author: JUSTICE SCOTT

text:
    COMMONWEALTH EDISON COMPANY et al., Petitioners, v. THE POLLUTION CONTROL BOARD, Respondent.
    Third District
    Nos. 3—83—0749, 3—84—0024 cons.
    Opinion filed September 6, 1984.

      Sheldon A. Zabel and Carolyn A. Lown, both of Schiff, Hardin & Waite, of Chicago, for appellants.
    Neil F. Hartigan, Attorney General, of Springfield (Russell R. Eggert and James C. Siebert, Assistant Attorneys General, of counsel), for respondents.
   JUSTICE SCOTT

delivered the opinion of the court:

The United States Congress adopted the Resource Conservation and Recovery Act of 1976 (RCRA) to establish a national system for regulating the handling of hazardous wastes. The same act authorized each of the 50 States to develop its own program for regulating hazardous wastes in lieu of the Federal program. The Illinois legislature elected to administer its own hazardous waste program as authorized by RCRA, and to that end, it directed the Illinois Pollution Control Board (IPCB) to promulgate the regulatory framework for hazardous waste management in Illinois. The IPCB accomplished its rule-making task with two sets of regulations, In re Phase II RCRA Rules, PCB R82 — 19, and In re Technical Corrections to Phase II RCRA Rules, PCB R83 — 24. The petitioners in this action, Commonwealth Edison Company and Illinois Power Company, filed petitions for review of specific rules contained in both regulatory dockets. The review is afforded directly before the appellate court pursuant to section 41 of the Environmental Protection Act (Ill. Rev. Stat. 1983, ch. 1111/2, par. 1041), as authorized by the Illinois Constitution of 1970, article 6, section 6.

The legislative direction to the IPCB requires the Board to adopt rules for the Illinois hazardous waste maintenance program which “are identical in substance to federal regulations or amendments thereto promulgated by the administrator of the United States Environmental Protection Agency.” (Ill. Rev. Stat. 1983, ch. 1111/2, par. 1022.4.) The Federal rules contemplate a hazardous waste program administered by a single agency. The Illinois environmental quality program is characterized by a bifurcated administrative structure. Specifically, both the IPCB and the Illinois Environmental Protection Agency (IEPA) share responsibility for administering Illinois’ environmental laws. Many of the complaints raised by the petitioners involve the IPCB’s attempt to adapt the Federal rules to Illinois’ bifurcated administrative structure. We will consider each rule complained of in sequence.

Regulations numbered 702.110, 702.148, 702.184(f) and 705.128(d) each make reference to the IEPA’s authority to terminate permits for waste management facilities. The petitioners allege that the power to terminate permits is vested in the IPCB, not the IEPA, and that such authority cannot be delegated to the IEPA under the Illinois administrative scheme. As authority for this proposition, the petitioners cite Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541, 387 N.E.2d 258. The IPCB construes the authority in the challenged sections differently. According to the IPCB’s construction, the IEPA only has authority to revoke or terminate permits in conjunction with the permitting process or in the case of a transfer of permit where the proposed transferee fails in some manner to qualify for a permit. We concede that the four regulations in question are somewhat ambiguous as to the IEPA’s authority to terminate permits. However, the construction of the regulations proffered by the IPCB is a reasonable one. Where one of several reasonable constructions will permit us to uphold the validity of regulations, that construction is preferred. (People v. Nastasio (1960), 19 Ill. 2d 524, 168 N.E.2d 728.) Accordingly, we adopt the construction of the rules proffered by the IPCB, and, so construed, we uphold the validity of the four rules previously cited.

The next series of regulations challenged by the petitioners, sections 724.193, 724.194, 724.197, 724.247 and 724.440, authorize the IEPA to adjust certain requirements for hazardous waste facilities in recognition of the unique characteristics of the sites. Again, the petitioners urge that to allow the IEPA this authority is inconsistent with the bifurcated administrative scheme of the Illinois statute. The petitioners assert that only the IPCB can establish environmental control standards. We cannot agree that the rules enumerated delegate to the IEPA the authority to establish such standards. In an area of the law as complex as environmental regulation, and in a State as diverse as Illinois, to insist upon absolute environmental control standards would produce an unworkable system strait-jacketed by its own rigidity and inflexibility. On the other hand, where environmental control standards are pliant to differing conditions, yet sufficiently ascertainable to be definite and certain, the public policy of protecting the environment is better served. Cf. Kramer v. City of Chicago (1978), 58 Ill. App. 3d 592, 374 N.E.2d 932; Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 370 N.E.2d 223; Melbourne Corp. v. Hearing Board for Nursing Homes (1973), 14 Ill. App. 3d 589, 302 N.E.2d 729 (ascertainable standards).

Section 724.193 permits the IEPA to establish an alternate concentration limit for a hazardous constituent if it finds that the constituent will not pose a substantial present or potential hazard to human health or the environment as long as the alternate concentration limit is not exceeded. In making this evaluation, the IEPA is to be guided by nine enumerated factors. Section 724.193 permits the IEPA to exclude from the list of hazardous constituents specified in a facility permit any constituent not capable of posing a substantial or potential hazard to human health or the environment. Again, in making this determination the IEPA is guided by nine enumerated factors. Section 724.197 provides a statistical procedure for monitoring ground water contamination. It also permits the IEPA to specify alternate procedures if it finds that the alternate procedure reasonably balances the probability of falsely identifying a noncontaminating regulated unit and the probability of failing to identify a contaminating regulating unit in a manner that is comparable to that of the statistical procedure suggested. Section 724.247 specifies levels of liability insurance which a permittee is required to have. The section permits the IEPA to adjust the level of financial responsibility required as may be necessary to protect human health and the environment. Section 724.440 permits the IEPA to waive operating requirements for facilities that incinerate hazardous waste where the waste contains insignificant concentrations of hazardous constituents, unless the IEPA finds that the waste will pose a threat to human health or the environment when burned in an incinerator. The standards which we have recited as contained in each of these rules is flexible, but nevertheless ascertainable in a definite and certain manner. The IEPA is directed to administer each rule according to the definite and certain standard contained therein, and is not given discretion to determine what, if any, standard should be applied. It follows then that we find no improper delegation of the IPCB’s authority to establish environmental quality standards, and the rules as promulgated are valid.

Prior to the time the Illinois legislature determined to administer a hazardous waste management program which satisfied the requirements of the Federal RCRA, there was in place in the State a program which regulated the disposal of wastes. Administrative rules which govern the administration of the prior waste program are codified in 35 Ill. Admin. Code pt. 807. In the rules proposed to implement the RCRA program in Illinois, the IPCB determined that until the Illinois RCRA program is finally accepted by the United States Environmental Protection Agency, hazardous waste management owners and operators must obtain permits in accordance with the RCRA and the prior Illinois waste management law. This rule, set forth in section 700.501, is objected to by the petitioners. We agree, as the petitioners point out, that no express statutory authority exists for section 700.501 in the legislative enactment which provided for State rather than Federal administration of the RCRA. Nevertheless, the legislature’s action clearly demonstrates an intent to provide for continuing government supervision of this very pressing public health problem. If we are not to frustrate this intent for continuing supervision, we must find the authority to propose reasonable transition rules from the prior program to the new regulatory framework to be implicit in the legislature’s action authorizing the IPCB to adopt rules to implement a statewide RCRA program. (34 Ill. L. & Prac. Statutes sec. 113 (1958).) Without such transition rules, a gap period would be created in which the State would be powerless to issue any permits for hazardous waste facilities. It follows, then, that until the United States Environmental Protection Agency issues authorization to the State of Illinois to issue permits under a State-administered RCRA program, the proposed transition rule which continues the State permitting process is valid.

Sections 39(c) and 39.2 of the Environmental Protection Act (Ill. Rev. Stat. 1983, ch. 1111/2, pars. 1039(c), 1039.2) set forth requirements for local approval prior to the location of new pollution control facilities. The petitioners urge that with the adoption of the Federal RCRA program in Illinois, the requirement for local approval no longer applies to RCRA permitted facilities. Petitioners assert that the rules promulgated by the IPCB are incomplete to the extent the rules fail to eliminate the requirement for local site approval. We need not consider this assertion at length, since it is clear that the legislature did not repeal sections 39(c) and 39.2, and until those sections are repealed, they clearly have continuing validity.

Finally, the Federal regulations which implement RCRA are accompanied by appendices numbered I, II, IV and V. Those four appendices to the Federal RCRA rules "are referenced in appendices A, B, D and E to the rules promulgated by the IPCB. The petitioners contend that to simply refer to the Federal appendices, without actual incorporation of those Federal appendices by reference, renders the appendices invalid. This contention strikes us as somewhat frivolous. Clearly, by referring to the Federal appendices, those provisions become a part of the Illinois regulatory structure. Whether the Federal appendices are incorporated by reference, or simply identified with a signal “See,” the result is the same, and the appendices become a part of the administrative law of this State. See generally 1951 Ill. Op. Att’y. Gen. No. 258.

For the reasons set forth above, we believe the decision of the Illinois Pollution Control Board was correct and the rules which they adopted are valid. The decision of that board is affirmed.

Affirmed.

HEIPLE and STOUDER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McGLOON PRESIDING JUSTICE BUCKLEY,

license: Public Domain

text:
    MARTIN HECKMANN et al., Plaintiffs-Appellants, v. CEMETERIES ASSOCIATION OF GREATER CHICAGO et al., Defendants-Appellees (The People ex rel. Neil F. Hartigan, Attorney General, et al., Intervening Defendants).
    First District (1st Division)
    No. 84—1480
    Opinion filed September 17, 1984.

      BUCKLEY, P.J., dissenting.

      Sidney Z. Karasik and Edward M. Burke, both of Chicago, for appellants.
    John A. McDonald and Carla J. Rozycki, both of Keck, Mahin & Cate, of Chicago, for appellees.
    Neil F. Hartigan, Attorney General, of Springfield (Robert H. McFarland and James P. Nally, Assistant Attorneys General, of counsel), for intervenor People of the State of Illinois.
    Erwin I. Katz, of Hoffman & Davis, and Gary A. Weintraub and David A. Epstein, both of Jann, Carroll, Sain & Dolin, both of Chicago, for other interveners.
   JUSTICE McGLOON

delivered the opinion of the court:

Plaintiffs filed a declaratory judgment action challenging the constitutionality and validity of “An Act to permit certain burials on Sundays and legal holidays ***.” On appeal from an order granting defendants-intervenors’ motion for summary judgment, plaintiffs contend: (1) the Act violates the establishment clause of the United States Constitution and article I, section 3, of the Illinois Constitution; (2) State action in the area of labor relations is preempted by Federal law; (3) the Act violates the equal protection clauses of the United States and Illinois constitutions and the Illinois constitutional prohibition on special legislation; (4) their right of free exercise of religion guaranteed under the constitution and the Federal Civil Rights Act of 1964 is abridged by the Act; (5) the Act mandates involuntary servitude; (6) the Act violates due process; and (7) the obligations of contract are impaired by the Act.

We affirm.

The subject of this appeal is “An Act to permit certain burials on Sundays and legal holidays ***” (the Act) (Ill. Rev. Stat. 1983, ch. 21, par. 101 et seq.). The pertinent provisions of the Act provide:

“Sec. 1. (a) Every contract, agreement or understanding between a cemetery authority and a cemetery workers’ association which totally prohibits burials of human remains on Sundays or legal holidays shall be deemed to be void as against public policy and wholly unenforceable.
(b) Nothing in this Section shall prohibit a cemetery authority and a cemetery workers’ association from entering into a contract, agreement or understanding which limits Sunday or holiday burials of human remains to decedents who were members of religious sects whose tenets or beliefs require burials within a specified period of time and whose deaths occurred at such times as to necessitate Sunday or holiday burials. Such contract, agreement or understanding may provide that a funeral director notify the cemetery authority within a reasonable time when a Sunday or holiday burial is necessitated by reason of the decedent’s religious tenets or beliefs.
(c) It shall be unlawful for any person to restrain, prohibit or interfere with the burial of a decedent whose time of death and religious tenets or beliefs necessitate burial on a Sunday or legal holiday.
* *
“Sec. 2. Any person aggrieved by any conduct of a cemetery authority or cemetery workers’ association which is prohibited by Section 1 may maintain an action in the circuit court of the county in which the violation occurred to enjoin any conduct in violation of that Section. The circuit court may enter an expedited order or temporary restraining order without notice and hearing to protect the rights of persons aggrieved by such conduct in violation of Section 1 of this Act.” Ill. Rev. Stat. 1983, ch. 21, pars. 101(a), 101(b), 101(c), and 102.

Plaintiffs Martin Heckmann and Edward T. Cawley, elected representatives of Local 106, AFL-CIO Employees • International Union, filed a class action on behalf of union members seeking to have the Act declared invalid and unconstitutional. The named defendants were Cemeteries Association of Greater Chicago, Inc., an association of approximately 30 cemetery owners and operators, and Robert Rothschild, director of the Association’s labor committee. The State of Illinois, the Jewish Burial Society, the Jewish Sacred Society, Agudath Israel of Illinois, Merkaz Harabonim-Chicago Orthodox Rabbinate, Congregation Poalei Zedek, Maine Township Jewish Congregation, Congregation Ezras Israel and Congregation Shaarei Tfiloh B’nai Reuven Nusach Hoari were granted leave to intervene.

Plaintiffs’ complaint alleged that Rothschild, in his capacity as director of the labor committee and as operator of Evergreen Cemetery, told Cawley that after the effective date of the Act, any cemetery worker refusing to perform duties on Sundays or holidays would be fired. Under the collective bargaining agreement entered into by plaintiffs and the Association, the following holidays were designated workless holidays: New Year’s Day, Independence Day, Labor Day, Veteran’s Day, Thanksgiving Day, Christmas Day and the employee’s birthday. The agreement further provided that no funeral services, interments, cremations or storages would be held on such holidays or Memorial Day except for cases where immediate burial was required by board of health regulations. Also, by custom and mutual understanding between cemetery workers and owners, no work is performed on Sunday, the day workers observe as their day of rest and religious holiday.

Plaintiffs’ motion for judgment on the pleadings was denied, and the trial court entered an order granting defendants-intervenors’ motion for summary judgment. For the reasons advanced in the issues which follow, plaintiffs argue that the trial court erred in granting the motion for summary judgment. All of the issues raised on appeal were raised in plaintiffs’ complaint.

First, plaintiffs contend the Act violates the establishment clause of the United States Constitution and article I, section 3, of the Illinois Constitution, which prohibits preference to any religious denominations or mode of worship.

Generally, the establishment clause of the first amendment, made applicable to the States by the fourteenth amendment (Everson v. Board of Education (1947), 330 U.S. 1, 91 L. Ed. 711, 67 S. Ct. 504), prohibits governmental sanctioning of the tenets of any and all religions. (School District v. Schempp (1963), 374 U.S. 203, 10 L. Ed. 2d 844, 83 S. Ct. 1560.) Neither the States nor the Federal Government may pass laws which aid religion or prefer one religion over another. (Everson v. Board of Education (1947), 330 U.S. 1, 91 L. Ed. 711, 67 S. Ct. 504.) Nevertheless, statutes which confer benefits or give special recognition to religion in general or to one faith are not invalidated merely on that basis; rather, legislation must be examined to determine whether it establishes a religion or religious faith or tends to do so. Lynch v. Donnelly (1984), 465 U.S. 668, 79 L. Ed. 2d 604, 104 S. Ct. 1355.

To defeat a challenge based on the establishment clause, a statute generally must satisfy three criteria: (1) the law must have a secular legislative purpose; (2) its principal effect must neither advance nor inhibit religion; and (3) the law must avoid excessive government entanglement with religion. (Lynch v. Donnelly (1984), 465 U.S. 668, 79 L. Ed. 2d 604, 104 S. Ct. 1335; Larkin v. Grendel’s Den, Inc. (1982), 459 U.S. 116, 74 L. Ed. 2d 297, 103 S. Ct. 505; Lemon v. Kurtzman (1971), 403 U.S. 602, 29 L. Ed. 2d 745, 91 S. Ct. 2105.) All the facts and circumstances of each case must be considered (Lynch v. Donnelly (1984), 465. U.S. 668, 79 L. Ed. 2d 604, 104 S. Ct. 1335; Lemon v. Kurtzman (1971), 403 U.S. 602, 29 L. Ed. 2d 745, 91 S. Ct. 2105), and, at times, the three-part test set forth above has not been applied. In fact, in Lynch, the court noted that courts are not confined to any single test in this area. (465 U.S. 668, 679, 79 L. Ed. 2d 604, 613, 104 S. Ct. 1335, 1362.) Regardless of the approach used in this case, we find that the Act does not violate the establishment clause.

The act in question has a valid secular purpose. The record indicates that certain religious groups were required to conduct burials on Sundays or holidays because of their religious beliefs and could not always act in accordance with their beliefs because under certain labor agreements, cemetery workers did not have to perform interments on those days. The Act eliminated the discriminating effect of the agreements. Statutes designed to eliminate even unintentional discrimination and to accommodate religious beliefs are secular in purpose. (Nottelson v. Smith Steel Workers D.A.L.U. 19806, AFL-CIO (7th Cir. 1981), 643 F.2d 445, 454, cert, denied (1981), 454 U.S. 1046, 70 L. Ed. 2d 488, 102 S. Ct. 587.) Furthermore, the Act does confer a benefit to one group to the exclusion of others, but relieves a burden on those who were unable to freely exercise their beliefs. It neither requires a particular religious affiliation or theological position nor inhibits the exercise of religious beliefs. Therefore, the Act meets the second criteria. (Nottelson v. Smith Steel Workers D.A.L.U. 19806, AFL-CIO (7th Cir. 1981), 643 F.2d 445.) Finally, we find that the statute does not foster excessive government entanglement with religion because government does not have to involve itself in any administration or planning and religion is not politicized. For these reasons, we reject plaintiffs’ contention that the Act violates the Illinois constitutional provision prohibiting religious preferences.

Second, plaintiffs contend that by enacting the National Labor Relations Act (NLRA) (29 U.S.C. sec. 151 et seq. (1982)), the Federal Government has preempted States’ rights to regulate and restrict union collective bargaining processes. They maintain that the act at issue in this case is unauthorized and prohibited legislation because it requires union members to relinquish their negotiated right to nonworking Sundays and holidays, thereby interfering with the union’s collective bargaining powers.

States cannot restrict labor rights guaranteed by Federal law. (Lodge 76, International Association of Machinists and Aerospace Workers, AFL-CIO v. Wisconsin Employment Relations Com. (1976), 427 U.S. 132, 49 L. Ed. 2d 396, 96 S. Ct. 2548.) However, Federal labor policies are subordinate to first amendment rights (Nottelson v. Smith Steel Workers D.A.L.U. 19806, AFL-CIO (7th Cir. 1981), 643 F.2d 445) and a State may act to correct discriminatory practices within a union to accommodate religious beliefs of some union members. Nottelson v. Smith Steel Workers D.A.L.U. 19806, AFL-CIO (7th Cir. 1981), 643 F. 2d 445, 450-51.

As noted previously in this opinion, the Act accommodates those who were unable to practice their beliefs because of the agreement and understanding that no burials would be made on Sundays and holidays. We have no doubt that Congress or the Federal courts would not countenance a denial of first amendment rights in order to enforce an agreement denying those rights. Just as the NLRA cannot shield an employer or union from making reasonable accommodations to the religious needs of employees, we believe the NLRA cannot be invoked to allow cemetery workers to deprive those whom they serve of their right to practice their religious beliefs.

Plaintiffs further contend that the Act violates the equal protection clauses of the United States Constitution and the Constitution of Illinois and the State prohibition of special legislation.

Special legislation is that which “confers a special benefit or exclusive privilege on a person or a group of persons to the exclusion of others similarly situated.” (Illinois Polygraph Society v. Pellicano (1980), 83 Ill. 2d 130, 137, 414 N.E.2d 458, 462.) However, a statute classifying persons does not violate the special legislation proscription if there is a reasonable basis for the classification and if the legislation bears a reasonable and proper relation to the purpose of the act and the evil sought to be remedied. (Bridgewater v. Hotz (1972), 51 Ill. 2d 103, 281 N.E.2d 317.) A law need not affect every person or place in the State alike, but it must operate uniformly on all persons in like circumstances. Youhas v. Ice (1974), 56 Ill. 2d 497, 309 N.E.2d 6; People ex rel. Vermilion County Conservation District v. Lenover (1969), 43 Ill. 2d 209, 251 N.E.2d 175.

In view of the foregoing principles, we reject plaintiffs’ argument that the Act arbitrarily conferred a special benefit on certain religious groups in violation of the special legislation clause. As pointed out previously in this opinion, the legislature sought to relieve a burden on those who had not been able to freely exercise their religious beliefs. The classification made in the Act was reasonably related to its purpose and the evil to be remedied.

Many of the principles applicable to the special legislation issue are also applicable to the equal protection question. These are that legislative classifications cannot be arbitrary and must be-based on a rational difference of condition or situation. Where the legislature concludes that reform is necessary, it may address itself to one stage of the problem and remedy it one step at a time. (Illinois Coal Operators Association v. Pollution Control Board (1974), 59 Ill. 2d 305, 319 N.E.2d 782; Youhas v. Ice (1974), 56 Ill. 2d 497, 309 N.E.2d 6.) However, as noted in Illinois Polygraph Society:

“Special legislation differs from a violation of equal protection in that the latter consists of arbitrary and invidious discrimination against a person or a class of persons. It results from the governmental withholding of a right, privilege or benefit from a person or a class of persons without a reasonable basis (or, where a fundamental right or suspect classification is involved, a compelling State interest) for doing so. Whether a law is attacked as special legislation or as violative of equal protection, it is still the duty of the courts to decide whether the classification is unreasonable in that it preferentially and arbitrarily includes a class (special legislation) to the exclusion of all others, or improperly denies a benefit to a class (equal protection). [Citation.]” 83 Ill. 2d 130, 138, 414 N.E.2d 458, 462-63.

Plaintiffs maintain that the Act violates equal protection because it applies only to agreements between union workers and cemetery associations and not to agreements between nonunion workers and other cemeteries. However, the Act’s targeting of labor association agreements and its provision declaring agreements which totally prohibit Sunday and holiday burials void may be justified on the legislature’s belief that unions traditionally have been in a better position to negotiate such workless days. Thus, associations are generally responsible for the total ban on Sunday and holiday burials. Additionally, section 1(c) of the Act (Ill. Rev. Stat. 1983, ch. 21, par. 101(c)) makes it unlawful for any person, not just labor association members, to restrain, prohibit or interfere with burials permitted under the Act. This section is general and treats all persons alike. We cannot say that the classification is arbitrary or that the legislature acted unreasonably in singling out workers’ association agreements.

Fourth, plaintiffs contend the Act violates section 703(a)(1) of the Civil Rights Act of 1964 (42 U.S.C. 2000e — 2(a)(l)(1982)) and abridges their right of free exercise of religion. Each contention is based on plaintiffs’ belief that the statute requires and compels all cemetery employees to work on Sundays and holidays under penalty of criminal sanctions. They further maintain that statutory mandate violates the rights of those workers whose religious beliefs do not allow work on Sundays or religious holidays.

Initially, we note that no provision of the Act compels any cemetery worker to work on Sundays or holidays. Its provisions only extend to voiding contracts totally prohibiting burials on all Sundays and holidays and to interferences with burials conducted on those days. Furthermore, depositions in the record indicate that Sunday burials had been conducted in the past and that cemeteries had no difficulty recruiting workers willing to perform the services. There has not been any conflict with the religious beliefs of employees in the past, and the Act as written does not present such conflicts. The scenario depicted by plaintiffs that employees will be forced to work on these days is unfounded.

Plaintiffs’ fifth contention is that the Act violates the Federal constitutional prohibition of involuntary servitude because it compels employees to work. Because of our finding that the Act does not require any employee to work against his will, we reject plaintiffs’ argument.

Sixth, plaintiffs contend that section 2 of the Act (Ill. Rev. Stat. 1983, ch. 21, par. 102), which permits the issuance of a temporary restraining order without notice, violates due process. However, this section of the Act does not allow an order to issue in all circumstances. It states that the circuit court may enter the order to protect rights of those aggrieved. The general rules pertaining to issuing temporary restraining orders found in the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 11—101) remain applicable, and plaintiffs have not argued that this section of the Code is unconstitutional. Plaintiffs have misconstrued the provision of the Act, and we find their contention to be without merit.

Finally, plaintiffs contend the Act abridges their freedom to contract and violates the Federal and State constitutional prohibition against the impairment of contractual obligations.

The contract clause limits a State’s power to regulate contracts between private parties, but the prohibition is not absolute. (United States Trust Co. v. New Jersey (1977), 431 U.S. 1, 52 L. Ed. 2d 92, 97 S. Ct. 1505; Meegan v. Village of Tinley Park (1972), 52 Ill. 2d 354, 288 N.E.2d 423.) Rights granted by contract are subject to reasonable regulatory actions by the State designed to secure the welfare of the community. (Meegan v. Village of Tinley Park (1972), 52 Ill. 2d 354, 288 N.E.2d 423.) We believe the legislation in issue does not offend the constitutions’ contract clauses. Its provisions are narrowly drawn to permit the free exercise of religious rights while allowing labor to restrict their working schedules accordingly. It is, as noted above, a reasonable exercise of legislative authority in an area of legitimate legislative concern.

For the foregoing reasons, the order of the circuit court of Cook County is affirmed.

Order affirmed.

O’CONNOR, J., concurs.

PRESIDING JUSTICE BUCKLEY,

dissenting:

I respectfully dissent from the decision of my colleagues because I believe the statute in question violates the establishment clause of the first amendment. The present case raises the issue of whether government may dictate the terms of a collective bargaining agreement through legislative enactment for the avowed purpose of ensuring that members of a particular religious sect or sects will be permitted to bury their dead in accordance with their prescribed rituals. Such governmental action designed to accommodate the needs of a particular religious minority must, of necessity, run afoul of the central purpose of the establishment clause — the purpose of ensuring governmental neutrality in matters of religion. Gillette v. United States (1971), 401 U.S. 437, 450-51, 28 L. Ed. 2d 168, 180-81, 91 S. Ct. 828, 836.

The majority improperly relies on Lynch v. Donnelly (1984), 465 U.S. 668, 79 L. Ed. 2d 604, 104 S. Ct. 1355, for the proposition that “statutes which confer benefits or give special recognition to religion in general or to one faith are not invalidated merely on that basis.” (127 Ill. App. 3d at 455.) Lynch concerned an establishment clause challenge to the erection of a Christmas display by the city of Pawtucket, Rhode Island, which featured a nativity scene or creche. In upholding the right of the city to include a creche in its Christmas display, the Supreme Court noted:

“The Court has made it abundantly clear, however, that ‘not every law that confers an “indirect,” “remote,” or “incidental” benefit upon [religion] is, for that reason alone, constitutionally invalid.’ [Citations.] Here, whatever benefit to one faith or religion or to all religions, is indirect, remote, and incidental; display of the creche is no more an advancement or endorsement of religion than the Congressional and Executive recognition of the origins of the Holiday itself as ‘Christ’s Mass,’ or the exhibition of literally hundreds of religious paintings in governmentally supported museums.” (465 U.S. 668, 683, 79 L. Ed. 2d 604, 616, 104 S. Ct. 1355, 1364.)

Thus, the Supreme Court recognized that government action which confers only “indirect,” “remote,” or “incidental” benefits on a given religion may still be constitutionally permissible under the establishment clause.

The instant statute inserts the power and authority of the State of Illinois into the collective bargaining process for the direct and explicit benefit of a given religious minority. Surely, such action cannot be properly characterized as “incidentally,” “remotely,” or “indirectly” benefitting religion. Accordingly, Lynch is not controlling. Prior Supreme Court decisions forbidding governmental favoritism toward the adherents of any sect or religious organization require invalidation of this statute. Abington School District v. Schempp (1963), 374 U.S. 203, 216, 10 L. Ed. 2d 844, 854, 83 S. Ct. 1560, 1567-68; Engel v. Vitale (1962), 370 U.S. 421, 430-31, 8 L. Ed. 2d 601, 607-08, 82 S. Ct. 1261, 1266-67; Everson v. Board of Education (1947), 330 U.S. 1,15-16, 91 L. Ed. 711, 723, 67 S. Ct. 504, 511.

I also disagree with the majority’s assertion that the “act in question has a valid secular purpose” because it was designed to eliminate discrimination and to accommodate religious belief. (127 Ill. App. 3d at 456.) The case relied upon by the majority in support of this conclusion, Nottelson v. Smith Steel Workers D.A.L.U. 19806, AFL-CIO (7th Cir. 1981), 643 E2d 445, involved an establishment clause challenge to section 701(j) of the Civil Rights Act of 1964, as amended (42 U.S.C. §2000e(j) (1982)). Section 701© forbids both employers and unions from discriminating against any individual because of his religious affiliation and requires both to make reasonable accommodation for an employee’s religiously motivated conduct or to show that to do so would work an undue hardship. In upholding section 7010") the Federal court found a valid secular purpose, explicitly noting that:

“Application of Section 7010) does not, as defendants contend, have a primary effect of advancing the interests of religionists over non-religionists or the beliefs of one sect over those of another.” (643 F.2d 445, 454.)

and further that:

“The fact that some religions may have more or different kinds of religiously dictated observances than other religions does not invalidate a law that applies to all faiths equally.” (643 F.2d 445, 455.)

The court concluded that since section 701© required accommodation for all religiously motivated conduct, it promoted only the “principle of supremacy of conscience” and was therefore compatible with the establishment clause. (643 F.2d 445, 454-55.) In the present case, the Act in question does not require accommodation for all, but only for a few; it does not promote the “principle of supremacy of conscience” but only promotes the beliefs of certain religious groups. Accordingly, the majority’s reliance on Nottelson in attempting to articulate a secular purpose is misplaced.

Undoubtedly, our General Assembly acted with the best of motives in attempting to accommodate the religious beliefs of a group long subjected to so much discrimination. However, the flaw in the instant statute does not lie in the good intentions of its authors but in its effects. In a pluralistic society, religious minorities of all persuasions are invariably hindered in the observance of their religions because they do not share the same customs and beliefs as those in the majority. Restaurants and grocery stores may not observe food preparation and storage restrictions required by many minority religions, religious holidays may not coincide with those of the majority and, as the present case demonstrates, customs common to the majority may frustrate a minority religion’s burial requirements. Remedial State action which is neutral and undertaken to permit greater accommodation for all religious beliefs addresses itself to these inherent problems and does not violate the establishment clause, for no particular religion is being advanced or inhibited by government. Nottelson v. Smith Steel Workers D.A.L.U. 19806, AFL-CIO (7th Cir. 1981), 643 F.2d 445, 454-55.

However, where government departs from this evenhanded approach and attempts to tailor its laws in order to permit an accommodation for a particular religious group, the question necessarily arises why one group has been accommodated and not another. As the competing demands of other religious minorities for special accommodation arise, the State will inevitably be cast in the role of picking and choosing which minority religions are to receive favored treatment and which are not. The notion that such a spectacle represents a proper function of government is rejected by the establishment clause and the cases construing it. (Abington School District v. Schempp (1963), 374 U.S. 203, 216, 10 L. Ed. 2d 844, 854, 83 S. Ct. 1560, 1567-68; Engel v. Vitale (1962), 370 U.S. 421, 430-31, 8 L. Ed. 2d 601, 607-08, 82 S. Ct. 1261, 1266-67; Everson v. Board of Education (1947), 330 U.S. 1, 15-16, 91 L. Ed. 711, 723, 67 S. Ct. 504, 511.) Accordingly, I would hold that the instant statute is violative of the establishment clause and would reverse the judgment of the trial court.


author: PRESIDING JUSTICE MEJDA

text:
      In re MARRIAGE OF HELENE DE BAT, Petitioner-Appellee, and ALFRED DE BAT, Respondent-Appellant.
    First District (5th Division)
    No. 83—580
    Opinion filed September 14, 1984.

      Francis X. Riley, of Wheaton, for appellant.
    Richard S. Reizen, of Chicago (Joyce & Kubasiak, of counsel), for appellee.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Respondent Alfred De Bat appeals the portions of a judgment for dissolution of marriage which provided for the property division and the award of unallocated family support. The issues presented on appeal are whether the trial court’s division of the parties’ marital assets and the award of unallocated family support were proper. We affirm.

Respondent and petitioner Helene De Bat were married April 26, 1969, and had one child, Avril, born August 3, 1975. At trial, petitioner was 42 years of age and respondent was 51. In 1970, the parties purchased as joint tenants a two-apartment building with $16,000 accumulated by respondent prior to the marriage and a mortgage for the balance. Respondent paid the monthly payments of $373.73 and real estate taxes of $1,200 to $1,400 per year. The parties occupied the second-floor apartment as their marital home, and tenants occupied the first floor at a rental of $450 per month.

Respondent received a bachelor’s degree and a master’s degree in journalism in 1954 and 1955, respectively. At the time of marriage he was employed at an annual salary of approximately $15,000. From 1970 until 1979 he was employed by Playboy Enterprises, Inc., as manager of the international publishing division at an average annual salary of $35,000. In this employment he engaged in extensive travel and was frequently out of the country for periods of several days to two weeks. The average duration of his travel away from home ranged from one week to 10 days, although one trip lasted more than a month. Respondent was unemployed for a year following the elimination of his position at Playboy. In 1980 he began working for Signature Publications at an annual salary of $38,000 and was again required to travel frequently. Respondent testified at trial that he was then unemployed but stipulated before judgment was entered that he was employed at a salary of $30,000 per year. He is a member of the American Society of Photographers and has worked as a professional photographer on a part-time basis while employed as an editor and journalist. He testified that on occasions he received payments of as much as $400 directly from Signature for photographs taken by him.

Petitioner has completed two years of college but has not received any degree. Prior to marriage, she was employed successively as a secretary, receptionist and as a teacher in the use of communication equipment in a hospital. She continued employment for a year after marriage and terminated full-time employment when she became ill after suffering a miscarriage of twins in January 1971. Petitioner testified that she performed the gardening and lawn care, the interior and exterior maintenance and interior decorating of both apartments of the marital home. She assumed most of the duties related to care of their child, especially during respondent’s frequent absences due to work-related travel, and did the cooking, cleaning and laundry in maintaining the family home. Avril started nursery school at three years of age, and petitioner drives her to and from school each day. Petitioner testified that she sought employment by looking through the newspaper advertisements but has been unable to find a job for which she was qualified and which would allow her to continue to care for her daughter as she had been doing. In an attempt to generate some income, she is researching and writing a book on children’s activities and hopes to herself promote and distribute the book, although she has had no experience in this field. Petitioner testified that Avril likes the present home and has friends in the neighborhood. Petitioner submitted an affidavit summarizing the average monthly expenses of herself and her daughter at $1,683.75.

The evidence before the court included further testimony and exhibits concerning the various bank accounts, stocks and assets of the parties. The judgment for dissolution of marriage entered February 9, 1983, inter alia found that respondent had held an account without the knowledge of petitioner at Lake Shore Bank in the amount of $21,000 which was withdrawn in 1978 and for which there has not been a satisfactory accounting; that the stipulated values of the marital assets were adopted; and that the court has taken into consideration all of the relevant factors as to the disposition of the property, maintenance and child support, “including those prescribed by Statute in Chapter 40, Sections [sic] 503 and 504 and 505 of the Illinois Revised Statutes, and the subparagraphs contained therein.” The court thereupon awarded custody of Avril to petitioner with visitation to respondent and ordered the marital property divided.

The judgment fixed the value of the apartment building at $85,000 (after deduction of a mortgage balance of $3,000 to $4,000), and ordered that the building be awarded 75% to petitioner and 25% to respondent; that the necessity and costs of any major repairs or capital improvements be agreed upon or determined by the court, which costs shall be shared in like proportions; that petitioner is responsible for mortgage, tax and insurance payments; that petitioner have exclusive possession and receive all rentals until Avril reaches 18 years of age or prior thereto if petitioner chooses to sell; that petitioner have the right at any time to purchase respondent’s 25% share or to sell the building at existing market value to be agreed upon or otherwise determined by the court.

The judgment further awarded petitioner two bank accounts aggregating $15,485.74, a Toyota automobile of no value, and her non-marital 400 shares of E.G.&G. valued at $8,000. Respondent was awarded as his property an IRA account of $14,000, three bank accounts of a total of $7,700, and 300 shares of Playboy stock valued at $2,100. In addition to the foregoing, an IRS refund check for $3,850 was divided equally, and the furniture and furnishings were to be divided by agreement of the parties.

The judgment concluded by ordering respondent to pay to petitioner “as and for unallocated family support the sum of $800 per month *** until Avril, the minor child, graduates 8th grade grammar school, at which time said amount shall be re-evaluated by this Court. It is the intent of this Court that said payments of unallocated family support shall be deductible from ALFRED’S income and includable in HELENE’S income”; and further that each party is responsible for his or her own attorney fees.

Respondent appeals.

Opinion

Respondent first challenges the court’s distribution of marital property. Section 503(c) of the Illinois Marriage and Dissolution of Marriage Act requires that the court shall divide marital property in just proportions considering all relevant factors, including those therein specifically set forth. Ill. Rev. Stat. 1981, ch. 40, par. 503(c).

It is undisputed that an equitable division of property is not necessarily an equal one. (In re Marriage of Stallings (1979), 75 Ill. App. 3d 96, 393 N.E.2d 1065.) The distribution of marital property rests within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. (In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 458, 426 N.E.2d 1084.) An abuse of discretion occurs only if no reasonable person would take the view adopted by the court. In re Marriage of Rossi (1983), 113 Ill. App. 3d 55, 58, 446 N.E.2d 1198.

Respondent contends that the court erred in awarding petitioner the marital residence subject to his right to receive 25% of the proceeds from its eventual sale. He argues that his share in the proceeds may not be realized for 11 years, that he should have a more immediate right to his share of the property, and that the distribution is therefore inequitable. We disagree.

One of the “relevant factors” the court must consider in dividing the marital property is “the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children.” (Ill. Rev. Stat. 1981, ch. 40, par. 503(c)(4).) At the time of trial and when the judgment was entered, the marital residence was subject to monthly mortgage payments of $373. Respondent admitted that even considering the amount received as rent for the first-floor apartment the building operates at a negative cash flow. Moreover, the court heard testimony that the monthly rent on a suitable apartment for petitioner and Avril would be far in excess of the amount of the monthly mortgage payment. The record shows that the court properly considered not only the above factors but also the other relevant factors including petitioner’s contribution as a homemaker, her vocational skills and employability and custodial provisions for the minor child. (See Ill. Rev. Stat. 1981, ch. 40, par. 503(c).) We are therefore unable to say that the court abused its discretion regarding the award of the marital home.

Respondent also argues that the net amount he will realize upon sale of the property may be zero, or that the award as to the marital residence may even be a liability because he is obligated to pay 25% of the cost of the “maintenance and improvements petitioner chooses to make.” Respondent misstates the pertinent provision of the judgment, which provides that he shall pay for 25% of the cost of necessary major repairs and capital improvements. Such expenditures may be undertaken only upon the agreement of the parties as to their necessity and cost or, if they are unable to agree, upon the court’s determination of such factors. Respondent is not required to-absorb the cost of routine maintenance but only to contribute to the cost of such major repairs and capital improvements as may be agreed or determined to be necessary to preserve or increase the existing value of the property. We do not find it inequitable to require respondent to contribute in proportion to his interest in the property, because such expenditures will protect the value of his interest and, in the case of capital improvements, will be recovered by him upon its sale.

Respondent next contends that petitioner’s award amounted to $180,000 in usable assets and that only $10,000 of his award is immediately available. He arrives at these figures by construing petitioner’s award as providing $109,800 in free rent and rental income for 11 years and $57,600 maintenance in gross ($800 per month for 72 months). He maintains that the division of property was, therefore, inequitable.

We find no merit to this contention. As concluded above, we find no abuse of discretion in the court’s determination regarding the marital residence. Although respondent characterizes the amount of unallocated family support awarded to petitioner as maintenance in gross, the court ordered that such payments be made monthly, not as a lump sum award. The total amount, accordingly, is not a sum that is immediately available for petitioner’s use. Furthermore, the award was to provide maintenance for petitioner, as well as support for the child. An award of maintenance may be made in such amounts as the court deems just after consideration of all relevant factors, including "the financial resources of the party seeking maintenance, including marital property apportioned to him.” (Ill. Rev. Stat. 1981, ch. 40, par. 504(b)(1).) Our review of the record indicates that the court properly considered all the factors pertinent to the division of property and the award of maintenance and we, therefore, find no abuse of discretion.

The second issue raised is whether the court erred in awarding maintenance to petitioner. Section 504 of the IMDMA provides that the court may grant a maintenance award for either spouse if it finds that the spouse seeking maintenance:

"(1) lacks sufficient property, including marital property apportioned to him to provide for his reasonable needs, and
(2) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that custodian not be required to seek employment outside the home, or
(3) is otherwise without sufficient income.” (Ill. Rev. Stat. 1981, ch. 40, par. 504(a).)

Maintenance may be awarded in such amounts and for such periods of time as the court deems just after consideration of all relevant factors, including:

“(1) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(2) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(3) the standard of living established during the marriage;
(4) the duration of the marriage;
(5) the age and the physical and emotional condition of both parties; and
(6) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.” Ill. Rev. Stat. 1981, ch. 40, par. 504(b).

Respondent first contends that the court erred in awarding maintenance because it failed to consider the skills, age, ability and employability of petitioner and because it failed to consider the time required for petitioner to find appropriate employment. In considering the question of the wife’s future employment following dissolution of marriage, this court recently stated:

“ ‘While each case must be decided on its own facts and no formula can be stated, certain principles emerge from an examination of the above cases. The most significant factor usually is whether the wife is employable at an income not overly disproportionate from the standard of living she enjoyed during the marriage. The wife’s employability includes consideration of her education, training, experience, age, health, capacity, whether she has custody of small children, etc. Length of the marriage is germane because the longer the marriage, the more likely it is that the wife had foregone employment experiences, the absence of which will make it more difficult for her to achieve employment and self-sufficiency. If the wife is employable at an income not overly disproportionate from the standard of living she enjoyed during marriage, then, generally speaking, if support is appropriate it should be for a limited period of, for example, one to three years. In such a situation, it is not the policy of the law to give the wife an annuity for life or, stated differently, a perpetual lien against her former husband’s future income. Conversely, if the wife is not employable or only employable at a low income compared to her standard of living during marriage then, generally speaking, permanent support is appropriate.’ In re Marriage of Kitson (1974), 17 Or. App. 648, 655-56, 523 R2d 575, 578-79.” In re Marriage of Lukas (1980), 83 Ill. App. 3d 606, 617, 404 N.E.2d 545.

A review of the record makes it abundantly clear that the trial court properly considered all the relevant factors in determining the amount and duration of the ordered support payments. Petitioner was 29 when she was married and had been employed as a receptionist, secretary and a teacher in the use of communication systems. She has completed two years of college. At the time of trial she was 42 years old and had not worked on a full-time basis for over 10 years. Petitioner testified to the time constraints she was under due to child-care responsibilities. It is apparent that the court was cognizant of the statutory requirements and of the facts and circumstances of the parties when he ordered maintenance to continue until the minor child has completed the eighth grade, at which time the amount of the award would be re-evaluated. The trial court here did not award permanent maintenance, but, in recognition of petitioner’s limited skills and time-consuming child-care responsibilities, awarded unallocated support for a specified period of time during which petitioner can continue to meet the minor child’s needs while preparing herself for that time in the future when the amount of such support will be re-evaluated and, possibly, revised.

Respondent also contends that the court erred in its distribution of marital property and in awarding maintenance in that it failed to consider his needs. We agree with respondent that the court must consider the needs of each of the parties in dividing the marital property and in awarding maintenance. (See Ill. Rev. Stat. 1981, pars. 503(c)(7) and 504(b)(6).) The record here shows that consideration was given to all the relevant factors, including the needs of the parties. The court stated, “That’s a lot of money this man is paying. They should be able to take care of that. I realize it might not be enough for everybody. There never is enough in these kinds of cases, and that’s the only thing I can do.” Petitioner filed an affidavit setting forth the amounts needed for monthly expenses for herself and Avril. The amount of the maintenance payment ordered is less than half of the amount stated therein. The record here shows that the court considered the relevant factors including petitioner’s custodial status, respondent’s proven ability to make money, and the wide disparity in the parties’ earning powers.

The award of maintenance resides within the sound discretion of the trial court and will not be disturbed on review unless it constitutes an abuse of discretion or is against the manifest weight of the evidence. (In re Marriage of Bramson (1981), 100 Ill. App. 3d 657, 658, 427 N.E.2d 285.) On the record here presented, we are unable to say that the award of maintenance was an abuse of discretion or against the manifest weight of the evidence.

For all the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.

SULLIVAN and LORENZ, JJ., concur.

       Justice Wilson, who participated at oral arguments, has since died. Justice Lorenz has listened to the tape of the oral arguments and reviewed the briefs and record.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT SANDERS, Defendant-Appellant.
    First District (5th Division)
    No. 80—2829
    Opinion filed September 14, 1984.

      Steven Clark, of State Appellate Defender’s Office, of Chicago (Daniel D. Maynard and Laura N. Jasinsky, both of Winston & Strawn, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik, and Mark R. Fuller, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a jury trial, defendant was convicted of murder and armed robbery, and was sentenced to concurrent terms of 50 and 30 years’ imprisonment. We reversed and remanded the judgments, finding plain error in the admission of certain statements (People v. Sanders (1982), 111 Ill. App. 3d 1, 443 N.E.2d 687), but the supreme court reversed our decision, holding that the plain error doctrine did not apply. (People v. Sanders (1983), 99 Ill. 2d 262, 273-74, 457 N.E.2d 1241.) Because our disposition did not reach all of the issues presented by defendant, the supreme court remanded with directions to consider those issues. Accordingly, we now address defendant’s contentions that: (1) the trial court failed to clarify questions from the jury and failed to supply a transcript requested by the jury; (2) the trial court failed to instruct the jury concerning lesser included offenses and circumstantial evidence; (3) defendant was not proved guilty beyond a reasonable doubt; (4) the prosecutor’s closing argument denied him a fair trial; and (5) the State violated his right to effective assistance of counsel by investigating the public defenders assigned to his case, and causing them to withdraw. Because the facts are set forth at length in our previous opinion, we forego repetition and discuss the facts only in the context of the remaining issues.

Opinion

Initially, we consider defendant’s contention that the trial court erred in its response to a question submitted to the court by the jury during its deliberations at the close of trial. The jury posed the following question in writing to the trial court:

“Ruling — if found guilty on one charge, is he, automatically, found guilty on the other charge? In other words, guilty on one and not guilty on the other?”

In response to this question, the court wrote:

“In answer to your question, you have two forms of verdict, ‘Guilty’ and ‘Not Guilty’ for each of the two charges. You must select one of the two forms of verdict for each of the two charges.” (Emphasis added.)

Defendant contends that the trial court’s answer was unresponsive because it “incorporated the general language of ‘you have two forms of verdict’ ” which, defendant argues, is tantamount to no response at all. We disagree.

Where the jury raises an explicit question on a point of law arising from facts over which there is doubt or confusion, the court should attempt to clarify the issue in the minds of the jury members. (People v. Morris (1980), 81 Ill. App. 3d 288, 290, 401 N.E.2d 284.) “This is true even though the jury was initially given proper instructions.” People v. Morris (1980), 81 Ill. App. 3d 288, 290-91, 401 N.E.2d 284; People v. Jedlicka (1980), 84 Ill. App. 3d 483, 491, 405 N.E.2d 844.

In the pending case, instructions were given to the jury in the exact form of Illinois Pattern Jury Instructions (IPI), Criminal, Nos. 7.01, 14.01 and 14.02 (2d ed. 1981), which represent the definition of murder, the definition of armed robbery, and the elements of armed robbery, respectively. The trial court also submitted four verdict forms to the jury: (1) guilty of armed robbery; (2) not guilty of armed robbery; (3) guilty of murder; and (4) not guilty of murder. Having so instructed the jury, the court’s subsequent admonition that the jurors “must select one of the two forms of verdict for each of the two charges” was, in our view, a direct and unambiguous response to the question presented, indicating that the jury should choose the appropriate form for the charge independently of the form chosen for the other charge. This information, taken as a whole, would sufficiently dispel any confusion the jury had about whether defendant could be “guilty on one [charge] and not guilty on the other.”

Moreover, we note that defendant did not object to the trial court’s written response to the jury’s question but in fact agreed that the response was proper. The pertinent colloquy before the trial court was as follows:

“The Court: Back on the record. I have discussed with the lawyers, in front of Mr. Sanders, the alternative responses that might be given to this particular question. I have decided, with no objections from either side, to give the following answer ***. Is that agreeable to both sides?
[The State]: Yes, your Honor.
Defense Counsel: Yes, Sir.” (Emphasis added.)

We finally note that defendant failed to preserve his argument on this issue in his motion for a new trial, which omission serves as a waiver on appeal. (People v. Thomas (1983), 116 Ill. App. 3d 216, 220-21, 452 N.E.2d 77.) For these reasons, defendant’s contention will be rejected.

Defendant further assigns error to the trial court’s decision to deny the jury’s written request to view, during deliberations, the transcript of the “first [trial] testimony” of defendant’s wife,. Beverly Sanders. Again, we cannot agree.

The allowance or refusal of a request by the jury for a transcript of testimony in connection with its deliberations is within the sound discretion of the trial court. (People v. Pierce (1974), 56 Ill. 2d 361, 363-64, 308 N.E.2d 577.) A request of this type may not be summarily rejected, however. In the exercise of its discretion, the trial court is charged with determining whether a review of testimony would be helpful or harmful to the jury’s deliberations. (People v. Bibbs (1981), 101 Ill. App. 3d 892, 898, 428 N.E.2d 965; People v. Singletary (1979), 73 Ill. App. 3d 239, 254, 391 N.E.2d 40.) A plausible starting point for this inquiry is whether the jury thinks that the testimony would be helpful and whether there is a possible basis for the jury’s belief. People v. Bibbs (1981), 101 Ill. App. 3d 892, 898, 428 N.E.2d 965.

In the pending case, we believe that the trial court properly exercised its discretion in denying the jury’s request. We particularly note the court’s discussion of this issue wherein the court fully explained the reason for its decision:

“The parties have discussed this, and I have reviewed it. The relevant consideration, among other things, the nature and complexity of the trial itself, the issues involved, the testimony of the particular witness in question, the time that the jury has been deliberating so far, and other factors that I think relate to this, and although I think I have discretion to grant the request, in my judgment, the jury has only been deliberating *** a little more than three and a half hours ***. The witness, Beverly Sanders, testified just yesterday. There wasn’t anything particularly complex about the trial, itself, nor about the testimony given by Beverly Sanders; and the danger that I see, of course, in providing a jury with a transcript of one witness’ testimony, particularly one portion of the witness’ testimony, is that they would attach undue influence to that as distinguished from other evidence.”

We agree with the trial court’s rationale. The-jury had deliberated for only a short while, the trial was not complex, and, as the trial court acknowledged, it was quite possible that the jury would take Mrs. Sanders’ testimony completely out of context to resolve an unknown question.

Moreover, the record shows that defendant not only failed to object to the trial court’s refusal to grant the jury’s request, he recommended that the court exercise its discretion in the very manner it did, believing, reasonably, we conclude, that the denial of such request was protective of and favorable to defendant’s interests. Based on these facts, we find that defendant’s argument on this issue is without merit.

Defendant next argues that the trial court erroneously failed to instruct the jury as to lesser offenses (receiving stolen property, robbery, burglary, voluntary manslaughter, involuntary manslaughter, reckless homicide and battery) and as to circumstantial evidence. Defendant concedes that he did not request an instruction for any of these offenses but contends that “fundamental fairness” demands that his failure to do so does not waive his right to raise this issue on appeal. The trial judge is under no duty to give unrequested instructions, and defendant’s failure to request an instruction normally constitutes a waiver. (See People v. Nutall (1980), 91 Ill. App. 3d 758, 765-66.) We interpret defendant’s argument on this point to be, in essence, a request under the plain error doctrine. We decline to honor this request.

The plain error doctrine provides an exception to the waiver rule where plain errors or defects affect substantial rights. It is a limited exception and. should only be invoked where the evidence is so closely balanced that the verdict of the jury may have resulted from the error, or where the error itself was so egregious as to deny the defendant a fair trial. (People v. Thomas (1984), 121 Ill. App. 3d 883, 891.) In the case at bar, the evidence was not closely balanced on the question of guilt (People v. Sanders (1983), 99 Ill. 2d 262, 273, 457 N.E.2d 1241 (law of the case)), and as we will explain, the trial court’s failure to give the instructions at issue was not error, egregious or otherwise. Our supreme court recognized in People v. Taylor (1967), 36 Ill. 2d 483, 224 N.E.2d 266, that although the failure of the trial court to instruct the jury as to lesser included offenses where defendant requests no such instruction is frequently treated under the waiver rule, such failure does not constitute error at all. The court there noted that the absence of instructions concerning lesser included offenses may well work to the benefit of the accused, and so a defendant cannot complain of error where no such instruction was requested. (36 Ill. 2d 483, 490-91, 224 N.E.2d 266.) Further, we believe that the instructions now suggested by defendant would have been inappropriate.

A burglary instruction need not have been given in this case because that offense- is not a lesser included offense of armed robbery. As far as the offense of receiving stolen property is concerned, that offense involves property that is first stolen by a third party (see Ill. Rev. Stat. 1981, ch. 38, par. 16—1(d)), but no evidence here indicated a third-party theft; rather, the evidence indicated defendant’s direct involvement in the theft.

The trial evidence also would not support a simple robbery instruction because a dangerous weapon (a brick) was forcefully used to strike the victim and render him unconscious. Such an act satisfies the requirements of armed robbery according to the law of this State. (See Ill. Rev. Stat. 1981, ch. 38, par. 18—2(a), which provides that “A person commits armed robbery when he or she *** [takes property from the person or presence of another by the use of force or by threatening the imminent use of force] while he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon.”) A simple robbery instruction was therefore unwarranted.

Defendant’s argument that the trial court erred in failing to instruct the jury on the lesser offenses of voluntary and involuntary manslaughter are likewise without merit. A manslaughter instruction must be given if there is evidence in the record which,.if believed by a jury, would reduce the crime to manslaughter. (People v. Reyes (1981), 102 Ill. App. 3d 820, 833, 429 N.E.2d 1277.) Voluntary manslaughter is defined as an unjustified killing committed while under sudden and intense passion resulting from serious provocation. Serious provocation, in turn, is conduct sufficient to excite an intense passion in a reasonable person. (People v. Reyes (1981), 102 Ill. App. 3d 820, 833, 429 N.E.2d 1277; Ill. Rev. Stat. 1981, ch. 38, par. 9-2(a).) Involuntary manslaughter, on the other hand, is the unlawful, unintentional killing of an individual when the lawful or unlawful acts which cause the death are performed recklessly and are acts that are likely to cause death or great bodily harm. Ill. Rev. Stat. 1981, ch. 38, par. 9—3.

In the instant case, there was no evidence to suggest that defendant was seriously provoked such that a sudden, intense passion caused defendant to kill the victim, nor was there evidence to suggest that the victim’s strangulation was an unintentional or reckless act. In the absence of any evidence suggesting otherwise, the trial court’s failure to give these two instructions was not an abuse of discretion.

A reckless homicide instruction would have been improper, because the commission of that offense involves driving a motor vehicle. Ill. Rev. Stat. 1981, ch. 38, par. 9—3(a).

Defendant argues further that an instruction for battery or aggravated battery was warranted because the evidence indicated that none of the blunt trauma injuries were sufficient to induce the victim’s death and that the victim died as a result of ligature strangulation.

Battery and aggravated battery may be included offenses of murder, but in order to give an instruction on either of these offenses, the evidence must permit a finding of not guilty of murder and guilty of the included offense. (People v. Balls (1981), 95 Ill. App. 3d 70, 74-75, 419 N.E.2d 571.) In our judgment, the evidence would not permit such a finding. The evidence leaves no doubt that a dangerous weapon was used; hence, the battery was at least aggravated battery. (See Ill. Rev. Stat. 1981, ch. 38, pars. 12—3 and 12—4.) Because aggravated battery is a forcible felony, and because the victim died as a result, defendant was guilty of at least felony murder. (See Ill. Rev. Stat. 1981, ch. 38, par. 9—1(a).) For these reasons, the trial court’s failure to give these instructions will not be disturbed.

Defendant next assigns error to the trial court’s instruction to the jury on circumstantial evidence, which instruction consisted of the first but not the second paragraph of IPI Criminal No. 3.02 (2d ed. 1981), which provides:

“[1] Circumstantial evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of [(the) (a)] defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict.
You should not find the .defendant guilty unless the facts or circumstances proved exclude every reasonable theory of innocence.”

Defendant contends that had the second paragraph been given, the jury would have been informed that a conviction could not be founded on all or largely all circumstantial evidence unless defendant’s guilt was so thoroughly established as to exclude every reasonable inference or hypothesis of innocence.

The second paragraph of IPI Criminal No. 3.02 should be given only when the proof of guilt is entirely circumstantial. (See People v. Garcia (1981), 95 Ill. App. 3d 792, 799, 420 N.E.2d 482, and authority cited therein.) In the pending matter, however, defendant admitted to his wife during a conversation in the presence of their children that he had participated in the murder and robbery. Defendant’s wife testified in this regard as follows:

“Q. Now, could you tell the ladies and gentlemen of the jury who was present during this conversation between your husband and yourself?
A. My son, Robert, my son, Albert and my son, William.
Q. Now, would you tell the jury, please, what if anything, was said between yourselves at this time?
A. My husband told me that he had robbed [the victim].
Q. Did he tell you who robbed [the victim].
A. He told me him and Greek went to the man’s house. He told me he told Greek to throw a coat over the man’s head and hit him in the head with a brick and he said the man fell and they took the things and then he went downstairs in the back and Greek threw the clothes out the window to him.”

An admission constitutes direct evidence and obviates the need for the trial court to give the second paragraph of IPI Criminal No. 3.02 (see People v. Ross (1980), 89 Ill. App. 3d 128, 134, 411 N.E.2d 1187; People v. Fletcher (1978), 59 Ill. App. 3d 310, 322-23, 375 N.E.2d 1333 (in the context of IPI Criminal No. 3.02, an admission of guilt by a defendant is direct evidence of his connection with the crime).) Because defendant admitted his guilt in a communication which was properly admitted into evidence before the trier of fact, we find that the court’s decision not to include the second paragraph of IPI Criminal No. 3.02 was proper.

Defendant next contends that he was not proved guilty beyond a reasonable doubt because there was no direct evidence that he committed or was accountable for the murder. Again, we cannot agree.

The evidence from which the jury could conclude that defendant had committed the murder was, first, the testimony of George Robinson, who knew the victim and was with him until 8 p.m. on the night of the incident. Robinson testified that at approximately 2 a.m., as he was returning from the store to the hotel where the victim lived, he saw defendant, whom he had previously seen on a number of occasions in the hotel, climb over the fence at the rear of the hotel after throwing clothing over the fence. Roy Gibson, a handyman at the hotel, also testified that clothing was discovered on the ground beneath a bathroom window at the hotel. Additional testimony by an evidence technician revealed that a brick, a broken bottle and broken glass were found next to the victim’s body, and a microanalyst stated that type B blood, the same type as the victim’s but not defendant, was found on the outside of defendant’s pants.

The most damaging testimony and direct evidence of defendant’s guilt came from defendant’s wife, who stated that defendant admitted to her that he had participated in the murder. Mrs. Sanders also identified a blood-stained trench coat that was found beneath a window at the hotel as the coat that defendant wore on the night of the incident. Further, Louise Drake, who shared a hotel room with the victim, identified the victim’s watch, ring, and clothes which defendant had previously given to his wife.

Based on the foregoing testimony, we do not believe that the evidence was so unreasonable, improbable or unsatisfactory as to leave a reasonable doubt as to defendant’s guilt. See People v. Ellis (1978), 74 Ill. 2d 489, 496, 384 N.E.2d 331.

Defendant contends further that the prosecutor improperly commented during closing argument that the victim’s apartment had been “wiped clean of fingerprints,” which statement, defendant argues, was contrary to the evidence adduced at trial. We disagree.

We first point out that the record shows that under direct examination James Dunbar, an evidence technician from the Chicago Police Department, testified as follows:

“Q. What was the first thing that you did in terms of processing the scene?
A. I first photographed the scene.
* * *
Q. Would you describe that search for physical evidence to the ladies and gentlemen of the jury?
A. The house brick *** some glass fragments *** and a sample of blood that was on the floor next to the victim. I also examined for ridge impressions on the broken glass, broken bottle and a glass jar that was on the scene.
* * *
Q. Did you process certain areas of the crime scene for such ridge impressions or fingerprints?
A. Yes, I did.
Q. Did you find any fingerprints at all?
A. No, Sir.
Q. Sir, at the time were you aware of the fact that the body of the victim lived in that apartment, as you processed the scene?
A. Yes, Sir.
Q. But you could not even find his fingerprints in that apartment?
A. No, Sir.” (Emphasis added.)
Under further re-cross-examination, Dunbar testified:
“Q. What did you process for fingerprints?
* * *
A. Broken glass, glass bottle and the glass jar.
Q. That is it?
A. These are the items I recall.
Q. That was your processing of that crime scene for fingerprints?
A. Yes, Sir.”

Based on the foregoing testimony, we cannot agree that the prosecutor’s statement that the area had been “wiped clean” was prejudicial. Rather, in our view, that statement was a reasonable inference from the evidence, given the fact that Dunbar had also testified that a fingerprint could remain on an object for years unless it was wiped clean and that the crime scene was examined for fingerprints (which “scene” Dunbar stated consisted of the victim’s apartment; three “items” were in turn “processed” for fingerprints but none were found).

We further observe that the preceding testimony is clearly distinguishable from that in People v. Beier (1963), 29 Ill. 2d 511, 194 N.E.2d 280, cited by defendant on this issue, in that in Beier the defendant, who was charged with murdering her husband, did not admit that she had committed the murder and there was no testimony as to the presence or absence of fingerprints on the murder weapon. The court thus held that it was reversible error for the prosecutor to argue to the jury that no fingerprints were found and that the defendant had wiped off the murder weapon.

In the pending case, however, defendant admitted that he was involved in the murder scheme and, as previously explained, there was testimony that no fingerprints were found on the items examined. Also, defendant failed to object to any of the prosecutor’s statements he now contends were improperly admitted; on at least two occasions during closing argument and once during jury instructions, the trial court admonished the jury that it should not regard closing argument as evidence, and defendant responded to the prosecutor’s statements by stating during his closing argument that the dresser drawers, closet door, kitchen doorknob, a chair and a padlock had not been dusted for fingerprints. Based on the record as a whole, therefore, coupled with the weight of the evidence which established defendant’s guilt beyond a reasonable doubt, we cannot say that the prosecutor’s statements resulted in a substantial undue prejudice to defendant (see People v. Baptist (1979), 76 Ill. 2d 19, 28-29, 389 N.E.2d 1200) or that they were such a material factor in defendant’s conviction that the jury would likely have reached a contrary verdict had they not been made. People v. Witted (1979), 79 Ill. App. 3d 156, 165, 398 N.E.2d 68.

Defendant’s final argument is that his right to effective assistance of counsel was denied. The record shows that on the day before defendant’s trial was to begin, defendant’s attorneys (assistant public defenders) were informed for the first time that the special prosecutions bureau of the State’s Attorney’s office was considering filing charges against them for obstruction of justice because certain witnesses had alleged that the attorneys had offered them a bribe for an undisclosed reason.

The trial court and attorneys for both sides had a lengthy discussion concerning this issue, the court deciding that it would issue a final decision on June 6, 1980. The record is devoid of the June 6 proceedings, however. On June 23, 1980, a private attorney filed his appearance on behalf of defendant, and when the court reconvened on July 21, 1980, that attorney had replaced the public defender as defendant’s counsel. The new attorney represented defendant throughout the trial of this matter, which commenced on September 25,1980.

Defendant contends that the abrupt substitution of attorneys denied his sixth amendment right to effective assistance of counsel because his “new” attorney was “probably” not as capable and experienced as the public defenders who were members of the murder task force unit of the Cook County Public Defenders Homicide Task Force. Also, “if this type of conduct” by the State’s Attorney’s office is permitted, defendant argues, it will have a chilling effect on an attorney’s incentive to vigorously investigate and interview witnesses for his client, and it would threaten important values in the adversary system. The State’s Attorney’s office would then be permitted to conduct a grand jury investigation as a means of eliminating defense counsel on the day of a trial when there is no evidence to indicate or warrant the investigation. Defendant further contends that his “new” attorney committed a number of trial errors.

The United States Supreme Court recently considered the constitutional standard for effective assistance of counsel in Strickland v. Washington (1984), 466 U.S._, 80 L. Ed. 2d 674, 104 S. Ct. 2052. Although our supreme court has not yet embraced Strickland, Illinois has generally followed the pronouncements of the United States Supreme Court on this subject. (See People v. Royse (1983), 99 Ill. 2d 163, 457 N.E.2d 1217, and cases cited hereinafter.) In Strickland, the Supreme Court held that in order to sustain a charge of ineffective assistance of counsel, a convicted defendant must show that his attorney’s performance was deficient and that the deficient performance so prejudiced the defense as to deprive the defendant of a fair trial. (Strickland v. Washington (1984), 466 U.S. _, _, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064; accord, People v. Greer (1980), 79 Ill. 2d 103, 120-21, 402 N.E.2d 203.) It is elementary that the defendant must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. Strickland v. Washington (1984), 466 U.S._,_, 80 L. Ed. 2d 674, 695, 104 S. Ct. 2052, 2066, accord, People v. Dudley (1970), 46 Ill. 2d 305, 308-09, 263 N.E.2d 1, cert, denied (1971), 402 U.S. 910, 28 L. Ed. 2d 651, 91 S. Ct. 1386.

With these standards as our guide, we must conclude that defendant has failed to make a showing of ineffectiveness of counsel. Defendant alleges that his new attorney failed to “pressure” the trial court to rule on his motion in limine to preclude Mrs. Sanders’ testimony. In light of our supreme court’s conclusion that the substance of Mrs. Sanders’ testimony was admissible, we cannot agree with defendant that he was unduly prejudiced thereby. Beyond this, defendant relies on his statement of issues as presented in his brief. (E.g., “As demonstrated by this brief, [defense counsel] made numerous errors in his representation of Mr. Sanders.”)

Because defendant’s arguments are broadly generalized, we believe that his contention on this issue fails to satisfy the requirements previously set forth. As a reviewing court, we must judge the reasonableness of counsel’s challenged conduct, but the defendant must first identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. Strickland v. Washington (1984), 466 U.S. _, _, 80 L. Ed. 2d 674, 695, 104 S. Ct. 2052, 2066.

We also disagree with defendant’s contentions that the State maliciously “waited” until the day before trial to inform the public defenders of the impending charges against them. The record shows that approximately one week prior to trial, the trial court conducted a hearing on the State’s motion- to extend defendant’s term for 60 days because Mrs. Sanders had not yet been found. An investigator, Barry Jackson, testified that although he had informed Mrs. Sanders in November 1979 that defendant’s case would be coming up for trial and that she would have to appear in court, he had not been able to contact her after that date, and since March 17, 1980, Jackson had attempted to serve a subpoena on her but she could not be found. He further testified in response to a question from the trial court that he could reasonably say that if he were granted 30 additional days, he “would be able to come [into court] with Beverly Sanders.” Apparently, Mrs. Sanders was located and on June 4, the day before trial, the State informed the court of the possible criminal charges against the public defenders handling this case.

During cross-examination at trial, Mrs. Sanders explained that the reason she had avoided Mr. Jackson was because defendant’s attorneys had advised her to do so, to feign amnesia and alcoholism and to not remember anything about the incident if she was called to testify at trial. She also testified that on June 2, 1980, two days before trial, she asked defendant’s attorneys for a job but she was not given one and that shortly thereafter she contacted the State’s Attorney’s office, which placed her and her children in a motel. On approximately June 6, 1980, Mrs. Sanders testified before a grand juryxas to the alleged misconduct of the assistant public defenders, but no indictment was returned.

Contrary to defendant’s argument, our review of the record indicates that the State had good reason to believe that the charges should be filed and that it did not maliciously wait until the last minute to inform the defense attorneys of its plans. It appears that it was only after Mrs. Sanders was finally located that the State informed defense counsel of its investigation. It is therefore quite plausible that it was not until that time that the State obtained sufficient incriminating evidence to disclose the investigation; earlier disclosure might have unnecessarily and unfairly alarmed those involved.

Based on the above, we cannot say that the State acted improperly. Moreover, the record is devoid of any motion or request by defendant’s trial counsel which stated that he needed additional time to prepare.

Thus, because we find that the trial court did not err with respect to any of the foregoing issues, its judgment will be affirmed.

Affirmed.

MEJDA, P.J., and PINCHAM, J., concur.


author: JUSTICE STOUDER

text:
    ROBERT L. MARTIN, Plaintiff-Appellant, v. FIRST NATIONAL BANK OF JOLIET, Defendant-Appellee.
    Third District
    No. 3—83—0795
    Opinion filed September 6, 1984.
    John T. Kelly, of Kallan and Kelly Law Offices, of Joliet, for appellant.
    George F. Mahoney III and Raymond E. Meader, both of Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

This appeal arises from the alleged conversion of the proceeds from the sale of two automobiles owned by plaintiff Robert Martin. Robert Martin is a used-car dealer in Joliet, and consigned the two vehicles to Dixon-Kappel Motors, Inc., a car dealership that subsequently sold the automobiles to two consumers. After the automobiles were sold, Dixon-Kappel deposited the proceeds of the sale into its general checking account at the First National Bank of Joliet. Defendant First National Bank had a floor-plan security agreement with Dixon-Kappel, and Dixon-Kappel had failed to apply the proceeds of previous sales as required by the security agreement. As a result, on the same day Dixon-Kappel sold the two automobiles belonging to Martin, the bank froze Dixon-Kappel’s general checking account and applied the funds to offset debts owed to the bank by Dixon-Kappel and Kappel personally. Dixon-Kappel then issued two checks to plaintiff which were never presented for payment because Martin learned of the freeze on Dixon-Kappel’s checking account.

Plaintiff sued for conversion, and after the close of plaintiff’s case, the circuit court of Will County granted defendant’s motion for a directed verdict in its favor.

On appeal, the plaintiff argues that both the Illinois Vehicle Code and the Uniform Commercial Code apply to the sales of the two autos and, therefore, Martin’s interest in the proceeds took priority over the Bank’s security interest. We agree with the trial court.

Plaintiff first contends that section 3—112 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 951/2, par. 3—112) applies and creates a security interest in a vehicle which can only be extinguished when the dealer relinquishes that title upon satisfaction of his lien. However, section 3 — 201 excepts certain liens and security interests, among which are:

“(c) A security interest in a vehicle created by a manufacturer or dealer who holds the vehicle for sale, but a buyer in the ordinary course of trade from the manufacturer or dealer takes free of the security interest.” (Ill. Rev. Stat. 1981, ch. 951/2, par. 3-201.)

Therefore, any lien plaintiff may have had in the automobile itself was extinguished when the consumer buyers purchased the two vehicles from Dixon-Kappel in the ordinary course of business.

However, plaintiff does not seek to replevy the vehicles; he is seeking an interest in the proceeds of the sales only and, therefore, article 9 of the Commercial Code is the only applicable statute to plaintiff’s suit. Plaintiff’s argument is basically that the security interest created by the Illinois Vehicle Code by Martin’s retention of the certificate of title to the two autos created a perfected security interest under article 9. The two autos were unquestionably consigned to Dixon-Kappel. Therefore, section 9—114 (Ill. Rev. Stat. 1981, ch. 26, par. 9—114) controls as to plaintiff’s interest in the proceeds of the sales. Section 9—114 deals specifically with consignments and gives the consignor a priority over other secured creditors

“who would have perfected security interest in the goods if they were the property of the consignee, and also has priority with respect to identifiable cash proceeds *** if
(a) the consignor complies with the filing provisions of the Article on Sales with respect to consignments (paragraph 3(c) of Section 2-326) before the consignee receives possession of the goods; and ***.” (Ill. Rev. Stat. 1979, ch. 26, par. 9-114(1).)

The plaintiff must satisfy this and the remaining 3 subsections to gain a priority. Section 2 — 326(3)(c) provides:

“complies with the filing provisions of the Article on Secured Transactions (Article 9).” (Ill. Rev. Stat. 1981, ch. 26, par. 2—326(3)(c).)

The gist of the latter provision is that goods will be considered “for sale or return” unless subsections (3)(a)(b), or (c) are complied with. However, only (c) meets the requirements of section 9 — 114(1) and allows a consignor to receive priority treatment. The filing provisions of article 9, therefore, must be complied with. This certainly was not done in the instant case. Plaintiff relies upon a “security interest” created by the Illinois Vehicle Code to satisfy section 9 — 114(1). Section 9 — 114(1), as previously stated, is specific in its requirements, and plaintiff unquestionably filed no financing statement prior to delivery. Therefore, we must look to subsection (2) of 9 — 114 as the operable provision. Section 9 — 114(2) states:

“(2) In the case of a consignment which is not a security interest and in which the requirements of the preceding subsection have not been met, a person who delivers goods to another is subordinate to a person who would have a perfected security interest in the goods if they were the property of the debtor.” (Ill. Rev. Stat. 1981, ch. 26, par. 9-114(2).)

We, therefore, conclude that the trial court properly granted judgment in favor of defendant and against the plaintiff, because plaintiff had a subordinate interest to the bank, because the filing provisions of article 9 were not complied with. We, therefore, affirm the decision of the Circuit Court of Will County.

Affirmed.

SCOTT and HEIPLE, JJ., concur.