author: JUSTICE SCOTT

text:
    THE CITY OF EAST PEORIA et al., Petitioners, v. THE POLLUTION CONTROL BOARD et al., Respondents.
    Third District
    Nos. 82-596, 82-635, 82-648 cons.
    Opinion filed August 23, 1983.

      G. Edward Orr, Assistant State’s Attorney, of Pekin, for petitioner Board of Supervisors of Tazewell County.
    Carl F. Reardon & Associates, Ltd., of East Peoria, for petitioner City of East Peoria.
    Tyrone C. Fahner, Attorney General, of Springfield (Nancy J. Bennett, Assistant Attorney General, of counsel), for respondent Pollution Control Board.
    Pedersen & Houpt, of Chicago, for respondent Waste Management of Illinois, Inc.
   JUSTICE SCOTT

delivered the opinion of the court:

Waste Management of Illinois, Inc., petitioned pursuant to the Environmental Protection Act (Ill. Rev. Stat. 1981, ch. 111½, par. 1001 et seq.) for approval to locate a regional pollution control facility, i.e., sanitary landfill, in an unincorporated area of Tazewell County, Illinois. The Tazewell County Board of Supervisors first considered the petition and denied it. A review of that decision was conducted by the Illinois Pollution Control Board, and the Board reversed the Tazewell County decision and approved the petition. We are asked to consider the Pollution Control Board’s reversal order under administrative review procedures set forth in section 41 of the Environmental Protection Act (Ill. Rev. Stat. 1981, ch. 111½, par. 1041). The administrative review provided for therein is afforded directly in the appellate court and not in the circuit court.

According to the Illinois Environmental Protection Act,

“*** no permit for the development or construction of a new regional pollution control facility (sanitary landfill) may be granted *** unless the applicant submits proof *** that the location of said facility has been approved by the County Board of the county if in an unincorporated area, or the governing body of the municipality when in an incorporated area in which the facility is to be located ***.” (Ill. Rev. Stat. 1981, ch. 111½, par. 1039(c).)

The Act further provides:

“[T]he County Board *** shall approve the site location suitability for such new regional pollution control facility only in accordance with the following criteria:
(i) the facility is necessary to accommodate the waste needs of the area it is intended to serve;
(ii) the facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected;
(iii) the facility is located so as to minimize incompatability with the character of the surrounding area and to minimize the effect on the value of the surrounding property;
(iv) the facility is located outside the boundary of the 100 year flood plain as determined by the Illinois Department of Transportation, or the site is flood-proofed to meet the standards and requirements of the Illinois Department of Transportation and is approved by that Department;
(v) the plan of operations for the facility is designed to minimize the danger to the surrounding area from fire, spills, or other operational accidents; and
(vi) the traffic patterns to or from the facility are so designed as to minimize the impact on existing traffic flows.” (Ill. Rev. Stat., 1982 Supp., ch. 111½, par. 1039.2(a).)

Finally, the Act provides that in determining the suitability of the landfill site, the county board must hold at least one public hearing, with notice of such hearing published in a newspaper of general circulation and directed to all members of the General Assembly from the district in which the proposed site is located. Ill. Rev. Stat., 1982 Supp., ch. 111½, par. 1039.2(d).

On December 21, 1981, Waste Management of Illinois, Inc., filed its application for approval of the landfill site. On February 18, 1982, the county board held the mandated hearing and granted site approval finding that Waste Management had met its burden of proof on each of the six criteria set forth in the Act. Subsequently, on February 24, 1982, the city of East Peoria filed a petition with the county board requesting that the previous decision be set aside and that the public hearing be reopened, alleging as a basis for its petition certain misstatements of a Waste Management witness at the first hearing. In response to East Peoria’s petition, the County Board set aside its February 18 decision and reopened the public hearing on March 24, 1982. Following this reopened hearing, on April 19, 1982, the Tazewell County Board denied Waste Management’s petition for site location finding that the landfill facility was not so designed, located and proposed to be operated so that the public health, safety and welfare was adequately protected.

It is undisputed that the evidence before the county board demonstrated that the proposed landfill site was directly over the Sankoty Aquifer. An aquifer is a water-bearing underground layer of sand or gravel; such a layer is a source of ground water tapped when a well is dug. (Crookston Cattle Co. v. Minnesota Department of Natural Resources (Minn. 1981), 300 N.W.2d 769.) The evidence also demonstrated that the village of Washington, the city of Peoria, the village of Morton, the North Tazewell Public Water District, and the city of East Peoria all draw water for public water supplies from the Sankoty Aquifer. The proximity of landfill wastes and public water was the basis of the county board’s public health concern and of the site location denial.

To prevent potential contamination of the aquifer, Waste Management proposed to design and construct the landfill facility with a clay liner. According to Waste Management’s application, inspections and borings of the sides and bottoms of the landfill would be made to insure that a minimum of 10 feet of undisturbed clay would exist under the landfill and around the sides. Where clay seals were not naturally found, man-made clay seals would be compacted to a thickness of 12 feet. According to Waste Management’s application, it would require pollutants 50 years to penetrate the 10-foot clay liner which it proposed for the landfill, and it would take an additional 90 years to penetrate the 90 feet of soil separating the clay liner from the Sankoty Aquifer. As the contents of the landfill gradually leak through the 10 feet of clay and 90 feet of soil below the clay layer, attenuation and cationic exchange would tend to clean the leaching materials. According to one expert, a two-foot layer of clay would be adequate to clean the leachate.

Testimony presented at the hearing before the county board tended to show that the time necessary for materials to leak from the landfill as estimated in Waste Management’s application was incorrect. The estimates contained in the application were based on certain assumptions made prior to the formulation of precise design plans for the landfill. Calculating the rate of leakage using the final design plans, Waste Management’s own expert shortened the time period necessary to penetrate the 10-foot clay layer from 50 years to 33 years. It was also revealed in the county board’s hearing that the application’s estimate of 90 years to penetrate the soil layer between the clay liner and the Sankoty Aquifer was based upon the assumption that the average depth of this soil layer was 90 feet. The least depth of this second strata of soil was estimated at 50 feet, and the time required for material from the landfill to leak through this second layer into the Aquifer at the point of least depth would be proportionately reduced.

Finally, the county board heard testimony that soil borings and geological sections included in plans for the landfill site demonstrated the presence of numerous sand and gravel deposits. These sand and gravel deposits would significantly affect the rate at which material from the landfill would leak through the protective clay liner and the strata of soil between the liner and the Sankoty Aquifer. According to at least one engineer who appeared before the county board, it would not be possible to assure that there would be no sand and gravel deposits in the natural 10-foot clay liner, not even with the use of soil borings.

While the evidence presented to the county board was extensive, and offered to support each of the six statutory criteria we listed at the outset, the portions of the administrative record we have excerpted are crucial to the key issue presented for our review.

Following the decision of the Tazewell County Board, the petitioner, Waste Management, sought to contest the denial of its application before the Illinois Pollution Control Board. Such a contest is governed by the procedures of section 40.1 of the Environmental Protection Act (Ill. Rev. Stat. 1981, ch. 111½, par. 1040.1). The statute cited mandates that the hearing to contest the county board’s decision “shall be based exclusively on the record before the county board,” that “[t]he burden of proof shall be on the petitioner,” and that the Pollution Control Board’s decision following the hearing shall set forth in writing the Board’s assessment of “the fundamental fairness of the procedures used by the County Board *** in reaching its decision.” In its written decision, the Pollution Control Board noted that the Tazewell County Board had concluded that the proposed sanitary landfill was not so designed, located and proposed to be operated that the public health, safety and welfare would be protected. The Pollution Control Board found that:

“It is clear from the record that Tazewell County came to this conclusion due to concern that the proposed landfill might leak, and that the nonhazardous special wastes might find their way down through the intervening layer of clay into the Sankoty Aquifer, and eventually affect local drinking water supplies which, for the most part, are obtained from that Aquifer.
This situation concerns the design and construction of the landfill and the underlying geology and hydrology, rather than the site itself. These highly technical issues have historically been the purview of the Illinois Environmental Protection Agency (Agency) under the Act. When the legislature enacted Public Act 82 — 782, its intent was to give local authorities the power to review the effect of the proposed landfill on the immediate area with regard to the six express criteria. There was no intent to give the local authorities concurrent jurisdiction with the Agency to review highly technical details of the landfill design and construction.
* * *
[T]he Tazewell County decision concerning public health, safety and welfare address[es] highly technical issues and [is] beyond the authority of Tazewell County’s review.” Pollution Control Board, Opinion and Order August 5, 1982, at 10-11.

Accordingly, the Pollution Control Board conducted its own de novo consideration of the “highly technical details” of the design and construction features of the landfill and the underlying geology and hydrology, and concluded that based upon the record of the Tazewell County public hearing, “the negative finding concerning the public’s health, safety and welfare [was] not warranted.” Pollution Control Board, Opinion and Order, August 5,1982, at 10.

The Illinois Environmental Protection Act mandates that the County Board shall approve the site location suitability for sanitary landfills as proposed in the instant case only if

“the facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected; ***.” (Ill. Rev. Stat., 1982 Supp., ch. 111½, par. 1039.2(a)(ii).)

Despite this unequivocal statutory directive to consider the public health ramifications of the proposed landfill’s design at a given site, the Pollution Control Board, in its decision as quoted above, concluded that the statute does not give the county jurisdiction “to review highly technical details of the landfill design and construction.” The Board’s position appears to be at odds with the express, unambiguous language of the statute.

In support of its decision, the Pollution Control Board cites an isolated remark made during the General Assembly’s debate over this section of the Environmental Protection Act.

“The legislative history of the statute reveals the separation of review criteria between the local authorities and the Agency. During debate in the House of Representatives on June 17, 1981, sponsor Representative Breslin stated, after reviewing the criteria to be applied by the local authorities, ‘they are not to make technical decisions as to the suitability of the site, rather that power still lies in the Environmental Protection Agency.’ The local authorities may address the health and welfare of its citizens with regard to the general location of the site and effects such as run off and flooding, road litter, potential noise, disposition of landfill gas, and especially final configuration of the site with respect to ultimate potential uses.” Pollution Control Board, Opinion and Order, August 5,1982, at 10.

We believe, however, in construing a legislative enactment, we must first look to the words used in the statute. It is only when words are inadequate or ambiguous that we may turn to the legislative history and other interpretive aids to discover legislative intent. (Illinois Power Co. v. Mahin (1977), 49 Ill. App. 3d 713, 364 N.E.2d 597, aff'd (1978), 72 Ill. 2d 189, 381 N.E.2d 222.) Where the statute unambiguously requires the county board to consider the public health ramifications of the sanitary landfill’s design at a given site, to conclude that the county board has no jurisdiction to consider the public health ramifications of the sanitary landfill’s design would be nothing short of a judicial rewriting of the General Assembly’s act. Therefore, we believe the Pollution Control Board erred in its conclusion that the county board had no jurisdiction to consider the public health ramifications of the proposed landfill’s design.

As a result of the Pollution Control Board’s erroneous interpretation of the law, it reviewed the evidence in the record concerning the public health ramifications of the sanitary landfill on a de novo basis, substituting its own opinion and determinations for the opinion and determinations made by the Tazewell County Board. No deference to the findings of the Tazewell County Board was given; no presumption of validity to the findings of the Tazewell County Board was afforded. In administrative law, the determinations and conclusions of the fact finder, in this case the Tazewell County Board, are generally deemed conclusive. The reviewing tribunal is not allowed to determine issues independently, to substitute its own judgment, or to reweigh the evidence. In other words, the reviewing tribunal should not reverse the findings and conclusions initially reached simply because it would have weighed the evidence in a different manner. (1 Ill. L. & Prac. Administrative Law & Procedure sec. 50 (1953).) When the Pollution Control Board acts in a quasi-judicial role in reviewing decisions of the Environmental Protection Agency, it has been held that the decisions of the Agency are to be reversed only if they are against the manifest weight of the evidence. (Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541, 387 N.E.2d 258; Mathers v. Pollution Control Board (1982), 107 Ill. App. 3d 729, 438 N.E.2d 213.) The statute that provides the procedure for the Pollution Control Board’s review of Environmental Protection Agency decisions (Ill. Rev. Stat. 1981, ch. 111½, par. 1040) is essentially identical to the statute which provides a procedure for the Pollution Control Board’s review of the instant decision by the Tazewell County Board (Ill. Rev. Stat. 1981, ch. 111½, par. 1040.1). Where, as here, the procedure for review is identical, we believe the standard of review should also be identical, and the rules set forth in the Landfill, Inc. decision and the Mathers decision should apply to the case before us. This standard of review, as pointed out earlier, represents no departure from established principles of administrative law. We conclude, therefore, that it was error for the Pollution Control Board to consider on a de novo basis the evidence in the record concerning the public health impact of the proposed sanitary landfill. It was error to weigh the evidence in the record as if the evidence were being considered as a matter of first impression. Instead, the Pollution Control Board should have determined whether the Tazewell County Board’s conclusions concerning the public health consequences of the proposed siting of the sanitary landfill were against the manifest weight of the evidence.

Our first duty in considering a complaint for administrative review is to determine if the inferior tribunal applied the proper test to the record before it. (Board of Education v. Ingels (1979), 75 Ill. App. 3d 334, 394 N.E.2d 69.) Where, as here, the inferior tribunal applied the wrong standard of review to the evidence, the resulting finding is invalid, and there is no valid order subject to administrative review. (Board of Education v. Ingels.) And, where there is no valid order subject to our review, we are forced to remand the matter to the inferior tribunal so that it might reconsider its decision in light of the appropriate standard. Board of Education v. Ingels.

Accordingly, we remand this case to the Pollution Control Board for further proceedings consistent with the view set forth herein.

Reversed and remanded.

STOUDER, P.J., and BARRY, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE STOUDER

license: Public Domain

text:
    KRAIG E. KAIN, Plaintiff-Appellant, v. ROCKRIDGE COMMUNITY UNIT SCHOOL DISTRICT No. 300 et al., Defendant-Appellees.
    Third District
    No. 82 — 842
    Opinion filed August 26, 1983.
    Francis VanHooreweghe, of VanHooreweghe, Fackel & Thuline, of Mo-line, for appellant.
    Robert T. Park, of Katz, Me Andrews, Durkee, Balch & Lefstein, P.C., of Rock Island (William Dailey, of counsel), for appellees.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The plaintiff, Kraig Kain, brought suit against the Rockridge Community Unit School District and Thomas Schmulbach, a teacher and Kain’s football coach, to recover damages for injuries sustained in a high school football game. The complaint alleged the defendants were negligent in allowing the plaintiff to participate in the game. It alleged the defendants were negligent in that Schmulbach directed the plaintiff to play in the game although he had not participated in the minimum amount of practice sessions required by Rule 5.062 of the Illinois High School Association (IHSA). It also alleged that allowing plaintiff to play violated the plaintiff’s doctor’s orders, that the plaintiff was ineligible to play under IHSA rules, and that allowing plaintiff to play under these circumstances constituted negligence. The defendants moved to dismiss the complaint on the basis of statutory immunity. The motion was granted by the circuit court of Rock Island County and the plaintiff appeals. We affirm.

The Illinois School Code, section 24 — 24, provides that:

“Teachers and other certified educational employees shall maintain discipline in the schools. In all matters relating to the discipline and conduct of the schools and the school children, they stand in relation of parents and guardians to the pupils. This relationship shall extend to all activities connected with the school program and may be exercised at any time for the safety and supervision of the pupils in the absence of their parents or guardians.” (Ill. Rev. Stat. 1967, ch. 122, par. 24 — 24.)

In Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 347 N.E.2d 705, the Illinois Supreme Court ruled that this statute conferred immunity on teachers and school districts from negligence in the supervision of activities connected with school programs. The court reasoned that the statute conferred the status in loco parentis on teachers for supervision of activities connected with school programs. Therefore, teachers standing in loco parentis should not be subjected to greater liability than parents. Since parents are not liable to their children for negligence, teachers are also not liable for negligence when they are acting in loco parentis.

The defendants in the case at bar were acting in loco parentis. Football programs and activities are connected with the school program and therefore there is immunity in this situation. (Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165, 395 N.E.2d 538.) Thus the defendants are not liable for mere negligence.

The plaintiff argues that, Thomas notwithstanding, the statute is inapplicable here because the defendant violated an IHSA rule prohibiting students from playing football without adequate practice. He contends the statute applied only to situations in which the teacher has discretion. He argues that the rule is a prohibition leaving the teacher no discretion and, therefore, the statute is inapplicable.

We find the plaintiff’s argument unpersuasive. The statute does not speak of discretion. It speaks only of supervision, which does not entail only those situations involving discretion. Supervision also encompasses situations in which there is no discretion. Therefore, the statute is applicable here, and the defendants are not liable for mere negligence.

Since the defendants had statutory immunity, the trial court properly dismissed the complaint. Accordingly, the order of the circuit court of Rock Island County is affirmed.

Affirmed.

ALLOY and SCOTT, JJ., concur.


author: JUSTICE HOPF

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES M. ELIASON, Defendant-Appellant.
    Second District
    No. 82 — 710
    Opinion filed August 30, 1983.

      Mary Robinson, of State Appellate Defender’s Office, of Elgin, for appellant.
    Robert J. Morrow, State’s Attorney, of Geneva (Phyllis J. Perko and Judith M. Pietrucha, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPF

delivered the opinion of the court:

Defendant was convicted of murder following a jury trial in the circuit court of Kane County in violation of section 9 — 1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(a)(1)). He was sentenced to 20 years’ imprisonment. On appeal he contends that: (1) the State did not sustain its burden of disproving self-defense beyond a reasonable doubt; (2) the trial court abused its discretion in denying defendant’s motion for a mistrial where the State failed to disclose a statement of defendant’s; (3) the trial court abused its discretion in denying defendant’s motion for a mistrial where the arresting officer alluded to defendant’s involvement in other crimes of a similar nature; and, (4) the prosecutor’s cross-examination of defendant and closing argument regarding defendant’s post-arrest, post-warning silence violated defendant’s right to due process. We reverse.

The instant offense arose from the stabbing death of Ralph DiBattista on November 10, 1981, outside a tavern in East Dundee, Illinois. The State in its case-in-chief presented the testimony of five witnesses who viewed some of the occurrences prior to, during and after the crime. None of these witnesses, however, observed the initiation of the struggle between defendant and DiBattista; nor did they observe the actual stabbing. In addition to these witnesses, the State presented the testimony of two investigating officers who arrived on the scene minutes after the stabbing. The only evidence regarding the initiation of the fight and the actual stabbing itself came from defendant’s own testimony and that of Purifino Jimenez, a disinterested witness who was driving past the tavern at the time of the incident.

Scott Hartman, Ramiro Sanchez and Alexander Rascón were sitting together drinking beer at a table near the front window of the tavern. Scott Hartman observed defendant and DiBattista, the decedent, standing near each other at the bar. He saw DiBattista casually walk out of the bar. He could see DiBattista’s hands as he walked out, but did not see anything in them; nor did he observe anything, including a knife, on his person. After DiBattista left, defendant finished his beer and left the bar “as if he was in a hurry.” Approximately 10 seconds later, Hartman heard a thump against the west wall of the building. About 10 seconds later, defendant and the decedent appeared in front of the window and it looked as if they were wrestling. Hartman went out the door and observed defendant holding a bloody knife in his right hand and the decedent in the street holding his chest -with both hands. Hartman did not see a knife on decedent’s person, nor in his vicinity. Hartman returned inside the bar and 15 to 20 seconds later DiBattista re-entered the bar holding, his chest. He went up to a man in a cowboy hat and told the man to take him to the hospital, that he had been stabbed. He then collapsed on the floor. Hartman could see the decedent at all times and did not see any weapons at any time; nor did he see DiBattista pass anything to anybody.

Although the three differed on minor points of testimony, Sanchez and Rascón substantially corroborated significant aspects of Hartman’s testimony. After hearing the thump Sanchez looked out the window and saw defendant and decedent with their hands locked. He could see DiBattista’s right hand, but not his left. Sanchez ignored the fight until he heard there was a knife. He then went to the window and saw defendant in the street holding a knife and DiBattista on the sidewalk. He could not see DiBattista’s hands.

Rascón stated that several minutes after hearing the thump he got up and looked out the window and saw nothing. He turned around again a few seconds later and saw defendant walk nonchalantly, but at a quick pace, past the window in an easterly direction and disappear from view. He did not see a knife at that time, but believed defendant had a knife because he was wearing an open knife pouch and no knife was inside. He also saw blood on defendant’s right hand and arm. About a minute later Rascón saw defendant run and disappear. He did not see DiBattista at any time until he re-entered the bar. He had a clear view of DiBattista at all times after he re-entered the bar and did not see a knife in his hands at any time; nor did he see anything pass between the decedent and the man in the cowboy hat. Earlier that evening, Rascón accidentally bumped into the defendant in the bar and defendant stated, “You will pay for it later.” Rascón told Sanchez there was “a rowdy down at the end of the bar.”

Robert Carlson, another patron of the bar, testified that defendant and the decedent confronted each other inside the bar, although he did not hear what was said. DiBattista had come up to defendant from another part of the bar. Carlson said defendant and DiBattista then left the bar together, with DiBattista in front. Defendant, walking behind, reached behind him and flipped open a knife pouch which was hooked on his belt. Carlson saw a knife in the pouch. They both left the bar and a few minutes later DiBattista re-entered and collapsed on the floor. Carlson never saw DiBattista with a weapon; nor did he see him give anything to anybody.

Timothy Klaras, another patron, heard there was a fight outside. He stepped outside and saw defendant and DiBattista both on the sidewalk, and defendant was holding a knife in his right hand.

Officer Peters arrived at the scene and observed DiBattista lying on the ground. The officer did not notice any weapons in the area around the body or outside the tavern.

Officer Pena arrived on the scene after DiBattista had been transported to the hospital. He and Officer Peters searched the area outside the bar. No weapon was ever recovered. Based upon the investigation, Officer Pena believed the fight began in the alleyway west of the tavern. It was his opinion that based upon the location of the blood stains, no one from within the bar could have seen the entire struggle.

After the incident, defendant fled to Atlanta, Georgia. He turned himself in to the police four months later on March 15,1982.

A lab report on blood stains discovered in the defendant’s vehicle revealed that the blood could have been defendant’s and could not have been DiBattista’s. The report also concluded, among other things, that several stains found on DiBattista’s jacket, boot, and on certain paper towels in defendant’s home could have been either DiBattista’s or Eliason’s blood.

For the defense, Sally Baerr, the bartender, testified she bought defendant a drink called a “watermelon.” Defendant refused the drink and threw it over his shoulder. DiBattista then walked up to defendant and the two talked, but she could not hear what was said. According to her, Eliason threw up his hand and left the bar with DiBattista leaving sometime after. Shortly thereafter, she heard a thump against the'wall.

Ms. Baerr’s version of events was corroborated by the testimony of Ron Bailey, who came to the bar that night with defendant. Bailey also saw defendant and DiBattista exchanging words, Eliason throwing up his arm and then leaving the bar with DiBattista following. He stated it looked as though DiBattista had something in his hand because he was swinging his left arm and his right arm was next to his leg. Several minutes later, DiBattista stumbled back into the bar. He did not report what he saw to police because he did not want to get involved.

Harold Gerschefske, who had been acquainted with defendant for 10 or more years, testified he entered the bar when defendant was leaving. DiBattista left right after defendant. He said he also knew Joe Jacobs, the man in the cowboy hat whom DiBattista went up to before he collapsed. Jacobs always carried a knife and had a buck knife on his person when Gerschefske entered the bar. After the fight outside, Jacobs did not have the sheath on him, and Gerschefske saw Jacobs give something to his girlfriend to put in her purse. Gerschefske did not see anything in the decedent’s hands when he came in.

Purifino Jimenez testified he was driving by the tavern at the time in question and saw two men come out of the bar. Defendant, described as “the shorter man,” came out first and DiBattista, described as “the taller man,” came out after him and went up to defendant from behind. The shorter man turned around and pushed the taller man. The two began shoving each other and the shorter man, while walking backwards, pulled out a knife and held it in front of him. The taller man walked towards him and defendant swung with the knife. No contact was made. The taller man again came towards the shorter one and the two made contact to the west of the bar. Mr. Jimenez never saw a knife on the taller man.

Defendant testified the bartender brought him a “watermelon,” which he did not want. He threw the drink over his shoulder and it hit Ralph DiBattista. DiBattista tapped defendant on the shoulder, cussed at him and told him to watch what he was doing. DiBattista then walked away and several minutes later he returned and threw a drink in defendant’s lap, saying “This is for the drink you spilled on me.” No one other than defendant witnessed this event. Defendant turned to the bartender, said, “I am too old for this shit, and I am getting out of here,” and made some gesture with his hand. He testified he knew DiBattista since 1977 and knew he had a bad record. He recalled certain prior altercations which the decedent had had with other individuals and stated that these incidents made him apprehensive about DiBattista at the time of the stabbing.

Defendant left the bar, checking the snap on his knife pouch, which he always did, and headed west. When he got to the corner of the tavern he felt a hand on his shoulder. He spun around and hit the corner of the building. He pushed DiBattista away, moved backwards, and saw something in DiBattista’s right hand, but didn’t know what it was. He backed up and pulled out his knife. DiBattista moved towards him and defendant saw a blade to a knife and took a swipe at DiBattista saying, “Stay away from me. I am leaving the bar and I don’t want no trouble.” DiBattista came at him again and the two grabbed each other, went backwards and hit the front of the building west of the window. Defendant grabbed decedent’s right forearm with his left hand, and the decedent twice stabbed defendant’s hand. Defendant went east past the doorway, and DiBattista threatened to kill defendant. DiBattista again advanced, but defendant sidestepped him, put his knife up and stabbed DiBattista. Defendant began to leave in a westerly direction, but first turned around to see if DiBattista was following him. DiBattista again threatened to kill defendant. No one other than defendant witnessed these threats against defendant’s life. Although he was feeling dizzy and knew where the hospitals were located, he did not seek medical attention but instead drove to a restaurant where he called a friend who picked him up and drove him home. At home he called the tavern and learned DiBattista was taken to the hospital. Thinking DiBattista’s friends might be after him, he told his wife to go to her mother’s and he went to his friend’s house. The next morning, he flew to Georgia where he was treated at a hospital under an assumed name. Several days later, defendant called his wife and learned DiBattista was dead. Defendant contacted his attorney, who advised him to surrender himself. In the first week of March 1982 defendant returned to Illinois and was staying at a Holiday Inn in Rolling Meadows when the police approached him and asked if he was James Max Eliason. Defendant responded he was not, and told them his name was Glenn Hopper. Defendant subsequently turned himself in on March 15,1982.

Two Carpentersville policemen, Joseph Donahue and Anthony De-Pippo, testified for the defense regarding Ralph DiBattista’s reputation for violence. In rebuttal, and over defendant’s objection, Officer Pena testified that when defendant was being transported to the county jail he told the officer he did not know DiBattista prior to the incident in question, but had learned of his bad reputation only after the incident. This statement was not given to the defense prior to trial.

The jury returned a verdict of guilty on the murder charge and judgment was entered on the verdict.

We choose to first consider defendant’s contention that he is entitled to a new trial because of the State’s failure to disclose an oral statement made by defendant to Officer Pena after his arrest and after he had requested counsel. According to Officer Pena, defendant stated he did not know of DiBattista’s reputation for violence prior to the instant offense. The statement was introduced by the State to rebut defendant’s direct testimony that he knew of the victim’s propensity for violence prior to the instant offense, and to rebut defendant’s testimony on cross-examination that he did not recall telling Officer Pena that he had never heard of DiBattista. Defendant claims that the nondisclosure of this statement resulted in severe prejudice to him because it eliminated his opportunity for making informed strategic decisions, prevented him from gathering evidence to discredit Pena’s rebuttal testimony, and prevented him from making a meritorious motion to suppress. The State contends the nondisclosure issue was waived when defendant failed to object to the prosecutor’s initial cross-examination of defendant regarding the conversation he had with Officer Pena on the day he surrendered. Alternatively, the State maintains that its withholding of the statement was unintentional and that, in any event, the granting of a mistrial would have been a severe sanction under the circumstances of this case. For the reasons that follow, we agree that the error complained of requires reversal and entitles defendant to a new trial.

Initially, we do not view defendant’s failure to object to the prosecutor’s initial cross-examination of defendant regarding the challenged conversation as sufficient to constitute a waiver of this issue. Defense counsel at that time was unaware that such a conversation in fact existed, and therefore cannot be faulted for failing to object to seemingly nonexistent evidence. (See People v. Nelson (1980), 92 Ill. App. 3d 35, 44-45, 415 N.E.2d 688, cert. denied (1981), 454 U.S. 900, 70 L. Ed. 2d 217, 102 S. Ct. 404, where this court reviewed the nondisclosure issue despite defendant’s failure to object to the initial reference to the evidence on cross-examination; see also People v. Boucher (1978), 62 Ill. App. 3d 436, 438, 379 N.E.2d 339.) Thus, we turn to the merits of defendant’s claim.

Supreme Court Rule 412(a)(ii) provides that the State must disclose to defendant “any written or recorded statements and the substance of any oral statements made by the accused *** and a list of witnesses to the making and acknowledgement of such statements.” (87 Ill. 2d R. 412(a)(ii); People v. Weaver (1982), 92 Ill. 2d 545, 559, 442 N.E.2d 255.) The rule encompasses not only formal statements made to the authorities but also statements made to anyone that might have a bearing on the defendant’s guilt or innocence. (92 Ill. 2d 545, 559, 442 N.E.2d 255.) It is a continuing duty which is violated whether the State’s neglect was inadvertent or purposeful. (92 Ill. 2d 545, 559, 442 N.E.2d 255.) Compliance with the rule is only excused where the prosecutor is unaware of the existence of the statement prior to trial and could not have become aware of it in the exercise of due diligence. People v. Brown (1982), 106 Ill. App. 3d 1087, 1092, 436 N.E.2d 696.

In the present case, it is clear that defendant was entitled to the substance of his oral statement to Office Pena. The record establishes that the prosecutor learned of the statement just prior to trial but did not disclose it to the defense because he “did not think it would be used.” This indicated a clear misunderstanding of the discovery rules, since a defendant’s oral statements, when requested, are required to be disclosed whether or not they are intended to be used by the prosecution. (87 Ill. 2d R. 412(a)(ii).) We further doubt the State’s Attorney’s assertion that he did not think the statement would be used. The State was aware that defendant would claim self-defense, and also that he intended to demonstrate DiBattista’s reputation for violence by evidence of his past acts of violence against third persons. A motion in limine, made by the prosecution prior to its discovery of the statement, sought to limit evidence of DiBattista’s past and indicated that the State anticipated defendant would demonstrate his own knowledge of DiBattista’s reputation for violence. Further, defense counsel on several occasions asked for the substance of Pena’s rebuttal testimony, and each time the prosecutor could not recall the challenged testimony. However, this was the first question asked when Officer Pena took the stand. Under these circumstances, we think it is evident that the State’s failure to disclose the statement was an intentional violation of the discovery rules.

However, not every violation requires a new trial. (People v. Greer (1980), 79 Ill. 2d 103, 120, 402 N.E.2d 203.) A new trial should only be ordered when a defendant is prejudiced by the discovery violation and the trial court fails to eliminate that prejudice. (People v. Weaver (1982), 92 Ill. 2d 545, 560, 442 N.E.2d 255.) Numerous avenues exist for the elimination of prejudice at the trial level. The trial court may order disclosure of the information, grant a continuance, exclude such evidence, or enter such order as it sees fit under the circumstances. It may also subject the attorney himself to sanctions if his violation is wilful. (92 Ill. 2d 545, 560, 442 N.E.2d 255.) The closer the evidence, the stronger is the case for excluding the statement or declaring a mistrial. (92 Ill. 2d 545, 560, 442 N.E.2d 255.) Other factors to be considered are the strength of the undisclosed evidence, the likelihood that prior notice could have helped the defense discredit the evidence, the feasibility of continuance rather than a more drastic sanction, and the wilfulness of the State in failing to disclose. 92 Ill. 2d 545, 560, 442 N.E.2d 255.

We agree with defendant that he was prejudiced by the discovery violation here, and that prejudice was not eliminated by the trial court. Defendant claimed on direct examination to have known of DiBattista’s reputation for violence prior to the incident. This testimony was the only evidence of defendant’s prior knowledge of DiBattista and was offered for the purpose of proving the reasonableness of defendant’s belief that deadly force was necessary to repel DiBattista’s assault upon him. Defendant’s state of mind was critical to establishing his self-defense claim. Officer Pena’s testimony directly contradicted defendant’s testimony at trial and cast serious doubt upon defendant’s credibility in general. This result is particularly prejudicial here, since defendant was the only person to witness the entire incident and his version of events was corroborated in significant respects by two disinterested witnesses, Purifino Jimenez and Sally Baerr. In addition, it is uncontested that the statement was made after defendant asserted his right to counsel and the authorities were aware that communication with him was to be through his attorney only. (See Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880.) While there are insufficient facts in the record to determine whether defendant’s right to counsel was violated, it is clear that the statement was subject to a motion to suppress which may have been successful. The prosecutor below argued that a statement taken in violation of Miranda is nonetheless admissible for impeachment purposes if it was voluntarily given. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602; see Oregon v. Hass (1975), 420 U.S. 714, 43 L. Ed. 2d 570, 95 S. Ct. 1215; Harris v. New York (1971), 401 U.S. 222, 28 L.Ed. 2d 1, 91 S. Ct. 643.) We agree with this general proposition of law. However, we interpret Harris and Hass as contemplating a situation in which the admissibility and voluntariness of a defendant’s statement has already been fully litigated prior to trial. We conclude that the State’s failure to disclose the statement prior to trial improperly and unfairly deprived defendant of the opportunity to test its admissibility as both substantive and impeachment evidence against him.

The State argues that defendant’s failure to request a continuance negates his claim of surprise. (See People v. Nelson (1980), 92 Ill. App. 3d 35, 45, 415 N.E.2d 688, cert. denied (1981), 454 U.S. 900, 70 L. Ed. 2d 217, 102 S. Ct. 404.) While such a failure would generally be fatal to defendant’s claim of surprise on appeal (People v. Smith (1982), 111 Ill. App. 3d 895, 905, 444 N.E.2d 801; People v. Nelson), we do not think this alternative would have remedied the prejudicial effect of the statement at trial. A continuance may have allowed defense counsel the opportunity to discover the context in which the statement was made and to possibly put a different interpretation upon the statement under those circumstances or to discredit Pena’s testimony altogether. (See People v. Weaver (1982), 92 Ill. 2d 545, 561, 442 N.E.2d 255.) However, since there is a real question of a Miranda violation here, and whether the statement was made voluntarily, we think defendant should have been given an opportunity prior to trial to make a motion to suppress to litigate these issues. A continuance, therefore, may have alleviated some of the prejudice, but with prior notice the statement may have been eliminated altogether or at least caused a change of strategy. We conclude that the trial court erred in failing to grant a mistrial under these circumstances. Thus, in accordance with the principles announced in People v. Weaver (1982), 92 Ill. 2d 545, 442 N.E.2d 255, the cause is reversed and remanded for a new trial.

We are next required to review the sufficiency of the evidence against defendant, since a failure to do so may subject defendant to double jeopardy upon retrial. (People v. Taylor (1979), 76 Ill. 2d 289, 309, 391 N.E.2d 366, 375.) Defendant argues that the evidence was insufficient to prove him guilty of murder beyond a reasonable doubt because the State’s evidence did not contradict defendant’s evidence in any significant respect, but instead contradicted each other and corroborated his version of events.

A person is justified in using deadly force when that person “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 7 — 1; People v. Ellis (1982), 107 Ill. App. 3d 603, 611, 437 N.E.2d 409; In re S.M. (1981), 93 Ill. App. 3d 105, 109, 416 N.E.2d 1212.) To determine whether a killing is justified under self-defense, the question is whether defendant’s belief that he had to use deadly force was reasonable under the circumstances. (People v. Aguero (1980), 87 Ill. App. 3d 358, 363, 408 N.E.2d 1092.) This is a question for the trier of fact to decide, and its finding will not be set aside on review unless the evidence is so unsatisfactory as to leave a reasonable doubt of defendant’s guilt. {Agüero.) Finally, when the defendant is the only witness to the event in question and his testimony allegedly constitutes the only evidence of what actually took place, the trier of fact is not obligated to accept all, or even any part, of his statements but may consider the reasonableness of the defense offered, assess its probabilities, if any, and reject that evidence which it finds contradictory, unlikely, or improbable in light of other facts before it. People v. Lynom (1981), 97 Ill. App. 3d 1113, 1117, 423 N.E.2d 1281.

We have reviewed the record and find that the jury’s verdict finding defendant guilty of murder was supported by the evidence. Under all the facts, it was reasonable for the jury to conclude that defendant was the aggressor of the fight as exhibited by his actions just prior to leaving the bar. It was also reasonable to conclude, even if DiBattista did initiate the struggle, that defendant’s use of deadly force was unjustified in light of the absence of any evidence other than defendant’s testimony that DiBattista had a weapon, and in light of defendant’s testimony that he pulled a knife prior to actually seeing a knife in DiBattista’s hand. (See People v. Ellis (1982), 107 Ill. App. 3d 603, 437 N.E.2d 409.) Defendant’s flight from the scene is also indicative of a consciousness of guilt. (People v. Jackson (1981), 100 Ill. App. 3d 1064, 1069, 427 N.E.2d 994.) The inconsistencies noted in the testimony of the State’s witness (i.e., where witnesses were seated in the tavern, whether the bartender said anything after hearing the “thump,” and the locations of DiBattista and defendant outside) were all minor and do not destroy the witnesses’ credibility but only affect the weight given to their testimony. People v. Schroeder (1982), 105 Ill. App. 3d 677, 679, 434 N.E.2d 546.

Because thé other issues raised by defendant could recur upon retrial of this cause, we will briefly address them here.

Defendant contends that certain testimony by Officer Pena alluding to other crimes “of this nature” denied him a fair trial. On direct examination, Officer Pena was asked by the prosecutor whether he spoke to defense counsel in November or early December 1981. The officer responded affirmatively, and the prosecutor asked:

“Q. And what did you inform him?
A: I informed Mr. Mahoney that our agency had an arrest warrant for murder on Mr. Eliason; that I was aware of the fact that Mr. Mahoney had represented him in a previous case, and that Mr. Mahoney had always had his client’s cooperation in getting himself turned in with reference to situations of this nature.”

Defense counsel objected to this testimony and moved for a mistrial. The motion was denied, but the court instructed the jury to disregard the testimony regarding “previous incidents of this nature.”

Evidence that tends to show that an accused has committed crimes or acts of misconduct which are distinct and entirely unrelated to the ones for which he is being tried generally is both incompetent and prejudicial. (People v. Johnson (1981), 102 Ill. App. 3d 122, 129, 429 N.E.2d 905; People v. Banks (1981), 98 Ill. App. 3d 556, 564, 424 N.E.2d 898.) Although the reference here was only to “incidents,” rather than “arrests” or “convictions,” the jury was nonetheless alerted to the fact, whether true or false, that defendant had had previous encounters with the police and that he had also fled from those incidents. More significantly, however, is that within the context of this case, the reference to “incidents of this nature” led to the inference that defendant was involved in other acts resulting in death to another person. In fact, no such prior incident appears in the record. We therefore agree that the challenged testimony was prejudicial and constituted error, which upon retrial should be avoided.

Finally, defendant contends that the prosecutor’s cross-examination of defendant and closing argument regarding defendant’s post-arrest silence violated due process. See Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240.

We first note that the prosecutor’s initial question on cross-examination referred to defendant’s silence prior to his arrest during long-distance phone calls to Officer Pena. However, this line of questioning then extended into defendant’s post-arrest silence without objection by defendant. In closing argument, the prosecutor referred generally to defendant’s failure to claim self-defense prior to trial, and in this context spoke of defendant’s conversations with Officer Pena prior to and upon his arrest in which no such claim was made.

In Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, the Supreme Court held that a defendant’s post-arrest, post-warning silence cannot be used to infer that a subsequent exculpatory story has been fabricated. The court stated that under these circumstances, the defendant’s silence may be nothing more than the exercise of his rights. (426 U.S. 610, 617, 49 L. Ed. 2d 91, 97, 96 S. Ct. 2240, 2244.) In Fletcher v. Weir (1982), 455 U.S. 603, 607, 71 L. Ed. 2d 490, 494, 102 S. Ct. 1309, 1312, however, the court held that where a defendant takes the stand and testifies to an exculpatory version of events, the State is entitled to impeach the defendant by his post-arrest silence as long as the record does not indicate the silence was preceded by Miranda warnings or some other governmental assurance. Finally, in Jenkins v. Anderson (1980), 447 U.S. 231, 239, 65 L. Ed. 2d 86, 95, 100 S. Ct. 2124, 2129, the court held that a defendant may be impeached by his pre-arrest silence if it is permitted under the State’s own evidentiary rules.

In the instant case the prosecutor’s cross-examination regarding defendant’s pre-arrest, prewaming silence is proper under the authority of Jenkins v. Anderson (1980), 447 U.S. 231, 239, 65 L. Ed. 2d 86, 95, 100 S. Ct. 2124, 2129. However, as to the questions regarding defendant’s post-arrest silence, it is clear from the record that defendant had received Miranda warnings at that time from Officer Pena and chose to remain silent about the case. (Cf. People v. Hinson (1979), 70 Ill. App. 3d 880, 388 N.E.2d 899.) The record also indicates that defense counsel informed Officer Pena that defendant would not be answering any questions about the case. (Cf. Fletcher v. Weir (1982), 455 U.S. 603, 607, 71 L. Ed. 2d 490, 494, 102 S. Ct. 1309, 1312.) We, therefore, conclude that it was improper for the prosecutor to question defendant about his post-warning, post-arrest silence.

For the foregoing reasons, the judgment of the circuit court of Kane County is reversed and remanded for new trial in accordance with this opinion.

Reversed and remanded.

REINHARD and NASH, JJ., concur.


author: JUSTICE ALLOY JUSTICE HEIPLE,

text:
      In re R.S., a Minor—(The People of the State of Illinois, Petitioner-Appellee, v. R.S., Respondent-Appellant).
    Third District
    No. 82 — 843
    Opinion filed August 31, 1983.

      HEIPLE, J., dissenting.
    Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Gary L. Peterlin, State’s Attorney, of Ottawa (John X. Breslin and Kenneth A. Wilhelm, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE ALLOY

delivered the opinion of the court:

A petition for adjudication of wardship was filed on August 2, 1982, which named the minor, R.S., and the minor’s parents as respondents. The minor’s address was the same as his father’s, but his mother resided at a different address. The petition alleged that the minor was delinquent because he committed the offense of burglary. (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1(a).) No summons or service on any of the respondents appears in the record.

R.S. was taken into custody pursuant to a youth warrant. He was placed in the temporary custody of the La Salle County Probation Department from August 6,1982, until August 18,1982.

On August 11, 1982, the minor, his attorney, and the minor’s father were present in court when an order of continuance was entered. The adjudicatory hearing was then set for August 18,1982.

The minor, his father, and the minor’s attorney were present in court on August 18, 1982. Once again the cause was continued. The court also ordered that the minor reside with his father rather than at the detention home until the hearing set for August 24, 1982. The record does not indicate what occurred during the August 24, 1982, hearing or whether it took place.

The minor consented to an adjudication of delinquency on August 31, 1982. His father and counsel were present at the hearing. However, the minor subsequently made a motion to withdraw his consent. The motion was allowed on September 15, 1982, and the trial court vacated its order of adjudication and finding of contempt. The minor’s father and attorney were present at the proceeding. September 22, 1982, was the date set for the adjudicatory hearing.

The adjudicatory hearing commenced as scheduled, although there is some confusion as to whether the hearing began on September 22 or 23, 1982. The common law record states September 22, 1982, as the date, while the report of proceedings states September 23, 1982. We will refer to the hearing as the September 22, 1982, hearing. The minor’s father was not present on the first day of the adjudicatory hearing, although the minor and his attorney were there.

The hearing was continued until October 12, 1982, at which time the father was present in court with his son. Further proceedings were continued until October 13, 1982. The hearing was in progress on October 13, 1982, when the minor’s father arrived. The hearing was then continued until October 21, 1982.

On October 21, 1982, the minor was adjudicated a delinquent. He was present in court and represented by his attorney, but his father was not present. The record indicates that the minor’s father was injured in an automobile accident sometime between October 13 and 21, 1982. The father was hospitalized and unable to attend the hearing. The minor’s aunt and uncle were present. They had custody of R.S. since the father’s accident and had requested permission to attend the hearings, which the court granted.

A dispositional hearing was held on November 9, 1982. The minor and his attorney were present. Since the minor’s father was still hospitalized, the minor’s aunt and uncle attended the hearing. R.S. was committed to the Department of Corrections.

The State’s evidence tended to establish that on July 25, 1982, at about 3 a.m., Larry’s Universal Plumbing and Heating, located in Ottawa, Illinois, was burglarized. One of the owners of the business, James Hicks, testified for the State. He was in the building at the time of the break-in. Hicks identified R.S. as one of the people involved in the burglary. He said later in his testimony that he was “pretty sure” it was R.S. and that he could have picked R.S. out of a lineup if there had been one.

Billy Joe Joyce testified on behalf of the State. He admitted taking part-in the burglary although he said he only acted as a look-out. Joyce implicated R.S. and Keith Lambert in the incident.

Joyce testified that before he made the statement to the State’s Attorney’s office which implicated R.S. and Lambert, he was granted total immunity from prosecution on the instant offense. Another unrelated theft charge was reduced to criminal damage to property as well. Joyce admitted that he had prior convictions as a juvenile.

Following testimony from other witnesses, the State rested. At this time the trial judge called Keith Lambert as a court "witness. Lambert was not listed as a State witness in discovery. The judge commented that he thought it unusual that Lambert had not been called to testify since Lambert had admitted being present at the crime scene during his adjudicatory hearing.

The judge asked Lambert if the minor herein was involved in the July 25, 1982, break-in. Lambert refused to answer. The judge admonished Lambert about contempt but still he did not answer. Lambert was held in contempt of court with the sentence reserved pending a determination of the R.S. matter.

The defense called several witnesses and presented an alibi defense. During the presentation of the minor’s defense, the trial judge again called Lambert to testify. The judge admonished Lambert about sentencing on contempt findings. Lambert was then asked whether R.S. was an accomplice in the break-in and Lambert responded, “Yeah.” Upon further questioning by the defense attorney, Lambert also implicated Billy Joe Joyce.

A final alibi witness for the defense was called. Closing arguments were held. R.S. was found to be delinquent and was made a ward of the court. He was subsequently committed to the Department of Corrections.

The first issue raised by the minor in his appeal involves jurisdiction. He contends that the court’s finding of delinquency and its adjudicatory and dispositional orders are void because the court lacked jurisdiction. (In re C.G. (1979), 69 Ill. App. 3d 56, 387 N.E.2d 4.) There was no jurisdiction to enter the orders because the respondents were not served with notice of the proceedings as required by due process and the Juvenile Court Act. Ill. Rev. Stat. 1981, ch. 37, par. 701 et seq.

The lack of service of notice to the minor and his father did not deprive the court of jurisdiction. The minor was present during each hearing, accompanied by counsel. It is also apparent from the record that the minor’s father was present at all but three of the hearings. While the father was not at the September 22, 1982, hearing, he had notice because he attended the September 15, 1982, hearing which was continued until September 22, 1982. The father was unable to attend the October 21, 1982, and November 9, 1982, hearings because he was hospitalized from an automobile accident. However, he had sent his son to live with his brother and sister-in-law. The aunt and uncle attended the last two hearings.

Under the Juvenile Court Act the minor and each respondent named in a case is to be individually served with notice, if possible. If service is not feasible, then service by publication is required. (Ill. Rev. Stat. 1981, ch. 37, pars. 704 — 3, 704 — 4.) However, section 4 (par. 704 — 4) does not demand useless formality. The father and the minor in the instant case, while not formally served, had actual notice of the proceedings. The minor was present throughout the hearings. His father was also present or had notice of the September 22, 1982, hearing he did not attend. The father was unable to attend the last two hearings. No one objected to the lack of formal service. The minor and his father waived formal service of process and submitted themselves to the jurisdiction of the court. In re J.W. (1981), 87 Ill. 2d 56, 62, 429 N.E.2d 501, 504.

The last part of the adjudicatory hearing on October 21, 1982, and the dispositional hearing on November 9, 1982, were not attended by R.S.’s father. The minor complains that his aunt and uncle, who had custody of him after his father was injured, were not named as respondents. They, too, had actual notice of the proceedings as they were present at these last two hearings. The aunt and uncle asked the court for permission to attend. They waived formal notification and submitted themselves to the jurisdiction of the court. In re J.W. (1981), 87 Ill. 2d 56, 429 N.E.2d 501.

The minor argues that jurisdiction was still lacking because his mother, a named respondent with a known address, was not served with notice. He claims this service is a jurisdictional requirement.

Relying upon In re J.W. (1981), 87 Ill. 2d 56, 429 N.E.2d 501, this court found that service of notice to a noncustodial parent is not a jurisdictional statutory requirement. (In re J.A. (1982), 108 Ill. App. 3d 426, 439 N.E .2d 72.) The minor in the case at bar was in the custody of his father. While the record does not contain an actual court order granting custody to the father, an overall reading of the record indicates that actual, physical custody of the minor was with the father. The petition for adjudication lists the minor’s address as that of the father; social records of the minor indicate custody with the father; and testimony during the hearings show that the father had custody of the minor. We also note that while the father was the custodial parent at the time the petition was filed, the court ordered the minor to reside with the father at the August 18, 1982, hearing. The minor does not controvert the issue of custody but insists that service on the mother was required.

Since the father was the custodial parent, the mother did not have to be served with notice. The father had actual notice. Therefore, the court had jurisdiction to enter its orders.

The second issue raised by the minor is whether the trial judge exceeded the bounds of judicial propriety by assuming the role of prosecutor and considering evidence outside the record. This issue concerns the fact that the trial judge twice called Keith Lambert to testify as a court witness and elicited testimony from him which implicated the minor. The trial judge also made reference to Lambert’s own admission of guilt, which was made during a separate court proceeding than the one at bar.

A trial judge may question witnesses in order to elicit the truth or to enlighten material issues that seem obscure. The propriety of such examinations must be determined by the circumstances of the case and rests largely in the discretion of the court. (People v. Costello (1981), 95 Ill. App. 3d 680, 686, 420 N.E.2d 592, 596.) The trial judge should never depart from his role as a judge in conducting the examination, however, and assume the role of an advocate. People v. Wesley (1959), 18 Ill. 2d 138,163 N.E.2d 500.

In the case at bar, the trial judge called Keith Lambert as a court witness. Lambert was not listed as a witness for the State in its discovery answer. The trial judge thought it was unusual that Lambert was not being called as a witness considering Lambert’s involvement in the incident. Relying on the fact that Lambert had admitted his involvement during a previous court appearance on charges against Lambert, the judge believed that Lambert knew whether R.S. was a participant.

The trial judge held Lambert in contempt when he refused to answer the question put to him by the judge. Lambert was called back by the judge and admonished as to sentencing for contempt if Lambert would not purge himself by answering. Finally, Lambert admitted that the minor was an accomplice.

Under the circumstances, the trial judge exceeded the bounds of judicial discretion by calling Lambert to testify. Lambert was not listed as a State witness. The judge, knowing of Lambert’s involvement because of the judge’s knowledge of an earlier proceeding which was not part of the proceedings before the judge at this time, called Lambert to testify. Although the judge asked only one question of Lambert, the response incriminated the minor. The judge helped establish the State’s case against the minor. The judge commented that “absent the testimony of the second accomplice, the Court may have considered the evidence weaker in quality ***.” In this case the judge took on the role of prosecutor.

The State argues that even if the trial judge abused his discretion by calling Lambert, the minor has waived the issue by failing to object at the trial level. However, the error complained of was so prejudicial to the minor that his right to a fair trial was denied. (People v. Beasley (1977), 54 Ill. App. 3d 109, 369 N.E.2d 260.) Therefore, the issue is considered on appeal.

The State contends that based on the testimony of James Hicks and Billy Joe Joyce, the error regarding Lambert did not substantially impair the minor’s rights. We do not agree. Hicks’ identification of the minor as one of the perpetrators was somewhat weak. Joyce admitted that he received immunity and had a charge reduced in another case in return for his statement incriminating the minor. The minor also presented testimony on alibi. If, in fact, evidence against the minor was as strong as the State contends, the trial judge would not have considered the testimony of Lambert so vital in determining whether the minor was involved. The judge must have held some reservations about the minor’s guilt.

Based on the foregoing reasoning, the finding of delinquency, adjudication of wardship and dispositional order are reversed. The cause is remanded for a new adjudicatory hearing.

Reversed and remanded.

STOUDER, P.J., concurs.

JUSTICE HEIPLE,

dissenting:

The majority is reversing this case because, in their opinion, the trial judge assumed the role of prosecutor by acting on his own initiative in calling the minor’s accomplice to testify as a court’s witness. According to the majority, the trial judge helped the State to establish its case. I disagree.

As the majority admits, a trial judge may question a witness in order to enlighten material issues that seem obscure and to elicit the truth. This is precisely what happened in the present case. A trial judge does not assume the role of prosecutor when, with proper foundation, he calls a single witness who can state with certainty whether or not the defendant committed the crime he was charged with.

A court’s witness may be called when the following foundation requirements are met: (1) One party is unwilling to vouch for the witness’ credibility; (2) the testimony of the witness will relate to direct issues involved in the case, and; (3) the testimony is necessary to prevent a miscarriage of justice. (People v. DeFord (1978), 59 Ill. App. 3d 942.) The general practice is for one of the parties to ask the trial judge to call a court’s witness. However, there is nothing in the law which prevents a court from doing so on its own initiative, as in the present case, so long as a proper foundation is laid.

In People v. Moriarity (1966), 33 Ill. 2d 606, the trial judge, on his own motion, called the defendant’s wife to testify as a court’s witness. The supreme court reversed, finding that the wife was called solely to provide an avenue for the hearsay testimony of another witness. Under these circumstances, the supreme court held that it was error to call the wife as a court’s witness and that the trial court acted arbitrarily and without a proper foundation. The circumstances in the present case are just the opposite. The trial judge’s decision to call Keith Lambert as a court’s witness was reasonable and supported by an adequate foundation.

Before calling Lambert to the witness stand, the court made the following statement:

“For the record, the Court does not ordinarily enter in these matters by calling a witness, but it seemed highly unusual to me that someone who allegedly was involved in this thing with the minor and who, by his own admission in open Court, admitted that he himself was present on the night in question in which this controversy arose, I thought it highly unusual that that person not be brought in here by the people as a witness. They assured me there was good and valid reason for it and the voir dire just now conducted in Chambers with Mr. Lambert and the attorneys that Í mentioned that were present in the courtroom, the Court found that while there was some justification for the people not to call the defendant there certainly wasn’t any justification in my mind for not receiving his testimony.”

From these remarks, it is clear that the court believed that the State did not wish to call Lambert as a witness and rely on his credibility. Lambert, as both the minor’s accomplice and an eyewitness, knew whether or not the minor was present at the scene of the crime. And if the trial judge harbored some reservations about the minor’s guilt (as the majority contends), then to acquit or convict him without hearing Lambert’s testimony may have been a miscarriage of justice.

I also do not believe that the trial judge exceeded the bounds of judicial discretion in questioning Lambert. The only question asked was whether the minor was with Lambert during the commission of the crime in question. At first, Lambert refused to answer. But after the court threatened to find him in contempt, Lambert returned the following day and gave a satisfactory answer. Both sides were then permitted to cross-examine. The judge said or did nothing to demonstrate partiality toward either party.

It is interesting to note that at the time Lambert was called, the court could not have known whether his testimony would help to convict or exonerate the minor. The court was simply trying to arrive at the truth and eliminate uncertainty. There was a proper foundation for calling Lambert as a court’s witness and the judge remained impartial throughout the entire hearing. In short, there is no reason to reverse this case. Therefore, I dissent.


author: JUSTICE HEIPLE

text:
    RICHARD A. GETSON et al., Plaintiffs-Appellees, v. EDIFICE LOUNGE, INCORPORATED, Defendant-Appellant.
    Third District
    Nos. 3 — 83—0036, 3 — 83—0153 cons.
    Opinion filed August 31, 1983.

      Andrew H. Marsch, of Wheaton, and Richard J. Prendergast, of Chicago, for appellant.
    E. Kent Ayers, Gerald R. Kinney, and Roger D. Rickmon, all of Murphy, Timm, Lennon, Spesia & Ayers, of Joliet (William R. Penn, of Massey, Penn & Gilbert, of counsel), for appellees.
   JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiffs were stabbed in front of the Edifice Lounge in Joliet. They were stabbed by members of a gang called the “Outlaws.” Mr. Getson was stabbed by Ronald Talmadge. Mr. Churnovic was unable to identify his attacker. The plaintiffs brought suit against both Talmadge and the Edifice Lounge. In the counts against the Edifice Lounge, the plaintiffs allege the stabbings were the proximate result of the lounge’s negligent and wilful and wanton conduct of not protecting the plaintiffs from knife-carrying gang members. A jury returned a judgment for Churnovic, against the lounge, in the amount of $145,000 in compensatory damages and $25,000 in punitive damages. The jury returned a judgment for Getson, and against the lounge, in the amount of $170,000 in compensatory damages. However, the jury found Getson was 10% contributory negligent and consequently reduced his award to $153,000. The jury also awarded Get-son $25,000 in punitive damages against the lounge. From Talmadge, Getson obtained a net award of $153,000 in compensatory damages. Getson was not awarded punitive damages for his claim against Talmadge. The Edifice Lounge appeals and raises seven issues as follows: (1) whether the defendant Edifice Lounge violated any duty to either plaintiff, who were both stabbed outside of the lounge; (2) whether the Edifice Lounge was guilty of wilful and wanton misconduct; (3) whether an instruction as to agency was properly given; (4) whether the trial court improperly allowed testimony as to the reputation of the Outlaws Motorcycle Club; (5) whether a motion for directed verdict was improperly denied upon erroneous belief of the trial court that the Edifice Lounge personnel had a duty to keep persons with knives off its premises; (6) whether an instruction as to the violation of a Crest Hill ordinance was improperly given; (7) whether the verdicts rendered were excessive and unsupported by the evidence.

Getson testified he arrived at the Edifice Lounge at approximately 11:45 p.m. on May 15, 1980. He had already been to three other bars and had drunk between five and six drinks since 6:30 that evening. Getson went to the outside entrance of the lounge and spoke to the owner, Mr. DeAcetis, who was supervising the passage of customers into and out of the bar. The bar was very crowded, at or near its capacity of 200 persons. On this particular night, the bar was holding a “Punk Rock” night. The music was loud and the place was hot. Getson spoke with DeAcetis for about 10 minutes and then walked through the outside entrance way into a small 5 feet by 4 feet foyer, or vestibule. He walked through the foyer to the second, inner, entrance way which opened into the bar area. Getson entered the bar area, saw two friends, Robert Churnovic and another man, and spoke with them for 20 minutes. Then, Getson spoke with a young woman friend for about 15 minutes. Getson testified that while he was speaking with the young woman he saw Talmadge and another member of the Outlaw gang standing nearby in the bar. Talmadge was putting on his jacket which carried an “Outlaws” insignia. Both men were wearing a buck knife on their belt. Churnovic also testified he saw Talmadge in the bar area with another Outlaw member and both men were carrying a knife on their belt and a drink in their hand.

After speaking with the woman, Getson decided to go outside to get some fresh air. He walked through the inner doorway and into the foyer. The foyer was crowded. People were bumping into one another and moving in different directions. Some leaving the bar; others entering. As he made his way to the outside doorway, Getson bumped into Talmadge a couple of times. Just as Getson was moving to exit the outside door way, Talmadge said to Getson, “this means you too Mother F — er.” Since both Getson and Talmadge were holding drinks, Getson thought Talmadge was referring to the rule that no one can leave the bar carrying a drink. Getson, apparently unintimidated by Talmadge in his classic biker attire, suggested to Talmadge that he “get f — ed.” Getson walked out of the foyer and towards the parking lot at the front of the bar. There were perhaps 20 to 30 people outside in the area of the front door. Getson turned around and saw Talmadge coming at him with a knife in hand. Talmadge was carrying a buck knife which had a blade about five inches long and several inches wide. Getson quickly took off his belt in order to defend himself. As Talmadge came at Getson, Getson continued to back away. He moved in between two cars. At the same time, another Outlaw came around behind Getson. Getson began swinging his belt at the two attackers, and continued to move away from them. The fight moved into the street. As Getson swang at the second attacker, Talmadge stabbed Getson twice, once in the side and once in the chest. Getson then fell unconscious. The entire fight, according to the testimony, took place in 30 seconds to one minute. The police were at the scene almost instantly because a squad car happened to be patrolling nearby and noticed the commotion.

When the fight first began, someone called into the bar that there was a fight outside. Several people in the bar came out into the parking lot to see the event. One of those persons was Churnovic. He tried to get as close as possible to the fight. Unfortunately, he came too close to the skirmish and was stabbed too. Churnovic testified that he was stabbed by the same Outlaw member who was standing next to Talmadge in the bar area.

A witness, Mr. Archey, testified he was outside the building when the fight took place. He was sitting near the outside entrance on a car. Archey saw Talmadge standing in the doorway of the outside entrance. Getson tried to pass by Talmadge. A few words were' exchanged and both men moved outside. Apparently, Talmadge exited first because he was blocking the doorway. Getson moved away from the building and Talmadge followed him with a knife in his hand. Archey did not see Talmadge pull the knife from his belt. The above-described fight then took place. It was Archey who went to the entrance way and called into the bar that there was a fight outside.

The owner of the Edifice Lounge, Mr. DeAcetis, and Talmadge, told a slightly different story at trial. Mr. DeAcetis testified he was working at the door on May 15. At 10:30, three members of the Outlaws gang arrived with their girlfriends. One was wearing an “Outlaws” jacket and at least one was wearing a knife on his belt. The bartender and part-time manager also testified three Outlaws were in the bar and one was carrying a knife. DeAcetis asked the gang member wearing the “Outlaws” jacket to take it off. DeAcetis had a policy of not allowing customers to enter the bar wearing jackets showing gang insignia because he did not want trouble from people who designate themselves as a motorcycle gang. However, DeAcetis did not require the knife-carrying man to take off the knife because people wear knives all the time.

Shortly after the first group of Outlaws arrived, a second group rode into the front parking lot, parked their bikes, and went to a bar across the street. Talmadge was in the second group of bikers. Later in the evening, Talmadge attempted to enter the Edifice Lounge. DeAcetis refused to allow Talmadge inside because Talmadge refused to remove his jacket which carried the Outlaws’ insignia. DeAcetis stated that he did not notice whether Talmadge was carrying a knife. DeAcetis also stated he heard what he thought to be the voice of Get-son say “the beer cannot come outside” and then he heard someone swear. Both DeAcetis and the doorman were at the front door. DeAcetis saw Talmadge with a knife in his hand and Getson taking off his belt as he backed away from Talmadge. DeAcetis instructed the doorman to make sure no one went in or out of the bar. After another Outlaw grabbed a customer and put a knife to his neck, DeAcetis went to call the police. Just as he went to make the call, the nearby police officer arrived at the scene.

Talmadge stated he attempted to enter the Edifice Lounge only to stick his head in the bar to tell his fellow Outlaws to move their bikes so that he could leave. He admitted he was wearing a knife. He also stated DeAcetis said he could not enter the bar with his Outlaws jacket on; so he called to his friends, who were just inside the bar area, from the foyer area. Talmadge did not testify concerning his conversation with Getson or the details of the fight.

As noted above, the jury returned verdicts in favor of the plaintiffs and against the Edifice Lounge. The first issue presented by the Edifice Lounge is whether the defendant Edifice Lounge violated any duty to either plaintiff, who were both stabbed outside of the Lounge. The existence of a duty is a question of law. The question here is does a possessor of land have a duty to protect invitees from criminal attacks by third persons? The court in Krautstrunk v. Chicago Housing Authority (1981), 95 Ill. App. 3d 529, 534, succinctly explained “the possessor of land has a duty to protect invitees from criminal attacks, but only when such attacks are reasonably foreseeable, and the burden of preventing such attacks can reasonably be placed on the defendant. (See Gill v. Chicago Park District (1980), 85 Ill. App. 3d 903, 905, 407 N.E.2d 671.)” Thus, we must find that as a matter of law there is a duty when the danger is foreseeable. Foreseeability must be determined upon the facts and circumstances of each case.

“ ‘[I]n determining whether there was a legal duty, the occurrence involved must not have been simply foreseeable, as the plaintiff contends; it must have been reasonably foreseeable. The creation of a legal duty requires more than a mere possibility of occurrence. Negligence as defined in the Restatement (Second) of Torts (1965), section 282, is conduct which falls below the standard established for the protection of others “against unreasonable risk of harm.” Harper and James, in their Law of Torts, observe: “Not what actually happened, but what the reasonable prudent person would then have foreseen as likely to happen, ***.” (*** at 929.)’ ” (Yangas v. Charlie Club, Inc. (1983), 113 Ill. App. 3d 398, 403, citing Cunis v. Brennan (1974), 56 Ill. 2d 372, 375-76.)

The plaintiffs assert that the fact there were knife-carrying “Outlaws” in the bar gave the owner notice that someone was going to get hurt at the hands of those “Outlaws.” In support of this proposition, the plaintiffs cite Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366. In Neering, the plaintiff was raped by a hobo, or vagrant, while waiting at the defendant’s station for a train. Hoboes had gathered in the trainyard regularly for a long time. The court noted that hoboes are “offenders of good order” and found “that where law breakers congregate they are dangerous to society and are likely to break other laws.” Apparently, plaintiffs would like this court to hold, as a matter of law, that wherever “Outlaws” go trouble follows.

The case at hand does not fit within Neering for two reasons. One, a hobo, or vagrant, is a status which can be specifically characterized as illegal by statute. (See Ill. Rev. Stat. 1981, ch. 24, par. 11— 5 — 4.) While motorcycle gangs may be undesirable, they are not illegal. Two, in Neering, the plaintiff, on several occasions prior to the crime, notified the ticket agent of the defendant of her fear of the hoboes. In the case at hand, there is no evidence DeAcetis or his agents had ever seen Talmadge or the gang members cause trouble prior to the night of the fight. And, there was no evidence DeAcetis or his agents knew, prior to the night of the fight, that Talmadge was a troublemaker. We cannot say as a matter of law that someone who is a member of a motorcycle group and who happens to carry a buck knife is per se dangerous. There must be evidence of actions of Talmadge of which DeAcetis was aware, or should have been aware, which would have compelled a reasonably prudent person to conclude that it was likely Talmadge might endanger an invitee.

The issue of foreseeability and notice in the instant case is much like the foreseeability issue in Yangas v. Charlie Club, Inc. (1983), 113 Ill. App. 3d 398, wherein this court observed that the club was not made aware of any violent or dangerous conduct of the attacker, and while on the club premises the attacker caused no problem (until the attack). In the instant case, there was simply no evidence prior to the attack that would have put DeAcetis on notice that Talmadge was likely to cause harm and injury.

Once the fight began, of course, DeAcetis was made aware that Talmadge was dangerous. DeAcetis had a duty to act to protect his invitees. The question then is did he act reasonably once the fight began? It must be remembered that the fight transpired in less than one minute (by some accounts the fight lasted between 30 and 45 seconds). Upon seeing the altercation, DeAcetis instructed the doorman not to let anyone in or out of the bar. And, after an “Outlaw” grabbed another customer and put a knife to his throat, DeAcetis went to call the police. Fortunately, the police were on the scene almost immediately — even before DeAcetis was able to call them. Yet, even with the almost instantaneous appearance of the police, the stabbing of Getson and Churnovic could not be prevented. We believe that DeAcetis acted reasonably under the circumstances and, thus, was not negligent.

In sum, we hold that DeAcetis had no duty to keep persons off of his premises where there was no indication that such persons were likely to endanger an invitee. Moreover, we find no causal connection between DeAcetis’ conduct in admitting persons to his premises and the stabbing which later occurred in the parking lot. Finally, we find that once the fight began, DeAcetis acted reasonably in discharge of his duty to protect his customers by acting expeditiously to bar ingress and egress and to call the police. The fight erupted and ended before he could do anything more. Having found that DeAcetis was not negligent, we also find he was not guilty of wilful and wanton conduct. We reverse the verdict of the jury and the judgment entered by the court on all counts. Having reversed the case for the foregoing reasons, we need not consider the other issues on appeal.

Reversed.

STOUDER, P.J., and ALLOY, J., concur.


author: JUSTICE GREEN

text:
    CAROL L. CURTIS, d/b/a The Mahomet Citizen, et al., Plaintiffs-Appellants, v. ROGER D. LITTLE, Treasurer and Ex-Officio Collector of Champaign County, Defendant-Appellee.
    Fourth District
    No. 4 — 83—0111
    Opinion filed August 25, 1983.

      Brent D. Holmes, of Harlan Heller, Ltd., of Mattoon, for appellants.
    Thomas J. Difanis, State’s Attorney, of Urbana (Trisha Crowley, Assistant State’s Attorney, of counsel), for appellee.
    William A. Sunderman, of Anderson Law Offices, of Charleston, for amicus curiae Illinois Press Association, Inc.
   JUSTICE GREEN

delivered the opinion of the court:

The issue in this case is whether the circuit court may properly refuse to issue a writ of mandamus to compel the county collector to publish notice of the collector’s intention to apply to the court for judgment for delinquent real estate taxes in the manner required by section 225 of the Revenue Act of 1939 (Ill. Rev. Stat. 1977, ch. 120, par. 706) when the application has already been presented, judgments entered, and tax sales held. We conclude that the trial court has discretion to refuse to issue the writ under these circumstances.

Section 225 states that any time after September 1 of each year, and after real estate taxes have become delinquent or paid under protest,

“the Collector shall publish an advertisement, giving notice of the intended application for judgment for sale of such delinquent lands and lots, and for judgment fixing the correct amount of any tax paid under protest, in a newspaper published in the township or road district, as the case may be in which the real estate on which the delinquent taxes are due, is located and if there is no such newspaper published in the township or road district, then in some newspaper in the same county as the township or road district, to be selected by the county Treasurer ***.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 120, par. 706.

Plaintiffs, owners of newspapers published in various townships of Champaign County, filed suit in the circuit court of that county on February 23, 1982, against Ormond Hixson, the treasurer and ex officio collector of Champaign County. With the exception of plaintiff, The Leader, Inc., they alleged that prior to applying for judgment for unpaid real estate taxes for the revenue years 1977, 1978, 1979, and 1980, the collector had failed to give notice by publication in any newspaper published in various townships in which plaintiffs publish, although judgment was sought against land in each of those townships in each of those years. They sought issuance of a writ of mandamus ordering the collector to give the required notice by publication in their newspapers. Plaintiff, The Leader, made the same allegations and sought the same relief as the others in regard to the applications for judgment for taxes for the revenue years 1979 and 1980.

Eventually, the issues were joined and the case was heard at bench on January 3, 1983. By that time, defendant, Roger D. Little, had become treasurer and ex officio collector. The trial court found that, as alleged, each of the plaintiffs were the owners of the only newspapers published in the various townships except that the Rantoul Press was published only in Rantoul Township and not in Ludlow Township. The court also found that, as alleged, taxes had been delinquent in the stated townships in the years alleged. The court held that (1) plaintiffs’ interpretation of section 225 was correct; (2) the publication requirement was mandatory; and (3) the collector should have given notice by publication in plaintiffs’ newspapers as they contended. However, because the various applications for judgment had been filed, the judgments entered and the sales held long before the hearing, the court refused to order the writ of mandamus to issue. The court relied principally on the ground that to then order publication would only create confusion.

Plaintiffs have appealed. After obtaining leave of court, The Illinois Press Association, Inc., has filed a brief amicus curiae. We affirm.

Defendant now admits that section 225 mandatorily required that he give notice by publication in plaintiffs’ newspapers. Defendant’s position is now adverse to that of plaintiffs and amicus, only in that he maintains that the trial court acted within its discretion while plaintiffs and amicus contend that issuance of the writ was required as a matter of law.

Although the parties are now in agreement that the collector should have given notice by publication in plaintiffs’ newspapers, because the collector earlier contended to the contrary, we choose to discuss the matter briefly. Analogy to Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 373 N.E.2d 1332, requires the conclusion that timely publication in plaintiffs’ papers was mandatory. There, a supervisor of assessments failed to give timely notice by publication of changes in assessments made in a nonquadrennial year as required by section 46 of the Act (Ill. Rev. Stat. 1971, ch. 120, par. 527). Notice was required to be given by July 10, 1972, but was not given until October 28, 1972. Notice by mailing, although untimely, was also given. The board of review stayed in session a sufficient length of time that the taxpayers still had time to make objection after the notices were given. Evidence was offered that many of the taxpayers affected had made objection to the board of review. Nevertheless, the taxes levied upon the increased portion of the assessment were held to be invalid. The court followed a similar ruling concerning the same statutory provision in People v. Jennings (1954), 3 Ill. 2d 125, 119 N.E.2d 781.

There, as here, the statutory command to give the notice used the word “shall.” There, as here, the taxpayers also had some notice by mailing. The Andrews court stated that if a statutory provision “merely directs a manner of conduct for the guidance of the officials or specifies the time for the performance of an official duty” it is usually directory, but if “the conduct is prescribed in order to safeguard someone’s rights, which may be injuriously affected by failure to act” timely, the requirement is mandatory. (71 Ill. 2d 13, 21, 373 N.E.2d 1332, 1335.) Here, even more than there, a taxpayer’s rights were likely to be damaged by failure to act within the time specified in the statute.

The parties are in agreement that, although mandamus is a remedy to require a public official to perform a mandatory duty, a court may, within its discretion, under certain circumstances, refuse to order the writ to issue. (People ex rel. Maro v. Board of Auditors (1971), 48 Ill. 2d 202, 268 N.E.2d 424.) The usually stated circumstances permitting refusal are “ '*** where it would create disorder or confusion in the public service,’ or when compliance is no longer within the power of the respondents. People ex rel. Cannella v. Chicago, 7 Ill. 2d 416, 420.” 48 Ill. 2d 202, 204, 268 N.E.2d 424, 425.

As we have mentioned, the trial court relied primarily upon the theory that to require publication at that late date would cause confusion in the public service. That avoidance of confusion is a permissible ground for denial of the writ and has been stated in many cases, but few cases have passed on the proof necessary to establish that ground. In People ex rel. Hamer v. Jones (1968), 39 Ill. 2d 360, 235 N.E.2d 589, denial of an order requiring reassessment of property was deemed proper when taxes had already been computed and collected based on a previous assessment. Similarly, denial was proper when issuance of the writ would (1) compel an action which would prejudice ongoing disciplinary proceedings (Thornton v. Ramsey (1959), 24 Ill. App. 2d 452, 165 N.E.2d 65), or (2) require demotion of a number of employees already promoted to new ranks. (People ex rel. Erickson v. Sheehan (1959), 24 Ill. App. 2d 43, 163 N.E.2d 834.) Refusal to grant the writ to compel disclosure of records concerning the names and salaries of Forest Preserve District of Cook County, a disclosure required by statute but estimated to cost the district $2,000, was held to be error in People ex rel. Recktenwald v. Janura (1978), 59 Ill. App. 3d 143, 376 N.E.2d 22.

The tenor of the cases is that, to justify a denial of the writ, the confusion likely .to result must be quite severe. Plaintiffs contend that great confusion would not necessarily arise here if the notice was couched in terms to explain that the applications for judgment had already been made and acted upon, and that the notice was being given for the purpose of informing the public of the properties upon which taxes were unpaid and the names of the owners of those properties. We need not decide this question. We conclude that denial of the writ was justified on the grounds that, by the time of hearing, publication would be a useless act for the obvious reason that the collector no longer had power to give prior notice of his application for judgment.

In contending that a useful purpose would be served by requiring publication long after the application which is the subject matter of the notice has been acted on, plaintiffs and amicus analogize to statements by the court in Andrews and Jennings. In both cases, the court said that one purpose of requiring publication of assessment changes rather than merely notifying the taxpayer whose assessment was changed by mail, was to permit other taxpayers to make a comparison of their assessment to those changed. (See also People ex rel. Mollman v. Board of Assessors (1964), 46 Ill. App. 2d 311, 197 N.E.2d 117.) Plaintiffs and amicus then point to People ex rel. Rentschler v. Walsh (1948), 334 Ill. App. 519, 79 N.E.2d 852, where a petition for writ of mandamus was held to have been improperly dismissed when it requested issuance of a writ to compel the ex officio supervisor of assessments to give notice by publication of quadrennial assessments even though the time for a taxpayer to object had passed. The court reasoned that the publication would still give information to the public.

Plaintiffs and amicus contend that, by analogy to the foregoing case, a purpose of requiring publication here would be to give persons in the various townships information as to the number of properties upon which taxes were unpaid and the names of those from whom taxes were owing. They contend that thus the public can better determine if taxes are too high and if certain citizens such as public officials are not living up to their tax obligations. They also call our attention to People ex rel. Ledbetter v. Hadfield (1942), 316 Ill. App. 245, 45 N.E.2d 45, where the court held that a petition for writ of mandamus was not subject to motion to strike, when it sought to compel a city clerk to publish a required list of expenditures IV2 years after the notice was required to be given.

Finally, plaintiffs and amicus cite People ex rel. Yarrow v. Lueders (1919), 287 Ill. 107, 122 N.E. 374. There, the supreme court, in an original proceeding, ordered a writ of mandamus to issue ordering the board of election commissioners of the city of Chicago to give notice of a referendum to determine whether sale of liquor should be permitted in the city. The court concluded that petitions for election were in the proper form, and although the time for the election stated in the voter’s petition had elapsed, the board of election commissioners could be required to hold the referendum at the next election. The clerk was ordered to give notice by publication that the question would be voted on at the next election. However, the court did not require the clerk to give notice of an election to be held at a time that had already passed. Here, the applications for judgments which are the subject matter of the notice involved, have all been acted upon. If the trial court here had given judgment similar to that of the supreme court in Lueders, it would have compelled the collector to give proper notice as to future applications for judgment for taxes.

We do not agree that section 225 of the Revenue Act of 1939 has a purpose of giving public information as do those in Andrews, Jennings, Mollman, Rentschler, and Ledbetter. We conclude that the purpose of the section is to combine with section 230 of the Act, which requires the collector to also give notice by mailing to the owners of delinquent property in order that every reasonable step may be taken to see that the owner has notice. By requiring publication in a newspaper, if any, published in the township where the property lies, maximum care is used even though due process does not require publication when notice by mailing is given {Andrews). No statutory requirement for notice of pending litigation has been called to our attention which has been held to be for the purpose of notifying people who would not have interest in the subject matter of the suit. We do not hold section 225 to be such a statutory provision.

Our affirmance results from our conclusion that now requiring the publication requested would not in any useful way effectuate “compliance” with the requirements of section 225.

Affirmed.

TRAPP and MILLER, JJ., concur.