author: JUSTICE RIZZI

text:
      In re ALEX B. HAYMER—(Loyola University of Chicago, Appellee, v. Albert Haymer et al., Appellants).
    First District (3rd Division)
    No. 82—2626
    Opinion filed June 8, 1983.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey, Assistant State’s Attorney, of counsel), for the People.
    Morris A. Haft, of Chicago, for other appellants.
    William H. Oswald and Leon S. Conlon, both of Chicago, for appellee.
    Thomas S. Chuhak, of Chicago, guardian ad litem.

   JUSTICE RIZZI

delivered the opinion of the court:

On October 28, 1982, Loyola University of Chicago, which owns and operates Foster G. McGaw Hospital in Cook County, Illinois, sought a declaratory judgment that its patient, seven-month-old Alex B. Haymer, was legally dead, thereby permitting the hospital to remove Alex B. Haymer from a mechanical ventilation system. The child’s parents opposed the removal of the mechanical device, as did the child’s guardian ad litem. Following an expedited hearing, the trial court entered an order on November 4, 1982, which provided that the legal death of Alex B. Haymer occurred on October 23, 1982, the date when doctors determined that the child had suffered the total and irreversible cessation of all functions of the entire brain. The order also authorized Foster G. McGaw Hospital, Loyola University Medical Center, to discontinue the mechanical ventilation system connected to the body of Alex B. Haymer. The trial court stayed the force and effect of its order for seven days to give the parties an opportunity to have appellate review of the order before the mechanical ventilation system was removed. The State of Illinois was permitted to intervene on the ground that it had an interest in the investigation and prosecution of any deaths which may have been caused by any criminal action in Cook County. The State objected to the stay on the basis that the circumstances surrounding the alleged legal death of Alex B. Haymer were suspicious, and that the medical examiner of Cook County must perform an autopsy as soon as possible because, according to the affidavit of the medical examiner of Cook County, “where brain death has occurred and the subject is maintained on artificial breathing and circulatory apparatus, tissue deterioration and destabilization occurs which may render it impossible to determine the cause of death ***.” The guardian ad litem appealed the order of the trial court and moved for an emergency stay. We stayed the force and effect of the trial court’s order and set the case for oral argument on December 6, 1982. In the meantime, on November 28, 1982, Alex B. Haymer’s heart stopped functioning and the mechanical ventilation system was disconnected. Oral argument on the merits of the case was heard on February 16,1983.

On appeal the parties contest whether Alex B. Haymer was legally dead on October 23, 1982, when it was medically determined that he had sustained total brain death, or on November 28, 1982, when his heart stopped functioning. We affirm the trial court’s order that Alex B. Haymer was legally dead on October 23,1982.

This case presents the issue of determining when death legally occurs in Illinois. Plainly, with the scientific and medical advances of recent years, the general and traditional definition of death, cessation of heartbeat, is no longer meaningful or factually accurate. In our present-day society, many people continue to live after experiencing cardiac arrest, and cardiopulmonary by-pass machines permit a patient’s heartbeat to cease for several hours with full clinical recovery after resuscitation. (See F. Plum & J. Posner, The Diagnosis of Stupor and Coma 313, 331 (3d ed. 1980); Jacobson, Anderson & Speigel, Towards a Statutory Definition of Death in Illinois, 14 J. Mar. L. Rev. 701, 709 (1981).) There has also been at least one instance where a permanent artificial heart has sustained a human’s life for a relatively extended period of time. See Time, April 4,1983, at 62.

In addition, the general common law definition of death, cessation of respiration and circulation, is no longer acceptable by today’s standards. (See Jacobson, Anderson & Speigel, Towards a Statutory Definition of Death in Illinois, 14 J. Mar. L. Rev. 701, 701-13 (1981).) To illustrate, in Sweet, Brain Death, 299 New Eng. J. Med. 410-11 (1978), the author, a neurosurgeon, states: “Indeed, it is clear that a person is not dead unless his brain is dead. The time-honored criteria of stoppage of the heartbeat and circulation are indicative of death only when they persist long enough for the brain to die.” (See generally A. Guyton, Textbook of Medical Physiology 342 (6th ed. 1981).) Moreover, Illinois has enacted the Uniform Anatomical Gift Act which states: “ ‘Death’ means for the purposes of the Act, the irreversible cessation of total brain function, according to usual and customary standards of medical practice.” (Ill. Rev. Stat. 1981, ch. lKfi/a, par. 302(b).) This definition of death, which is limited to the particular statute, is significantly different from the general common law definition of death.

In order to bridge the gap between the past and present-day meanings of death, 29 States have enacted statutes which have a definition of death for general application in their respective States. These statutes fall into three categories: (1) total brain death; (2) total brain death or cardiopulmonary death; and (3) total brain death only if artificial means of support prevent determination of death by traditional means. *What all these statutes have in common is their recognition that total brain death is the death of the person.

Other States have judicially recognized that a person found to have total brain death is legally dead. Thus, at least 34 States have now either legislatively or judicially recognized this precept. Moreover, no case has been found in which total brain death has been rejected as being the death of the person where the issue has been specifically raised. On this point, in A. Moraczewski & J. Showalter, Determination of Death 30 (1982), the authors state: “That courts might not accept [total] brain death [as the death of the person] is of course theoretically possible. But the fact is that no court has ever rejected it, and given its overwhelming acceptance, none is likely to do so.” Also, it has been stated: “Legally, medically and morally, this country now generally accepts the concept of brain death (although state laws defining death are still not completely uniform). Life support systems are routinely turned off when brain activity has irreparably ceased, even though heartbeat and breathing can be sustained artificially.” Who Lives, Who Dies,? Making Life’s final decision, Chicago Tribune, May 24,1983, sec. 1, at 18, col. 1.

In the present case, the guardian ad litem contends that if total brain death is to be considered the death of the person in Illinois, the change in the law should be made by the legislature. This contention was addressed in In re Welfare of Bowman (1980), 94 Wash. 2d 407, 617 P.2d 731, one of the leading cases in which total brain death was judicially recognized as the death of the person. There, the court stated:

“As was the case in Colorado and Massachusetts [where brain death was judicially recognized], no statute in this state has been enacted to define what constitutes death as posed by the facts now before us. It is both appropriate and proper, therefore, that this court decide that question.” (94 Wash. 2d 407, 420, 617 P.2d 731, 738.)

Moreover, as the court stated in Lovato v. District Court (Colo. 1979), 601 P.2d 1072, in holding that a person is legally dead if he has sustained irreversible cessation of all functioning of the total brain:

“We recognize the authority of, and indeed encourage, the General Assembly to pronounce statutorily the standards by which death is to be determined in Colorado. We do not, however, believe that in the absence of legislative action we are precluded from facing and resolving the legal issue of whether irretrievable loss of brain function can be used as a means of detecting the condition of death. Under the circumstances of this case we are not only entitled to resolve the question, but have a duty to do so. To act otherwise would be to close our eyes to the scientific and medical advances made world wide in the past two or three decades.” 601 P.2d 1072,1081.

As in Bowman and Lovato, no statute in our State defines what constitutes death as posed by the facts now before us. Our supreme court has held that the proper relationship between the legislature and the judiciary is one of cooperation and assistance in examining and changing the common law to conform with the ever-changing demands of the community. (Alvis v. Ribar (1981), 85 Ill. 2d 1, 23, 421 N.E.2d 886, 896.) When there is a gap in the common law that manifestly should be bridged and the legislature has failed to take remedial action, it is the imperative duty of the judiciary to reform the law to be responsive to the demands of society. (Alvis v. Ribar (1981), 85 Ill. 2d 1, 23-24, 421 N.E.2d 886, 896.) For these reasons, we believe that it is both appropriate and proper that we decide the issue that is presented in this case. See In re Welfare of Bowman (1980), 94 Wash. 407, 420, 617 P.2d 731, 738; Lovato v. District Court (Colo. 1979), 601 P.2d 1072, 1081; State v. Fierro (1979), 124 Ariz. 182, 185, 603 P.2d 74, 77.

In resolving the issue, we recognize the nearly unanimous consensus of the medical community that when the whole brain no longer

functions, the person is dead. (See A. Moraczewski & J. Showalter, Determination of Death 23 (1982).) In addition, we take into account that the prevailing practice of the medical community nationwide is to regard total brain death as the death of the person. See In re Welfare of Bowman (1980), 94 Wash. 2d 407, 420, 617 P.2d 731, 733. We also recognize and take into account that the Illinois General Assembly has stated, for purposes of the Uniform Anatomical Gift Act, that death means the irreversible cessation of total brain function, according to usual and customary standards of medical practice. (Ill. Rev. Stat. 1981, ch. 1101/2, par. 302(b).) In this regard, we find it significant that the legislature’s definition of death under the Uniform Anatomical Gift Act conforms to the consensus of the medical community that total brain death is the death of the person, and that adoption of that definition of death in the present case will conform the legal definition of death in Illinois to current medical standards.

Accordingly, we conclude that a person who has sustained irreversible cessation of total brain function, according to usual and customary standards of medical practice, is legally dead. However, we recognize that in most instances when a person has sustained irreversible cessation of circulatory and respiratory functions according to usual and customary standards of medical practice, both the medical profession and our society accept that the person is dead without the need to assess brain functions directly. We see no need to change or interfere with this practice judicially. We therefore hold that a person is legally dead if he or she has sustained either (1) irreversible cessation of total brain function, according to usual and customary standards of medical practice, or (2) irreversible cessation of circulatory and respiratory functions according to usual and customary standards of medical practice.

In the present case, Alex B. Haymer was seven months old when he was at McGaw Hospital. He was attached to a mechanical ventilation system which ventilated his lungs, caused his heart to continue pumping and sustained some of his other purely biological functions.

Dr. Timothy B. Scarff, a neurosurgeon specializing in pediatric neurosurgery, testified during the trial court hearing that he had examined Alex B. Haymer in the pediatric intensive care unit at the hospital. His objective finding was that clinically, the child had suffered total, complete and irreversible brain death. Subjectively, he found that the child did not respond to any kind of stimuli and had no brain stem reflexes. Also, the child had no pupillary or other eye movement, and he was not breathing by himself.

Scarff also testified that he ordered an EEG, or brain wave test, and a radioactive isotope blood flow test. These tests showed that, in fact, there was no electrical activity in the brain and that there was no flow of blood to any part of the brain. After 24 hours, Scarff repeated the EEG examination and ordered an evoked response test of the brain stem. This second EEG test confirmed that there was no electrical activity in the brain. The evoked response test confirmed that there was no activity in the brain stem.

Scarff further testified that as of October 23, 1982, Alex B. Haymer had total and irreversible brain death and that this diagnosis was confirmed by two other consultants. The diagnosis of brain death applied to the entire brain. Also, Scarff testified that there are no recorded incidents of any person meeting these criteria ever regaining any function whatsoever. Scarff testified that his diagnosis and conclusions were made according to the usual and customary standards of medical practice. Scarff’s testimony was uncontradicted.

Under the circumstances, we believe the record clearly establishes that on October 23, 1982, Alex B. Haymer sustained an irreversible cessation of total brain function, according to usual and customary standards of medical practice, and was legally dead as of that date.

We next address the question of whether this case should be dismissed on the basis that it became moot when Alex B. Haymer’s heart stopped functioning on November 28, 1982. If the case were to be dismissed due to mootness, the date of death would remain in dispute. The trial court’s order provides that the date of legal death was October 23, 1982, but circulation and respiration did not cease until November 28, 1982, which is the same day that the heart stopped functioning. Thus, the date of death to be recorded on the death certificate, a public record, is uncertain. Moreover, since it is readily apparent that the general issue involved in the case is likely to recur, and the issue plainly involves matters of public concern, we are not required to dismiss the case even though the issue may be technically moot. See Johnny Bruce Co. v. City of Champaign (1974), 24 Ill. App. 3d 900, 905, 321 N.E.2d 469, 473; Lurie v. Village of Skokie (1978), 64 Ill. App. 3d 217, 226, 380 N.E.2d 1120, 1128.

In addition, the case should not be dismissed as moot because the very urgency which moved those in the medical profession, the county medical examiner and the State to press for prompt action here is likely to recur, making it probable that similar cases arising in the future will likewise appear to be or become technically moot by ordinary standards before they can be decided by a reviewing court. (See People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 623, 104 N.E.2d 769, 772.) Evidence gained from thousands of patients studied in many centers around the world indicates that a person attached to a mechanical ventilation system who has met the brain death criteria would not be expected to maintain a heartbeat for the period of time it would take for appellate review no matter how expeditiously the appellate process proceeds. (See F. Plum & J. Posner, The Diagnosis of Stupor and Coma 315 (3d ed. 1980); Roe v. Wade (1973), 410 U.S. 113, 125, 35 L. Ed. 2d 147, 161, 93 S. Ct. 705, 713.) Thus, the situation before us is clearly a situation which is “ ‘capable of repetition, yet evading review.’ ” (Roe v. Wade (1973), 410 U.S. 113, 125, 35 L. Ed. 2d 147, 161, 93 S. Ct. 705, 713.) We therefore decide that this case should not be dismissed because of mootness.

Accordingly, we conclude that on October 23, 1982, Alex B. Haymer sustained irreversible cessation of total brain function, according to usual and customary standards of medical practice, and that he was legally dead as of that date. The order of the circuit court is affirmed.

Affirmed.

McNAMARA, P.J., and WHITE, J., concur.

      See Black’s Law Dictionary 488 (4th ed. 1968). But see Black’s Law Dictionary 360 (5th ed. 1979).

      Arkansas, Montana, Nevada, North Carolina, Oklahoma, West Virginia and Wyoming.

      California, Colorado, Georgia, Idaho, Kansas, Maryland, Mississippi, New Mexico, Ohio, Oregon, Tennessee, Vermont, Virginia and Wisconsin.

      Alabama, Alaska, Florida, Hawaii, Iowa, Louisiana, Michigan and Texas.

      There is general agreement that total brain death has occurred when there is no discernible evidence of either cerebral hemispheral function or function of the vital centers of the brain stem for an extended period, and when it is unequivocally evident that the abnormality of brain function is the result of structural or known metabolic disease and not the result of either depressant drug (or alcohol) poisoning or hypothermia. (F. Plum & J. Posner, The Diagnosis of Stupor and Coma 315 (3d ed. 1980).) Total brain death has also been described as where “the entire brain *** is irreversibly destroyed as the body’s integrating center.” (A. Moraczewski & J. Showalter, Determination of Death 11 (1982).) In the Report of the Medical Consultants on the Diagnosis of Death to the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, 246 J.A.M.A. 2184, 2184 (1981), it is stated: “[Circulation and respiration can be maintained by means of a mechanical respirator and other medical interventions, despite a loss of all brain functions. In these circumstances, we recognize as dead an individual whose loss of brain functions is complete and irreversible.”

        State v. Fierro (1979), 124 Ariz. 182, 603 P.2d 74; Swafford v. State (Ind. 1981), 421 N.E.2d 596; Commonwealth v. Golston (1977), 373 Mass. 249, 366 N.E.2d 744; State v. Meints (1982), 212 Neb. 410, 322 N.W.2d 809; New York City Health & Hospitals Corp. v. Sulsona (1975), 81 Misc. 2d 1002, 367 N.Y.S.2d 686. In Colorado, the total brain death concept of death was adopted legislatively (Colo. Rev. Stat. sec. 12 — 36—136 (Cum. Supp. 1982)), after it was recognized judicially (Lovato v. District Court (Colo. 1979), 601 P.2d 1072). See also Determination of Death 26-27.

      See notes 2, 3, 4, & 6. Connecticut and Illinois are not included here because their recognition of total brain death as the death of the person is presently limited to the purposes stated under our respective anatomical gift acts. Ill. Rev. Stat. 1981, ch. 110½, par. 302(b); Conn. Gen. Stat. 19a — 270 (Supp. 1983).

      Total brain death is distinguishable from irreversible coma (persistent vegetative state). Irreversible coma is not recognized by the medical community as synonymous with death because the brain is functioning. The term “brain death” is used to identify the total absence of brain functioning. (See An Appraisal of the Criteria of Cerebral Death — A Summary Statement, 237 J.A.M.A. 982 (1977); Lovato v. District Court (Colo. 1979), 601 P.2d 1072, 1076 n.6.) Where there is total brain death, the brain has no potential for recovery. (F. Plum & J. Posner, The Diagnosis of Stupor and Coma 313 (3d ed. 1980).) Here, we note the basic distinction between the cerebral cortex and the brain stem. The cerebral cortex is the site of the highest centers of human intelligence, those concerned with the higher perceptions, and with the processes of thinking, emoting and consciousness. It may well be that lack of oxygen flow to the brain for a short period will result in total and irreversible cessation of the cortical brain functions. However, loss of oxygenated blood flow for such a period may not have a terminal effect upon the brain stem or lower brain. It is this portion of the brain which controls respiration, heart rate, blood pressure and other purely biological functions. Thus, a patient may well be rendered unconscious and incapable of recovering consciousness and any capacity for thought, emotion, and intellectual perception, but may have the ability to breathe spontaneously and maintain pulse and circulation. In such a situation, the person has not sustained total brain death (D. Meyers, Medico-Legal Implications of Death and Dying 12, 25-27 (1981)), and thus would not have “irreversible cessation of total brain function according to usual and customary standards of medical practice” (Ill. Rev. Stat. 1981, ch. 1101/2, par. 302(b)). See 237 J.A.M.A. 982; D. Meyers, Medico-Legal Implications of Death and Dying 27, 57-58 (1981).

      Several committees and reviewers have sought to establish appropriate criteria for determining brain death. The most widely known committee is the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death. Its criteria, as well as slightly different criteria emanating from other groups, are outlined and discussed in F. Plum & J. Posner, The Diagnosis of Stupor and Coma 314-19 (3d ed. 1980). In general, the characteristics of brain death as stated by the Ad Hoc Committee include: (1) unreceptivity and unresponsivity to intensely painful stimuli; (2) no spontaneous movement or breathing for at least one hour; (3) no blinking, no swallowing, and fixed and dilated pupils; (4) flat EEC's taken twice with at least a 24-hour intervening period; and (5) absence of drug intoxication or hypothermia. (See Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death: A Definition of Irreversible Coma, 205 J.A.M.A. 337 (1968); F. Plum & J. Posner, The Diagnosis of Stupor and Coma, 314-19 (3d ed. 1980); Lovato v. District Court (Colo. 1979), 601 P.2d 1072, 1076-77.) A number of States have adopted this so-called “Harvard” definition of brain death, either by statute or by court decision. (See Black’s Law Dictionary 170 (5th ed. 1979).) However, the tests used for determining cessation of brain function have changed and will continue to do so with the advent of new research and technologies. The “Harvard criteria” are widely accepted, but advances in recent years have led to the proposal of other criteria. Report to the President’s Commission, 246 J.A.M.A. 2184 (1981). See generally D. Meyers, Medico-Legal Implications of Death and Dying 28-42, 57 (1981).

      See Report to the President’s Commission, 246 J.A.M.A. 2184 (1981): “When respiration and circulation have irreversibly ceased, there is no need to assess brain functions directly. When cardiopulmonary functions are artificially maintained, neurological criteria must be used to assess whether brain functions have ceased irreversibly.” See also D. Meyers, Medico-Legal Implications of Death and Dying 36 (1981); Jacobson, Anderson, Speigel, Towards a Statutory Definition of Death in Illinois, 14 J. Mar. L. Rev. 701, 713 (1981).

      “This conclusion is compatible with the provisions of the 1980 Uniform Determination of Death Act, 12 Uniform Laws Annotated 237 (Cum. Supp. 1983). The Act states: “An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards.” (See In re Welfare of Bowman (1980), 617 P.2d 731, 738; D. Meyers, Medico-Legal Implications of Death and Dying 45 (1981).) The Uniform Determination of Death Act is a model statute which was approved by the National Conference of Commissioners on Uniform State Laws and has been endorsed by the American Bar Association, the American Medical Association, the American Academy of Neurology, the American Electroencephalographic Society and the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. A. Moraczewski & J. Showalter, Determination of Death 27-28 (1982).


source: Caselaw Access Project

author: PRESIDING JUSTICE WEBBER

license: Public Domain

text:
    DALE E. VAN WINKLE, Petitioner-Appellee, v. THE DEPARTMENT OF LAW ENFORCEMENT et al., Respondents-Appellants.
    Fourth District
    No. 4—82—0811
    Opinion filed June 13, 1983.
    Rehearing denied July 8, 1983.
    Neil F. Hartigan, Attorney General, of Springfield (Frederic D. Tannenbaum, Assistant Attorney General, of counsel), for appellants.
    Edward G. Coleman, of Springfield, for appellee.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

Petitioner Van Winkle, a State trooper, was given a disciplinary suspension of 12 days by the Superintendent of the State Police for violation of certain rules and regulations of that organization regarding secondary employment. He petitioned the Department of Law Enforcement Merit Board (Merit Board) for review of that decision. A hearing officer for that board conducted an evidentiary proceeding, following which he was issued findings of fact and conclusions of law which essentially affirmed the superintendent’s action. The Merit Board adopted the hearing officer’s report. Van Winkle then obtained from the circuit court of Sangamon County a common law writ of certiorari to review the Merit Board’s decision. That court, by docket entry, found the decision to be arbitrary and capricious and reversed. The Department of Law Enforcement appeals.

It appears that for several years prior to the case at bar, at least as far back as 1971, the Department of Law Enforcement, Division of State Police (Department), had regulations governing secondary employment of State police officers. Such employment was not prohibited, but prior approval of the appropriate officials of the Department was required. These regulations, as issued and superseded from time to time, contained restrictions. The latest ones, dated October 1, 1978, and designated in the record as “PER 4,” are at issue here. PER 4, like its predecessors, required prior approval of secondary employment and contained the following as paragraph 4-5:

“NON-ACCEPTABLE SECONDARY EMPLOYMENT Officers will not engage in secondary employment which is in violation of Department rules, or which:
(a) If performed would create an appearance of impropriety or reflect unfavorably upon the officer or the Department.
(b) Would involve the employee in a conflict of interest.
(c) Would require collecting obligatory, delinquent or arrearage accounts of any kind.
(d) Would involve employment in a tavern or other establishment where the primary business is the sale of liquor.
(e) Because of exhaustive physical or mental activity, would impair employee efficiency or capability to carry out official assignment of duties.
(f) Would involve any activity in connection with bail bond agencies.
(g) Would involve operation of any motor carrier which would make the employee unavailable during emergency situations.”

The stipulated facts and the evidence before the hearing officer reveal that Van Winkle in 1972 received approval for “Ownership of Standard Bred Horses for Racing purposes at non-wagering County and State Fairs.” The approval was renewed in 1973. In 1974 it was rescinded for reasons not pertinent here. In 1975 approval was given for “Owner-trainer-driver of standard bred race horses.” This included “fairs as well as parimutuel tracks.” From 1975 to 1978 apparently no renewal was required; only that the superiors be notified of the secondary employment.

On March 15, 1979, Van Winkle, pursuant to the provisions of PER 4, paragraph 4-3, requested permission “to engage in standard bred harness racing beginning 4-15-79 at Quad City Downs in East Moline 111. I would be self-employed serving in the capacity as an owner, trainer and driver.” The Superintendent of the Department replied as follows:

“This is to advise that Trooper Dale E. VanWinkle’s request for secondary employment authorization to engage in standard breed harness racing as the owner, trainer, and driver is denied. My denial of Trooper VanWinkle’s request is based on the fact that his employment as a member of the Department of Law Enforcement places him in a potential conflict of interest. The Illinois Revised Statutes, Chapter 127, Section 55 a 14, requires the Department of Law Enforcement to provide investigative services under the Horse Racing Act. Section 37 — 34 requires the Department of Law Enforcement to enforce the racing statutes. Therefore, Trooper VanWinkle, as a sworn member of the Department of Law Enforcement, is required to enforce the laws which affect him as a trainer or driver and would place him in a position to use his influence as a State Police Officer in an undue fashion. I believe this potential sufficiently warrants my denial of Trooper VanWinkle’s active participation as a trainer and/or driver at parimutuel tracks or the State Fair. Although Trooper VanWinkle is prohibited from actively engaging in the training or driving of horses at the aforementioned tracks, it does not affect his ownership of horses.”

Three aspects of this document are to be carefully noted: (1) in the first sentence approval is denied to engage in harness racing “as the owner, trainer and driver”; (2) in the last sentence the trooper is prohibited from “training and driving” horses but the directive “does not affect his ownership of horses”; and (3) the emphasis is placed upon “potential conflict of interest.”

Van Winkle, apparently for reasons afterwards urged on appeal to the Merit Board, became persuaded that the superintendent’s disapproval was a nullity, but no means appeared feasible for testing the validity of the denial. He therefore, on his own motion, elected to disobey the directive by driving his horse at Quad City Downs on April 12, 18, 25, May 2, 9, 16, 25, and June 2, 1979. The upshot of this was that Van Winkle was called before the Professional Standard Review Board to determine whether discipline was warranted. It is represented by counsel in the record that this board is an internal, nonstatutory body within the State police organization. It is apparently used by the superintendent in an advisory capacity on matters of discipline. Troopers are not furnished with a copy of any charges, not allowed counsel, and no record of the proceedings is made.

According to Van Winkle’s testimony before the hearing officer of the Merit Board, his interview with the Professional Standard Review Board was largely concerned with whether he had disobeyed an order of his superior. There was apparently no concern with improper or illegal conduct by him in connection with horse racing. He maintained at that interview that no conflict of interest existed.

Nonetheless, the superintendent on August 3, 1979, issued a document entitled “Official Disciplinary Action” and addressed to Van Winkle. It ordered a 12-day suspension and assigned as reasons therefor the violation of certain rules and regulations. The pertinent part of the document states:

“1. PER, 4, Paragraph 3, in that you actively engaged in your secondary employment after your application for permission to engage in such employment was denied by the Superintendent of the Division of State Police.
2. ROC-1, Paragraph 1-3, in that on April 12, April 18, April 25, May 3, May 9, May 16, May 25, and June 2, you drove a race horse in races at Quad City Downs Race Track in direct violation of PER 4, Paragraph 3, which requires officers to not engage in secondary employment until receiving written approval from their Deputy Director/Superintendent, which request of yours had been denied by the Superintendent of State Police on or about April 11,1979.
3. DSP, ORG 14, Paragraph 14-3 (B), in that you failed to comply with the above stated rules and regulations of the Department of Law Enforcement as established by the Director, in violation of this order of the Superintendent of the Division of State Police.”

We are advised that “PER” indicates “Personnel Rule”; that “ROC” indicates “Rules of Conduct”; and that “ORG” indicates “Organizational Rule.” The various ones referred to in the superintendent’s disciplinary order are incorporated in the record. PER 4 has been discussed above; ROC-1, paragraph 1-3, deals with compliance with authority and provides that officers will do nothing which would constitute a violation of any departmental rule, regulation, directive, order, or policy. ORG 14, paragraph 14-3(b), deals with responsibilities of officers and provides that they will comply with rules and regulations established by the Director of the Department of Law Enforcement and the superintendent.

On September 5, 1979, Van Winkle petitioned the Merit Board for review. He alleged that PER 4, paragraph 4-3, was unconstitutional because it failed to set forth any standards by which an applicant might determine whether his request for permission to engage in secondary employment would be approved or disapproved; that ROC-1, paragraph 1-3 was unlawful; and that there was no evidence that he was guilty of disobeying any lawful rule or regulation. At the hearing before the hearing officer of the Merit Board, all of the operative facts, as set forth above, were agreed to by stipulation. In addition, Van Winkle testified that he had no duty to enforce the Illinois Horse Racing Act; that therefore no conflict existed; that there was no substantive difference in race track activities as among owners, drivers, and trainers. He also testified that there is no method of appealing the superintendent’s denial of a request for permission to engage in secondary employment.

He also presented another trooper as his witness who testified that he had no duties in the enforcement of the Illinois Horse Racing Act, and that the Division of Criminal Investigation, another of the five divisions of the Department of Law Enforcement, is responsible for that statute. On cross-examination he stated that the personnel of the Division of State Police and the Division of Criminal Investigation do not “intermix.” He stated that State troopers can be assigned to traffic detail at race tracks and that officers can be transferred from one division to another within the Department of Law Enforcement.

The hearing officer’s findings of fact and conclusions of law affirmed the superintendent’s denial. He found that nothing in the record supported the proposition that the superintendent’s action was arbitrary or capricious and that the denial was based upon a potential conflict of interest. He did not discuss Van Winkle’s situation with reference to nonacceptable secondary employment, set forth in PER 4, paragraph 4-5 and recited verbatim above. The Merit Board adopted his findings and conclusions.

The trial court’s order consists only of a brief docket entry finding that the action of the superintendent was arbitrary and capricious and reversing. However, the court’s thinking is delineated in a letter to counsel which is in the record. In it the court states that the denial was ostensibly made under subparagraph (b) of PER 4 concerning conflict of interest. The court opined that subparagraph (a) concerning the appearance of impropriety might have formed a more secure basis. The court also touched upon what we consider the real basis for the disposition of this case: the irrationality of the superintendent's denial. In the first sentence he forbids engaging in secondary employment as an owner of race horses, but in the last sentence he permits it. Given this kind of an order, we fail to see how any of the subparagraphs of PER 4 relating to nonacceptable secondary employment can have application.

The parties have briefed and argued a variety of matters which we find unhelpful and irrelevant to the central fact of the inconsistency and irrationality of the superintendent’s order. Curiously, this matter was not considered by the Merit Board and only peripherally by the trial court. Questions as to what may or may not be a potential conflict of interest; what duties the Division of State Police, Department of Law Enforcement, may or may not have concerning horse racing; what other grounds there may be for upholding the superintendent’s and the Merit Board’s action; what is an actual versus a potential conflict of interest; all these become insignificant. What remains is an order which is arbitrary and capricious on its face because of its inconsistencies and no means provided for the trooper to contest it except by deliberate violation.

We have no reservations about the superintendent’s concern with horse racing. The evils attendant upon that sport are well known and have been commented upon unfavorably by the courts. (See People ex rel. Scott v. Illinois Racing Board (1973), 54 Ill. 2d 569, 301 N.E.2d 285; Kurtzworth v. Illinois Racing Board (1981), 92 Ill. App. 3d 564, 415 N.E.2d 1290.) However, serious matters deserve serious consideration, and the denial order does not reflect this. It is an order which was impossible to obey.

We note that section 15(a) of the Illinois Horse Racing Act of 1975 (Ill. Rev. Stat. 1981, ch. 8, par. 37 — 15(a)) makes no distinction among owners, trainers, harness drivers, and others. All shall be licensed by Illinois Racing Board in its discretion. If the superintendent felt that horse racing would create either an appearance of impropriety or a conflict of interest, logic demands that all connection with it, whether as owner, trainer, driver, or other capacity set forth in section 15(a) be prohibited. Thus the semantic debate of the parties in their briefs over the grammatical distinction between “would” and “could” becomes meaningless. Compare People v. Malloy (1980), 83 Ill. App. 3d 344, 403 N.E.2d 1221.

The order of the circuit court of Sangamon County is affirmed.

Affirmed.

MILLS and GREEN, JJ., concur.


author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN SANDERS, Defendant-Appellant.
    Fourth District
    Nos. 4—82—0645 through 4—82—0647 cons.
    Opinion filed June 2, 1983.
    Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Nancy Owen, State’s Attorney, of Charleston (Robert J. Biderman, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Defendant’s sole issue on appeal is whether time spent in jail under a commitment for civil contempt should be credited against his sentences for residential burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 3) and forgery (Ill. Rev. Stat. 1981, ch. 38, pars. 17 — 3(a)(1), (2)).

On October 5, 1982, defendant pleaded guilty to residential burglary and two counts of forgery. Pursuant to a plea agreement in the consolidated cases, he received concurrent seven-year terms for each offense and his probation in another case was terminated. After accepting the pleas of guilty, the trial court awarded defendant credit for 66 days’ incarceration. The motion to withdraw the pleas was made on the ground that defendant is entitled to additional sentence credit. The court denied the motion. We affirm.

Defendant was arrested on April 2, 1982. He did not post bond and remained in custody following the arrest. On May 25, 1982, he was ordered by Judge Watson to submit handwriting exemplars to officials of the Mattoon Police Department. He refused to do so and, on that same date, was held in contempt of court for the refusal. The court admonished defendant that a civil contempt sanction was being imposed, separate and distinct from the charged offenses, and that time spent in custody under the civil contempt sanction would not be counted against any prison term which might be imposed on the pending charges. A written contempt order was entered on June 7,1982.

As of the entry of his pleas on October 5, 1982, defendant had neither complied or attempted to comply with the court’s order to provide handwriting exemplars. The court admonished defendant pursuant to Rule 402 (87 Ill. 2d R. 402) before accepting the guilty pleas and entering judgment.

The matter of time to be credited to defendant’s sentences was then considered. The parties agreed that June 7, rather than May 25, should be considered as the date of the contempt order. Defendant objected that, in addition to 66 days’ credit for time served from April 2, 1982, until the court’s contempt order on June 7, 1982, he is entitled to credit for the 121 days from June 7, until the date of judgment, October 5,1982.

Judge Watson gave the following explanation for his decision:

“I again reiterate that the Defendant was admonished that this would be a delay occasioned by the Defendant if he fails to give the exemplars. We don’t know what would have happened had the Defendant complied with the order. This would, of course, possibly increase the ability of the bargaining power and the ability to convict on the part of the State’s Attorney who has the burden of proof in this case.
I remind you that contempt is an inherent power of the Court. It operates independently of any statute, constitution, whatever. And the Defendant I agree was spending time, and I think he was fully admonished to that, in jail from the date of refusal to give these exemplars, from the date of the order he was in there for contempt and contempt only. He could not have been released if he had made bond. And how could we ever say that good time would be where the Defendant is violating a Court order?
The Defendant had the power at any time, any time he wanted, to say T will give them, I will comply with the order.’ And he did not do so. And if we did give this and we did say it was good time for violating a Court order, there would be absolutely no way that a Court could ever enforce an order while a person is incarcerated. That is the only way we can do it.
Now, I could have put on a fine of $100 for each day that he fails to comply. And yet, there would be no showing he’d be able to pay for it, being incarcerated. I took the tack at the time by putting him in jail that this would not be good time and he was so informed. He’s fully aware, I think, of the consequences of his action. So, I will give him sixty-six days good time.”

Defendant’s attorney then moved for a leave of court to withdraw the pleas of guilty filed on these charges. The sole issue raised in support of the withdrawal was the amount of credit defendant would receive for time served in-the county jail.

Defendant argues that under section 5-8-7 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—7) he is entitled to the credit for the entire amount of time served in the county jail before he pleaded guilty on these charges. He contends that while serving time on the contempt sentence, he was simultaneously in custody on the pending forgery and the residential burglary charges. The effect of simultaneous contempt commitment has not previously been addressed in Illinois decisions, but the Federal courts of appeal have adopted a rule permitting a finding of civil contempt to interrupt a criminal sentence. The State suggests that the rationale for that rule is applicable here.

In Anglin v. Johnston (7th Cir. 1974), 504 F.2 1165, cert. denied (1975), 420 U.S. 962, 43 L. Ed. 2d 440, 95 S. Ct. 1353, a Federal inmate was found to be in civil contempt when he refused to answer the questions of a State grand jury. He filed a petition for writ of habeas corpus seeking credit against his Federal sentence for time served pursuant to his contempt commitment. He relied upon 18 U.S.C. sec. 3568, which entitled an offender to credit “for any days spent in custody in connection with the offense or acts for which sentence was imposed.” Another statute fixed the penalty for a recalcitrant witness without stating the effect of that penalty upon pending criminal sentences. Despite congressional silence on the subject, the court held that a Federal prisoner is not entitled to credit for time spent in custody for civil contempt, unless the trial judge expressly makes the confinement for contempt concurrent with the prior criminal sentence. The court opined that to permit a defendant to credit the contempt time against the criminal sentence would remove all incentive to comply with the court’s order.

The rule that the running of the criminal sentence is stayed for the period of confinement for civil contempt has been approved by eight circuits. (In re Application of United States Senate Permanent Subcommittee on Investigations (D.C. Cir. 1981), 655 F.2d 1232, 1239 n. 33, cert. denied (1981), 454 U.S. 1084, 70 L. Ed. 2d 619, 102 S. Ct. 641.) There have been no contrary rulings.

We find that defendant is not entitled to credit for the time served on the contempt sentence. This result is consistent with, rather than contrary to, section 5 — 8—7. Defendant was admonished on May 25, 1982, that the civil contempt sanction was separate and distinct from the charged offenses and that time served on the contempt charge would not be credited as time served on the charged offenses if he was later convicted of them. To find otherwise would detract from the court’s contempt powers in cases involving defendants already in custody.

Moreover, the fact that defendant thought he would receive more sentence credit than he did is not a sufficient basis to support withdrawal of his guilty plea. People v. Lange (1978), 59 Ill. App. 3d 603, 375 N.E.2d 919.

Affirmed.

GREEN and MILLER, JJ., concur.


text:
    JOE D. MARTIN, Plaintiff-Appellee, v. LOUIS GIORDANO, Director of the Department of Central Management Services (Successor Agency to the Department of Personnel), State of Illinois, et al., Defendants-Appellants.
    Fourth District
    No. 4—82—0793
    Opinion filed June 8, 1983.

      Neil F. Hartigan, Attorney General, of Springfield (Moshe Jacobius and Jerome J. Webb, Assistant Attorneys General, of counsel), for appellants.
    William H. Knuppel, of Lemmer, Boggs, Knuppel & Krebaum, P.C., of Havana, for appellee.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

Defendant appeals an order of the circuit court of Mason County which directed the clerk of that court to issue a writ of mandamus upon the defendant Giordano directing him to do all necessary acts to cause to be paid to plaintiff the sum of $7,926.75 representing additional compensation pursuant to the provisions of section 19(k) of the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.19(k)).

The facts are largely undisputed. Plaintiff obtained a lump-sum settlement in the amount of $15,853.50 of his workers’ compensation claim against the Department of Transportation of the State of Illinois. He afterwards filed a petition with the Industrial Commission seeking additional payment of 50% of the claim under section 19(k) for vexatious and unreasonable delay in payment of the claim. The Commission entered an order awarding such additional compensation and the defendant refused payment, holding that the State of Illinois was not subject to the provisions of section 19(k). The instant suit was then filed under the former mandamus act (Ill. Rev. Stat. 1979, ch. 87, par. 1 et seq.), now part of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 14 — 101 et seq.).

Both parties filed motions for summary judgment and plaintiff sought leave to maintain the cause as a class action. (Ill. Rev. Stat. 1981,- ch. 110, par. 2 — 801.) Objections to the class action were filed and sustained, and no appeal has been taken from that action. The trial court allowed the plaintiff’s motion for summary judgment and denied the defendant’s. Although no longer required by the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 14 — 105), the peremptory writ was issued by the circuit clerk and served upon the defendant Giordano by the sheriff of Sangamon County.

Section 19(k) provides as follows:

“In cases where there has been any unreasonable or vexatious delay of payment or intentional underpayment of compensation, or proceedings have been instituted or carried on by the one liable to pay the compensation, which do not present a real controversy, but are merely frivolous or for delay, then the Commission may award compensation additional to that otherwise payable under this Act equal to 50% of the amount payable at the time of such award. Failure to pay compensation in accordance with the provisions of Section 8, paragraph (b) of this Act, shall be considered unreasonable delay.” Ill. Rev. Stat. 1981, ch. 48, par. 138.19(k).

Defendant’s argument, simply put, is that of sovereign immunity. He claims that the State of Illinois is not subject to section 19(k).

There is no need to rehash here the history of sovereign immunity. Suffice it to say, the doctrine was abolished by the Illinois Constitution of 1970 and was partially restored by the legislature, effective January 1, 1972. Ill. Rev. Stat. 1981, ch. 127, par. 801; see S. J. Groves & Sons Co. v. State (1982), 93 Ill. 2d 397, 444 N.E.2d 131.

The supreme court has held that the legislature may by statute consent to the State’s liability, but the consent must be clear and unequivocal; it cannot be inferred or implied. Department of Revenue v. Appellate Court (1977), 67 Ill. 2d 392, 367 N.E.2d 1302; City of Springfield v. Allphin (1980), 82 Ill. 2d 571, 413 N.E.2d 394.

From these principles defendant argues that since liability on the State is not unequivocally set forth in section 19(k), it does not exist. He further argues that the payment provided in section 19(k) is a penalty and such statutes should be narrowly construed. We do not agree with either.

Various provisions of the Workers’ Compensation Act (Act) indicate the submission of the State to liability. Section l(a)(l) defines “employer” to include the State. (Ill. Rev. Stat. 1981, ch. 48, par. 138.1(a)(1).) Section 2 of the Act states without equivocation, “The State of Illinois hereby elects to provide and pay compensation according to the provisions of this Act.” (Ill. Rev. Stat. 1981, ch. 48, par. 138.2.) Section 3 provides that it shall “automatically and without election” apply to the State concerning certain extra-hazardous businesses as therein defined. Ill. Rev. Stat. 1981, ch. 48, par. 138.3.

Section 19 of the Act, which is at issue here, is even more explicit. It contains 15 subparagraphs denominated (a) through (o); in two of them, (f) and (g), there is an unequivocal exemption for the State. Subparagraph (f)(1) begins by providing: “Except in cases of claims against the State of Hlinois, in which case the decision of the Commission shall not be subject to judicial review, ***.” (Ill. Rev. Stat. 1981, ch. 48, par. 138.19(f)(l).) Subparagraph (g) also begins by providing: “Except in the case of a claim against the State of Illinois, ***.” (Ill. Rev. Stat. 1981, ch. 48, par. 138.19(g).) The legislative intent, in our opinion, is clear: 13 subparagraphs of section 19 apply to the State, two do not by virtue of express exemption; subparagraph (k) contains no express exemption and therefore applies.

This cannot be a case of legislative oversight. We note that the Workers’ Occupational Diseases Act (Ill. Rev. Stat. 1981, ch. 48, par. 172.36 et seq.) follows almost the identical pattern, especially subparagraphs (f)(1) and (g) of section 19 (Ill. Rev. Stat. 1981, ch. 48, pars. 172.54(f)(1), (g).) Other examples of specific admission of liability in the employment area are found in the Unemployment Insurance Act. (Ill. Rev. Stat. 1981, ch. 48, par. 300 et seq.) Section 204, which defines “employing unit,” provides, “including the State of Illinois, ***.” Ill. Stat. 1981, ch. 48, par. 314.) Section 205, which defines “employer,” contains this language: “With respect to the years 1972 and thereafter, the State of Illinois ***.” (Ill. Rev. Stat. 1981, ch. 48, par. 315(B)(5).) The pattern throughout chapter 48 is clear: the State, through the legislature, elects to become subject to the general provisions of the several statutes, but specific exemptions are provided as to individual portions of those statutes, if the legislature so decrees. In sum: no such decree, no exemption.

Defendant’s argument would turn this proposition around. He claims that there must be specific inclusion of the State in each section of a statute. This ignores the provisions for general inclusion and does not explain the specific exclusions. By relying upon Appellate Court and Allphin, he misconstrues those holdings. These cases stand for the proposition that general enactments imposing liability cannot be applied to the State in the absence of a specific legislative intent to so apply them. The critical issue is whether the legislature intended to impose liability upon the State — not how or where the intent is expressed.

Furthermore, section 19(k) nowhere speaks of a penalty. It provides for additional “compensation” and under section 2 the State has elected to pay “compensation.” Other employers cannot pick and choose what “compensation” they will pay. Neither may the State of Illinois.

The order of the circuit court of Mason County is affirmed.

Affirmed.

MILLS and GREEN, JJ., concur.


author: JUSTICE HOPF

text:
    COMMONWEALTH EDISON COMPANY, Plaintiff-Appellee and Cross-Appellant, v. PROPERTY TAX APPEAL BOARD OF THE STATE OF ILLINOIS et al., Defendants-Appellants and Cross-Appellees.
    Second District
    Nos. 82—151, 82—152 cons.
    Opinion filed May 17, 1983.
    Rehearing denied July 18,1983.

      Neil F. Hartigan, Attorney General, of Springfield (Kathryn A. Spalding, Assistant Attorney General, of counsel), for appellant Property Tax Appeal Board.
    Fred L. Foreman, State’s Attorney, of Waukegan (James C. Bakk, Assistant State’s Attorney, of counsel), for appellant Board of Review of Lake County.
    Frederick S. Lane and Ralph E. Loomis, both of Sonnenschein, Carlin, Nath & Rosenthal, of Chicago, for other appellants.
    Winnifred F. Sullivan, Minard E. Hulse, Jr., and John B. Truskowski, all of Keck, Mahin & Cate, of Chicago, for appellee.
   JUSTICE HOPF

delivered the opinion of the court:

Commonwealth Edison Company (Edison) filed separate complaints with the Lake County Board of Review (LCBR) objecting to the 1975 and 1976 real estate assessments of its Zion Nuclear Generating Plant (Zion Station). In separate hearings before the LCBR the Board reduced the Zion Station assessments for both years. The Zion taxing bodies (Zion Park District, Zion Township School District No. 126, City of Zion, Zion Township, and Zion-Benton Library District, hereinafter referred to collectively as Zion), appealed from the LCBR’s decisions in both cases to the Property Tax Appeal Board (PTAB). Edison appealed from the LCBR’s decision regarding the 1976 assessment.

The PTAB consolidated the 1975 and 1976 appeals. After hearing evidence and argument on these cases, the PTAB determined that: (1) the proper level of assessment for 1975 and 1976 was 27.29% and 28.22%, respectively, as determined by the Department of Local Government Affairs’ (DLGA) one-year assessment/sales ratio studies for the year immediately preceding the years in question (1974 and 1975); (2) capitalized operator training costs incurred by Edison as part of the construction costs of Zion Station should be included in the valuation of the Zion Station real property; (3) certain assets which were certified by the State after January 1, 1975, as pollution control facilities but not yet assessed by the State should be included in the county assessment for the 1975 tax year; (4) the proper deduction for a federally imposed operating limitation on the plant was 7% for the 1975 and 1976 tax years, and; (5) personal property in the amount of $9,372,978 should be deducted from the real property assessment for 1976.

Edison filed for administrative review of the PTAB’s decision in the circuit court of Lake County. The LCBR also petitioned for administrative review of the level of assessment for the subject tax years.

The circuit court affirmed the PTAB’s decisions in part, and reversed them in part. The court found that the PTAB applied the proper levels of assessment and the proper deduction for the operating limitation. In addition, the court found that certain operator training costs were properly included in the real estate assessments for both years. However, the court determined that the PTAB improperly included the value of the two pollution control facilities in the 1975 assessment, as well as certain personal property in the 1976 assessment.

All parties to the action have appealed from various portions of the circuit court judgment. Edison appeals from the portions of the order which include the operator training costs in the assessments for both years, and set the deduction for the operating limitation at 7%, rather than 15%, for 1975. It also claims the proper level of assessment for 1975 and 1976 is 26.21% and 27.02%, respectively, as determined by analyzing sales data for the years prior and subsequent to the assessment dates.

LCBR appeals from the circuit court’s decision regarding the proper levels of assessment for 1975 and 1976, claiming the appropriate factor to be applied is 31.75% for 1975, and 32.33% for 1976. These figures are based upon the use of assessment/sales ratio studies for the three years immediately preceding the tax years in question. (See Ill. Rev. Stat. 1975, ch. 120, par. 482(24).) The Zion taxing bodies joined LCBR in appealing this issue and also challenge, along with the PTAB, the finding regarding the personal property and pollution control deductions.

We first turn our attention to the question of whether the PTAB and the circuit court applied the proper levels of assessment to the subject property for the tax years in question. The PTAB applied assessment factors of 27.29% for 1975, and 28.22% for 1976, based upon one-year adjusted sales ratio studies for the year immediately preceding the years in question. Edison contends the level of assessment should be determined by analyzing the assessment/sales data for the year immediately prior to the tax date in question as well as the year subsequent to that date. The Zion taxing bodies and the LCBR argue that the PTAB was required by statute to use a three-year sales ratio study in determining the appropriate levels of assessment for the years in question. See Ill. Rev. Stat. 1975, ch. 120, par. 482(24).

Illinois’ system of taxing real and personal property is established by the Revenue Act of 1939 as amended. (Ill. Rev. Stat. 1975, ch. 120, par. 481 et seq.) Under the Act the local assessor must assess real and personal property at 331/s% of its actual value “as determined by the Department’s assessment to sales ratio studies for the 3 most recent years preceding the assessment year, adjusted to take into account any changes in assessment levels implemented since the data for such studies were collected.” (Ill. Rev. Stat. 1975, ch. 120, par. 501, referencing par. 482(24).) Thus, the local assessor must apply the three-year standard in making the original assessment of real property. (See also Lake County Board of Review v. Property Tax Appeal Board (1980), 86 Ill. App. 3d 553, 407 N.E.2d 1022.) The local boards of review are then required to annually equalize intracounty assessments by raising or lowering the total assessed value of property in any assessment district within the county so that such property is assessed at 33x/3% of its fair cash value. (Ill. Rev. Stat. 1975, ch. 120, par. 589.1.) Again, the 33x/3% figure is determined by analyzing the Department of Local Government Affairs’ assessment to sales ratio studies for the three most recent years preceding the assessment year. (Ill. Rev. Stat. 1975, ch. 120, par. 482(24).) After determining the intracounty multipliers, the board then reports the results to the DLGA. (Ill. Rev. Stat. 1975, ch. 120, par. 589.1.) The DLGA reviews the assessment for each county and assessment district within each county and is charged with the duty of equalizing the value and assessment of property between the counties throughout the State so that the total reviewed assessment for each county produces a ratio of assessed to 33x/s% of fair cash value which is equivalent to 100%. (Ill. Rev. Stat. 1975, ch. 120, pars. 611(7), 627.) The proper amount for each county is then certified to the county clerks, who extend taxes on this basis. Ill. Rev. Stat. 1975, ch. 120, par. 632.

The Property Tax Appeal Board is authorized upon petition to review the decision of the boards of review and determine whether certain property was properly assessed. (Ill. Rev. Stat. 1975, ch. 120, par. 592.1.) The PTAB establishes by rule an informal procedure “for the determination of the correct assessment of property.” (Ill. Rev. Stat. 1975, ch. 120, par. 592.2.) One such rule, Rule 4D, states “[t]he decisions of the Property Tax Appeal Board will be based upon equity and the weight of the evidence.” (Rule 4D, Official Rules of the PTAB.) This same standard is stated in section 111.4 of the Revenue Act of 1939 (Ill. Rev. Stat. 1975, ch. 120, par. 592.4):

“The Board shall make a decision in each appeal or case heard by it, and such decision shall be based upon equity and the weight of evidence ***.”

The LCBR and the Zion taxing bodies both argue that since the local assessors, the boards of review, and the DLGA each use a three-year ratio study to determine the 33x/3% figure, the use of other than a three-year study would result in appealing taxpayers being assessed according to a different process than those not appealing. The PTAB defends its application of a one-year adjusted sales ratio study by noting that under Rule 4D it has the authority to base its decision on equity and the weight of the evidence. It argues that the figures applied by it represent the actual level of assessment to fair market value as of the tax dates in question, as determined by the DLGA. Barbara Moore, testifying on behalf of the DLGA, stated that it recommended settlement on a one-year basis, or 27.29% for 1975, and 28.22% for 1976. On the basis of this testimony, the PTAB reasoned that an assessment level at higher than these rates, which would be produced if it used the three-year method, would result in Edison being taxed at a disproportionately higher rate than other taxpayers in Lake County. Finally, Edison urges this court to determine the median level of assessment by analyzing the declining trend in the level of assessment from one year to the next and estimating through the use of graphs the median assessment level as of the particular tax dates in question (i.e., January 1, 1975, and January 1, 1976). As an alternative approach, Edison urges this court to average the sales ratio for the 1975 and 1976 tax years to determine the correct level of assessment as of January 1, 1976. Either method would result in the same assessment level for the years in question.

We have previously considered this precise issue in Lake County Board of Review v. Property Tax Appeal Board (1980), 86 Ill. App. 3d 553, 407 N.E.2d 1022. In that case, the PTAB appealed from the circuit court’s decision that the assessment level for property in Lake County in 1976 was to be determined on the basis of the three-year adjusted sales ratio study, rather than the one-year study applied by the PTAB. We agreed with the PTAB’s argument that it was authorized under Rule 4D to apply the one-year basis if this was necessary in order to do equity. (86 Ill. App. 3d 553, 555, 407 N.E.2d 1022, 1024.) However, we further held that because of the particular circumstances which existed in Lake County during the period in question, the application of the one-year study by the PTAB was inequitable. In affirming the circuit court, we stated:

“There are particular circumstances in these cases which lead us to conclude, however, that the decision of the PTAB was not in accordance with the statutory mandate to base its decision on equity and the weight of the evidence. The contested assessments occurred in 1976. When the use of the 331/s% assessment level went into effect the State received a three-year grace period to ease the strains of switching from the previous 50% figure to the 331/s% figure for the years 1975, 1976 and 1977. (See Ill. Rev. Stat. 1977, ch. 120, par. 627. See also Hamer v. Kirk (1976), 65 Ill. 2d 211, 219, and Hamer v. Lehnhausen (1975), 60 Ill. 2d 400, 409.) Pursuant to the mandate of Hamer v. Lehnhausen on remand the record before us reveals that a ‘target assessment level has been determined by [the Department of Local Government Affairs] to be 32.33%’ as determined on the basis of a three-year adjusted sales ratio study. (See order entered July 13, 1976, in the Circuit Court of Lake County in General No. 68 MR 4318.) While, of course, this figure is not binding on the PTAB since it was not a part of the Hamer-Lehnhausen litigation, it illustrates the real world in Lake County. Contrasting the 28.22% level assessment found by the PTAB based on a one-year study with the 32.33% based on the three-year study, the result is that only the appealing taxpayers are given the benefit of the lower assessment as determined by the PTAB.
Under the particular circumstances present in Lake County in the period 1975-1977, and considering that the assessment in question falls in the middle of the transitional period, it appears to us to be inequitable to apply a one-year study. The application of the three-year study period in this particular factual setting, on the other hand, would be more equitable and would have the further advantage of resulting in all taxpayers being assessed on a similar basis.” 86 Ill. App. 3d 553, 556, 407 N.E.2d 1022, 1024.

The tax dates in question here also fall within the transitional period discussed in Lake County, and that case is in our opinion dispositive of the issue presented here despite the recommendations of the DLGA. Under the Lake County case, the PTAB and the circuit court should have used the three-year study for determining the median level of assessment for both 1975 and 1976. The proper level of assessment for 1975 is therefore 31.75%. However, the 32.33% assessment level for 1976, urged by the LCBR and the Zion taxing bodies, does not find support in the record. Barbara Moore, supervisor of research and standards in the Department of Local Government Affairs, testified that although the “target ratio” for 1976 was 32.33%, the three-year average for that year was actually 31.93%. Thus, the correct assessment level for 1976 is 31.93%.

The next issue concerns the deduction of certain personal property for the 1976 real estate assessment of the station. Both the Zion taxing bodies and the PTAB claim the circuit court erred in deducting from the total cost of Zion Station $18,250,000, representing the total amount upon which Edison already paid personal property taxes. Zion and the PTAB claim the proper amount to be deducted is $9,372,978. They claim the $9,000,000 figure was based upon the manifest weight of the evidence and should, therefore, not have been reversed by the circuit court. Lee v. Illinois Racing Board Laboratory (1980), 87 Ill. App. 3d 667, 410 N.E.2d 171.

The Zion taxing bodies and the PTAB correctly state that upon review of an administrative proceeding a reviewing court is limited to ascertaining whether the decision of the administrative agency is against the manifest weight of the evidence. (Greene v. Board of Election Commissioners (1983), 112 Ill. App. 3d 862, 445 N.E.2d 1337; Altman v. Board of Fire & Police Commissioners (1982), 110 Ill. App. 3d 282, 442 N.E.2d 305.) The findings and conclusions of the administrative agency on questions of fact are held to be prima facie true and correct. (Ill. Rev. Stat. 1981, ch. 110, par. 274; Greene.) Where it appears that there is evidence to support the findings of the agency, its decision should be affirmed. Greene.

In the instant case, the PTAB determined that Edison was entitled to a personal property deduction from its Zion Station in the amount of $9,372,978. This finding is supported by evidence introduced by the Zion taxing bodies that Edison’s personal property was listed primarily in its Account 325, which contained the amount found by the PTAB. Edison introduced evidence that its personal property for 1976 was assessed by the Board of Review at $18,250,000, before depreciation. Despite this figure, Mr. Kaczkowski, an appraiser testifying for the Zion taxing bodies, stated that he was unable to detérmine the basis for the $18,000,000 figure. Edison did not attempt to introduce evidence which would explain what personal property was considered in the $18,000,000 figure. Thus, $8,877,022 in assessed personal property was unaccounted for at the hearing.

In reversing the PTAB’s decision in this regard, the circuit court found that since Edison paid personal property taxes based on the $18,000,000 figure, then this amount should be deducted from the total assessment of the Zion plant. The court held that to include this amount would result in double taxation to Edison. For the reasons that follow, we believe the circuit court’s decision was error.

The question before the PTAB was the propriety of the real property assessment and not the personal property already determined by the Board and upon which Edison already paid personal property taxes. The parties are in agreement that in determining the value of the Zion plant’s real property, the PTAB was required to deduct the value of personal property located on the property in question. It is also clear that the PTAB was mandated by both statutory law and its own rules of procedure to base its decisions upon equity and the weight of the evidence. (Ill. Rev. Stat. 1975, ch. 120, par. 592.4.) Although Edison presented evidence that it paid personal property taxes on $18,000,000 worth of personal property, before depreciation, no evidence was introduced to establish that the $18,000,000 assessment was for the same personal property considered in these proceedings. The only evidence regarding personal property at the Zion plant was the testimony of Mr. Kaczkowski on behalf of the Zion taxing bodies.

The Property Tax Appeal Board, as an administrative agency, cannot base its decisions upon facts, data and testimony which do not appear in the record. (Village of Hillside v. John Sexton Sand & Gravel Corp. (1982), 105 Ill. App. 3d 533, 544, 434 N.E.2d 382; Cook County Federal Savings & Loan Association v. Griffin (1979), 73 Ill. App. 3d 210, 215, 391 N.E.2d 473.) Its findings must be based on evidence introduced in the case, and nothing can be treated as evidence which is not introduced as such. (See Cook County Federal Savings & Loan Association.) On the basis of the record before us, we find that the PTAB’s decision in this regard was not against the manifest weight of the evidence.

The next issue requires this court to determine the point at which two certified pollution control facilities should be removed from local assessment rolls. Edison’s position, and the circuit court’s, is that the certified facilities were required by statute to be assessed by the Department of Local Government Affairs (now the Department of Revenue), and could not be assessed locally after the effective date of the certification. (See Ill. Rev. Stat. 1975, ch. 120, par. 502a — 5.) The PTAB and the Zion taxing bodies urge us to hold that certified pollution control facilities cannot be removed from local assessment rolls until the Department has actually assessed the facilities and notified the local authorities to remove them from the rolls.

Under section 18 of the Revenue Act of 1939, all real and personal property is subject to taxation unless specifically exempted by statute. (Ill. Rev. Stat. 1975, ch. 120, par. 499.) Pollution control facilities are not so exempted. However, pollution control facilities, if certified as such by the State are to receive special tax treatment under the Act. (Ill. Rev. Stat. 1975, ch. 120, pars. 502a — 1, 502a — 5.) Section 21a — 5 states that the effective date of the certificate “shall be the date of the making of the application for the certificate or the date of the construction of the facility, which ever [sic] is later.” (Ill. Rev. Stat. 1975, ch. 120, par. 502a — 5.) Under the Act, pollution control facilities “shall be assessed by the Department for tax purposes.” (Ill. Rev. Stat. 1975, ch. 120, par. 502a — 4.) Finally, the procedure for assessment or reassessment of such property “shall be conducted in accordance with procedural regulations issued by the Department.” Ill. Rev. Stat. 1975, ch. 120, par. 502a — 8.

Edison first applied for special tax treatment of the facilities on May 15, 1972. Construction of the facilities was completed sometime prior to January 1, 1975. The Illinois Environmental Protection Agency granted the certificates on April 9, 1975. In the meantime, local assessors assessed the property as real property. In a hearing on the assessment held before the Lake County Board of Review on March 5, 1976, Edison produced the two certificates claiming the facilities could not be assessed locally. The LCBR thereupon removed the original costs of the pollution control facilities from the real property assessment for both the 1975 and 1976 tax years, and taxes were levied and paid upon these revised assessments. Subsequently, the Department of Local Government Affairs assessed the facilities for the year 1976 only and notified the Board of Review to remove them from the tax rolls as of January 1, 1976. The facilities have not been assessed for 1975.

Upon appeal of the LCBR’s decision, the PTAB determined that the pollution control facilities should have been included in the 1975 assessment because they were not yet assessed for that year by the DLGA. The circuit court reversed, finding that the facilities were entitled to the special tax treatment as of January 1, 1975.

The record in the instant case does not contain documented evidence regarding the Department’s procedures for assessing or reassessing pollution control facilities. However, the record indicates that the Department first assesses such property and then issues the certificate to the local assessors who thereupon remove the property from the local tax rolls. Since the Department is authorized under the Act to regulate the procedure for assessing or reassessing certified facilities, the practice of removing a facility from the tax roll only after the Department has notified local authorities is in conformity with the Act. (Ill. Rev. Stat. 1975, ch. 120, par. 502a — 8.) This procedure also has the added advantage of ensuring that no facility is overlooked by the taxing authorities. A taxpayer who is responsible for the payment of taxes on a certified facility will no doubt make certain that the Department assesses the facility in accordance with the specific provisions governing such facilities. Further, without some indication of the Department’s assessed valuation of a particular facility, local taxing authorities have no way of knowing the precise amount which should be deducted from the overall assessment of the property in question.

Edison argues that once the property was removed from the tax rolls by the Lake County Board of Review, it became “omitted” property under section 220 of the Act, and could not be locally assessed. (Ill. Rev. Stat. 1975, ch. 120, par. 701.) That section states, in part:

“In the case of property subject to assessment by the Department, the property shall be listed and assessed by the Department.” (Ill. Rev. Stat. 1975, ch. 120, par. 701.)

While we agree that the Department must at some time assess the pollution control facilities, there is nothing in the Act which mandates the assessment within a certain period of time; nor is there anything in the Act expressly prohibiting local assessors from keeping the property on the tax rolls until such time as they are notified by the Department to remove it. Thus, we do not consider section 220 as contrary to the procedure for assessment or reassessment which is followed by the Department pursuant to its regulatory power. (Ill. Rev. Stat. 1975, ch. 120, par. 502a — 8.) Further, while it is clear that the facilities should have been assessed by the Department for the 1975 tax year, as well as the 1976 tax year, the propriety of its failure to do so is not before this court since the Department is not a party to this action. We, therefore, conclude that the board of review and the circuit court erred in removing the facilities from the tax rolls prior to the Department’s assessment of those facilities for the year 1975.

Edison next appeals from the circuit court’s inclusion of the cost of operator training in the 1975 and 1976 real estate value of the Zion Station. Edison claims the cost of operator training during the construction period does not add value to the real property. It further explains that although it capitalized this expense, it was required to do so by the Uniform System of Accounts and not because it considered the expense as part of the value of the real estate. (See 18 C.F.R., ch. I, subsec. B, pt. 101 (1976).) The PTAB and the Zion tax bodies, with whom the circuit court agreed, argue that these costs are an element of the real estate’s value since they are one component upon which the utility rate base is determined. They further argue that these costs would be included in the fair market value of the Station if it were voluntarily sold in the market. Finally, they contend that Edison itself elected to capitalize these expenses over a period of years, and in so doing, treated the costs as adding value to the Station.

Initially, we note that the Uniform System of Accounts does not require the capitalization of operator training costs in a new facility. Rather, it provides that such costs “may be capitalized as a component of construction costs.” (Emphasis added.) (18 C.F.R., ch. I, subsec. B, pt. 101 (Electric Plant Instruction 3(19)) (1976).) It is clear, therefore, that in capitalizing these costs under this provision, Edison was electing to treat the costs as a component of the construction costs.

At the hearing before the PTAB, the board considered three approaches for determining the value of the real estate. These were the income approach, the market data approach and the cost replacement approach. The PTAB concluded after testimony and argument that “the correct theory in Illinois for valuing special purpose properties which are owned by Regulated Utilities is to consider the actual book cost because Illinois Commerce Commission recognizes this value in the rate base and allows for the payment of property taxes on the total investment.” The parties have not contested this finding of the PTAB.

In finding that the costs of operator training should be included in the value of the real property, the PTAB relied upon evidence that nuclear power plants are exchanged in actual market transactions at book cost. Mr. Kaczkowski testified that in the case of new construction the book cost of such a plant is equivalent to the sales price, and includes such items as interest and other overheads. Mr. Schultz,. financial vice-president of Commonwealth Edison Company, also testified that the amount capitalized as funds allowed during construction would be included in the sales price as noncash earnings, and would be realized over the life of the property. It is evident, therefore, that Edison’s capitalization of operator training costs added to the book value of Zion Station’s real property since a sale of that property would include these costs. In addition, evidence was introduced that in determining the utility rate which may be charged by Edison, the Illinois Commerce Commission (ICC) makes an allowance for taxes which Edison is required to pay. In estimating the tax, the ICC considers the total book value of the property in which operator training costs are included. Thus, Edison is able to secure a higher utility rate as its estimated taxes increase. The treatment of operator training costs as assets of the corporation increases this tax estimate and, correspondingly, the utility rate which may be charged. Therefore, on the basis of the record before this court, the finding of the PTAB and the circuit court that operator training costs increase the real property’s value is not against the manifest weight of the evidence and is affirmed. Green v. Board of Election Commissioners (1983), 112 Ill. App. 3d 862, 445 N.E.2d 1337; Spiros Lounge, Inc. v. Illinois Liquor Control Com. (1981), 98 Ill. App. 3d 280, 423 N.E.2d 1366.

The final issue is whether the Zion Station real property was properly reduced to account for an 85% operating limitation set by the United States Atomic Energy Commission. The limitation was in effect for all of 1975, and was finally removed on June 25, 1976. Edison claims it is entitled to the full 15% reduction for the 1975 tax year, and a 7.25% reduction (15% pro-rated) for the 1976 tax year, since it claims this accurately reflects the facts and circumstances as of the assessment dates in question. The PTAB and the Zion taxing bodies argue, however, that the limitation actually reduced the value of the property by only 4% in 1975 and 2% in 1976. They argue that this finding was supported by the evidence and should therefore not be reversed on appeal. Spiros Lounge, Inc. v. Illinois Liquor Control Com. (1981), 98 Ill. App. 3d 280, 423 N.E.2d 1366.

We again note that the approach used by the PTAB for determining value was actual book value. Thus, our inquiry focuses on the actual effect this 85% limitation had on the market or fair cash value of the property as of the dates in question. See Ill. Rev. Stat. 1975, ch. 120, par. 501(1).

Mr. Kaczkowski testified that although he initially suggested that the board of review reduce the assessed value by 15%, he revised his opinion when he learned more about the nature of and reasons for the limitation. He testified that when he made his original calculations, he was operating on the assumption that the limitation was a permanent one. However, since that time he learned that the limitation was not as serious as he first thought, and that it appeared to be a temporary, rather than a permanent, one. Although Edison contends that Kaczkowski’s revised obsolescence figure was the result of hindsight, a reading of the record does not support this contention. The reasons for the limitation were set forth in a letter from the Advisory Committee on Reactor Safeguards dated December 9, 1974, to the chairman of the United States Atomic Energy Commission (AEG). The letter does not indicate that the limitation was a permanent one. To the contrary, the letter indicates that the AEG was augmenting its start-up program of one of the reactors and was considering an earlier transition to higher power due to possible power shortages. Mr. Kaczkowski testified that a reasonable person valuing the plant with full knowledge of the facts behind the limitation would not anticipate it as representing a permanent decrease in value. We do not view the letter as contrary to this testimony.

On this basis, Mr. Kaczkowski reasoned the full 15% reduction would not accurately reflect the effect of the limitation on the actual market value of the property. He testified the 4% and 2% figures for 1975 and 1976, respectively, would be a more accurate indicator of the decrease in market value due to the operating limitation. He also stated that Edison was entitled to a 3% and 5% reduction for 1975 and 1976, respectively, for wear and tear on the property. Thus, he testified Edison’s assessment of the property for both years should have been reduced by 7%. The PTAB and the circuit court agreed with Mr. Kaczkowski and determined that Edison was not entitled to the full 15% reduction. It cannot be said on the basis of the record here that this finding was against the manifest weight of the evidence. Greene v. Board of Election Commissioners (1983), 112 Ill. App. 3d 862, 445 N.E.2d 1337.

Consistent with the foregoing analysis, we reverse the circuit court’s judgment with respect to the proper level of assessment, the deduction of the pollution control facilities from the 1975 assessment, and the personal property deduction for 1976. The judgment in all other respects is affirmed. The cause is remanded for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

UNVERZAGT and REINHARD, JJ., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM J. ROBERTS, Defendant-Appellant.
    Second District
    No. 81—890
    Opinion filed June 2, 1983.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of Elgin, and John X. Breslin and Patricia Hartmann, both of State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, William J. Roberts, was found guilty in a jury trial of driving while under the influence of intoxicating liquor (DWI) (Ill. Rev. Stat. 1979, ch. 951/2, par. 11 — 501(a)), improper lane usage (Ill. Rev. Stat. 1979, ch. 95V2, par. 11 — 709), and driving while his license was revoked (Ill. Rev. Stat. 1979, ch. 951/2, par. 6 — 303). Following a sentencing hearing, defendant was sentenced to concurrent terms of 20 days in jail on each offense.

On appeal defendant raises two issues: (1) that it was error for the trial court to admit evidence of defendant’s refusal to perform field sobriety tests; and (2) that defendant is entitled to a new sentencing hearing because the trial court did not make findings as required under section 5 — 6—1(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—1(a)) before denying probation or conditional discharge.

We summarize only the facts pertinent to the issues raised. On May 31, 1980, at approximately 1 a.m., Officer James Comrie observed a car, weaving on the highway, which he followed for three-quarters of a mile. After the car was stopped, he observed the driver, defendant, trying to switch places with the passenger. Upon opening the door of the car, Comrie noticed a strong odor of alcohol and, subsequently, observed that defendant’s speech was slurred, that his breath contained a strong odor of alcohol, and that he was unsteady on his feet. At the scene, defendant refused “to walk the white line.” Defendant was arrested for DWI and taken to the District 15 substation where he was then asked to take additional physical performance-type tests consisting of a balance test, a finger-to-nose test, and coin-pick-up test. Defendant refused to take these tests. At trial, the State placed in evidence defendant’s refusal to perform the sobriety test at the scene and the tests at the substation. The trial court had previously denied defendant’s motion in limine which sought to prohibit any testimony that defendant refused to take the physical performance tests.

Defendant’s initial contention on appeal is that evidence of his refusal to perform the sobriety tests was not probative of any issue at trial and was therefore irrelevant. He argues that its admission was prejudicial since it created the improper inference that his refusal was evidence that he was intoxicated. The State correctly maintains that defendant has waived any such claim of error by failing to specifically raise this issue in his written post-trial motion.

A failure to raise an issue in a post-trial motion following a jury trial constitutes a waiver of that issue, and it cannot be urged as a ground for reversal on review. (People v. Lucas (1981), 88 Ill. 2d 245, 250, 430 N.E.2d 1091.) It is not sufficient that a party only object at trial to preserve an issue for review, as defendant did here by raising the issue in his motion in limine, but it is necessary to specifically include that issue in a post-trial motion (People v. Tannenbaum (1980), 82 Ill. 2d 177, 181, 415 N.E.2d 1027; People v. Winston (1982), 106 Ill. App. 3d 673, 686, 435 N.E.2d 1327), so that the trial judge may reconsider the ruling in a less pressured environment and order a new trial when appropriate. (People v. Jackson (1981), 84 Ill. 2d 350, 358-59, 418 N.E.2d 739.) Nevertheless, even though not raised in the post-trial motion, “[pjlain errors or defects affecting substantial rights may be noticed” by a reviewing court under Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)). (People v. Carlson (1980), 79 Ill. 2d 564, 576, 404 N.E.2d 233.) The doctrine of plain error may be invoked in criminal cases where the evidence is closely balanced or where the error was of such magnitude that the accused was denied a fair trial. (People v. Lucas (1981), 88 Ill. 2d 245, 251, 430 N.E.2d 1091.) Here, for the reasons set forth below, we find it was not error to admit testimony that defendant refused to perform certain sobriety tests, and thus, the doctrine of plain error may not be invoked.

Defendant does not contend on appeal that his refusal to take these tests was constitutionally protected. Indeed, the Supreme Court in South Dakota v. Neville (1983), 459 U.S. _, 74 L. Ed. 2d 748, 103 S. Ct. 916, recently held that the admission into evidence of a defendant’s refusal to submit to a blood-alcohol test, after a police officer lawfully requested it, is not protected by the privilege against self-incrimination. Defendant does maintain, however, that evidence of his refusal to take the physical performance tests was “irrelevant and prejudicial, allowing the jury to improperly infer that his refusal was evidence that he was intoxicated.”

A similar contention was rejected by the Appellate Court, Fourth District, in People v. Miller (1983), 113 Ill. App. 3d 845, 447 N.E.2d 1060, which held that a defendant’s refusal to perform such tests was admissible in evidence. (113 Ill. App. 3d 845, 847, 447 N.E.2d 1060.) We believe that the purpose of asking defendant to perform these tests was to obtain probative physical evidence of his intoxication, and his conduct in refusing to perform the tests was merely incident to that effort. Evidence of refusal to take a potentially incriminating test is similar to other circumstantial evidence of consciousness of guilt which may be inferred from a defendant’s conduct. (People v. Ellis (1966), 65 Cal. 2d 529, 421 P.2d 393, 55 Cal. Rptr. 385.) The evidence of refusal is not only probative; its admission operates to induce suspects to cooperate with law enforcement officials. (See People v. Ellis (1966), 65 Cal. 2d 529, 538, 421 P.2d 393, 398, 55 Cal. Rptr. 385, 390.) Here, the evidence of defendant’s refusal to perform the sobriety tests merely exposed him to the drawing of inferences, by the trier of fact, of his state of mind relative to his ability to perform the tests. We find this evidence to be probative of the issue of his intoxication.

Defendant analogizes evidence of his refusal to perform these sobriety tests to evidence of a defendant’s refusal to speak, after his arrest and after being warned of his Miranda right to remain silent, which was held to violate a defendant’s privilege against self-incrimination in Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240. However, the deprivation of due process found in Doyle v. Ohio, by using an arrested person’s silence to impeach an explanation subsequently offered at trial after initially being warned of the right to remain silent, is based upon the underlying constitutional right to remain silent. There is no underlying constitutional or statutory right to refuse to take physical performance sobriety tests. See South Dakota v. Neville (1983), 459 U.S__, _, 74 L. Ed. 2d 748, 759-60, 103 S. Ct. 916, 923-24.

Defendant also relies on People v. Knutson (1958), 17 Ill. App. 2d 251, 149 N.E.2d 461, which found evidence of a defendant’s refusal to take an intoximeter test prejudicial error as it did not tend to prove any material issue in the case. In light of the development of the case law since that dated decision, and its factual dissimilarities to the instant case, we do not find it persuasive authority. Accordingly, we find no error was committed by the introduction into evidence of testimony of defendant’s refusal to take the above-described physical performance sobriety tests.

Defendant’s remaining contention on appeal is that the trial court sentenced him to a term of imprisonment without making specific findings pursuant to section 5 — 6—1(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—1(a)) before denying him probation or conditional discharge. Defendant correctly maintains that prior to imposing the 20-day jail sentences the court below did not expressly recite that “imprisonment or periodic imprisonment is necessary for the protection of the public” or that “probation or conditional discharge would deprecate the seriousness of the offender’s conduct and would be inconsistent with the ends of justice.” See Ill. Rev. Stat. 1979, ch. 38, pars. 1005 — 6—1(a)(1), (2).

Even though the trial court does not expressly recite, under sections 5 — 6—1(a)(1), (2), which basis it relied on in refusing to sentence the defendant to probation or conditional discharge, the statutory requirement is satisfied where the record reveals substantial compliance with section 5 — 6—1(a)(1), (2). (People v. Cox (1980), 82 Ill. 2d 268, 281, 412 N.E.2d 541.) Substantial compliance occurs where the record indicates that the sentencing judge is of the opinion that imprisonment is necessary for the protection of the public or that probation or conditional discharge would deprecate the seriousness of the accused’s conduct and would be inconsistent with the ends of justice. (People v. Kuesis (1980), 83 Ill. 2d 402, 408-09, 415 N.E.2d 323; People v. Cox (1980), 82 Ill. 2d 268, 281, 412 N.E.2d 541.) Substantial compliance may be found in the trial court’s discussion of the presentence report or the factors presented in the sentencing hearing. See People v. Kuesis (1980), 83 Ill. 2d 402, 409-10, 415 N.E.2d 323.

It is evident from the record that the trial court considered the presentence report, a certified abstract of defendant’s driving record, the arguments of counsel, and a statement by the defendant. The court noted that defendant had “numerous traffic violations, one of them a prior driving while intoxicated” conviction. The court then pronounced a 20-day jail sentence. Subsequently, the court stated: “No fine, no probation. You have been through probation several times. I think it’s a waste of time for you and a waste of time for the probation department.” While minimal, the court did give an explanation why it was rejecting probation and imposing a jail term consistent with the statutory mandate. Accordingly, the trial court substantially complied with section 5— 6-l(a)(l), (2).

For the foregoing reasons, we affirm the judgments entered below.

Affirmed.

LINDBERG and VAN DEUSEN, JJ., concur.