, v. PHILIP R. O’CONNOR et al., Defendants-Appellees.
    Second District
    No. 83—307
    Opinion filed July 7, 1983.

      Daniel J. Kucera, of Chapman & Cutler, of Chicago, for appellant.
    Neil E Hartigan, Attorney General, of Springfield, and George Marchetti, of Moss & Bloomberg, Ltd., of Bolingbrook (Hercules E Bolos, Edward P. O’Brien, and Steven G. Revethis, Assistant Attorneys General, of counsel), for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Citizens Utilities Company of Illinois, appeals from the circuit court’s denial of plaintiff’s motion for a temporary restraining order (TRO). (Ill. Rev. Stat. 1981, ch. 110, par. 11—101.) Plaintiff sought to restrain defendants, Philip R. O’Connor, Helen Schmid, Charles Stalon, Andrew Barrett and Daniel Rosenblum (the members of the Illinois Commerce Commission) and Attorney General Neil Hartigan from enforcing an April 6, 1983, order of the Illinois Commerce Commission (Commission) which cancelled the proposed rates which plaintiff had filed with the Commission. The village of Bolingbrook (village) was allowed to intervene in the circuit court proceeding and, along with defendants, opposed plaintiff’s motion for a TRO.

Plaintiff raises the following issues on appeal: (1) whether the TRO was improperly denied because plaintiff is suffering continuing serious irreparable harm and has no adequate remedy at law; (2) whether the TRO was improperly denied because all criteria for granting a TRO have been satisfied and no basis for denying a TRO exists; (3) whether the TRO was improperly denied because plaintiff’s complaint for injunctive relief, which was incorporated in its motion for a TRO, adequately demonstrates that the Commission’s order is confiscatory and unauthorized by law. Defendants and the village have moved to dismiss the appeal because plaintiff has filed an application for rehearing with the Commission. Plaintiff has moved to strike this motion.

Section 36 of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. 111⅔, par. 36) requires a public utility to file with the Commission any proposed changes in its rates 30 days prior to the proposed effective date of these changes. This section also provides that the Commission may prevent the proposed rates from going into effect for a statutorily prescribed suspension period pending a Commission hearing on the propriety of the proposed rates. On May 11, 1982, plaintiff filed a proposed rate increase with the Commission. The Commission suspended these proposed rates until October 7, 1982, and then resuspended them until April 7, 1983. Hearings were held before a Commission hearing examiner at various times during this suspension period. On April 6, 1983, the Commission entered an order cancelling the proposed rates. The effect of this order was to leave the existing rates in force.

The Commission’s order contained detailed findings. The Commission found, inter alia, that plaintiff’s present rates, “as best as [could] be determined from the evidence in this record,” provided a 6.5% rate of return on plaintiff’s original cost rate base, which the Commission determined to be “the best available evidence of the fair value of [plaintiff’s] plant in service.” The Commission also found that plaintiff had failed to improve the quality of its service in several respects and had failed to comply with prior directions from the Commission “to record all its deferred income taxes on its books and records.”

On April 8, 1983, plaintiff filed its complaint for injunction seeking to enjoin defendants from enforcing the Commission’s order. Also, on that date, plaintiff filed a motion for a TRO seeking to restrain the enforcement of the Commission’s order. Plaintiff sought this equitable relief prior to applying for a a rehearing before the Commission under section 67 of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. 111⅔, par. 71). An application for rehearing and its final disposition by the Commission are statutory prerequisites to an appeal to the courts from a Commission order. Ill. Rev. Stat. 1981, ch. 111⅔, par. 71.

The circuit court heard arguments on April 8 on the motion for a TRO and found that it had jurisdiction over the matter. The Commission filed no pleadings as it only had been notified the previous day of the motion for a TRO. No evidence was taken. The court then denied the motion. This denial is the subject of this interlocutory appeal pursuant to Supreme Court Rule 307(a)(1) (87 Ill. 2d R. 307(a)(1)).

Defendants and the village moved to dismiss this appeal because plaintiff filed an application for rehearing with the Commission subsequent to the trial court’s denial of plaintiff’s motion for a TRO. They contend that plaintiff has elected its remedy by applying for rehearing and may not simultaneously maintain this appeal since the application for rehearing and this appeal seek to resolve identical issues. However, we do not believe that plaintiff, if it is determined to have been entitled to equitable relief prior to rehearing, should be required to forfeit that entitlement because it acted to protect its statutory right to appeal. If any right to equitable relief exists, it is independent of plaintiff’s statutory right to apply for rehearing. Therefore, the motion to dismiss is denied.

We must next address whether the circuit court could properly exercise jurisdiction in this matter prior to plaintiff’s application for a rehearing before the Commission. Generally, where a claim is cognizable in the first instance by an administrative agency alone, administrative remedies must be exhausted before the case may be considered by the courts. (People ex rel. Fahner v. American Telephone & Telegraph Co. (1981), 86 Ill. 2d 479, 485-86, 427 N.E.2d 1226.) Section 67 of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. 111⅔, par. 71) requires an application for rehearing before the Commission and its final disposition prior to seeking review in the courts. The reason for this requirement is to give the Commission an opportunity to correct any mistakes of law or of fact that it has allegedly made before the party claiming error resorts to the courts. (Scherer Freight Lines, Inc. v. Illinois Commerce Com. (1962), 24 Ill. 2d 359, 364, 181 N.E.2d 134; Meinhardt Cartage Co. v. Illinois Commerce Com. (1959), 15 Ill. 2d 546, 550, 155 N.E.2d 631.) Therefore, an application for rehearing generally must have been made and finally disposed of by the Commission in order for a party to have exhausted its administrative remedies and thus become eligible to seek judicial review of a Commission order.

Plaintiff does not dispute that a rehearing must normally be sought before resorting to the courts. Rather, it maintains that this case falls within one of the recognized exceptions to the exhaustion requirement and that therefore, it was entitled to seek equitable relief in the courts prior to applying for a rehearing.

Several exceptions to the exhaustion requirement have been recognized. In People ex rel. Fahner v. American Telephone & Telegraph Co. (1981), 86 Ill. 2d 479, 427 N.E.2d 1226, the court noted the following exceptions: (1) where an ordinance or statute is attacked as unconstitutional in its entirety; (2) where multiple remedies exist before the same zoning board and at least one has been exhausted; (3) where irreparable harm will result from further pursuit of administrative remedies; (4) where it would be patently useless to exhaust administrative remedies. (86 Ill. 2d 479, 487-88, 427 N.E.2d 1226.) A fifth exception, that administrative remedies need not be exhausted where an administrative rule is challenged on its face as not being authorized by the agency’s enabling legislation, has also been recognized. (City of Chicago v. Illinois Commerce Com. (1980), 79 Ill. 2d 213, 217, 402 N.E.2d 595.) Plaintiff, in its appellate brief, argues that this case falls within the irreparable harm and the unauthorized-by-the-enabling-legislation exceptions. In its reply brief, plaintiff additionally argues that this case falls within the “patently useless” exception.

Plaintiff contends that it is suffering continuing irreparable harm because the rates in force are confiscatory. Plaintiff claims that these rates yield approximately $15,000 per day less revenue than the proposed rates would yield and that this lost revenue can never be recouped because rate-making is only prospective. The leading case on the irreparable harm exception is People Gas Light & Coke Co. v. Slattery (1939), 373 Ill. 31, 25 N.E.2d 482. Slattery has been cited by our supreme court as standing for the proposition that exhaustion is not required where irreparable harm will result from further pursuit of administrative remedies. (E.g., People ex rel. Fahner v. American Telephone & Telegraph Co. (1981), 86 Ill. 2d 479, 487, 427 N.E.2d 1226; Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 358, 326 N.E.2d 737.) In Slattery, the court held that the Commission’s denial of a temporary rate increase, pending a hearing on a permanent rate increase, ended the Commission’s “legislative function so far as temporary rates were concerned.” (373 Ill. 31, 44, 25 N.E.2d 482.) The court stated:

“[W]hen the legislative process of rate-making is ended and the rate in force becomes confiscatory, — that is, results in the taking of property without process of law, — and either adequate means under the administrative provisions or the manner of administering such means is inadequate to prevent confiscation, then a court of equity has jurisdiction to remedy the wrong in an independent equity proceeding.” 373 Ill. 31, 44, 25 N.E.2d 482.

Plaintiff contends, based on Slattery, that it is entitled to seek equitable relief in the courts because the rates in force are confiscatory and the administrative provisions are inadequate to prevent confiscation. However, Slattery is distinguishable because here the rate-making process has not ended. In Slattery, the utility sought to enjoin enforcement of an existing rate schedule. At the time the injunction was sought the utility’s proposed rates were under suspension. A hearing had been held on these rates but the Commission had not entered an order disposing of the matter. After the hearing, the utility had petitioned the Commission to install its proposed rates as temporary rates and this petition had been denied. The court held that the legislative action of the Commission on the question of temporary rates had been terminated and that an appeal could be taken from this denial without applying for a rehearing. No application for rehearing was required because the Commission can suspend proposed rates for the statutorily prescribed period without a hearing. The court noted that the only requirement for appeal from an order entered by the Commission without a hearing is to make application for a hearing. The court found that this requirement had been met by the application for temporary rates. The court stated that there was no further action that could be taken by the Commission after its denial of the temporary rates.

The court went on to hold that an appeal to the courts could not provide relief from confiscatory rates because the court’s power on appeal was limited to affirming the order or remanding the case to the Commission and did not include the power to set rates. (373 Ill. 31, 41, 25 N.E.2d 482.) A remand would not put the temporary rates into effect and, since the proposed rates were still under suspension, the confiscation, if it were in fact occurring, would continue. Thus, it was proper to seek equitable relief from the court’s because irreparable harm would result from pursuing the statutory remedies if confiscation were actually occurring.

The situation is different in the case at bar. Here, temporary rates are not in issue. The Commission has entered an order cancelling the proposed rates after a hearing. An application for rehearing is a prerequisite to an appeal from this Commission order. (Ill. Rev. Stat. 1981, ch. 111⅔, par. 71.) Thus, unlike the situation in Slattery, an appeal to the courts under the act was not available to plaintiff at the time it filed its motion for a TRO because the Commission had not taken the final step in the legislative process of rate-making. Unlike Slattery, where the next step in the statutory review process could not provide relief since the circuit court on appeal could not install the desired rates, the Commission on rehearing possesses the necessary rate-making power as well as the power to stay its order, thus allowing the proposed rates to go into effect, pending its action on the application for rehearing. (Ill. Rev. Stat. 1981, ch. 111⅔, par. 71.) Therefore, we hold that no irreparable harm would occur from requiring plaintiff to exhaust its administrative remedies by seeking a rehearing because the Commission on an application for rehearing has the power necessary to allow the proposed rates to go into effect. Plaintiff’s resort to the courts is premature. The remedy available on rehearing is “ ‘clear, complete, and as practical and efficient to the ends of justice and its prompt administration as the equitable remedy’ ” (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 549, 370 N.E.2d 223), and therefore deprives equity of its power to grant equitable relief. 68 Ill. 2d 540, 549, 370 N.E.2d 223.

Plaintiff also argues that it is suffering irreparable harm because the current rates provide approximately $15,000 per day less revenue than the proposed rates would provide. It contends that this is a daily confiscation of its property and that it would be irreparably harmed by applying for rehearing because the rehearing process could take up to 170 days before a final Commission order would be required. While it is true that the Commission has 20 days in which to grant or deny an application for rehearing and 150 days in which to enter a final order if it grants rehearing (Ill. Rev. Stat. 1981, ch. 111⅔, par. 71), the maximum period of delay relevant to plaintiff’s request for equitable relief is the initial 20 days.

Within 20 days of plaintiff’s application for rehearing, the Commission must grant or deny the application. If the Commission denies the application, then the legislative process of rate-making would be complete and the case would be ripe for appeal to the courts. At this juneture, plaintiff could seek equitable relief from the courts. (See Peoples Gas Light & Coke Co. v. Slattery (1939), 373 Ill. 31, 25 N.E.2d 482.) If the application is granted, plaintiff could seek a stay of the order from the Commission pending the final order on rehearing. (Ill. Rev. Stat. 1981, ch. 111⅔, par. 71.) In light of the purpose of the rehearing requirement, that the Commission be given an opportunity to correct mistakes of law or fact that it may have made (Scherer Freight Lines, Inc. v. Illinois Commerce Com. (1962), 24 Ill. 2d 359, 364, 181 N.E.2d 134; Meinhardt Cartage Co. v. Illinois Commerce Com. (1959), 15 Ill. 2d 546, 550, 155 N.E.2d 631), we hold that plaintiff would not suffer irreparable harm by being required to apply for rehearing and to await the granting or denying of that application by the Commission. Thus, we hold that this case does not fall within the irreparable harm exception to the exhaustion of remedies requirement.

In its reply brief, plaintiff also argues that this case falls within the exception to the exhaustion of remedies doctrine for cases where pursuit of administrative remedies would be patently useless. Plaintiff first raised this issue in its reply brief and therefore it has been waived. (87 Ill. 2d R. 341(e)(7); Will v. Will Products, Inc. (1982), 109 Ill. App. 3d 778, 785, 441 N.E.2d 343; Comet Casualty Co. v. Schneider (1981), 98 Ill. App. 3d 786, 424 N.E.2d 911.) Even if we were to address this argument it would fail. “The exhaustion requirement cannot be avoided simply because relief may be, or even probably will be, denied.” (Northwestern University v. City of Evanston (1978), 74 Ill. 2d 80, 89, 383 N.E.2d 964.) It appears from the record that plaintiff did not raise the arguments it raises on appeal when it was before the Commission. Since the Commission did not have an opportunity to address these issues, it cannot be said that it would be patently useless for plaintiff to raise them in an application for rehearing.

Plaintiff also argues that the Commission’s order was unauthorized by law, and therefore, that this case falls within another exception to the exhaustion of remedies requirement. Exhaustion is not required where an administrative rule is challenged on its face as not authorized by the agency’s enabling legislation. (City of Chicago v. Illinois Commerce Com. (1980), 79 Ill. 2d 213, 217, 402 N.E.2d 595.) Plaintiff maintains that the Commission’s consideration of quality of service and its consideration of plaintiff’s alleged noncompliance with prior Commission orders was unauthorized by the Public Utilities Act (Ill. Rev. Stat. 1981, ch. 111⅔, par. 1 et seq.). This allegation challenges the Commission’s order on its face as unauthorized by the agency’s enabling legislation and, therefore, exhaustion is not required. Thus, the trial court properly exercised jurisdiction in this case.

Since the trial court properly exercised jurisdiction in this case, we must decide whether the motion for a TRO was properly denied. It has been held that a TRO issued with notice and a preliminary injunction issued with notice are the same type of relief. (Kable Printing Co. v. Mount Morris Bookbinders Union Local 65-B Graphic Arts International Union (1976), 63 Ill. 2d 514, 524, 349 N.E.2d 36; Kaplan v. Kaplan (1981), 98 Ill. App. 3d 136, 140, 423 N.E.2d 1253.) Here, plaintiff sought a TRO and gave notice to defendants. The parties later agreed that the court should treat the motion as one for a preliminary injunction. Whether the court considered the motion to be for a TRO or for a preliminary injunction makes no practical difference here. 98 Ill. App. 3d 136, 140, 423 N.E.2d 1253.

The purpose of a TRO is to allow the trial court to preserve the status quo until it can hold a hearing to determine whether it should grant a preliminary injunction or until the court can consider the case on its merits. (Bismarck Hotel Co. v. Sutherland (1980), 92 Ill. App. 3d 167, 175, 415 N.E.2d 517.) The plaintiff is not required to make out a case which would entitle him to judgment at trial; rather, he only needs to show that he raises a “fair question” about the existence of his right and that the court should preserve the status quo until the case can be decided on the merits. (Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1983), 94 Ill. 2d 535, 541-42, 447 N.E.2d 288.) As plaintiff’s complaint for interlocutory relief was heard prior to the Commission having answered and without evidence, the trial court’s determination must be made upon the basis of the sufficiency of the complaint. (See Webb v. Rock (1980), 80 Ill. App. 3d 891, 896, 400 N.E.2d 959; Hall v. Orlikowski Construction Co. (1974), 24 Ill. App. 3d 60, 62-63, 321 N.E.2d 23.) Since a TRO issued with notice and a preliminary injunction issued with notice are the same type of relief {Kable Printing Co. v. Mount Morris Bookbinders Union Local 65-B Graphic Arts International Union (1976), 63 Ill. 2d 514, 524, 349 N.E.2d 36), the plaintiff is required to make a showing sufficient for a preliminary injunction. Webb v. Rock (1980), 80 Ill. App. 3d 891, 896, 400 N.E.2d 959.

The granting or denial of a TRO or preliminary injunction is within the sound discretion of the trial court and its determination will not be overturned absent a showing of an abuse of that discretion. (Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1983), 94 Ill. 2d 535, 541, 447 N.E.2d 288; Levitt Homes, Inc. v. Old Farm Homeowners’ Association (1982), 111 Ill. App. 3d 300, 307, 444 N.E.2d 194; Shorr Paper Products, Inc. v. Frary (1979), 74 Ill. App. 3d 498, 502, 392 N.E.2d 1148.) In order for a preliminary injunction to issue plaintiff must establish (1) that he possesses a clearly ascertained right which needs protection; (2) that he will suffer irreparable harm without an injunction; (3) that there is no adequate remedy at law for his injury; (4) that he is likely to be successful on the merits of his action. Levitt Homes, Inc. v. Old Farm Homeowners’ Association (1982), 111 Ill. App. 3d 300, 307, 444 N.E.2d 194; Cross Wood Products, Inc. v. Suter (1981), 97 Ill. App. 3d 282, 284, 422 N.E.2d 953.

Plaintiff argues that it is entitled to a TRO because the Commission’s order was confiscatory, unauthorized by law, and void for failure to make required findings of what are just and reasonable rates. Plaintiff further contends it is suffering irreparable harm and that it has no adequate remedy at law. The trial court stated that plaintiff had a “clear and open remedy” because plaintiff could obtain further consideration by the Commission. As discussed earlier in this opinion, plaintiff will not suffer irreparable harm if it is required to seek a rehearing before the Commission. We believe that the rehearing procedure provided by the Public Utilities Act (Ill. Rev. Stat. 1981, ch. 111⅔, par. 71) provides plaintiff with an adequate remedy at this point. Therefore, the trial court did not abuse its discretion in denying plaintiff’s motion for a TRO since the requirements that plaintiff be suffering irreparable harm and that no adequate remedy at law exist have not been met. Having determined that the TRO was properly denied for these reasons, we need not address whether plaintiff possesses a clearly ascertained right which needs protection and whether plaintiff is likely to be successful on the merits of the action. The posture in which we find this case does not require us to consider whether the Commission’s order is confiscatory, void for failure to make required findings, or unauthorized by law. We simply decide for the reasons discussed above that at the time the court below heard this case it did not abuse its discretion in denying the requested relief.

For the foregoing reason the judgment of the circuit court is affirmed.

Affirmed.

UNVERZAGT and NASH, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE STOUDER

license: Public Domain

text:
    JOYCE G. WILCOXEN, Plaintiff-Appellant, v. BOARD OF EDUCATION OF CANTON UNION SCHOOL DISTRICT NO. 66, Fulton County, Defendant-Appellee.
    Third District
    No. 3—83—0265
    Opinion filed July 18, 1983.
    William H. Knuppel, of Lemmer, Boggs, Knuppel & Krebaum, of Havana, for appellant.
    Ralph Froehling, of Froehling, Taylor & Weber, of Canton, for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

In this action the plaintiff, Joyce Wilcoxen, sought to enjoin the defendant, the Board of Education of Canton Union School District No. 66, from issuing funding bonds to replace income lost due to a claim against the school district’s stream of tax revenues. The Fulton County circuit court dismissed the plaintiff's complaint on the basis that the tax resulting from the issuance of the bonds would be authorized by law.

Beginning with the year 1977 and through the year 1979, the Illinois Department of Revenue made substantial assessments of the pollution control facilities located at the Duck Creek Station, a power plant owned by the Central Illinois Light Company. Taxes attributable to the assessments were paid under protest in the years 1978 through 1980. The Fulton County Collector distributed to the school district its pro rata share of those taxes. In 1979, amendments were made to section 21a—3 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 502a—3) and as a consequence of that legislation, together with a decision of the Illinois Supreme Court in Commonwealth Edison Co. v. Department of Local Government Affairs (1981), 85 Ill. 2d 495, 426 N.E.2d 817, the Department of Revenue determined virtually to eliminate the previously described pollution control assessments.

The prior distribution of taxes to the Canton Union School District resulted in what the parties have described as either a loss of revenue, a liability or an unpaid claim in the amount of $1,228,365. On October 18, 1982, the defendant board of education passed a resolution authorizing the issuance of funding bonds in the amount of $1,225,000 pursuant to article 19 of the School Code (Ill. Rev. Stat. 1981, ch. 122, pars. 19—1 through 19—31) for the purpose of having funds on hand to satisfy the claim of liability arising out of the previously described circumstances.

On December 15, 1982, Hoyt Wilcoxen filed a complaint for declaratory judgment against the defendant board of education alleging that he was a resident of the school district, a registered voter and a taxpayer. The principal allegations of the complaint were that the defendant school board intended to issue $1,225,000 of funding bonds pursuant to article 19 of the School Code (Ill. Rev. Stat. 1981, ch. 122, pars. 19—1 through 19—31), that certain petitions were filed by residents of the school district asking for a referendum on that proposition, that a local electoral board prompted by an objector’s petition from another group of taxpayers had issued a decision that the Wilcoxen petitions were invalid, that a notice was published by the defendant board of education stating the intent of that board to issue bonds to fund and have on hand an amount necessary to meet unpaid claims and that on the date of the adoption of the resolution to issue the bonds no unpaid claims were in existence. Wilcoxen sought a judgment to the effect that the resolution of the defendant school board was void in that it was not authorized by article 19 of the School Code, and, further, that the decision of the local electoral board sustaining other taxpayers’ objections to the Wilcoxen petitions was void.

On December 29, 1982, the defendant moved to dismiss the Hoyt Wilcoxen complaint. On January 6, 1983, the defendant’s motion to dismiss was heard and the complaint was dismissed on the basis that a taxpayer may not, whether the form of the action be styled as requesting declaratory or injunctive relief, interfere with a governmental function where the taxpayer can utilize the provisions of the Revenue Act to secure relief.

On March 11, 1983, Joyce Wilcoxen, plaintiff in the instant case, filed an action requesting injunctive relief against the defendant board of education. The plaintiff alleged she was a citizen, a property owner, a resident and a taxpayer within the territory of the school district and that it was beyond the power of the school district to issue funding bonds under the circumstances because the Central Illinois Light Company could not at any time have maintained a cause of action directly against the school district for reimbursement of taxes paid under protest. Furthermore, the plaintiff alleged there was no unpaid claim to the Central Illinois Light Company and, therefore, there was no basis for the issuance of funding bonds by the defendant under article 19 of the School Code.

On March 26, 1983, the defendant responded to the Joyce Wilcoxen complaint by filing a motion to dismiss on the theory that the second action was barred by the earlier ruling in the Hoyt Wilcoxen case. The defendant’s motion also argued that injunctive relief wasn’t available where the taxpayer had an adequate remedy at law by the filing of tax objections under the Revenue Act of 1939.

On March 31, 1983, the trial court dismissed the plaintiff’s complaint stating that the tax resulting from the issuance of the bonds was authorized by law and that taxation of property is a legislative function and the judiciary has no power to supervise the legislative branch. The court refused to base its decision on the grounds of res judicata indicating that the prior judgment in the Hoyt Wilcoxen case was not an adjudication on the merits.

The plaintiff has requested that this court review the decision of the trial court dismissing the complaint; however, the issue of whether this action is barred by a prior, judgment must first be considered.

In Harmon v. Auditor of Public Accounts (1887), 123 Ill. 122, 13 N.E. 161, the supreme court held that a prior action brought by taxpayers and property owners of a town to enjoin the town and its officers from issuing bonds to a railroad company barred a second suit brought by other taxpayers and property owners, although not nominally parties to the first action, to declare the bonds null and void and to enjoin officers of the law from collecting any taxes to pay the bonds.

The court in Harmon indicated that a judgment against a governmental body or its legal representatives is a matter of general interest and is binding upon its citizens even though they are not all parties to the suit. Every taxpayer is considered to be a real although not a nominal party to such a judgment. In addition, the former judgment is not only conclusive as to questions actually litigated but as to all questions within the issue, whether they were formally litigated or not. The court concluded that there was sufficient identity between the parties of the former and present action and between the causes of action in each suit to apply the doctrine of res judicata (see Greenberg v. City of Chicago (1912), 256 Ill. 213, 99 N.E. 1039, for a similar result).

The trial court in the case at hand stated that the judgment in the Hoyt Wilcoxen action was not on the merits. We disagree with this view and believe that the reasoning applied in Harmon can be applied here.

The judgment of dismissal in the first action took into consideration the basic issues of the case and decided that as a matter of law the plaintiff could not proceed with the declaratory judgment action. This was a judgment on the merits of the controversy.

The same basic question is at issue in this case as was at issue in the prior case: Did the defendant have the power to authorize the issues of funding bonds to meet lost tax revenues? It is of no consequence that the prior action was one for declaratory relief and the present action is one for injunctive relief. Further, the plaintiff, although not nominally a party to the prior action, was a taxpayer and a property owner in the Canton Union School District and, therefore, was a real party in the prior suit. There is sufficient identity of the parties and of the causes of action in both Wilcoxen cases to apply the doctrine of res judicata. The judgment in the prior suit is, therefore, binding upon the plaintiff.

The plaintiff has also contended that because the defendant did not cross-appeal the res judicata issue, it is not entitled to argue that issue upon appeal. This contention is without merit.

The final judgment of the trial court was not adverse to the defendant; therefore, it could not make a cross-appeal from that judgment. However, the defendant is not hindered from arguing the issue of res judicata because that argument could support the judgment of dismissal on grounds revealed by the record. People ex rel. Jones v. Adams (1976), 40 Ill. App. 3d 189, 350 N.E.2d 767.

Accordingly for the reasons set forth above the judgment of the trial court is affirmed.

Judgment affirmed.

ALLOY and HEIPLE, JJ., concur.


author: JUSTICE STAMOS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENT STARKS, Defendant-Appellant.
    First District (2nd Division)
    No. 82—0894
    Opinion filed June 28, 1983.

      James J. Doherty, Public Defender, of Chicago (Marilyn Martin, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Louis E Stalzer, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE STAMOS

delivered the opinion of the court:

Defendant Kent Starks was convicted of murder and attempted armed robbery after a jury trial. Sentences of 40 years for murder and 10 years for attempted armed robbery were entered on the verdict. Defendant appeals, contending that he was denied a fair trial by virtue of: (1) the testimony of and prosecutorial comment concerning the deceased’s survivors; (2) cross-examination and argument concerning a collateral act of misconduct by defendant; (3) the State’s failure to complete an impeachment of defendant; (4) cross-examination on a hypothetical matter implicating defendant’s fifth amendment rights; (5) the prosecutor’s comments insinuating that the rules of evidence prevented him from presenting relevant evidence to the jury; (6) the prosecutor’s comments that defendant and his witnesses were liars and that defense counsel was engaging in trickery and misrepresentation; (7) the prosecutor’s comments which tended to denigrate the standard of proof; (8) the trial court’s restriction of the testimony of a reputation witness; (9) ineffective assistance of counsel in that (a) counsel failed to obtain discovery of all witnesses to defendant’s custodial statement and paved the way for the admission of the statement by calling defendant as a witness; (b) counsel failed to lay a foundation for impeachment of the State’s pivotal witness; (c) counsel failed to list an alibi witness in discovery, and the witness was excluded; (d) counsel elicited testimony which indicated that several persons who did not testify had implicated defendant. Defendant also contends that his sentences were excessive.

At about 10:30 p.m. on July 21, 1980, police officers Janis Lewis and Timothy Collins responded to a radio call concerning a shooting at 1215 North Parkside Avenue in Chicago. When they arrived at the scene, they found the body of John Lipinski lying on his back on the sidewalk. The officers found a gold chain and medallion around his neck, a gold watch around his wrist, and $132 in his pocket. The officers discovered a white towel with green stripes lying 10 to 20 feet south of the body. An autopsy revealed that the deceased was killed by a single bullet which entered at the left buttock, traversed the intestines and diaphragm, and perforated the heart.

Defendant was arrested for the murder of John Lipinski on December 24, 1980. The arresting officer testified that he arrested defendant after interviewing Willie Hicks, Mario Godsey, and Mark Jones. Defendant gave a custodial statement to an assistant State’s Attorney the next morning. In that statement, defendant said that he was walking north on Parkside with Mark Jones and Mario Godsey on the night of the shooting, when a Caucasian man passed them going south. Jones showed defendant a gun and stated that he was going to rob someone. Defendant told Jones to forget about robbing anyone and took the gun from him. Defendant then crossed to the side of the street where the Caucasian was walking. When he stepped on the curb, someone shouted from a porch. Defendant turned to see who it was, and the gun went off, shooting the Caucasian in the back. Defendant walked up to him and asked him if he was alright. The man said, “my head, my head.” Defendant left the scene, dropping a green and white towel on the other side of the street.

Prior to trial, defense counsel moved to suppress the statement on the grounds that defendant was intoxicated when he gave the statement, that the statement was not voluntary, and that defendant’s hand was guided by an assistant State’s Attorney when he printed his name at the bottom of it. The motion was denied, and the statement was published to the jury in the State’s rebuttal case.

A summary of the significant testimony elicited at trial follows.

The State’s first witness was Ginelly Viteri, John Lipinski’s fiancee. She testified that she and the deceased had spent the day before the shooting together at the beach, and that they had spoken on the telephone on the night that he was killed. She also testified that she and the deceased had made plans to pick up their marriage license the next day. When asked if she ever spoke to him again, she said that she had not, and when asked where she had next seen him, she replied “at the funeral parlor.”

The next witness was Marie Lipinski, the deceased’s mother. She testified that on the night of the shooting, the deceased had told her that he was going out to get some ice. She suggested that he take the car, and he said, “Ma, don’t worry about me. I’m a big boy and I can take care of myself.” She stated that she learned that her son had been killed from policemen who came to the house early the next morning.

Edward Eckman testified that he lived at 1246 North Parkside. On the night of the shooting the street lights were out due to a power failure. Around 10 or 10:15 p.m. Eckman heard voices, footsteps, and a gunshot outside his house. He looked out and saw one figure wearing something light around his neck running south on Parkside. He saw two other figures running in the same direction. He then went outside and found John Lipinski’s body on the sidewalk two doors north.

Mark Jones testified for the State that he and Mario Godsey were at defendant’s house at 9:30 p.m. on July 21, 1980. They left to get a drink, walking north on Parkside. They saw a white man walking towards them. They continued walking, and the man returned, walking in the same direction as they were on the other side of the street. Defendant said “there goes the white man again” and that he needed some money. The man started running, and defendant pointed the gun at him and shot him in the back. He began to search the man as Jones and Godsey ran away. Jones also stated that defendant was wearing a cap, short pants, and tennis shoes, and was carrying a green and white striped towel. On cross-examination, Jones stated that he did not tell anyone about the shooting until he was arrested on December 24, 1980. Jones also stated that he had lived with defendant’s family at times, but that he was not living with them at the time of the shooting.

Ernestine Ford, defendant’s mother, was the first witness for the defense. She testified that she, defendant, his sister, and Hattie English lived at 1009 North Parkside at the time of the shooting, and that Mark Jones stayed with them approximately three times a week during that period. She stated that Jones had spent the night with them on July 20, 1980, and that he left the house on July 21 wearing shorts, a cap, and a light colored towel around his neck. She also testified that defendant was in the house from early evening until 11 p.m. on July 21, and that defendant always wore long pants, never shorts. At 11 p.m. defendant walked Hattie English to the bus stop.

Kenna Ford, defendant’s sister, also testified that defendant remained at home from early evening till 11 p.m. Hattie English testified that defendant walked her to the bus stop at 11 p.m. where they waited for a bus for approximately 15 minutes. She also testified that she saw Jones leave defendant’s house at about noon that day wearing shorts and a cap and carrying a green towel.

Victor Evans, a neighbor of defendant, testified that he saw Jones on July 21 at about 4 p.m., and that Jones was wearing shorts and a cap and a towel around his neck. He also testified that he saw defendant at about 6:30 p.m. of that day and again at 11 p.m., the latter time with a woman. Evans stated that he had never seen defendant wearing short pants.

Defendant testified that he was at home on the night of July 21, 1980. He had been laid off his job as a streets and sanitation worker but had a part-time job at a variety store and was collecting unemployment. He did not go anywhere with Jones or Godsey that night, but had played basketball with Godsey at 4:30 that afternoon. He did not know that he was charged with the shooting of John Lipinski until December 25, 1980, when he was told of the charges at the police station. He had seen Jones, Hicks, and Godsey at the station after his arrest the previous evening. On cross-examination, defendant denied having told police officers that he was on Parkside with Jones and Godsey on July 21, and stated that he did not recall telling the police any of the details contained in his custodial statement. Other portions of defendant’s cross-examination raise significant issues on appeal and will be recounted in detail below.

The jury found defendant guilty of murder and attempted armed robbery. Defendant was sentenced to 40 years for murder and 10 years for attempted armed robbery, and this appeal followed.

Approximately 13 distinct issues are raised by defendant on appeal. The issues concerning the State’s examination of the survivors of the deceased, the cross-examination of defendant, and the State’s closing argument all have significant merit. No defense objections were made during the pertinent portions of defendant’s cross-examination or the State’s closing argument, and the only issue noted in defendant’s post-trial motion was the contention that defendant was prejudiced by the State’s continued disparagement of defense counsel, defense witnesses, and defendant during closing and rebuttal argument. During rebuttal argument, defense objections to remarks concerning the burden of proof and defendant’s failure to call a witness were overruled. Some defense objections to the testimony of the survivors of the deceased were sustained, but the bulk of their testimony was received without objection. However, we elect to review all of these assignments of error under the plain error rule (87 Ill. 2d R. 615(a)). That rule may be invoked in situations where the record shows the commission of errors that substantially affect the defendant’s rights. (People v. Baynes (1981), 88 Ill. 2d 225, 231, 430 N.E.2d 1070.) The evidence in this case is not so overwhelming that we can say that the pervasive pattern of error which is apparent from the record did not operate to deny defendant his right to a fair trial, and thus we shall not treat the issues noted above as waived.

The first assignment of error concerns the testimony of the State’s first two witnesses, Marie Lipinski and Ginelly Viteri. Both testified to their last contacts with the deceased, Marie Lipinski stating that deceased had told her as he was leaving the house that she was not to worry about him because he was a “big boy” and could “take care of [him]self,” and Ginelly Viteri testifying that she and the deceased had planned to go to City Hall to pick up their marriage license the next day, that she spoke with him on the telephone on the night of the shooting, and that she next saw the deceased at the funeral parlor.

It is well settled that it is improper for a prosecutor to refer to the family of a murder victim either by evidence or argument. (People v. Hyde (1971), 1 Ill. App. 3d 831, 840, 275 N.E.2d 239.) Where testimony that the deceased has left survivors is not elicited incidentally, but is presented to the jury in such a way as to lead the jury to believe that it is material, its admission constitutes reversible error unless an objection thereto is sustained and a curative instruction given. People v. Bernette (1964), 30 Ill. 2d 359, 371, 197 N.E.2d 436.

In the instant case, the testimony elicited from these two witnesses cast no light upon the guilt or innocence of the accused, and could only serve to inflame the passions of the jury. Although objections were made, and some were sustained as to particular portions of the testimony of these witnesses, the testimony summarized above was all received by the jury, some of it over the objection of counsel. The State contends that these two witnesses were “life and death” witnesses, and that therefore their testimony was properly admitted. It is true that the State may present “life and death” witnesses, even where the defendant stipulates to the identity of the deceased and to his death. (.People v. Speck (1968), 41 Ill. 2d 177, 201-02, 242 N.E.2d 208, modified on other grounds (1971), 403 U.S. 946, 29 L. Ed. 2d 855, 91 S. Ct. 2279.) Such testimony must be presented, however, without placing undue emphasis on the fact that the deceased has left a family behind. (See People v. Speck (1968), 41 Ill. 2d 177, 202; People v. Mitchell (1979), 78 Ill. App. 3d 458, 460-61, 397 N.E.2d 156.) That such is not the case here is demonstrated by the emphasis that the prosecutor placed on the deceased’s relationship to the witnesses in closing and rebuttal arguments. Those statements were as follows:

“The next day John Lipinski was going to get his marriage license *** [defendant] took away his right to get married, his right to have a happy life, his right to finish school and maybe get a better job, his right to have children if he wanted, his right to buy a house.
* * *
Marie Lipinski will never be able to forget the memory of when her son left her and his last words, ‘I’m a big boy, Mom, I can take care of myself.’ Or Ginelly Viteri, she’ll remember how she was supposed to meet him and get a marriage license the next day *** [defense objection overruled]. But the next meeting was in a funeral home. The Lipinskis will remember.”

The tone and content of this argument demonstrates that the purpose for offering the testimony of these two witnesses was to arouse the sympathies and the passions of the jury. We find that actual prejudice accrued to defendant as a result of the receipt of this testimony and the argument based on it.

The next assignment of error concerns the State’s attempt to impeach the testimony of defendant by questioning him concerning a collateral act of misconduct. On direct examination defendant testified that he had been laid off from his job at the department of streets and sanitation at the time of the shooting and was collecting unemployment as well as working part time in a variety store. On cross-examination, the prosecutor asked defendant if he had reported his earnings from the variety store to the unemployment bureau, and defendant said that he had not. In closing argument, the prosecutor referred to this dialogue as establishing that defendant was a “cheat,” as well as a “liar” and a “robber.”

The State may not bring forth evidence having no tendency to prove the issue being tried and which only serves to cause the jury to believe that the defendant is a bad person, and hence likely to be guilty of the crime charged. Use of such evidence has been consistently condemned. People v. Liapis (1972), 3 Ill. App. 3d 864, 868, 279 N.E.2d 368; see People v. Scaggs (1982), 111 Ill. App. 3d 633, 636, 444 N.E.2d 674.

In the instant case, the questions relating to defendant’s failure to report income received while he was collecting unemployment and the argument based thereon clearly had no probative value as to defendant’s guilt or innocence, and we find them improper.

The next assignment of error concerns the prosecutor’s attempt to impeach defendant with a prior inconsistent statement. The relevant colloquy is as follows:

“Q. *** You say that the police talked to you and you can remember that they told you what Willie Hicks was saying, isn’t that correct?
A. Correct.
Q. And isn’t it true that they told you that Willie Hicks said you told him all about the murder? Didn’t they say that Willie Hicks said that you told him about the murder?
A. That’s what they said.
Q. And isn’t it a fact you did tell Willie Hicks about the murder?
A. No.
Q. Isn’t it a fact that you couldn’t keep your mouth shut about it?
A. No.”

The State offered no testimony in their rebuttal case concerning defendant’s alleged statements to Willie Hicks. Such a line of questioning assumes that rebuttal testimony will be offered to complete the impeachment. (See People v. Nuccio (1969), 43 Ill. 2d 375, 393-94, 253 N.E.2d 353.) If the State were not required to complete the impeachment,

“a defendant would be subject to trial by insinuation and innuendo. In this case, the alleged prior inconsistent statement was the confession of [the defendant]. We can think of no evidence more damaging than the defendant’s own words of guilt. Consequently, to falsely state the existence of such a statement is to deny the defendant a fair trial and thus, plain error.” People v. Morris (1979), 79 Ill. App. 3d 318, 330, 398 N.E.2d 38.

In the instant case, as in Morris, the attempted impeachment of defendant had the effect of putting a confession on defendant’s lips. The question itself contained three levels of hearsay, and the State made no attempt to prove the existence of the statement in the face of defendant’s denial. We hold that the State’s failure to complete this impeachment by calling a witness who heard the statement made was egregiously improper and highly prejudicial.

The next assignment of error also concerns the cross-examination of defendant. The relevant dialogue was as follows:

“Q. You say you didn’t kill John Lipinski?
A. That’s right.
Q. And, of course, if you did shoot him in cold blood, if you weren’t trying to kill him, you would come right in here and tell us all about it, wouldn’t you?
A. No.”

On closing argument, the prosecutor referred to this portion of the cross-examination as “the only true words out of [defendant’s] mouth yesterday.”

An essentially identical line of questioning was condemned by the court in People v. Young (1981), 97 Ill. App. 3d 319, 422 N.E.2d 1158. In that case, the court stated that such questions bore the risk of misleading the jury because a negative answer to the hypothetical question might demonstrate nothing more than the defendant’s awareness of his fifth amendment right not to make any statement at all under such circumstances. (97 Ill. App. 3d 319, 325.) In Young, the resulting error was deemed harmless because the defendant was acquitted of the charge to which the question referred. In the instant case, defendant was convicted of the murder of John Lipinski. The question was also reemphasized on closing argument, and any confusion created by the question and answer was thus firmly fixed in the minds of the jury. We hold that the use of this hypothetical question was improper and resulted in prejudice to defendant.

The remaining assignments of error concern the State’s closing and rebuttal arguments, which were presented by different prosecutors. The following segment of the rebuttal argument is perhaps the most clearly improper of the objectionable portions of both arguments.

“Mr. Dorfman: *** We did not call Mario Godsey. One thing you should use in this case is your common sense. Jury duty is a common sense task. Mario Godsey, you will remember from the evidence, is Kenna Ford’s, the defendant’s sister, he’s Kenna Ford’s boyfriend. Yes, the sister’s boyfriend. Think why we might not have called Mario Godsey. But there is another thing. An attorney has a right to interview all witnesses to determine what their testimony is. Mr. Smith has that right. He can talk to Mario Godsey, and you can bet your life if there was one thing that Mario Godsey would say to exonerate this defendant, Mr. Smith would have given him a subpoena and he would be right here. So it’s not ridiculous—
Mr. Smith: Objection to this, your Honor, the man was subpoenaed.
The Court: Overruled.
Mr. Dorfman: He asks where is Mario Godsey. He knows where Mario Godsey is. He can tell you all about Mario Godsey, but the rules of evidence prevent me from doing that at this time.
I would gladly discuss Mario Godsey with you at length, but I can’t now and I could only discuss it with you after the trial. So again, who is fooling who? Let’s not be ridiculous.”

Despite its brevity, this segment of argument contains three distinct improper comments. The first is the prosecutor’s comment on the defendant’s failure to call Mario Godsey as a witness. Godsey was interviewed by the police prior to defendant’s arrest, and, according to the testimony of the State’s pivotal witness, was present when defendant shot the deceased. Such a comment is improper where the witness alluded to is equally accessible to the State as to the defense. (People v. Puente (1981), 98 Ill. App. 3d 936, 948, 424 N.E.2d 775.) Here, the defense had little reason to call Godsey as a witness, because the defense theory of the case was that Jones, Godsey, and Hicks had conspired to attribute the shooting to defendant. However, the comment was arguably invited by defense counsel’s remark in closing argument that Godsey did not testify because he, unlike Jones, could not sit in the witness chair, face defendant, and lie. The other two comments complained of cannot be so justified.

The prosecutor next stated that the rules of evidence prevented him from telling the jury about Godsey. Such a remark, standing alone, was held to constitute reversible error in People v. Lopez (1980), 89 Ill. App. 3d 456, 457, 411 N.E.2d 1071.

To complete this triad, the prosecutor essentially made an offer to the jury to discuss Godsey with them after the trial. A statement that prosecutors and defense counsel would be available to answer jurors’ questions after the trial was held to be error in People v. Martinez (1979), 76 Ill. App. 3d 280, 395 N.E.2d 86. The court stated that the comment encouraged jurors to reserve their doubts until after the verdict. (76 Ill. App. 3d 280, 285.) In contrast to the relatively innocuous comment in Martinez, the prosecutor here offered to give the jury information after the trial that they were currently being deprived of because of the operation of the rules of evidence. We find that defendant was severely prejudiced by these comments.

The next assignment of error concerns the prosecution’s continuing disparagement of defendant, the defense witnesses, and defense counsel during closing and rebuttal argument. In particular, the prosecutor emphasized how easy it would be for a “murderer” such as defendant to lie on the witness stand, stated that defendant was engaged in “ridiculous fabrication,” and, in response to defense counsel’s characterization of lying as the only crime more heinous than murder, stated that the jury need not compare the two crimes, because defendant had committed them both. The defense was characterized as a “pack of lies” and “layer upon layer of lies.” The prosecutor also expressed chagrin at the fact that he and the jury were required to “sit in this courtroom and listen to the lies of a cold-blooded murderer *** and [referring to the defense closing argument] listen to forty-five minutes *** of the most ridiculous double talk that I have ever heard in my life.”

The prosecutor also stated that he was certain that the jury would not be “hoodwinked” and “fooled” by “that defense, that pack of lies you heard.”

It is not improper comment to call the defendant or a witness a “liar” if conflicts in evidence make such an assertion a fair inference. (See, e.g., People v. Tiller (1982), 94 Ill. 2d 303, 319, 447 N.E.2d 174; People v. Cukojevic (1981), 103 Ill. App. 3d 711, 721, 431 N.E.2d 1154.) The same, however, cannot be said for assertions that defense counsel is engaging in trickery or misrepresentation in order to "win an acquittal for his client. Comments disparaging the integrity of defense counsel and implying that the defense presented was fabricated at the direction of counsel have consistently been condemned. (See People v. Clark (1983), 114 Ill. App. 3d 252, 256; People v. Brown (1983), 113 Ill. App. 3d 625, 630; People v. Witted (1979), 79 Ill. App. 3d 156, 167-68, 398 N.E.2d 68; see also People v. Weathers (1975), 62 Ill. 2d 114, 119-21, 338 N.E.2d 880.) While it is true that the remarks which were made in the above cited cases were more pointed and caustic than the remarks complained of in the instant case, the remarks here, taken with the general tone of the State’s final arguments, show a pattern of conduct designed to inflame and arouse the jury. We find that these remarks resulted in prejudice to defendant.

Finally, on rebuttal argument, the prosecutor referred to the State’s burden of proof in the following manner:

“The burden of proof in this case, you should know, is no different than in the hundreds of thousands of cases that have been tried in courtrooms all over this country.
Mr. Smith: Objection, that is not the law.
The Court: Overruled.
Mr. Dorman: The defendant does not stand on a pedestal in this case in this courtroom.
In this case, in terms of what the State must prove, it is no different than in any other case. A theft case, a rape case, a murder case, any type of case. So there’s nothing special going on here and we don’t have a burden, no matter what Mr. Smith would like you to think and we don’t have to produce a weapon *** M

This argument reduces the State’s burden of proof to a pro forma or minor detail. (People v. Martinez (1979), 76 Ill. App. 3d 280, 285, 395 N.E.2d 86.) Although the argument is fast becoming ubiquitous in the criminal trial courts, it has been universally condemned. (See People v. Malone (1983), 114 Ill. App. 3d 55, 64-65; People v. Bell (1983), 113 Ill. App. 3d 588, 601; People v. Scaggs (1982), 111 Ill. App. 3d 633, 636, 444 N.E.2d 674; People v. Johnson (1981), 102 Ill. App. 3d 122, 128, 429 N.E.2d 905; People v. Ayala (1981), 96 Ill. App. 3d 880, 883-84, 422 N.E.2d 127; People v. Hamilton (1980), 80 Ill. App. 3d 794, 805, 400 N.E.2d 599; People v. Martinez (1979), 76 Ill. App. 3d 280, 285, 395 N.E.2d 86.) The fact that the cases dealing with the argument have held that the use of the argument, standing alone, is not reversible error, should not be taken to intimate that the argument is proper, or to encourage its proliferation. Nevertheless, the volume of cases in which the use of this erroneous argument is raised as an issue indicates that it has become a standard arrow in the prosecutorial quiver. In People v. Bryant (1983), 94 Ill. 2d 514, 447 N.E.2d 301, our supreme court held that the prosecutor’s statement that the State’s burden of proof was “not unreasonable” and “met each and every day in courts” did not reduce the burden of proof. (94 Ill. 2d 514, 523.) The remarks in the instant case go beyond the bland characterization of the burden of proof in Bryant. Here, the prosecutor asserted that the burden was the same in “any type of case” and stated that “we don’t have a burden.” We believe that there is a boundary of propriety which is so easily crossed by the use of this argument that it would be far better if the argument was no longer made.

We need not determine whether each of the instances of prosecutorial misconduct detailed above would constitute reversible error standing alone. In a case such as this one, where any improper argument that was not made and any improper tactic that was not used would seem to have been omitted by inadvertence rather than by design, a finding that the cumulative impact of these instances of prosecutorial misconduct requires reversal for a new trial is particularly appropriate. (See People v. Weinger (1981), 101 Ill. App. 3d 857, 866, 428 N.E.2d 924.) We stress that, although reversal for a new trial is the appropriate disposition of the instant case, our holding here should in no way be taken to apply only to cases in which the evidence of the defendant’s guilt is not overwhelming so as to authorize this type of prosecutorial brinkmanship in cases where the evidence is stronger. As our supreme court has noted, the overwhelming nature of the evidence against a particular defendant serves only to raise the question of whether the defendant has received a fair trial. (See People v. Weathers (1975), 62 Ill. 2d 114, 120, 338 N.E.2d 880.) A consistent and intentional course of prosecutorial misconduct is not condoned simply because a reviewing court concludes that that misconduct has failed to achieve its obvious purpose of denying the defendant a fair trial. Perhaps, as another division of our court has recently stated, some reports to the Attorney Registration and Disciplinary Commission are the only antidote to the virulent condition created by the continued use of the type of tactics that were employed in this case. (People v. Shepard (1983), 114 Ill. App. 3d 598, 602.) We note that in United States v. Hasting (U.S. May 23, 1983), 51 U.S.L.W. 4572, the Supreme Court sanctioned the use of attorney discipline procedures as an appropriate means of deterring objectionable prosecutorial conduct. In response to the offending arguments presented in that case, the Supreme Court suggested that the District Court could have either ordered the prosecutor to show cause why he should not be disciplined or asked the Department of Justice to initiate disciplinary proceedings against him. (51 U.S.L.W. 4572, 4574 n.5.) The court also suggested chastising the prosecutor by identifying him in the District Court’s opinion.

Our finding makes it unnecessary for us to consider the additional issues raised by defendant.

The judgment of the circuit court is reversed and the cause remanded for a new trial.

Reversed and remanded.

HARTMAN and PERLIN, JJ., concur.


author: JUSTICE SULLIVAN

text:
    ROBERTA SHAPIRO et al., Plaintiffs-Appellants and Cross-Appellees, v. REGIONAL BOARD OF SCHOOL TRUSTEES OF COOK COUNTY et al., Defendants-Appellees and Cross-Appellants.
    First District (5th Division)
    No. 82—2080
    Opinion filed June 24, 1983.

      Russell M. Pelton and Craig A. Varga, both of Peterson, Ross, Schloerb & Seidel, of Chicago, for appellants.
    John C. Tucker and Jane A. McAtee, both of Jenner & Block, of Chicago, for appellee Board of Education of Community Consolidated School District No. 65.
    Stuart H. Glicken and Michael I. Wexler, both of Chicago, and Fred I. Feinstein, of Skokie, for other appellees.
   JUSTICE SULLIVAN

delivered the opinion of the court;

This appeal is from the trial court’s affirmance in an administrative review action of an order of the Regional Board of School Trustees of Cook County (the Board) dismissing for lack of jurisdiction plaintiffs’ petition for detachment brought pursuant to section 7—6 of the School Code. (Ill. Rev. Stat. 1979, ch. 122, par. 7—6.) Plaintiffs contend that (1) the order dismissing their petition is void; (2) the Board’s prior ruling that it had jurisdiction was final and could not be reconsidered; (3) the Board improperly (a) ruled that requirements of the Election Code relating to the form of petitions and to the challenge of voter registrations (Ill. Rev. Stat. 1979, ch. 46, pars. 28—3, 4—12) apply to a petition filed pursuant to the School Code and (b) applied these new requirements retroactively; and (4) the Board’s findings of fact are against the manifest weight of the evidence. Defendants cross-appeal from an earlier order of the trial court finding that the Board’s initial denial of plaintiffs’ petition was against the manifest weight of the evidence. They contend that plaintiffs failed to sustain their burden of proving that the benefits of detachment clearly outweigh the detriments.

On September 5, 1979, plaintiffs filed a petition with the Board seeking detachment of certain described territory (the detachment area) from Community Consolidated School District No. 65 (District 65), which includes all of the city of Evanston and part of the village of Skokie, and its annexation to Community Consolidated School District No. 68 (District 68), which includes portions of Skokie. The petition consisted of four pages describing the detachment area together with statements in support of detachment, and 186 pages containing 1,928 signatures. It alleges that the detachment area receives other essential community services from Skokie and enjoys a “community of interest” with Skokie because it is located entirely therein; and that the benefits of detachment to the children in the affected area and to District 68 outweigh any detriment to District 65.

District 65 objected to the jurisdictional sufficiency of the petition, and at a series of hearings held to resolve that issue contended that there were 2,858 registered voters living in the detachment area, the number listed in the official Cook County precinct election binders on the date the petition was filed. It further argued that plaintiffs needed the signatures of 1,928 registered voters in order to meet the requirements of the School Code. (Ill. Rev. Stat. 1979, ch. 122, par. 7—1.) Plaintiffs acknowledged that of the 1,928 signatures on their petition, only 1,667 were registered voters living in the detachment area, but contended that there were 2,268 voters residing therein, not 2,858, and they therefore needed only 1,512 signatures.

The testimony of several witnesses established that plaintiffs’ lower figure was arrived at in the following manner: working from an April 1979 official precinct list showing 2,867 registered voters in the detachment area, circulators visited or called each address listed thereon and asked about each registered voter shown as residing at that address; if informed that the person in question was dead or had moved, the circulators crossed the name off the list; 597 names were removed by this process. The witnesses admitted that they did not have personal knowledge whether the voters in question had in fact died or moved, and for the most part they could not identify the person who provided the information. District 65 was not allowed to cross-examine the circulators with regard to all of the voters excluded after the Board determined that the testimony concerning each of the 597 names would be similar. However, District 65 filed its own survey purporting to show that 93 voters excluded by plaintiffs were in fact registered voters residing in the detachment area when the petition was filed, and that 35 registered voters were not on the list used by plaintiffs. The Board did not allow testimony with regard to this survey, and later stated that it had not even looked at that evidence in making its initial determination on jurisdiction. Five circulators further testified that, collectively, they obtained 80% of the signatures. Registered voters were shown the four-page detachment proposal, and its purpose was explained to them before they were asked to sign. If all of the registered voters residing at a particular address were not at home when the circulators stopped, a petition was left to be signed and mailed. These mail-in pages, which garnered 158 signatures, contained a short statement of the purpose of the petition but did not describe the detachment area.

During the course of these hearings, the Board eliminated some signatures which it determined were duplicates, illegible, or signed by proxy. It then found that the petition contained 1,565 valid signatures as of September 5, 1979, accepted plaintiffs’ contention that there were 2,268 registered voters residing in the detachment area on that date, and concluded that it had jurisdiction to consider the merits of the petition. Defendants’ contention that the form of the petition did not meet the requirements of section 28 — 3 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 28 — 3) was rejected after the Board received an -opinion from the assistant legal advisor of the State Board of Education that the Election Code was inapplicable to detachment proceedings under the School Code.

At a separate hearing on the merits of the petition, plaintiffs presented several witnesses in support of detachment. After District 65 had presented only one of its witnesses, the Board concluded that it had heard sufficient evidence, voted to deny the petition, and terminated the hearing. Plaintiffs appealed, and the trial court found that the Board’s decision was against the manifest weight of the evidence, reversed its order, and remanded the action for further proceedings. The trial court further ordered that “[i]n the event the board shall elect to reconsider its prior rulings on the question of jurisdiction, the board shall consider new evidence together with the evidence already submitted on this question.”

On remand, the Board did elect to reconsider its rulings with regard to jurisdiction and asked each side to submit proposed findings of fact and conclusions of law on that issue prior to further hearings. On October 5, 1981, the Board heard testimony on District 65’s survey of voters previously filed with the Board but not considered, and evidence that one petitioner did not see the detachment proposal prior to signing the petition, and that the purpose of the petition was misrepresented to her. Plaintiffs then presented evidence that 41 names previously stricken from the petition as not being registered voters were in fact registered, and the testimony of a graphologist who disputed the Board’s prior determination that seven signatures were signed by proxy.

Based on the foregoing evidence as well as evidence presented at prior hearings, the Board determined that it did not have jurisdiction of this matter and dismissed the petition. Its findings of fact and conclusions of law issued subsequent to that decision set forth four distinct bases for the ruling. The Board concluded that, since the School Code was silent on the question of the form of a valid petition and the means of determining the number of registered voters residing in the detachment area, the applicable standards were those contained in the Election Code. It determined that the petition presented was not in the form required by the Election Code, and that the survey conducted by plaintiffs was not the proper method of challenging and removing names from the official record of registered voters. It further decided that even if the Election Code did not otherwise apply, the Board should adopt the requirements thereof as its own standards in determining the validity of the petition. Finally, the Board ruled that if plaintiffs’ survey were allowed for purposes of reducing the number of registered voters, then defendants’ survey must likewise be allowed to add registered voters to that list. The trial court affirmed the Board’s order, and this appeal followed.

Opinion

Plaintiffs first contend that the Board was required to state its findings of fact and conclusions of law “on the record” as it did during prior hearings, and that its failure to do so renders the order void. They maintain that since the record does not reflect the Board’s reasoning, we must presume that its decision was arbitrary and capricious.

Plaintiffs do not cite, nor has our own research discovered, any case or statute supporting their position. While it is true that an agency’s findings must be based on evidence of record and uninfluenced by considerations dehors the record (Wheeler v. County Board of School Trustees (1965), 62 Ill. App. 2d 467, 210 N.E.2d 609), there appears to be no rule that the findings themselves must be made “on the record,” i.e., during the course of the hearing. Furthermore, we believe that adoption of such a rule would be contrary to the function of an agency acting, as here, in a quasi-judicial capacity. Particularly where the facts are complex and the evidence extensive and contradictory, the agency must be afforded an opportunity to deliberate and consider all of the evidence before making its findings. We realize that, in the instant case, the Board made several findings on the record at prior hearings; however, we also note that these “instant rulings” on factual matters may have been the cause of its initial failure to consider the evidence of defendants’ survey. If the findings are to be based on the record, they should be based on the entire record, not just on the last-heard evidence.

It appears to us that the real issue here is not whether findings must be made on the record, but whether the Board’s action must be presumed arbitrary and capricious because it issued its decision before it made any express findings of fact and conclusions of law. At the close of evidence, the Board heard arguments of counsel and then immediately voted to dismiss the petition. Plaintiffs theorize that the decision therefore must have been arbitrary. The Board apparently makes a practice of ruling before making any findings, since the same procedure was followed in issuing its prior order denying plaintiffs’ petition. For the reasons noted above, we agree that this practice is ill-advised. However, we have perused the record with regard to the order dismissing the petition, and it indicates that the Board had reviewed the transcripts of the earlier hearings as well as proposed findings of fact and conclusions of law from each side setting forth their respective positions on the issue of jurisdiction. The testimony at the final hearing was neither extensive nor complicated, and given the fact that the Board had an opportunity to thoroughly review its position, the evidence, and the arguments of the parties, we do not believe that, in the instant case, its decision was unreasoned or arbitrary.

Plaintiffs also argue that the order is void because the Board adopted, almost without change, defendants’ proposed findings and conclusions. In support thereof, they cite several Federal cases involving similar practices by district court judges and argue that rules established therein should be adopted in reviewing agency decisions. However, the cases relied upon clearly hold that the adoption of findings and conclusions authored by the prevailing party does not require reversal of a decision. In United States v. El Paso Natural Gas Co. (1964), 376 U.S. 651, 656, 12 L. Ed. 2d 12, 17, 84 S. Ct. 1044, 1047, the trial court had adopted without change the prevailing party’s proposed findings of fact and conclusions of law. The Supreme Court noted that “[tjhose findings, though not the product of the workings of the district judge’s mind, are formally his; they are not to be rejected out-of-hand, and they will stand if supported by evidence.” (See also Loctite Corp. v. Fel-Pro, Inc. (7th Cir. 1981), 667 F.2d 577.) While several courts, as plaintiffs point out, have expressed disapproval of this practice (see, e.g., Flowers v. Crouch-Walker Corp. (7th Cir. 1977), 552 F.2d 1277, 1284), others acknowledge that it is a common and useful practice in complicated cases (see Lektro-Vend Corp. v. Vendo Co. (7th Cir. 1981), 660 F.2d 255, 263, cert. denied (1982), 455 U.S. 921, 71 L. Ed. 2d 461, 102 S. Ct. 1277). Moreover, contrary to plaintiffs’ assertion, the practice does not necessitate imposing a stricter standard of review. In Norfolk & Western Ry. Co. v. B. I. Holser & Co. (7th Cir. 1980), 629 F.2d 486, the court recognized that the trial court’s findings of fact “[did] not reflect the original products of a disinterested mind” (629 F.2d 486, 489); nevertheless, it adhered to the usual standard applied in reviewing the trial court’s findings of fact, a standard analogous to the manifest weight standard adopted by our courts in reviewing an agency’s findings of fact. (See also Flowers v. Crouch-Walker Corp. (7th Cir. 1977), 552 F.2d 1277.) It appears that the only effect of adopting one party’s findings and conclusions is that, while the findings are given the same deference as those authored by the trial court, the reviewing court will scrutinize the record with greater care in determining that the findings are supported. (See United States v. El Paso Natural Gas Co. (1964), 376 U.S. 651, 12 L. Ed. 2d 12, 84 S. Ct. 1044.) These cases do not support a conclusion that the findings are entitled to no deference and that the reviewing court must therefore engage in a trial de novo of the factual issues, as plaintiffs apparently suggest that we do here.

Plaintiffs next assert that having once determined that it had jurisdiction, the Board could not subsequently reconsider jurisdictional issues and reverse its earlier decision. They posit that to hold otherwise allows opponents of such petitions an unfair advantage, since they have an opportunity to continually challenge jurisdiction by presenting evidence of the withdrawal of signatures from the petition. In support of their arguments, plaintiffs cite Board of Education v. Regional Board of School Trustees (1980), 82 Ill. App. 3d 1067, 403 N.E.2d 578, where we held that withdrawals, reinstatements, and additions of signatures are allowed only until such time as the Board acts on a petition. In the instant case, plaintiffs argue, the Board had acted on the petition by denying it in its prior order; therefore, any further inquiry into jurisdiction was foreclosed. We disagree. Board of Education v. Regional Board of School Trustees is concerned with subsequent action involving a petition which, as originally presented, was sufficient to sustain the Board’s jurisdiction. That case makes it clear that initially there must be substantial compliance with jurisdictional requirements. (82 Ill. App. 3d 1067, 1071, 403 N.E.2d 578, 581.) Here, the Board was not concerned with subsequent withdrawals from and additions to an otherwise valid petition; rather, it was determining whether the petition was jurisdictionally sufficient as originally presented, a question totally separate from the subsequent changes at issue in Board of Education v. Regional Board of School Trustees.

We believe that the Board did have the authority to reconsider its jurisdiction in this matter, regardless of any authorization or lack thereof by the trial court on remand. A petition in compliance with the statute is a prerequisite to the Board’s jurisdiction to act (Bourland v. Snyder (1906), 224 Ill. 478, 79 N.E. 568), and where the Board acts upon a defective petition, its order is void (Muddy Grade School District No. 10 v. Raleigh Grade School District No. 31 (1964), 53 Ill. App. 2d 223, 202 N.E.2d 653). Therefore, it stands to reason that the Board, like any other agency, may inquire into its jurisdiction to act at any time, at the request of any party or upon its own motion, since it simply has no power to act in the absence of that jurisdiction. See Michelson v. Industrial Com. (1941), 375 Ill. 462, 31 N.E.2d 940; People ex rel. Petersen v. Turner Co. (1976), 37 Ill. App. 3d 450, 346 N.E.2d 102.

Plaintiffs next contend that the Board improperly applied Election Code standards in determining that the form of the petition was insufficient to establish its jurisdiction and in finding that their survey of voters was not the proper method of challenging the official records and removing a name therefrom. Defendants maintain that the Election Code and the School Code must be read in pari materia; therefore, they assert, since the School Code is silent with regard to the form of petitions and the means of removing voters from the register, the corresponding sections of the Election Code must be applied.

A number of cases cited by defendants hold that statutes which concern the same subject matter must be read in harmony with each other; therefore, where the School Code is silent in an important respect with regard to a matter also covered by the Election Code, provisions from the Election Code must be applied to the proceedings, so long as there is no inconsistency with the purposes of those statutes. For the most part, as plaintiffs correctly note, these cases have involved elections under the School Code where the applicability of the Election Code was readily apparent. (See, e.g., Scofield v. Board of Education (1952), 411 Ill. 11, 103 N.E.2d 640; McRell v. Jackson (1977), 49 Ill. App. 3d 86, 363 N.E.2d 940; Tremper v. Board of Education (1971), 3 III. App. 3d 264, 278 N.E.2d 451.) However, courts have also looked to Election Code voter registration and residency requirements, albeit without expressly referring to the Election Code, in determining whether two-thirds of the registered voters in a given area had signed a petition for detachment (Stein v. County Board of School Trustees (1968), 40 Ill. 2d 477, 240 N.E.2d 668) or a petition for the creation of a new school district (People ex rel. Larson v. Gordon (1918), 283 Ill. 366, 119 N.E. 318). These cases do not appear to be based on a reading of the Election Code in pari materia with the School Code; instead, the court seems to be applying the only existing standards for determining who is a registered voter residing in the detachment area, since then, as now, only the Election Code governed registration or residency requirements for voters.

Here, as one basis for its ruling, the Board applied section 28—3 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 28—3), which prescribes the form and content of petitions for the submission of public questions to a referendum, in determining that the petition in question was invalid. Under section 28 — 3, each page of a petition must contain a statement of the proposed question and the sworn statement of the circulator that each signator is a registered voter and signed in his presence. When submitted, the pages must be of uniform size and securely bound together. The petition here met none of these requirements. However, as plaintiffs correctly note, referenda and detachment proceedings are not “the same matter.” While defendants’ position is that the similarity between the two is sufficient to require application of the Election Code, they cite no cases wherein statutes involving arguably similar matter were construed in pari materia, in effect expanding the subject matter of one statute by analogy. In each of the above cases, provisions of the Election Code were applied because they governed the exact matter in question. We do not agree that plaintiffs had a duty here to browse through the Election Code and decide if any of the numerous provisions prescribing the form and contents of the various petitions were “close enough” to a petition for detachment to mandate their applicability, particularly where there was an established practice of the Board upon which they could rely. Of course, the Board may adopt these standards in order to give petitioners some uniform guidance on the proper form of a petition, and we urge that it do so. We note that the standards would have avoided many of the evidentiary problems which plagued the hearings on this petition.

The Board also applied section 4—12 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 4—12) in ruling on the number of registered voters residing in the detachment area. It provides in relevant part that a registered voter may be challenged by the sworn, written statement of a registered voter made on personal knowledge that the challenged voter is not a resident of the precinct in which he is registered. Before the challenged voter may be removed from the official register, he must be given notice of the application and an opportunity to refute it. As noted above, our courts have long looked to the Election Code’s registration and residency requirements in determining who may be considered a registered voter residing in the detachment area. Section 7—1 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 7—1) requires that the petition contain the signatures of two-thirds of the registered voters residing in the detachment area, but nowhere defines those terms. The Election Code concerns the same subject matter; i.e., registration of voters and their residency. Therefore, it is our view that, to this extent, the Election Code has been and must continue to be read in pari materia with the School Code. We believe that this was the legislative intent. The School Code could properly have provided for a petition signed by residents of the detachment area, since all residents are affected to some extent by a detachment proceeding regardless of whether they are registered voters. Instead, the legislature chose to limit qualified petitioners to those who are registered voters, and that can be determined only by reference to the Election Code.

The problem here is that plaintiffs attempt to read “registered voter” and “residing in the detachment area” as two separate and unrelated tests. They then argue that they are only concerned with the latter prong of the test, and assert that the Election Code is inapplicable thereto. However, the phrase “residing in the detachment area” merely defines which of the millions of the registered voters in this State may sign the petition. To become a registered voter, a United States citizen of 18 years of age or more must reside in, i.e., have a permanent, abode, within the election district for 30 days prior to an election and register as provided in the Election Code. (Ill. Rev. Stat. 1979, ch. 46, pars. 3—1, 3—2, 4—10.) The official registry of those voters is kept by the county clerk of each county. (Ill. Rev. Stat. 1979, ch. 46, par. 4—20.) In their survey of voters, plaintiffs sought to remove names from this official register under the guise of determining who “resided in” the detachment area. However, that official register tells them who resides in the area, because residency is one of the requirements of registration. If plaintiffs wish to challenge that official registry, they must do so in the manner provided by statute, i.e., section 4—12 of the Election Code.

We further note that even if this provision were not previously applicable, the Board would be compelled to adopt the same or similar standards. Despite the assertions of counsel before the Board, the type of hearsay evidence upon which this survey was based is not admissible in an administrative proceeding. (Goranson v. Department of Registration & Education (1980), 92 Ill. App. 3d 496, 415 N.E.2d 1249.) It is not true, as the Board was repeatedly informed, that the rules of evidence do not apply in an administrative proceeding; the rule is that the failure to observe technical rules of evidence is not grounds for reversal of the Board’s decision. (Ill. Rev. Stat. 1981, ch. 110, par. 3—111(b).) However, the rule against hearsay is basic and fundamental, not merely technical. (Jamison v. Weaver (1975), 30 Ill. App. 3d 389, 332 N.E.2d 563.) Where hearsay evidence appears in the record, it may not be considered in reaching a decision, and any factual determination based on hearsay and unsupported by other competent evidence in the record must be reversed. (La Grange Bank #1713 v. DuPage County Board of Review (1979), 79 Ill. App. 3d 474, 398 N.E.2d 992; Russell v. License Appeal Com. (1971), 133 Ill. App. 2d 594, 273 N.E.2d 650.) Therefore, the Board acted properly in disregarding plaintiffs’ survey in making its determination of jurisdiction, regardless of the applicability of the Election Code. The only testimony supporting exclusion of those names from the list of registered voters was based entirely on hearsay, and any finding of jurisdiction based on that evidence would be reversed. The danger of accepting such evidence is readily apparent here, where a subsequent survey showed that as many as 93 voters may have been erroneously removed from the official register.

Plaintiffs further maintain that even if we find sections 28—3 and 4—12 of the Election Code applicable, they should not be applied retroactively, arguing that to do so denies them due process of law. However, they have not demonstrated in what way application of these statutes would violate their constitutional rights. General allegations of a deprivation of due process are insufficient to raise the issue (Janson v. Pollution Control Board (1979), 69 Ill. App. 3d 324, 387 N.E.2d 404); plaintiffs must show how application of these particular rules deprive them of life, liberty, or property (Pickus v. Board of Education (1956), 9 Ill. 2d 599, 138 N.E.2d 532). Here, the only specific allegation made is that retroactive application of these provisions denies plaintiffs the right to petition guaranteed by the Illinois Constitution. (Ill. Const. 1970, art. I, sec. 5.) Assuming arguendo that the petition in question is within the contemplation of the constitution, plaintiffs have not shown how that right has been violated. The Board’s order in no way precludes presentation of a proper petition containing the requisite number of signatures.

Plaintiffs further argue that even if there is no constitutionally protected right involved, an agency’s rules and regulations may not be applied retroactively if the result will be unreasonable or oppressive. They maintain that, in the instant case, their right to present another petition is an empty one, since the time and expense involved is so burdensome that a second effort is unlikely to occur; or, if it is undertaken, to be successful. This burden, they assert, is unreasonable and oppressive.

In determining whether an agency rule or regulation may be applied retroactively, the test to be applied is whether the case is one of first impression, whether the regulation represents an abrupt departure from well-established practice, the extent to which plaintiffs relied on the former regulation, and the degree of burden imposed on the party against whom application is sought. (Cartwright v. Illinois Civil Service Com. (1980), 80 Ill. App. 3d 787, 400 N.E.2d 581.) However, even where inequities appear in the retroactive application of a rule or regulation, we must also consider whether there are significant statutory interests involved which counterbalance any hardship to the complaining party. Gonzales-Blanco v. Clayton (1982), 110 Ill. App. 3d 197, 441 N.E.2d 1308.

Because of our different conclusions on the basis for applying these two statutory provisions and the different interest served by each, we must consider them separately in determining the propriety (of their retroactive application. With regard to section 3—28 of the Election Code, governing the form of petitions, we have found that provision inapplicable but believe that the Board may adopt the standards found therein. However, it is our view that it should not be applied retroactively. It is evident from the comments of Board members during the course of this proceeding that any form of petition, including petitions similar to the one at issue here, have been accepted in the past. Therefore, plaintiffs were relying on past practice in preparing this petition, and application of these new standards would represent an abrupt departure from that prior practice. Furthermore, we agree that the burden on plaintiffs is a real one and not outweighed by any regulatory interest here. Application of these standards would eliminate many of the evidentiary problems encountered here; however, testimony that signators saw the proposal and signed in the presence of circulators was presented under oath and based on personal knowledge. Since this is the information sought by the regulation, we believe that plaintiffs have substantially complied therewith. The requirement that the pages be of uniform size and securely bound is a matter of administrative convenience, clearly a technical requirement which would not justify the burden imposed on plaintiffs here.

With regard to application of section 4—12 of the Election Code, we note initially that its application is not retroactive, since provisions of the Election Code have always been applicable to a determination of who is a registered voter. The mere fact that the Board has never before had occasion to apply this particular provision does not make its application retroactive. Moreover, even assuming arguendo that this is a new rule or regulation, it is our view that retroactive application would be justified under the Cartwright test. The record does not disclose any prior rule or regulation of the Board upon which plaintiffs relied in conducting their survey. Rather, it appears that plaintiffs chose a method of proceeding which they unilaterally decided was reasonable. They have relied, then, on their own erroneous interpretation of the law, an interpretation which the Board took no part in formulating. We agree that the burden on plaintiffs is difficult, but that burden is not related to any prior action of the Board. Moreover, we believe that the statutory interest here clearly outweighs any burden on plaintiffs in having to undertake a second, properly conducted petition effort. The provision in question was designed to protect the right to vote by affording registered voters minimal due process before disenfranchisement. When applied to a detachment proceeding, it protects opponents of detachment who can defeat a petition drive only by remaining on the list of registered voters. They have just as much right to express their opinion by refusing to sign the petition as plaintiffs have to voice their support of the proposal by signing. If their names are erroneously excluded from the list of registered voters, the effect is to deny them a right to express that negative opinion.

In light of the above, we conclude that the Board properly ruled that it did not have jurisdiction to consider the merits of this petition because plaintiffs’ survey was not the proper method of challenging and removing registered voters from the official register. The following findings were made with regard to the number of signatures required: there were 2,858 registered voters in the official Cook County precinct election binders on September 5, 1979; plaintiffs’ attempt to challenge that number did not comply with section 4 — 12 of the Election Code and could not serve to exclude any voters from that official register; plaintiffs therefore needed the signatures of 1,906 voters in order to present a valid petition for detachment; there were at most 1,565 valid signatures on the petition presented. Plaintiffs contend that all of the Board’s findings, including the above, are contrary to the manifest weight of the evidence. However, they do not cite to any evidence in the record which refutes these findings. Furthermore, mindful of the need to scrutinize the record with care when an agency adopts findings of fact authored by the prevailing party, we have searched the record and determined that there is substantial support for the above findings; therefore, we conclude that they are not against the manifest weight of the evidence.

For the reasons stated, the order of the trial court affirming the Board’s decision is affirmed. Because of our disposition of plaintiffs’ appeal, we need not reach defendants’ cross-appeal.

Affirmed.

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

      The Board refused to accept the mail-in petitions but did allow 85 subsequent acknowledgments of those signatures to be counted in determining its jurisdiction.

      The order also refers to section 7—10 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 7—10), which governs petitions for nomination to public office. On appeal, however, defendants have not argued the applicability of this provision. For the reasons noted above with regard to section 28 — 3, we do not find that this provision is applicable to detachment proceedings brought pursuant to the School Code.

      It appears from the record that the Board was misinformed on several evidentiary matters during the course of the hearing. We note in particular, for the Board’s future reference, that counsel for petitioners and opponents may not give testimony.