specially concurring:
My views on this case can best be explained by presenting the following imaginary newspaper article. (Note — I apologize in advance to the personnel of the Illinois Department of Revenue, but some agency had to be selected in order to make the points that follow.)
“SPRINGFIELD — Paul Bunyan Builder Supplies, Inc., a wholesale and retail lumber and builder supplies company with nine stores located throughout Illinois and revenues exceeding several million dollars annually, filed suit today in Sangamon County Circuit Court against the Illinois Department of Revenue. Bunyan alleged in its sufy that the Department had unfairly and improperly placed Bunyan on the Department’s Let’s-Be-Sure-To-Investigate-This-Case-When-We-Can-Get-Around-To-It List, commonly known as the LEISURE List, and that this placement seriously hurt Bunyan’s business.
The Department’s public relations officer explained that departmental regulations authorized the creation of the LEISURE List, whose purpose ‘is primarily to serve as an informational tool for use by the Department to identify taxpayers who appear to present a significant risk of having misstated or underpaid their State tax.’
The Department’s spokesman further explained that the initial identification of a taxpayer on the LEISURE List ‘is intended primarily to guide the department in determining which taxpayers warrant further investigation designed to assess if in fact those taxpayers have misstated or underpaid their State tax, and, if they have, the extent to which they have done so.’
The spokesman added that inclusion of a taxpayer on the LEISURE List also assisted the Department in determining what remedial action would be appropriate if the Department were to find that the taxpayer had misstated or underpaid his State tax.
Bunyan claims that its inclusion on the LEISURE List could bankrupt it because potential lenders and customers will view such inclusion as proof that Bunyan engages in questionable business practices. In addition, Bunyan alleges that the possibility the Department might impose tax liens upon its assets has already seriously affected its ability to do business on a day-today basis. As an example, Bunyan points out that one of Illinois’ largest banks has terminated the half-million dollar line of credit that Bunyan had enjoyed for over 15 years. Further, some of Bunyan’s material suppliers now ask for payment up front to avoid possible litigation with the Department over tax liens.
Asked to comment on these claims, the Department’s spokesman pointed out that Bunyan’s inclusion on the List does not require it to take any action nor prohibit it from continuing with ‘business as usual.’ The spokesman sniffed that any alleged harm to Bunyan is indirect and none of the Department’s doing, although the spokesman conceded that the Department ‘purposefully gives wide publicity to the LEISURE List.’
When asked why the Department publicized the LEISURE List, the spokesman explained that the public is ‘rightly concerned about tax scofflaws’ and neéds assurance that the Department is checking into cases like Bunyan’s, where the Department has received credible tips that a taxpayer may have misstated or underpaid his State taxes.
The spokesman conceded that prior to Bunyan’s placement on the LEISURE List, Bunyan was given an opportunity to respond to these allegations and vigorously disputed all of them. However, the spokesman stated, ‘that response is to be expected.’ The spokesman added that to be totally fair to Bunyan, the Department included Bunyan’s response as appendix H3/ 2Y(b) to regulation 91-7(3).G95j, thereby making the response easily available for anyone who might wish to read it.
The spokesman added that the Department found that creating and publishing the LEISURE List more efficiently communicated departmental interests and concerns throughout the State to Department employees and investigators than using old-fashioned means of communication, such as interoffice memos, fax messages, or telephone calls. The spokesman stated, ‘This way not only can we get our message to all our employees, but the public can see how hard we are working as well.’
When asked if Bunyan or any other taxpayer placed on the LEISURE List could do anything to remove its name therefrom and whether the Department had any limit on how long a taxpayer’s name could remain on the List without further action being taken by the Department, the spokesman explained that there was nothing a taxpayer could do to force the Department to remove its name from the LEISURE List. He added that he viewed the Bunyan lawsuit as a frivolous attempt to get the circuit court improperly involved in overseeing the Department’s internal procedures.
As to how long a taxpayer might remain on the LEISURE List, the spokesman emphasized that no taxpayer will remain on the List ‘any longer than necessary.’ He explained that ‘just as soon as we can get around to fully investigating a case such as Bunyan’s to determine whether to file any civil or criminal charges, you can be assured that we will do so.’ ‘In the meantime,’ he oozed, ‘Trust us — we’re from the government and we’re here to help.’ ”
Upon reading the above imaginary newspaper article, one would be tempted to think it a parody of modern bureaucratic doublethink. Unfortunately, that is not true. Instead, the case before this court proves the old saw that the work of the modern satirist has become increasingly difficult because no matter how hard the satirist tries, real world events are fully as ridiculous as any the satirist can envision.
Although I have changed the names in my hypothetical newspaper story from the IEPA to the Department of Revenue (to protect the guilty), this hypothetical story fully applies to the present case, and the position of States Land is fully equivalent to that of the hypothetical Paul Bunyan Builder Supplies. I used the device of the hypothetical newspaper article in order to best convey to the reader the full extent of the outrageous conduct in which the IEPA has engaged in this case.
At oral argument, counsel for the IEPA argued that the agency needs SRAPL to enable it to determine how to expend its limited investigative resources and to receive citizen input in the process. However, despite repeated requests from the bench, counsel could not explain why those goals, to the extent that they are desirable and appropriate, could not be achieved without SRAPL, just as the hundreds of investigative, policing, and prosecutorial departments or agencies operating in Illinois routinely achieve those same goals.
The record shows that the IEPA has in effect found States Land guilty of violating the Act and might very well choose to let the matter lie forever in its current state of limbo, thereby denying States Land any semblance of due process. The regulation at issue and the IEPA’s utilization of it in this case are truly right out of the novels of Franz Kafka.
By these remarks, I do not intend to give comfort to polluters nor to deprive the IEPA of its statutory duty to investigate any complaints it receives about polluters. (See Ill. Rev. Stat. 1989, ch. 1111/2, par. 1030.) I only ask that the agency behave responsibly, just as every other investigative and prosecutorial agency is required to behave, as it investigates allegations of misconduct.
One of the hallmarks of prosecutorial discretion is confidentiality. Sometimes, despite the best efforts of investigators, an investigation into allegations of misconduct becomes public. On other occasions, leaks regrettably occur from the police, prosecutor’s offices, or grand juries about ongoing investigations. However, such leaks are the exception to the rule, and the behavior of prosecutors during the investigative stage is subject to ethical restraints. See Standards for Criminal Justice §§3 — 1.1 through 3 — 6.2 (1986).
What I find so shocking about the IEPA’s promulgation and utilization of SRAPL in this case is that it constitutes nothing less than institutionalizing prosecutorial abuse.
I concur fully in the majority opinion.