text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY D. BUSS, Defendant-Appellant.
    Third District
    No. 82—206
    Opinion filed February 9, 1983.

      Lawrence G. Dirksen, of Olympia Fields, for appellant.
    L. Patrick Power, State’s Attorney, of Kankakee (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Timothy Buss, age 13 at the time of the instant offense, was arrested on May 28, 1981, in connection with the murder of five-year-old Tara Sue Huffman. Following a hearing conducted pursuant to section 2 — 7(3) of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 702 — 7(3)), defendant’s case was transferred from the juvenile division to the court’s adult division, and he was formally indicted by a grand jury in Kankakee County in three counts for the child’s murder. Because of pretrial publicity, the jury trial was held in Will County. Defendant was found guilty, convicted, and sentenced to a 25-year term of imprisonment.

On appeal, defendant raises five issues for our consideration: (1) whether the State’s evidence was sufficient to prove the defendant guilty beyond a reasonable doubt; (2) whether the defendant was denied a fair trial by the trial court’s denial of defendant’s motion in limine to preclude the State’s use of his pre-arrest statement; (3) whether defendant was denied a fair trial by the prosecution’s suppression of certain witness interview notes taken by assistant state’s attorneys; (4) whether the trial court erred in denying defendant’s motion for mistrial based on prosecutorial and judicial misconduct; and (5) whether the trial court erred in denying defendant’s motion for a directed verdict.

Because the defendant’s conviction was obtained on the basis of entirely circumstantial evidence, we proceed with great caution in deciding defendant’s first issue. Several witnesses were called by the State to testify about events of May 21, 1981, in a certain neighborhood on the east side of Bradley, Illinois. Around 9:30 a.m., Tara Sue Huffman, along with a chaperone and other kindergarteners who had perfect attendance records, rode a bus to a roller skating rink. The children skated until around 11:30, when they stopped to eat. Tara had a hot dog and Pepsi. They all left the rink together and returned to the kindergarten classroom at Bradley East around noon.

At 12:15 p.m., Tara was picked up by her sister and her mother. The three of them stopped at some neighborhood garage sales and returned to the Huffman home around 1:30. Tara changed into a pair of shorts and top, told her mother she was going to play with the Smith children, and headed down the alley, barefooted, in the direction of the Allen Smith residence.

Tara’s brother, Richard Huffman, came home around 2:30 p.m. with a little turtle that he wanted to give to Tara. Mrs. Huffman phoned the Smith’s and asked for Tara. She was told that Tara hadn’t been there for some time. Not satisfied by this response, Mrs. Huffman went over to the house. Homer Smith, Allen’s son, told Mrs. Huffman that he hadn’t seen Tara for a while, but he had not seen her leave the yard.

At that point Mrs. Huffman began searching at the homes of other neighbors. No one was able to provide any information on the little girl’s whereabouts. At- 5 p.m., Mrs. Huffman called the police and then continued her search of the neighborhood, aided by several neighbors and her children, Richard and Sondra.

At 7:15 p.m., Tara’s body was found by defendant Timothy Buss in the pit of a landfill located approximately 2xk blocks south of the Allen Smith residence. The defendant lifted the dead body out of the pit and called Allen Coffman, another searcher in the area, to come help him carry her. Tara was nude except for her shirt, which was pulled up under her armpits. Her face was covered with blood, and a stick protruded from her anus.

Upon seeing the body Coffman felt sick, declined the defendant’s suggestion to assist in moving the body, and told the defendant to stay there to keep other youngsters from seeing Tara’s body while he went after the police.

Coffman found Lieutenant Greenstreet of the Bradley Police Department and led him to Tara’s body. The scene was secured, and the defendant and Coffman were taken to the police station for their statements regarding the discovery of Tara’s body.

The defendant, who was wearing a white T-shirt, blue jeans and sneakers, was joined by his father, David Buss, at the police station. Around 10 p.m., juvenile officer Catherine Bergen, pursuant to routine procedures, explained to defendant and his father the Miranda warnings and had defendant initial on a preprinted form as to his understanding of each segment and sign the form. The execution of the form was witnessed by Bergen and David Buss.

The defendant thereafter described his discovery of Tara’s body and his own activities of the day leading up to that event. The defendant stated that he had not been in school on May 21, 1981, because his class had gone on a field trip and he had elected not to go because of the cost of the trip and the fact that he had planned to take a trip with his grandfather to Texas. In the morning he had gone across the street from his aunt’s home where he was staying to the garage next to Allen Smith’s house to help Jerry Beattie wash his car. When they finished washing and waxing it, the defendant went back home where his cousin fixed hamburgers for lunch. The defendant watched television for a while, and at 2:30 p.m., he went to see his friend Gary Clough at his home. At 3 p.m., the defendant returned home, and 10 minutes later his grandmother, Alice Buss, picked up the defendant and his brother and sister and drove them to her home in the trailer park. There, the defendant played softball.

Defendant further stated that at 6:30 p.m., Mrs. Buss drove him back to his aunt’s place. After depositing the baseball glove and bat in the house, the defendant went back across the street to the Allen Smith house. Smith told the defendant that Tara Huffman was missing. Homer Smith remarked that Tara liked to swim, so they got into a truck and drove down near to the creek. The defendant then proceeded on foot along the creek to a cavity in the ground. There he observed an arm sticking out from under some pieces of foam rubber. He pulled the foam rubber away and saw Tara’s face with blood coming from her nose.

Defendant said that he felt the little girl’s throat and noted that her arms were stiff and her eyes were partially opened. Then he yelled to Coffman (whom the defendant had not known at the time), “I found her.” Coffman asked if she was all right. The defendant said she was dead and then lifted the girl’s body out of the hole, set her down, and lifted her one more time to move her farther from the hole. Coffman came over and saw the body. The defendant asked Coffman if he could borrow his bike to get help. Coffman said no, he’d go himself. He left and then the defendant told a woman that he’d found the body and told her to keep the children away from the area. The defendant walked a distance and then spotted a policeman. He turned back and pointed to where the body lay, and the police took charge from there.

Officer Bergen was acquainted with Gary Clough and had been led to believe that he had gone to live in Florida with his father. After listening to the defendant’s account of his activities during May 21, 1981, Bergen first assured herself that the defendant was referring to the same individual, and then asked the defendant what he did at Gary’s house. The defendant said that they had sat around and talked.

Bergen also observed hairline scratches on the defendant’s face and a reddish-brown stain on the thigh of his pants. While the defendant’s statement was being typed up, Bergen telephoned Gary Clough’s mother and asked if Gary was at home. Mrs. Clough said no, he was in Florida. Upon further interrogation, the defendant reconfirmed that he had been with Gary and had talked with him.

The officers told the defendant that they wanted him to remove his clothing and leave it for processing. The defendant did so and eventually was allowed to leave the police station with his father around 5 a.m. of May 22.

While the defendant was still at the police station, Judith Wilkens telephoned the police to report an incident that had occurred earlier in the day and which she thought might have some significance. Mrs. Wilkens lived in the neighborhood between the Allen Smith residence and the landfill area where Tara’s body was discovered. Mrs. Wilkens stated that around 2:30 p.m. of May 21, a boy had come to her door and asked to borrow her children’s wooden wagon which was in the yard. The boy wore a white T-shirt, blue jeans, tennis shoes and a baseball cap. He was sweating heavily and had a fiber barrel which he explained was full of junk from cleaning the garage. He wanted to use the wagon to carry the barrel to the dump. Mrs. Wilkens observed that the boy avoided eye-contact with her and acted very nervous, and that he had thick lips. When he assured her he’d return the wagon, she gave him permission as requested and then returned to her kitchen. Later that day Mrs. Wilkens noted that the wagon had been returned to her front yard. That evening, Mrs. Wilkens told her husband, a former police officer, about the incident. At his suggestion she called the Bradley police.

A squad car was dispatched to the Wilkens home to pick up the wagon. Mrs. Wilkens was given a statement form to complete at home with the help of her husband. When she saw the defendant at the police station, Mrs. Wilkens asked, “Who is that boy?” She was told that he was the one who had found Tara’s body. Although Mrs. Wilkens recognized the defendant as the person who had borrowed the wagon, she did not say so either at the station or in her statement. She remarked to her husband that she recognized the defendant on their way home from the station that night. Later, when called to view a lineup, Mrs. Wilkens identified the defendant as the person who had borrowed her wagon.

At trial several neighbors testified that they had observed either the defendant or an individual matching the description of the defendant at various times on May 21, at the Smith residence, across the street standing on the porch of his aunt’s house with a small child, carrying a barrel southwards down an alley, pulling a wagon with a barrel towards the landfill and pulling an empty wagon back north away from the landfill area. Further testimony established that the defendant’s grandmother was an employee of Mortell Company and that she had been given two barrels similar to one that was found at the landfill near where Tara’s body was discovered. Witnesses who had seen the defendant with a barrel confirmed that the barrel found at the landfill resembled the one they had observed in defendant’s possession. Forensic examination of the barrel disclosed traces of blood consistent with Tara’s, and the defendant’s palm print was on the lid. It was also established that the barrel was, in fact, one which had been used by Mortell’s. The stain on defendant’s pants proved to be blood, also consistent with Tara’s type.

One of the witnesses, whose testimony placed the defendant on the premises of the Allen Smith residence shortly before Tara’s disappearance, stated that he had seen the defendant etching in the gravel with a stick of a size consistent with the branch found in the dead girl’s body. A broken-off portion of the same branch was located in the pit area where Tara was found. An autopsy revealed that the stick had been thrust into Tara’s body after she died. The autopsy also disclosed that the time of Tara’s death was somewhere between 1:30 and 2:30 p.m. The cause of death was a single blow to the head accomplished with either a blunt instrument or by smashing the child’s head against a hard surface. The skull was fractured by the blow. The police investigation failed to ascertain either the scene of the murder or the instrument used to fracture Tara’s skull.

In addition to the evidence adduced at trial, the police had received several other reports by citizens seeking to assist in the investigation which did not prove relevant to the instant crime.

On appeal, defendant initially urges that his conviction must be reversed because the circumstantial evidence was insufficient to exclude every reasonable hypothesis of his innocence. Defendant points to certain inconsistencies in the details described by various witnesses in their written statements and at trial, uncertainty of the time of day when the defendant was observed by the witnesses, and the variety of physical descriptions and age estimations given to police by witnesses who did not know the defendant but had observed an individual with his general appearance on the day of the crime. We have read the entire record in this case, and we believe that defense counsel adequately exposed through cross-examination the several inconsistencies and thus tested the credibility of the State’s witnesses. While it is beyond cavil that the State’s burden is to prove beyond a reasonable doubt that the defendant and no one else committed the crime, we will not upset a jury verdict resulting in conviction on review unless we find the evidence so improbable or unsatisfactory as to create a doubt as to the defendant’s guilt.

The circumstantial evidence linking the defendant to the crime is not insubstantial in this case. The defendant’s positively identified palm print was on the cover of the barrel found in the landfill area. The barrel had blood stains consistent in blood type with Tara’s, and the pattern of the staining was consistent with the blood on Tara’s body. The State demonstrated that a child of approximately Tara’s size and age would fit into the barrel. The defendant was identified as the person seen carrying a barrel similar in appearance to the barrel later found in the landfill. He was observed having trouble with the weight of that barrel, and he used a wagon to transport it in the direction of the landfill. Later, the defendant elected to conduct a search by himself of the landfill area where the body would be found, and he sent a co-searcher, Terry Clark, off in an alternate direction. Upon locating Tara’s body, the defendant succeeded in lifting it up off the ground, but he complained that it was heavy and he wanted help carrying it. The defendant’s alibi to cover the period when Tara was killed was proved false. We conclude that the State met its burden of proof in this case. See People v. Weaver (1982), 92 Ill. 2d 545, 442 N.E.2d 255; People v. Johnson (1980), 82 Ill. App. 3d 338, 404 N.E.2d 796.

Reversible error will be found in a circumstantial case such as this where the trier of fact ignores exculpatory evidence regarding the defendant’s presentation of a reasonable, probable defense. However, where no such defense can be found, the decision of defendant’s guilt or innocence will not be upset. (Cf., People v. Calhoun (1972), 4 Ill. App. 3d 683, 281 N.E.2d 363; People v. Sumner (1982), 107 Ill. App. 3d 368, 437 N.E.2d 786.) Having searched the record before us, we do not find a reasonable hypothesis arising from the evidence which is consistent with the defendant’s innocence. The jury, as trier of fact, was presented adequate evidence from which inferences could be drawn based on their assessment of the physical evidence and credibility of the State’s witnesses. The jury’s verdict of guilty is justified under the circumstances. Accordingly, we will not reverse the defendant’s conviction on the basis of defendant’s reasonable doubt arguments.

For the same reasons expressed above, we find no error in the trial court’s denial of defendant’s motion for a directed verdict of not guilty. On appeal, the defendant cites People v. Van Cleve (1982), 89 Ill. 2d 298, 432 N.E.2d 837, as precedent for the trial court’s authority to enter an acquittal notwithstanding a jury verdict of guilty when the court chooses to reserve judgment on the defendant’s motion for a directed verdict. Defendant also quotes certain comments made by the trial judge at the close of all evidence which, he argues, evince the court’s dissatisfaction with the sufficiency of the State’s evidence in this case. We have scrutinized the trial record in this regard and are convinced that the significance defendant attaches to the trial judge’s comments, reviewed in context, is not justified. Nowhere did the trial judge state that the State's evidence was insufficient as a matter of law. Nor do his comments imply such. The issue of guilt was properly submitted to the jurors and properly determined, based on their weighing of the evidence and their findings of fact. The trial court’s denial of defendant’s motion was not error under the circumstances.

The defendant’s next contention is that he was denied a fair trial because his pre-arrest statement was improperly admitted as evidence against him. We do not agree.

While it is true that a false exculpatory statement is not conclusive evidence of the defendant’s consciousness of guilt (People v. Puente (1981), 98 Ill. App. 3d 936, 424 N.E.2d 775), a pre-arrest exculpatory statement is admissible in the State’s case-in-chief as probative evidence of the defendant’s consciousness of guilt. (Puente; People v. Wilson (1972), 8 Ill. App. 3d 1075, 291 N.E.2d 270.) The defendant’s pre-arrest statement in this case included an alibi covering the period of day when Tara was killed and her body was delivered to the landfill. According to his statement, the defendant was visiting his friend, Gary Clough. At trial it was uncontradicted that Gary Clough was in Florida at the time. Defendant counsel conceded that the defendant’s story about being with Gary Clough was a lie, but argued that the defendant chose not to admit that in fact he was illegally shooting off firecrackers stolen from his cousin, Jim Hess, at the time in question.

Although there was evidence that the defendant was playing with firecrackers earlier in the afternoon, the evidence lends no support for defense counsel’s theory that the activity continued during the period when defendant chose to place himself in the company of Clough. Under the circumstances, it was the jury’s function to consider both the State’s and the defendant’s theories to explain why defendant lied about his activities between 2:30 and 3 p.m. on the day of the crime. We find no error in the trial court’s denial of defendant’s motion in limine to exclude his pre-arrest statement to the police.

Defendant’s fourth and fifth assignments of error spring from allegedly unfair discovery procedures employed by the State’s Attorney’s office. Defense counsel vehemently maintained throughout the course of defendant’s trial that the State’s Attorney was not complying with the court’s pretrial discovery order. The State’s Attorney was equally insistent that all discoverable materials were turned over to defense counsel as they became available to the State.

In fact, interview notes taken of 41 potential witnesses were not turned over to defense counsel until after the trial was in progress. When the existence of these notes was disclosed, the trial court ordered the State’s Attorney to submit them to him for an in camera examination to determine whether they constituted privileged work product material or substantially verbatim reports of oral statements discoverable under authority of Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194. The trial court determined that 12 of the 41 notes contained some discoverable material. These were tendered to defense counsel accordingly. The remaining 29 witness interview notes were likewise submitted to defense counsel for examination following defendant’s conviction for purposes of perfecting his arguments on appeal.

We have reviewed the 41 notes in question and conclude that no violation of the defendant’s constitutional right to due process can be found. Initially, we agree with the trial court that none of the undisclosed interview notes contain substantially verbatim statements of the interviewees favorable to the defendant. The only verbatim statement that defendant points to on appeal is a single sentence circled in the notes taken of Ronald Cluny’s interview. Cluny was Tara’s brother-in-law. The notes indicate that he said, “Tara didn’t say anything to Allan Smith about going to Rose’s house.” Even if this isolated sentence were considered a violation of the discovery statute (73 Ill. 2d R. 412(a)(i)), the information contained therein has not been shown to be favorable to the defendant in a constitutional sense. (Brady.) To be “favorable,” the statement would have to be shown to be exculpatory or to have value as impeachment or mitigation evidence. (In re Hatfield (1979), 72 Ill. App. 3d 249, 390 N.E.2d 453.) Certainly this statement cannot be said to exculpate the defendant. Nor has the defendant shown how it could have had value for impeachment or mitigation purposes. Defendant has failed to demonstrate that the statement in question might have formed the basis for any favorable defense argument. (Hatfield.) Accordingly, we conclude that the State’s failure to disclose a statement or summary of the State’s Attorney’s interview with Ronald Cluny constituted, at most, a statutory violation which was harmless in this case.

We have reviewed as well the remaining notes which defendant claims should have been disclosed to him under the court’s discovery order. All of them are, as the trial court correctly determined, simply the State’s Attorney’s work product. We find neither substantially verbatim statements in them nor any material which could be said to be “favorable” in the constitutional sense. The defendant has not demonstrated on appeal that the material contained in those notes might have formed the basis for a favorable defense argument. Accordingly, we find no error in the trial court’s ruling respecting those notes.

Finally, we find no merit in defendant’s arguments concerning alleged prosecutorial and judicial misconduct. Defendant contends that one of the assistant State’s Attorneys lied about taking notes during the interview with Ronald Cluny. Defendant’s charge is unsubstantiated by the record, and we hold that the trial court properly denied defendant's motion for mistrial based on this charge.

Defendant next charges misconduct in connection with the trial court’s in camera inspection of the 41 witness interview notes, conducted in chambers out of the defendant’s presence. Defendant cites absolutely no authority for his position that the court’s inspection of documents under Supreme Court Rule 412(a)(i) is “a critical stage of the trial” to which defendant has an “absolute right to be present.” Authority to the contrary is found in People v. Jenkins (1975), 30 Ill. App. 3d 1034, 333 N.E.2d 497, wherein the court considered this precise issue. The court there stated that “a requirement [that the Rule 412(a)(i) inspection take place in the presence of counsel] would completely defeat the purpose of in camera examinations.” (30 Ill. App. 3d 1034, 1042, 333 N.E.2d 497, 504.) Defendant’s argument that the State’s Attorney was impermissibly allowed to explain ex parte what the material handed over to the judge consisted of adds nothing to defendant’s charges of judicial and/or prosecutorial misconduct. It is clear to us that the court’s inspection of the documents properly took place to the exclusion of counsel for both sides. Any conversation between the judge and the State’s Attorney concerning the notes took place in anticipation of the court’s inspection, not during it. Having found no indication of either judicial or prosecutorial misconduct, we affirm the trial court’s denial of defendant’s motion for mistrial on this basis as well.

In summary we find no grounds either for reversing defendant’s conviction or for granting him a new trial.

Affirmed.

ALLOY and SCOTT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE TRAPP

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD GRIFFITHS, Defendant-Appellant.
    Fourth District
    No. 17449
    Opinion filed February 8, 1983.

      Jeffrey B. Levens, of Sturm and Levens, of Springfield, for appellant.
    Edmond H. Rees, State’s Attorney, of Carlinville (Robert J. Biderman and James K. Horstman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Defendant appeals his conviction by a jury of the crimes of murder, aggravated arson, and arson, and his sentence of 40 years’ imprisonment for murder and 30 years’ imprisonment for the crime of aggravated arson.

On appeal he argues that (1) he was not proved guilty beyond a reasonable doubt; (2) certain evidence was improperly admitted; (3) the trial court abused its discretion in denying his motion for continuance made on the day of trial; and (4) the trial court abused its discretion in sentencing him to 40 years for murder and 30 years for aggravated arson. We affirm.

On the night of October 5, 1979, a fire at the residence of Don and Esther Cameron in Virden, Illinois, resulted in the death of their 11-year-old son Mark. Mrs. Cameron testified that she awoke at approximately 10:40 p.m. and saw flames coming in through a window between the kitchen and back porch of her home. Mrs. Cameron called the fire department and managed to escape through a second story bedroom window. Another son, Todd, and his friend, Jamie, also escaped, but Mark perished. He was found several feet from the window through which Mrs. Cameron and Todd fled from the fire. The testimony of the State’s expert witnesses was uncontradicted that an accelerant was used to start the blaze and that the fire began on the back porch. Also uncontested was the fact that the victim had died in the fire.

The State produced a substantial amount of circumstantial and testimonial evidence that defendant was the perpetrator of the offenses. This evidence included numerous threats against the lives of the Camerons over a period of several months, including a threat made less than one hour before the fire; defendant’s admission of the crime to acquaintances; testimony that the defendant was only a few blocks from the Cameron residence shortly before the fire was reported; and further testimony that when defendant was arrested for speeding a short distance from Virden later that evening the arresting officer noticed the smell of kerosene. We conclude that the evidence overwhelmingly supports the verdict of the jury.

As noted in People v. Bernette (1964), 30 Ill. 2d 359, 367, 197 N.E.2d 436, 441, a conviction may be sustained upon circumstantial evidence as well as direct evidence, it being necessary only that the proof of circumstances must be of a conclusive nature and leading, on the whole, to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no one else committed the crime. The jury need not be satisfied beyond a reasonable doubt as to each link in the chain of circumstances relied upon to establish guilt, but it is sufficient if all the evidence, taken together, satisfied the jury beyond a reasonable doubt of the accused’s guilt.

Defendant argues that his conviction must be reversed because he finds several asserted hypotheses of innocence. This contention requires a conclusion that the evidence at trial is entirely circumstantial. In People v Watts (1976), 36 Ill. App. 3d 1011, 344 N.E.2d 606, this court, following established precedent, held that where a defendant’s conviction rests entirely on circumstantial evidence the proof must not only be consistent with defendant’s guilt, but must be inconsistent with any reasonable hypothesis of innocence.

In this record, defendant’s conviction is not based entirely on circumstantial evidence. While there is some circumstantial evidence, two witnesses testified to defendant’s admissions concerning the fire, and numerous witnesses testified concerning defendant’s whereabouts and acts immediately preceding and after the discovery of the fire. See People v. King (1978), 58 Ill. App. 3d 199, 373 N.E.2d 1045.

The argument either misapprehends or ignores the function of the relationship between circumstantial evidence and the reasonable hypothesis of innocence stated in the second paragraph of Illinois Pattern Jury Instruction, Criminal, No. 3.02 (1968). As to that part of the instruction, it is accepted case law that the language “circumstances proved exclude every reasonable theory of innocence” is to be given only when the proof of guilt is entirely circumstantial. (People v. French (1978), 59 Ill. App. 3d 353, 375 N.E.2d 502.) In People v. Wilson (1948), 400 Ill. 461, 480, 81 N.E.2d 211, 220, decided prior to the time of the Illinois Pattern Jury Instruction, the court stated:

“If the evidence is wholly circumstantial it possibly may prove his guilt beyond a reasonable doubt, but it must be closely scrutinized, and if, when fairly considered, it presents another hypothesis consistent with innocence, the latter must be adopted in preference to guilt.”

See also People v. Giangrande (1981), 101 Ill. App. 3d 397, 428 N.E.2d 503.

Thus, the test of a “reasonable hypothesis of innocence” is limited entirely to matters of circumstantial evidence and is not properly extended to testimonial evidence which is also in the record. Thus, when defendant conjectures from fragments of testimony that Mr. and Mrs. Cameron had financial motives to burn their own home, and that the ensuing death of their handicapped son relieved them of a financial burden, it is clear that such argument cannot be brought within the ambit of any circumstantial evidence of defendant’s guilt, and the argument will not be accepted as a reasonable hypothesis of innocence.

Defendant’s other arguments concern the admission of items of clothing seized from defendant upon his arrest in 1979, and the admission of statements of witnesses which defendant objects to as improper hearsay. We divide these arguments into those properly preserved and those waived on review.

Defendant’s contention that certain clothing seized at his initial arrest should have been suppressed because of alleged violations of section 108 — 2, 108 — 4, and 108 — 11 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, pars. 108 — 2, 108 — 4, 108— 11) has not been preserved for review.

A defendant who objects to the search and seizure of evidence has the burden of presenting both the legal and factual bases for the motion to suppress. (Ill. Rev. Stat. 1981, ch. 38, par. 114—12(b); People v. Berg (1977), 67 Ill. 2d 65, 364 N.E.2d 880; People v. Nilsson (1970), 44 Ill. 2d 244, 255 N.E.2d 432.) The fact that a warrantless search had occurred was neither established with proof, nor did defendant identify any legal ground upon which such evidence could be excluded. Clearly, defendant has not met his burden to demonstrate that the items should have been suppressed. Moreover, even if we overlook defendant’s waiver, the authorities are consistent in holding that a failure to inventory and/or make a return is a technical violation of defendant’s rights and harmless in nature, not requiring suppression of the evidence. People v. Smith (1972), 50 Ill. 2d 229, 278 N.E.2d 73; People v. York (1963), 29 Ill. 2d 68, 193 N.E.2d 773; People v. Pruitt (1974), 16 Ill. App. 3d 930, 307 N.E.2d 142.

Although plain errors affecting substantial rights may be reviewed under Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)), despite the absence of objection at the trial level, we find that doctrine inapplicable here. Before an error will be considered to rise to the level of plain error, the error must affect the substantial right of the defendant, or the evidence in the case must be closely balanced. People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856; People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739.

Of those evidentiary objections which were properly preserved for review, none require that defendant’s conviction be reversed. During the course of the trial the jury heard evidence from various witnesses that defendant had been married to the victim’s sister, Susan Cameron, in 1977 and that she had given birth to defendant’s child. In May of 1979, Susan left the defendant without telling him where she and the baby were going. During defendant’s testimony, he did not deny that threats were made against the Cameron family, and in fact sought to justify this because of the family’s refusal to tell defendant where his son was living. During the course of the prosecutor’s questioning, Mrs. Cameron was asked by the prosecutor why the family refused to tell the defendant the whereabouts of his son. When asked why she didn’t want to tell the defendant, Esther Cameron responded:

“A. [Esther Cameron]: Because we knew from past experience that he — that he — uh—wouldn’t be a fit father; that he several times he beat up on Susan and he was drunk quite a bit.”

Defendant’s contention on appeal that this constitutes inadmissible hearsay is untenable. We are unable to see how this constitutes an out-of-court statement offered to prove the truth of the matter asserted. See People v. Rogers (1980), 81 Ill. 2d 571, 411 N.E.2d 223.

Other statements of Esther Cameron were inadmissible hearsay and should have ben excluded. On redirect, the State’s Attorney again questioned Mrs. Cameron as to her reasons for refusing to tell defendant the whereabouts of his son:

“Q. [State’s Attorney]: What other reasons why you didn’t want him to know where they were at?
A. [Esther Cameron]: Uh — well, I — he just — I knew that he, you know, was on drugs.
MR. HEBRON [defense counsel]: Your Honor, I would object to that. How does she know that sort of thing?
MR. REESE [State’s Attorney]: Your Honor—
THE COURT: Well, the objection is overruled and you may proceed.
A. [Esther Cameron]: Well, I really can’t say that I — I just heard things that we had heard.”

Here the objection was validly overruled when made since no hearsay was disclosed at that time. The defendant should have moved to strike the testimony when it became apparent that it was based on hearsay. Nevertheless, in light of the overwhelming proof of defendant’s guilt, any error in its admission was harmless. People v. Murdock (1971), 48 Ill. 2d 362, 270 N.E.2d 21; People v. Requena (1982), 105 Ill. App. 3d 831, 435 N.E.2d 125.

Defendant also complains of testimony of Mrs. Cameron which related a telephone conversation from defendant’s mother. During the phone conversation, defendant’s mother allegedly told Mrs. Cameron that defendant had a gun and was coming over to the Cameron residence. Defendant objected to this testimony, but the trial court overruled the objection on the basis that defendant had opened the door to evidence of threats against the Cameron family.

The trial court improperly overruled this objection. Although the general rule is that a party who opens the door to testimony on a particular subject (i.e., threats against the Camerons) is precluded from objecting to evidence on the same subject, such a rule does not extend to foreclose a party from objecting to evidence on grounds not violated by the party’s first admission of this evidence. (E. Cleary and M. Graham, Handbook of Illinois Evidence sec. 103.4, at 9 (3d ed. 1979); People v. Penland (1978), 64 Ill. App. 3d 656, 381 N.E.2d 840.) Assuming, arguendo, that the statement was improperly admitted into evidence, we find the record is replete with testimony of frequent threats by defendant stated to various members of the Cameron family and to other witnesses referring to physical harm or death; the making of various statements is uncontradicted. (See People v. Spicer (1979), 79 Ill. 2d 173, 402 N.E.2d 169.) In the light of the extensive evidence, and the numerous threats, any error in this ruling was harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18, 24, 17 L. Ed. 2d 705, 711, 87 S. Ct. 824, 828.

Other evidence which defendant claims was improperly admitted is People’s Exhibit No. 26, a photograph of the back seat of defendant’s car taken on the night of the fire showing numerous articles of clothing piled in the car. Although defendant apparently concedes that evidence of flight is admissible as proof of guilt, he argues that the relevance of this exhibit was conditioned on the existence of the unproved assumption that he was fleeing the scene of the crime!

Evidence of flight has long been held admissible as a fact from which the jury may infer consciousness of guilt. (People v. Rossini (1962), 25 Ill. 2d 617, 185 N.E.2d 831; People v. Thomas (1979), 72 Ill. App. 3d 28, 389 N.E.2d 1316.) It is also correct that where an item’s relevance depends upon unproved assumptions which find no support in the record, the evidence may not properly be admitted. People v. Newbury (1972), 53 Ill. 2d 228, 290 N.E.2d 592.

We note initially that the issue of flight was not argued to the jury by the prosecution. Again, as an actual matter of record, there was sufficient evidence of flight to support the admission of the exhibit.

One Dwinnells, who saw the defendant shortly before the fire sirens went off, testified that defendant was in a hurry, and Debbie Talbert testified that five to 10 minutes before she heard the sirens defendant ran a stop sign, drove quickly down the street to his house and through her ex-husband’s front yard which was adjacent to defendant’s house. When defendant was stopped in Chatham for speeding the same night, Officer Malone testified that defendant was traveling 70 mph in a 45 mph speed zone, and that defendant had clothing and his dog in the back seat. We conclude that there was ample evidence in the record to support the admission of People’s Exhibit No. 26. People v. Jones (1982), 108 Ill. App. 3d 880, 439 N.E.2d 1011; People v. Mentola (1971), 47 Ill. 2d 579, 268 N.E. 2d 8.

We find without merit defendant’s argument that the trial court abused its discretion in denying his motion for continuance. A review of the time sequence of the proceedings prior to trial demonstrates no abuse.

The attorney who tried the case was the third appointed. His request made shortly after appointment for a continuance of 45 days for preparation was granted. A week before the trial date, defendant sought a further continuance. The prosecution objected as numerous witnesses had been called, including two from out of the State. A continuance of two days was granted. On the morning of trial defendant again moved for a continuance, stating that on the day before he had concluded that he needed time to find an expert witness in the field of arson. The trial court denied the motion but indicated that he would consider a continuance if defendant found an expert. It is to be noted first that the fact of arson was not a contested issue, and it is not suggested in the record how an expert witness may establish the identity of the arsonist, particularly where, as here, the house had been completely rebuilt and no physical investigation was possible.

The decision of whether to grant a continuance to permit further time to prepare a case necessarily depends upon the facts surrounding the request. Such a decision is left to the sound discretion of the trial court. (People v. Williams (1982), 92 Ill. 2d 109, 440 N.E.2d 843; People v. Canaday (1971), 49 Ill. 2d 416, 275 N.E.2d 356.) A motion for a continuance cannot be said to have been improperly denied unless it appears that the refusal of additional time has embarassed the accused in the preparation of his defense, causing prejudice. (Canaday.) As section 114 — 4(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114—4(e)) indicates, “motions for continuance are addressed to the discretion of the trial court and shall be considered in the light of the diligence shown on the part of the movant.”

Defendant’s reliance on People v. Dunham (1929), 334 Ill. 516, 166 N.E. 97, is clearly inapposite. In Dunham, only nine days elapsed between the date defendant was charged with forgery and the date he was forced to trial. Here, from the time of counsel’s appointment until trial there was eight weeks for preparation. Even if two weeks can be considered to have been devoted to preparing for the other case, there still would have been six weeks until trial and a further week before any evidence was presented on defendant’s behalf. Counsel’s statement that he talked with the investigator for the first time on July 26 and his later admission that he made only cursory efforts to seek an expert belies any claim of abuse of discretion by the trial court.

Finally, defendant marshalls numerous arguments in support of his claim that the trial court abused its discretion in sentencing him to 40 years for murder and 30 years for aggravated arson. Defendant makes the routine assertions that the trial court failed to consider as a factor in mitigation that he did not contemplate that his actions would cause serious harm; that the trial court failed to consider that he acted under a strong provocation; that the trial court penalized him for protesting his innocence at the sentencing hearing; and that the trial court improperly considered evidence of criminal activity which did not result in a conviction.

We disagree with defendant’s assessment of the record at the sentencing hearing. Statements of the trial court at sentencing indicate that it considered evidence in mitigation offered by the defendant, the presentence report, and the arguments of counsel within the context of those factors in aggravation and mitigation of sections 5— 5 — 3.1 and 5 — 5—3.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, pars. 1005 — 5—3.1, 1005 — 5—3.2). Defendant’s suggestion that the trial court failed to consider that he did not contemplate that his actions would cause or threaten physical harm has no appeal and finds no support in the record. Defendant’s arguments that his actions of setting fire to the Cameron residence which resulted in the death of Mark Cameron were the result of the Camerons’ refusal to tell him the whereabouts of his son and should have been considered as a factor in mitigation as “strong provocation” is not persuasive. Provocation is usually restricted to physical assault, mutual quarrel or combat, adultery, and other situations not comparable to that at bar. (See People v. Curwick (1975), 33 Ill. App. 3d 757, 338 N.E.2d 468.) The trial court is not required to recite for the record each factor of section 5 — 5—3.1 and the evidence in support of or against such finding. See People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.

The suggestion that the trial court erred in considering defendant’s threats as criminal activity not resulting in the conviction is foreclosed by the supreme court’s decision in La Pointe, holding that the trial court may properly consider evidence of criminal activity not resulting in a conviction if relevant and accurate and subject to cross-examination. These assurances of accuracy were present here. Again, the testimony concerning threats by defendant was relevant and material to establish his state of mind and purpose.

Lastly, the defendant’s suggestion that the trial court considered his claim of innocence to impose a more severe sentence is not supported by the record. It is, of course, improper to impose a more severe sentence merely because a defendant claims he is innocent at the time of sentencing. (People v. Porter (1980), 83 Ill. App. 3d 720, 404 N.E.2d 337.) We do not agree that the trial court did so. Rather, the trial court merely indicated that despite the defendant’s claim of innocence and the claims of innocence offered by other witnesses on his behalf, the jury’s verdict was determinative on the issue of guilt.

Our review of the record persuades us that the trial court considered all of the relevant evidence in the light of the statutory factors required. Defendant’s sentences of 40 years for murder and 30 years for aggravated arson cannot be said to be an abuse of discretion. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

Defendant argues numerous issues, most of which were not preserved in the record and may properly be deemed waived, and are not sufficient to constitute plain error. He also argues the credibility of individual witnesses, including a man and woman from Arizona who testified to defendant’s admissions concerning setting the fire. The jury was aware of defendant’s contentions that those witnesses may be biased or hostile, but their credibility was properly a matter to be measured by the jury. It is reasonable to conclude that by reason of the time and distance, neither witness could have been aware of the fire and the death in the absence of defendant’s statements to them.

The judgment is affirmed.

Affirmed.

MILLS and GREEN, JJ., concur.


author: JUSTICE MILLER

text:
    THE DEWITT COUNTY TAXPAYERS’ ASSOCIATION, Plaintiff-Appellant, v. THE COUNTY BOARD OF DEWITT COUNTY et al., Defendants-Appellees.
    Fourth District
    No. 4—82—0679
    Opinion filed February 3, 1983.

      Costigan & Wollrab, of Bloomington, for appellant.
    Stephen H. Peters, State’s Attorney, of Clinton (Keith E. Emmons, Assistant State’s Attorney, of counsel), for appellee County Board of De Witt County.
    Lamkin & Lamkin, P.C., of Clinton, for appellee De Witt County Public Building Commission.
   JUSTICE MILLER

delivered the opinion of the court:

Plaintiff De Witt County Taxpayers’ Association filed a complaint in the circuit court of De Witt County seeking both preliminary and permanent injunctive relief against defendants, the De Witt County Board and the De Witt County Public Building Commission, to restrain them from spending public monies or taking steps toward the erection of a county courthouse pursuant to the provisions of the Public Building Commission Act (Ill. Rev. Stat. 1981, ch. 85, pars. 1031 through 1054) and to declare that the formation of the Public Building Commission was unlawful. The trial court denied plaintiff’s request for preliminary injunctive relief and later granted defendants’ summary judgment motion dismissing plaintiff's complaint for declaratory judgment and permanent injunction. Plaintiff has brought this interlocutory appeal under Supreme Court Rule 307(a)(1) (87 Ill. 2d R. 307(a)(1)). The singularly dispositive issue on appeal is whether section 4 of the Public Building Commission Act, which provides that “[n]ot more than one Public Building Commission shall be organized by a single unit of local government,” prohibits the successive as opposed to concurrent formation of a Public Building Commission by the County Board of De Witt County. (111. Rev. Stat. 1981, ch. 85, par. 1034.) We hold that it does not and affirm.

Plaintiff’s complaint consisted of two counts, one directed against the De Witt County Board and the other against the De Witt County Public Building Commission. Plaintiff claimed in the complaint that it was a not-for-profit corporation whose members consisted of taxpayers of De Witt County.

Plaintiff alleged in count I that on March 26, 1982, the county board adopted a resolution creating the defendant Public Building Commission (PBC) and that at the time the resolution was passed there was in full force and effect section 4 of the Public Building Commission Act, which provides, in part:

“Not more than one Public Building Commission shall be organized by a single unit of local government.” (Ill. Rev. Stat. 1981, ch. 85, par. 1034.)

Plaintiff’s complaint further stated that prior to the adoption of the resolution, the defendant board had created a previous PBC which had been dissolved by resolution, and that the second PBC was unlawful. Plaintiff alleged irreparable injury, an inadequate remedy at law, and prayed for equitable relief. Count II contained essentially the same allegations. In addition to the request of injunctive relief prohibiting action by agents of either party on behalf of the PBC, count I of plaintiff’s complaint also requested an injunction to prohibit the De Witt County Board from transferring, inter alia, cash grants to the PBC.

As a preliminary matter in this cause, we must first consider the standing of the De Witt County Taxpayers’ Association to maintain this action on behalf of the taxpayers of the county.

At the time the instant suit was filed, section 11 — 301 of the Code of Civil Procedure specifically sanctioned suits to restrain expenditures of public monies. Section 11 — 301 provides:

“An action to restrain and enjoin the disbursement of public funds by any officer or officers of the State government may be maintained either by the Attorney General or by any citizen and taxpayer of the State.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 110, par. 11-301.

This statute, comports with the well-established rule at common law which also requires suits to restrain public monies to be brought by a citizen-taxpayer. Paepcke v. Public Building Com. (1970), 46 Ill. 2d 330, 263 N.E.2d 11.

Here, the issue thus arises whether plaintiff met the requirement of the statute and of common law that it be a taxpayer. Nowhere in the complaint is allegation made that plaintiff is in the class alleged to be injured by the activities of the defendants nor does plaintiff prosecute this action as a class action on behalf of De Witt County taxpayers. Plaintiff purports only to represent its members who are alleged to be taxpayers.

Despite the fact that plaintiff is not itself a taxpayer, we believe it is entitled to assert the rights of those who are. In Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 382, 415 N.E.2d 1034, 1038, the supreme court held that the presence of an organization intervenor in a suit was not improper despite the lack of direct interest of the intervener since the organization’s members were directly affected by the action. There, the court noted, “It has been held that an organization has standing to assert the concerns of its constituents. (NAACP v. Alabama (1958), 357 U.S. 449, 2 L. Ed. 2d 1488, 78 S. Ct. 1163.)” 82 Ill. 2d 373, 382. See also Sierra Club v. Morton (1972), 405 U.S. 727, 31 L. Ed. 2d 636, 92 S. Ct. 1361; Wisconsin’s Environmental Decade, Inc. v. Public Service Com. (1975), 69 Wis. 2d 1, 230 N.W.2d 243; Residents of Beverly Glen, Inc. v. City of Los Angeles (1973), 34 Cal. App. 3d 117, 109 Cal. Rptr. 724.

Having determined that plaintiff has standing to maintain this action, we next turn to the dispositive issue mentioned above, i.e., whether section 4 of the Public Building Commission Act prohibits the successive as opposed to the concurrent creation of a public building commission by a unit of local government.

The Public Building Commission Act provides a mechanism by which municipalities, county seats, and county boards may create public building commissions for the purpose of, inter alia, repairing, altering, improving or erecting buildings to provide “space for the conduct of the executive, legislative and judicial functions of government, its various branches, departments and agencies thereof and to provide buildings, improvements and other facilities for use by local government in the furnishing of essential governmental, health, safety and welfare services to its citizens.” Ill. Rev. Stat. 1981, ch. 85, par. 1044(c).

The gist of plaintiff’s position is as follows. Plaintiff argues that the statute is unambiguous and plainly prohibits the successive creation of more than one PBC and, if construed, should be strictly interpreted since it relates to taxation. (See Svithiod Singing Club v. McKibbin (1942), 381 Ill. 194, 44 N.E.2d 904.) Plaintiff also urges a strict construction in light of the fact that the Act limits the right of voters to approve the undertaking of public building projects. (See Ill. Rev. Stat. 1981, ch. 34, pars. 306, 409.5, 2171 through 2179.) Under the Public Building Commission Act a municipality may create a PBC which is authorized to issue bonds for public buildings without any necessity of voter approval. Once the building is completed, the PBC may lease the building to the municipality and the municipality is authorized to levy a tax to cover the rental payments. Finally, plaintiff looks to the changes in section 4 since the Act’s adoption in 1955 in support of its argument.

Defendants’ reply that a liberal construction is required by section 24 of the Act (Ill. Rev. Stat. 1981, ch. 85, par. 1054) and that plaintiff’s construction of the statute leads to results neither within the letter nor spirit of the legislative enactment.

The overall purpose of all rules of statutory interpretation is to determine the intention of the General Assembly and give effect to that intention. (General Motors Corp. v. Industrial Com. (1975), 62 Ill. 2d 106, 338 N.E.2d 561.) If the language is plain and certain there is neither necessity nor reason to resort to rules of construction, but if construction is required, the court should look to the object or purpose to be obtained, the evils to be remedies, and each word and clause should be considered in this process. (People v. Gibson (1981), 99 Ill. App. 3d 616, 425 N.E.2d 1197.) Defendants rely upon People ex rel. Cason v. Ring (1968), 41 Ill. 2d 305, 242 N.E.2d 267, which states the rule of construction which they urge us to apply. Quoting from People ex rel. Barrett v. Anderson (1947), 398 Ill. 480, 76 N.E.2d 773, the court in Cason noted:

“ ‘In construing a statute the court will not be confined to its literal meaning. A thing within the intention is regarded within the statute although not within the letter. A thing within the letter is not within the statute if it is not within the intention.’ ” 41 Ill. 2d 305, 314, 242 N.E.2d 267, 272.

Here, we cannot agree with the plaintiff’s suggestion that the statute is clear in prohibiting the successive organization of more than one PBC. The ambiguity of the statute is plainly apparent because the words “shall be organized” could apply to either the past or present organization of a PBC. We would agree with plaintiff’s position if the statute read “shall ever be organized” but absent that language, ambiguity remains. We further disagree with plaintiff’s argument that strict construction should apply. The statute at issue relates not to taxation, but to the formation of a Public Building Commission and the legislature has expressly provided that the statute be liberally construed. Ill. Rev. Stat. 1981, ch. 85, par. 1054.

When the Act was passed in 1955, section 4 stated that “[t]here shall not be more than one (1) Public Building Commission in any county.” (Ill. Rev. Stat. 1955, ch. 34, par. 259.) In 1965 the statute was amended to provide, in part that “[n]ot more than 1 Public Building Commission shall be organized *** in any municipality *** or in any county seat.” (Ill. Rev. Stat. 1965, ch. 34, par. 3304.) Although plaintiff argues this change of language indicates a different meaning was sought by the legislature, nothing indicates an intent by the legislature to prohibit the successive formation of a PBC. The statute was further amended to its present form in 1978 by the passage of House Bill 2161 (80th General Assembly, H.B. 2161), which provided that counties with certain populations were authorized to create more than one PBC despite the fact that another unit of local government may have already established a PBC. The language at issue here was then added in an amendatory veto by Governor Thompson. The governor’s message to the General Assembly clearly shows that the focus of the amendatory veto was to prohibit more than one PBC by a unit of local government at one time. In his letter to the General Assembly explaining the amendatory veto, Thompson stated: “I agree with the legislative intent but am concerned that the language of the bill may lead to the interpretation that a single municipality or county may have more than one Commission. In order to clarify this point, I recommend the following specific change: On page 3, add at line 30 and thereafter, the following: ‘Not more than one Public Building Commission shall be organized by a single unit of local government’.” (Emphasis added.) House Journal, 80th General Assembly, vol. IV, at 6420 (Oct. 24,1977).

The intent contained in the amendatory veto message indicates that successive creation was not the evil to be remedied by the legislation. As the quotation indicates, the concern was with the formation of more than one PBC by a municipality or county at any one time.

Plaintiff also suggests that section 4(a) was adopted by the legislature to remedy the problem faced here since this provision provides independent statutory authority for the creation of a “limited purpose” PBC. We disagree. With certain exceptions not pertinent here, section 4(a) provides that the provision of section 4 shall apply to the creation of a limited purpose PBC under section 4(a). Should we accept plaintiff’s position that successive PBC’s are not permissible under the provisions of section 4, neither would they be permissible then under section 4(a) and the legislature would not have resolved the problem by the passage of 4(a). We consider section 4(a), rather, to have been a response by the legislature to a 1980 Attorney General opinion disapproving of the formation of a PBC which was organized to provide for one specific building project. 1980 Ill. Att’y Gen. Op. 142.

In our view, section 4 could not have been drafted to prohibit the successive formation of a PBC, especially in light of the language of section 22.1 which provides for the termination of a PBC but which contains no caveat that a dissolution is permanent and irrevocable. (Ill. Rev. Stat. 1981, ch. 85, par. 1052.1.) The view advocated by the plaintiff would produce results we believe were unintended by the legislature. Under plaintiff’s view of section 4 and our view of section 4(a), if a county built a hospital through a PBC in 1980 and the building was destroyed by fire following the dissolution of the PBC in 1990, a PBC could not be organized under either sections 4 or 4(a) to provide for the construction of a new hospital. It is difficult to imagine an act of the legislature having such a narrow and limited purpose. In view of the legislative requirement of section 24 that the Act be liberally construed, we sustain defendant’s position.

The standards for ruling on a motion for summary judgment are well established. Only if it appears from the matters presented in support of and in opposition to the motion that there is no genuine issue of fact and that the movant is entitled to judgment as a matter of law should summary judgment be given. It is a drastic remedy which should be granted only when the right of the movant is clear and free from doubt. (Ill. Rev. Stat. 1981, ch. 110, par. 2—1007; Kubik v. CNA Financial Corp. (1981), 96 Ill. App. 3d 715, 422 N.E.2d 1.) Here, we believe the trial court correctly entered summary judgment for defendants.

Accordingly, for the foregoing reasons, the order of the trial court granting defendants’ motions for summary judgment is affirmed. In view of the disposition we make, we express no opinion on whether the trial court erred in denying plaintiff’s request for a preliminary injunction.

Affirmed.

GREEN and TRAPP, JJ., concur.


author: JUSTICE LINN

text:
    LORRAINE ALLEN et al., Plaintiffs-Appellants and Cross-Appellees, v. RUTH LOVE, General Superintendent of the Board of Education, City of Chicago, et al., Defendants.—(Joseph Mahran, Chief Financial Officer of the Board of Education, City of Chicago, Defendant-Appellee and Cross-Appellant.)
    First District (4th Division)
    Nos. 81—1280, 81—1778 cons.
    Opinion filed February 3, 1983.

      No brief filed for appellants.
    James S. Gordon, Edward Slovick, and Ira Bodenstein, all of Chicago, for appellee Joseph Mahran.
   JUSTICE LINN

delivered the opinion of the court:

The defendant, Joseph L. Mahran, appeals from a summary judgment declaring that he forfeited his position as Chief Financial Officer of the Chicago Board of Education by failing to timely file a statement of economic interests pursuant to the Illinois Governmental Ethics Act (Act) (Ill. Rev. Stat. 1981, ch. 127, par. 604A — 105(c)). He contends that the plaintiffs lack standing to maintain an action to enforce the provisions of the Act and that the court erred in interpreting the Act as mandating an automatic forfeiture of office upon failure to comply with its time provisions. Although the plaintiffs have not filed a brief in this court, we have determined that this will not affect our consideration of the issues involved. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

Section 4A — 105(c) of the Act requires a public officer such as the defendant to file a statement of economic interests at the time of his initial appointment or employment. A 30-day extension may be obtained upon filing a request not more than 10 days before or 10 days after the date when the statement is due. (Ill. Rev. Stat. 1981, ch. 127, par. 604A — 105(c).) Section 4A — 107 provides that “[failure to file a statement within the time prescribed shall result in ineligibility for, or forfeiture of, office or position of employment, as the case may be.” Ill. Rev. Stat. 1981, ch. 127, par. 604A — 107.

The facts, which are undisputed, show that the defendant was appointed on April 14, 1980. Although he did not file a statement of economic interests at that time, he did file such statement on February 2, 1981. The statement revealed no conflicts of interest. On February 17, 1981, 15 days after the defendant’s statement was filed, the plaintiffs filed a three-count complaint seeking his ouster from office for failure to timely file the statement upon his initial appointment. Count 1 sought a declaratory judgment that the defendant forfeited his office; count 2 sought a writ in quo warranto ousting him from office; and count 3 requested an injunction restraining him from acting in his official capacity.

The complaint recited that the plaintiffs “are taxpayers in the State of Illinois and residents of the City of Chicago and some of them have children now enrolled in and attending schools within the Chicago public school system.” On the defendant’s motion, the three plaintiffs who alleged only that they were taxpayers were dismissed for lack of standing. The court also dismissed plaintiffs’ request for injunctive relief. However, the court refused to dismiss the remaining two plaintiffs who alleged also that they were mothers of children enrolled in Chicago public schools.

On May 18, 1981, the trial court entered an order granting the plaintiffs’ motion for summary judgment on count 1, declaring that the defendant had forfeited his position as chief financial officer and was ineligible to continue serving in that position. The court denied the plaintiffs’ request for an order declaring the defendant’s official acts null and void, and judgment was stayed pending appellate review. The trial court declined to rule on the quo warranto count on the grounds that a ruling was unnecessary in view of the declaratory judgment.

The defendant contends on appeal (87 Ill. 2d R. 304(a)) that the court erred in considering the merits of this cause because the plaintiffs lacked the requisite standing to maintain either a declaratory judgment, action or an action in quo warranto.

The purpose of a declaratory judgment action is to obtain judicial resolution of an actual dispute before the parties irrevocably jeopardize their rights. (Gagne v. Village of LaGrange (1976), 36 Ill. App. 3d 864, 345 N.E.2d 108.) In order to have standing to bring an action for declaratory relief, a party must be “interested] in the controversy.” (Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371, 376, 362 N.E.2d 298, 301.) As used in this phrase, “interested” does not mean merely having curiosity about or concern for the outcome of the controversy. Rather, the party seeking relief must possess a personal claim, status or right which is capable of being affected, and the dispute must touch the legal relations of parties who stand in a position adverse to one another. Underground Contractors Association v. City of Chicago.

An action in quo warranto is a method by which the qualifications and eligibility of an individual to hold office may be challenged. (Department of Illinois Disabled American Veterans v. Bialczak (1976), 38 Ill. App. 3d 848, 349 N.E.2d 897.) It has been held that only the Attorney General or the State’s Attorney, as representatives of the people, have standing to apply for a writ of quo warranto in matters of purely public interest or concern and that their discretion in such matters is absolute. (People ex rel. Freeport Fire Protection District v. City of Freeport (1980), 90 Ill. App. 3d 112, 412 N.E.2d 718.) A private individual must meet two requirements before he can pursue this remedy in his own stead. First, he must demonstrate that the Attorney General and the State’s Attorney have been asked to proceed and have refused to pursue the matter. Second, he must show the invasion of a personal interest which is sufficiently distinct from the interest of the general public. (People ex rel. Turner v. Lewis (1982), 104 Ill. App. 3d 75, 432 N.E.2d 665.) The private interest allegedly invaded must be directly, substantially and adversely affected by the actions sought to be challenged in the quo warranto proceeding. Also, the damage to that interest must be then occurring or certain to occur. People ex rel. Turner v. Lewis.

The plaintiffs allege that they have standing in that they “are taxpayers in the state of Illinois and residents of the city of Chicago and some of them have children now enrolled in and attending schools within the Chicago public school system.” In dismissing the three plaintiffs, who alleged that they had an interest only as taxpayers, the trial court apparently acknowledged that taxpayer status alone was insufficient to confer standing in this matter. Indeed, the plaintiffs failed to allege that the defendant’s late filing would result in financial loss or other injury to themselves or to the taxpayers as a whole through increased taxation or some financial injury or other harm to the Chicago Board of Education. The question then becomes whether the additional status of the remaining two plaintiffs as mothers of children enrolled in Chicago public schools is sufficient to establish the possession of a personal claim or right which would be substantially affected absent relief by way of a declaratory judgment or a writ in quo warranto.

Although the plaintiffs allege that the defendant’s failure to timely file his statement of economic interests had a direct impact on the education of their minor children, they plead no facts which would establish that the defendant’s late filing could have any effect whatsoever on the quality or quantity of education received by their children. As stated in Stein v. Howlett (1972), 52 Ill. 2d 570, 289 N.E.2d 409, a major purpose of the Ethics Act is to instill in the public, trust and confidence in its government and officials by preventing conflicts of interest. The plaintiffs’ interest in assuring compliance with the Act does not amount to a personal claim or right, but is rather an interest held in common with members of the public as a whole. As such, it is insufficient to confer upon them the requisite standing to maintain this action. It is unquestioned that the Attorney General or the State’s Attorney, as representative of the public, would have standing to enforce the provisions of the Act against the defendant. The record shows that the plaintiffs requested both of these public officials to bring an action in quo warranto and that both refused to do so.

Because we conclude that the court erred in considering the merits of this cause, it is unnecessary to address the issue of whether its interpretation of the Act was correct.

Accordingly, the judgment of the circuit court of Cook County is reversed.

JOHNSON and JIGANTI, JJ., concur.

      The General Superintendent of the Chicago Board of Education, Ruth Love, was also named as a defendant, but was dismissed by the trial court and is not a party to this appeal.


author: PRESIDING JUSTICE DOWNING

text:
    PATRICK J. KENNY et al., Plaintiffs-Appellants and Cross-Appellees, v. INTERIM GENERAL SUPERINTENDENT OF SCHOOLS et al., Defendants-Appellees and Cross-Appellants.
    First District (2nd Division)
    No. 81—3181
    Opinion filed January 4, 1983.
    Rehearing denied February 22, 1983.

      Ronald S. Cope and John B. Murphy, both of Ancel, Clink, Diamond, Murphy & Cope, P.C., of Chicago, for appellants.
    Patricia J. 'Whitten and Robert J. Krajcir, both of Chicago, for appellees.
   PRESIDING JUSTICE DOWNING

delivered the opinion of the court:

We are asked to decide whether the Chicago Board of Education (Board) made illegal expenditures of public school funds and employed persons without proper certificates. A taxpayers’ suit was instituted by 14 employees of the Board who hold valid supervisory certificates issued by the Board. Eight of these individuals are residents and taxpayers of the city of Chicago. The union which represents plaintiffs, the Chicago Principals Association, is also a plaintiff in the action. Defendants are the Board, the interim superintendent of schools and the individual members of the Board.

The portion of plaintiffs’ complaint involved in this appeal contained four counts based on the Board’s alleged violations óf section 21 — 1 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 21 — 1), and section 4 — 20 of the rules of the Board. Section 21 — 1 of the School Code provides in part:

“No one may teach or supervise in the public schools nor receive for teaching or supervising any part of any public school fund, who does not hold a certificate of qualification granted by the Superintendent of Public Instruction or by the State Teacher Certification Board and a regional superintendent of schools as hereinafter provided, or by the board of education of a city having a population exceeding 500,000 inhabitants except as provided in Section 10 — 22.34 or Section 10 — 22.34b.”

Section 4 — 20 of the Board rules provides:

“Certificate Requisite to Appointment on Teaching Force. No person shall be appointed to any position on the teaching force without the appropriate certificate thereof, nor shall any person be advanced to a higher position for which an examination is provided than that specified in the certificate, without additional examination and proper certificate for such advanced position.”

Counts I through IV of plaintiffs’ complaint alleged the following violations of section 21 — 1 of the School Code and section 4 — 20 of the Board’s rules:

Count I — the Board employs persons who do not possess supervisory certificates in both supervisory positions and in administrative positions having supervisory duties.
Count II — the Board employs persons who lack supervisory certificates in the positions of “assistant principals” who actually supervise educational programs and other certified personnel.
Count III — the Board appoints a single principal to supervise more than one school or attendance center, which results in the fact that the actual supervising person is an assistant principal, teacher, or clerk, none of which holds a supervisory certificate.
County IV — the Board improperly dismissed 26 persons, including plaintiffs, from principal or associate principal positions and transferred them to teaching positions, while appointing persons without valid supervisory certificates to fill the vacancies.

Plaintiffs sought to enjoin defendants from these alleged illegal practices, an accounting of all moneys that have been illegally paid from the public school fund, a mandatory injunction requiring the Board to employ only properly certified persons in supervisory positions and other appropriate relief. In count IV, plaintiffs additionally requested an order requiring defendants to employ members of plaintiffs’ class in the positions described.

Defendants motioned to strike and dismiss plaintiffs’ complaint pursuant to sections 45 and 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, pars. 45, 48), now known as the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, pars. 2 — 615, 2 — 619). On January 16, 1981, the circuit court granted defendants’ motion as to counts I through IV, stating that these counts were substantially and substantively identical with the corresponding counts of an amended complaint which had been stricken on June 27, 1980. This appeal follows.

Defendants cross-appeal from the circuit court’s finding that the claim is not barred by res judicata. Defendants argue that a previous taxpayers’ suit bars the allegations contained in count II of plaintiffs’ complaint.

COUNT I

In order to withstand a motion to dismiss, a complaint must be both legally and factually sufficient. (People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 308, 430 N.E.2d 1005.) Plaintiffs claim that their complaint meets this two-step test, therefore the dismissal was improperly granted.

In count I of their complaint, plaintiffs alleged that persons in numerous specific positions, such as curriculum directors and district administrators, actually supervise educational programs and curricula and other certified personnel within the school system. Plaintiffs contend that the payment of such persons in these positions, who do not hold supervisory certificates, results in an illegal expenditure of public school funds. Plaintiffs claim on appeal that at the very least, they should be allowed to proceed to trial in order to prove the actual nature of the work performed in the positions involved.

Plaintiffs refer to the Illinois State Board of Education Document No. 1 which sets forth certificate requirements for all State school districts but Chicago. Document No. 1 requires supervisory certificates for holders of positions such as department heads, curriculum directors, coordinators and general supervisors. Plaintiffs claim that the largest and most complex school district in the State should not be allowed to disregard these guidelines as well as the statutory intent of section 21 — 1. Plaintiffs also rely on section 21 — 7.1 of the School Code as evidence of legislative intent that certain positions within the State are supervisory and thus a specific administrative certificate is required.

The circuit court, in its June 27, 1980, order, stated:

“Under Article 34 — 8.1 of the School Code, a principal’s function is to administer over and supervise an attendance center in which students are either present or else engaged in the educational process. No instance has been cited in which an attendance center is not under the supervision of a principal who holds a valid principal’s certificate issued by the Board of Examiners. There is no requirement that the Board of Education issue supervisory certificates to staff management employees who supervise clerical staff in the central office or in small district offices or attendance centers.”

Section 34 — 8.1 of the School Code, to which the court referred, provides:

“Principals shall be employed to supervise the educational operation of attendance centers as the board shall determine necessary. If a principal is absent due to extended illness or leave of absence, an assistant principal may be assigned as acting principal for a period not to exceed 60 school days. ***
Each principal shall hold a valid supervisory or administrative certificate issued by the board of education in accordance with standards established by the general superintendent with the approval of the board of education.” Ill. Rev. Stat. 1979, ch. 122, par. 34-8.1.

Under statutory authority of section 34 — 83 of the School Code, a board of examiners was established for the Board. (Ill. Rev. Stat. 1979, ch. 122, par. 34 — 83.) This board of examiners is empowered to examine applicants and issue certificates to qualified persons. The only two certificates which the board issues are the teacher's certificate and the principal’s certificate. Section 34 — 8.1 of the Code mandates that principals must hold a supervisory certificate. A principal’s certificate is the only supervisory certificate issued by the board. Plaintiffs claim that the Board should not be allowed to “make an unreviewable determination as to what positions in the school system require a supervisory certificate” which in effect reduces “Section 21 — 1 of the School Code to a dead letter.”

Plaintiffs have failed to allege any action taken by defendants which constitute a violation of the School Code. As the circuit court noted, plaintiffs did not cite any instance where an attendance center is not under the supervision of a principal holding a valid principal’s certificate. Plaintiffs have also not alleged that any positions are currently being held by persons who do not possess the type of certificate required of them by the Board. The Board is acting within its statutory authority by establishing its own certification process. (Ill. Rev. Stat. 1979, ch. 122, par. 21 — 1.) The Board was also acting within its rules. The circuit court’s decision to dismiss count I was therefore proper.

COUNT II

In the second count of their complaint, plaintiffs allege that because the position of assistant principal entails actual supervision of schools, and yet no supervisory certificates are required, defendants are violating section 21 — 1 of the School Code.

Board rule 6 — 12—1 enumerates the duties of an assistant principal which include: taking charge of schools when principals are absent for any reason; being subject to the supervision of the principals and performing duties asked of them by the principals; and providing assistance in the organization, supervision, administration and discipline of the schools. Section 34 — 8.1 of the Code provides that an assistant principal may be assigned as an acting principal of a school for a period not to exceed 60 days. III. Rev. Stat. 1979, ch. 122, par. 34 — 8.1

Defendants argued in their motion to dismiss that this count should be barred because of the res judicata effect of a circuit court case, Dolnick v. General Superintendent of Schools (No. 75 CH 194, filed January 10, 1975). That suit, in the nature of a taxpayer’s suit, was instituted by the head of the same principals’ union bringing the instant suit and by 12 other individuals as taxpayers against the superintendent of schools and the board of education. An injunction order was issued as a result of that suit enjoining defendants from employing any person in the position of acting principal, whether given that tile or not, who does not hold a properly issued supervisory certificate. (See Dolnick v. General Superintendent of Schools (1978), 67 Ill. App. 3d 8, 9-10, 384 N.E.2d 408.) Dolnick involved a subsequent contempt action alleging violation .of the injunction order. We may rely on its recitation of the trial court’s findings. (Gudgel v. St. Louis Fire & Marine Insurance Co. (1971), 1 Ill. App. 3d 765, 771, 274 N.E.2d 597.) Defendants did not appeal this injunction order.

The circuit court in the Dolnick case made the following finding as to the position of assistant principal:

“ ‘[T]he imposition of [certain educational standards and qualifications] as a condition for appointment plus the requirement that the Assistant Principal hold a teacher’s certificate, plus the requirement that the Assistant Principal not supervise for a period in excess of ten (10) school days, is enough to satisfy the requirement of Section 21 — 1 of the School Code as to Assistant Principals only, even though said Assistant Principals are not actually issued a supervisory certificate.’ ” (Emphasis added.) (67 Ill. App. 3d 8, 10.)

The circuit court accordingly refused to include the position of assistant principal in the injunction order.

Both sets of plaintiffs in the Dolnick case and present case brought the actions as taxpayers. It has been held that “a judgment for or against a governmental body in a suit instituted by a taxpayer as a representative of his class is binding and conclusive on all residents, citizens and taxpayers with respect to matters adjudicated which are of general and public interest.” (Barrett v. City of Chicago (1956), 11 Ill. App. 2d 146, 157, 136 N.E.2d 564.) When the issues involved in both a previous and present case are identical, the judgment in the earlier litigation is conclusive of the rights of different taxpayers in the present suit. (People ex rel. Furlong v. Board of Election Commissioners (1949), 404 Ill. 326, 329, 88 N.E.2d 864.) Plaintiff notes that no appeal was taken from that portion of the court’s order. A trial court’s judgment not appealed from becomes final and is. res judicata to an identical claim. Baird & Warner, Inc. v. Addison Industrial Park, Inc. (1979), 70 Ill. App. 3d 59, 66, 387 N.E.2d 831, appeal denied (1979), 79 Ill. 2d 609.

“Collateral estoppel pertains to the relitigation of facts, not to question of law.” (Village of Northbrook v. Cannon (1978), 61 Ill. App. 3d 315, 322, 377 N.E.2d 1208.) A comparison of the taxpayers’ complaint in the Dolnick case included in the instant record with plaintiffs' complaint in the present suit reveals that both allege the same conduct by the Board in regards to the position of assistant principal. Since the same conduct is alleged regarding the Board’s use and payment of assistant principals, we conclude that the circuit court erred in finding that res judicata did not apply as to that issue.

COUNT III

Count III of plaintiffs’ complaint contained allegations of violations of the School Code by means of the Board’s practice of appointing a single principal to supervise more than one school or attendance center. (The appellate court in the Dolnick case specifically left open the question of whether this practice violates the applicable sections of the School Code. (Dolnick v. General Superintendent of Schools (1979), 67 Ill. App. 3d 8, 15-16, 384 N.E.2d 408.)) Plaintiffs attach a copy of Board Report No. 68 — 872 to their complaint which sets forth the Board’s policy of combining schools with fewer than 15 full-time teachers. The circuit court in the instant case made a finding that the establishment of branch schools does not violate the Code.

Section 34 — 8.1 of the School Code provides that “principals shall be employed to supervise the educational operation of attendance centers as the Board shall determine necessary.” Plaintiffs contend that the underscored phrase modifies the term “attendance centers” and thus, the statute provides that whenever the Board determines an attendance center is necessary, it must appoint a principal to it. Defendants contend, and the circuit court agreed, that the plain meaning of the phrase is that principals will be employed as the Board determines is necessary to supervise the attendance centers. We also agree with this interpretation.

Plaintiffs do not allege that defendants have failed to assign a principal to every attendance center, but merely that more than one school is under the supervision of a single principal. Plaintiffs’ position is patently without merit. Defendants are working ■within the discretion allowed them under section 34 — 8.1 of the Code and therefore plaintiffs’ count III was also properly dismissed.

COUNT IV

Finally, in count IV of their complaint, plaintiffs allege that the Board has unlawfully demoted 26 persons, including themselves, from supervisory positions to lower-paying teaching positions. In their place, plaintiffs allege, the Board has appointed persons to supervisory and administrative positions who lack supervisory certificates. In their reply brief, plaintiffs acknowledge that they are not contending that they have a vested contractual or constitutional right to a given assignment; they do allege, however, that the Board has abused its discretion by these actions.

Plaintiffs allege that although the Board has been given statutory authority to make assignments of principals (Ill. Rev. Stat. 1979, ch. 122, pars. 34 — 8.1, 34 — 8.2, 34 — 18, 34 — 84), the acts of the Board are not immune from judicial review when the actions are palpably arbitrary, unreasonable or capricious. (Richards v. Board of Education (1960), 21 Ill. 2d 104, 110, 171 N.E.2d 37; Stasica v. Hannon (1979), 70 Ill. App. 3d 785, 788, 388 N.E.2d 1110.) Plaintiffs urge that their allegations can be characterized as such and thus judicial review of the Board’s appointments and demotions is warranted.

Because of our determination above, that the Board is properly acting within its statutory discretion and the legislative intent of allowing the Board to determine certification requirements, the appointment of persons lacking supervisory certificates in positions which have been determined by the Board to not require them is not “arbitrary, unreasonable or capricious.” Plaintiffs have therefore failed to allege conduct of the Board which would warrant judicial review. Count IV was also properly dismissed by the trial court.

For the above stated reasons, we affirm the circuit court’s dismissal of counts I through IV, and reverse the trial court’s finding that res judicata does not bar the allegations in count II.

Affirmed in part; reversed in part.

STAMOS and PERLIN, JJ., concur.

      Counts V and VI of plaintiffs’ second amended complaint were dismissed by stipulation of the parties.

      Defendants state in their brief that section 21 — 7.1 has been repealed in toto by Pub. Act 81 — 1509, article I, section 89, effective September 26, 1980 (1980 Ill. Laws 3209). The purported repeal of this section was declared null and void by Public Act 82 — 597 (1981 Ill. Laws 3097). Ill. Ann. Stat., ch. 122, par. 21 — 7.1 (Smith-Hurd 1981, Supp. 1982-83).

      Section 34 — 8.1 of the Code at that time differed from the present code in the maximum number of days during which an assistant principal may supervise in a principal’s absence. The maximum number is now 60 days. Ill. Rev. Stat. 1981, ch. 122, par. 34-8.1.

      We do not feel that the extension of the maximum amount of days that an assistant principal may supervise under section 34 — 8.1 from 10 days when Dolnick was decided to 60 days now affects this issue.


author: JUSTICE GOLDBERG

text:
    THE PEOPLE ex rel. PAMELA RELIFORD, Plaintiff-Appellee, v. HARRY ROBERTS, Defendant-Appellant.
    First District (1st Division)
    No. 82—0405
    Opinion filed January 31, 1983.
    Greenberg & Teykl, of Park Forest (Daniel M. Greenberg and James S. Teykl, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Richard C. Anderson, Assistant State’s Attorney, of counsel), for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Harry Roberts (defendant) was named in a paternity suit brought by the People of the State of Illinois ex rel. Pamela Reliford (complainant). After the case was dismissed with prejudice, without a trial, defendant moved for attorney fees and expenses to be assessed against the State of Illinois. (111. Rev. Stat. 1981, ch. 110, par. 2 — 611.) The trial court denied defendant’s motion. Defendant appeals.

Complainant gave birth to a child on December 21, 1978. She was a recipient of public aid. During a visit to the public aid office, complainant declared defendant to be the father. In addition, complainant testified and answered interrogatories to the effect that she had sexual intercourse with defendant exclusively throughout the period of possible conception.

Defendant vehemently denied ever having sexual intercourse with complainant. On August 7, 1981, defendant moved for and obtained a “level one” blood test. The results were inconclusive but showed a 70.93% chance that defendant was the father of the child. On September 14, 1981, the State moved for a level two blood test. Defendant opposed this motion. The parties then agreed upon a more sophisticated “level three blood test.” This test produced a 100% conclusive result of nonpaternity. On November 2, 1981, the suit was dismissed with prejudice. (111. Rev. Stat. 1981, ch. 40, par. 1404(a).) An assistant State’s Attorney approved this order.

The People first raise the contention that the Illinois Court of Claims is the proper and only forum for a claim against the State. The pertinent statute creating the Illinois Court of Claims gives that court “exclusive jurisdiction to hear and determine *** [a]ll claims against the state founded upon any law of the State of Illinois ***.” Ill. Rev. Stat. 1981, ch. 37, par. 439.8(a).

Section 4 of article XIII of the Illinois Constitution of 1970 abolished the ancient doctrine of sovereign immunity in the State of Illinois. This enactment states: “[ejxcept as the General Assembly may provide by law, sovereign immunity in this State is abolished.” (111. Const. 1970, art. XIII, sec. 4.) A complete history of the law with reference to the doctrine of sovereign immunity and its present status in the State of Illinois is set forth in S. J. Grovers & Sons Co. v. Department of Transportation (1982), 93 Ill. 2d 397.

However, under the Constitution of 1970 the General Assembly retained the power to abolish sovereign immunity to such extent and in such manner as it sees fit. As the court pointed out in S. J. Grovers, “it is the legislature’s task to codify public policy; ***.” (93 Ill. 2d 397, 405.) In the case before us the legislature has seen fit to codify its policy by providing in the very statute before us (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 611):

“The State of Illinois or any agency thereof shall be subject to the provisions of this Section in the same manner as any other party.”

This language is clear. It “should be given its plain and ordinary meaning.” (City of East Peoria v. Group Five Development Co. (1981), 87 Ill. 2d 42, 46, 429 N.E.2d 492.) Furthermore, the language quoted above from the Code of Civil Procedure is specific and therefore should supersede the general language expressed in section 8 of the Court of Claims Act (Ill. Rev. Stat. 1981, ch. 37, par. 439.8). Sierra Club v. Kenney (1981), 88 Ill. 2d 110, 126, 429 N.E.2d 1214.

Accordingly, we reject the State’s contention, and we will proceed to decide this case as regards the State of Illinois in the same manner as we would the liability of any other party.

Defendant bases his claim for fees and expenses on section 2 — 611 of the Code of Civil Procedure, which provides (111. Rev. Stat. 1981, ch. 110, par. 2 — 611, formerly Ill. Rev. Stat. 1979, ch. 110, par. 41):

“Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other * party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal.”

The statute “is penal in nature and therefore should be invoked only in cases which fall strictly within its terms.” (Demos v. Ericson (1982), 104 Ill. App. 3d 403, 404, 432 N.E.2d 1035.) “The awarding of expenses and attorney fees rests entirely within the discretion of the trial court.” (Liaskis v. Feiling (1981), 102 Ill. App. 3d 626, 628, 430 N.E.2d 196.) Therefore, the decision of the trial court to allow or deny a petition under section 2 — 611 will be reversed by this court only upon a showing that the trial court “abused its discretion.” (Pole Realty Co. v. Sorrells (1981), 84 Ill. 2d 178, 185, 417 N.E.2d 1297.) “The burden of proof is on the party seeking relief to show the allegations are untrue and made without reasonable cause.” Demos v. Ericson (1982), 104 Ill. App. 3d 403, 405.

As stated by this court in the recent opinion of Model Industries, Inc. v. Walsh Press & Die Co. (1982), 111 Ill. App. 3d 572, section 2— 611 of the Code of Civil Procedure was amended effective September 19, 1976, by deletion of the essential that the untrue material must have been made “not in good faith.” (Compare Ill. Rev. Stat. 1981, ch. 110, par. 2—611, and Ill. Rev. Stat. 1979, ch. 110, par. 41.) Consequently, as regards the issues before us, the requirements for recovery by defendant remain that the statements in question were made without reasonable cause and were untrue.

Of primary significance we find that while it is virtually certain the complaint was false, and that complainant made knowingly false declarations, there is absolutely no indication that any employee of Illinois made any false statements without reasonable cause, or had any reason to believe the statements made by complainant were false. Defendant’s motion for expenses and attorney fees levels an accusing finger at the complainant but does not allege the People knew the allegations were untrue or that the People made them without reasonable cause.

In State of Maine Department of Human Services ex rel. Smail v. Smail (1981), 100 Ill. App. 3d 997, 427 N.E.2d 636, the court affirmed the decision of the trial court assessing damages against the State of Maine, which had brought suit on behalf of a woman who alleged her ex-husband was in arrears in support payments. We find State of Maine distinguishable from the case at bar.

The reviewing court there found simply that assessment of damages in that case was not an abuse of discretion. (100 Ill. App. 3d 997, 1000.) The truth of the complainant’s allegation there was easily ascertainable. There was no attempt by the State to contact defendant, who may have been able to refute the allegation of arrearage simply by producing cancelled checks. In our opinion, the actions of the State of Maine in filing suit without conducting such a simple preliminary investigation may well have constituted a reckless disregard for the truth of its complaint.

In contrast, in the case at bar, there was no simple opportunity readily available for the State to determine the truth of a claim of paternity. The State certainly could not compel defendant to submit to a blood test without invoking the authority of a court, and the State could invoke this authority only by filing suit. Dismissal of the suit followed promptly after receipt of the definitive blood test.

However, able counsel for defendant argues at length that the State is the real and actual party in interest here. This argument is based primarily upon the fact that the complainant in this case received public welfare funds for the support of the child. Defendant urges that where a woman is an applicant or a recipient of public assistance, she may request the Department of Public Aid to file a complaint in her behalf. Also, the Department may file a complaint in behalf of the child and join the mother as a party defendant. (Ill. Rev. Stat. 1981, ch. 40, par. 1354.) Defendant also urges that the Illinois Public Aid Code provides for institution of court actions against the father of the child for the recovery of financial aid provided for the mother. (Ill. Rev. Stat. 1981, ch. 23, par. 12 — 16.) Defendant therefore contends the State is the real party in interest in these proceedings. Defendant cites State of Maine in this behalf. However, it has been held a paternity suit, like other types of special actions, is unique in that the State is merely a nominal party while the complainant is the real party in interest. In People ex rel. Cullison v. Dile (1931), 347 Ill. 23, 27-28, 179 N.E. 93, the court stated:

“A [paternity suit] can only be instituted by the mother, and she has a right to compromise and dismiss the same. [Citation.] In McCoy v. People [(1873), 71 Ill. 111], it was held to be the well-settled law as declared by this court that this is a civil proceeding and that the prosecutrix is the real party in interest, using the name of the People as plaintiff as a mere matter of form.”

See also People ex rel. Rozak v. Herman (1978), 65 Ill. App. 3d 55, 59, 382 N.E.2d 417.

Furthermore, even assuming the State is the actual party in interest here, that fact would not in itself create a liability upon the State to pay fees and costs. As shown by the authorities above cited and by the pertinent section of the Code itself, the issue here is whether the suit was filed by the State without reasonable cause. In our opinion, the entire record demonstrates graphically that the State of Illinois and the Department of Public Aid acted properly in bringing the suit and then in consenting to dismissal with prejudice when the blood test showed that defendant was not the father of the child.

We hold the defendant has not established that the State of Illinois acted without reasonable cause in filing its suit. Therefore, the trial court was well within the bounds of its discretion in denying defendant’s motion for fees and expenses.

For these reasons the judgment appealed from is affirmed.

BUCKLEY, P.J., and McGLOON, J., concur.