NO. 4-00-0100

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

JOSEPH GANCI,						)	Appeal from

	Plaintiff-Appellant,			)	Circuit Court of

	v.							)	Sangamon County

ODIE WASHINGTON, Director, Illinois	)	No. 98MR26

Department of Corrections, JAMES		)	

WILLIAMS, JOANNE S. SHEA, ANNE TAYLOR, 	)

WILLIAM HARRIS, BARBARA HUBBARD,  		)

HERBERT BROWN, CLYDE BROOKS, JAMES 	)

DONAHUE, MILTON MAXWELL, JORGE MONTES,	)

WILLIAM WALSH, DONALD YOST, and THE	)	Honorable

ILLINOIS PRISONER REVIEW BOARD,		)	Thomas R. Appleton,

	Defendants-Appellees.			)	Judge Presiding.

_________________________________________________________________

	JUSTICE GARMAN delivered the opinion of the court1:

	Plaintiff Joseph Ganci is a prisoner at the Logan Correctional

Center in the Illinois Department of Corrections (DOC).  Based on 

events of June 8, 1974, he was convicted in April 1976 and is

serving concurrent sentences of 33 to 100 years for murder and 11

to 33 years for attempt (murder).   On June 20, 1996, Ganci filed

a complaint in Cook County circuit court against defendants, Odie

Washington, then Director of DOC, the Illinois Prisoner Review

Board (Board), and its individual members alleging that the Board

had unconstitutionally increased his sentence in violation of the ex post facto clauses contained in the United States Constitution (U.S. Const., art. I, §10, cl. 1) and the Illinois Constitution of

1970 (Ill. Const. 1970, art. I, §16).  The case was transferred to

the circuit court of Sangamon County in January 1998.  The original complaint was dismissed on defendants' motion, and Ganci filed an

amended complaint.  Defendants filed a motion directed to this

complaint, ostensibly requesting summary judgment, which the trial

court granted.  Ganci appeals, and we now vacate and remand.

	I. BACKGROUND

	A. Original Complaint

	Ganci's original complaint was styled as a complaint for

declaratory judgment and alleged that (1) under the law in effect

at the time of Ganci's offense, he would have been considered for

parole by the Parole and Pardon Board (now Board) beginning in 1983

or 1984; (2) in 1978, parole was abolished and all persons serving

sentences under the old laws were given the option of receiving

recalculated determinate sentences, with the exception of prisoners

serving sentences longer than 20 years, including Ganci; (3) those

prisoners continued to be eligible for parole; (4) the Board denied

Ganci's parole every year from 1993 to and including 1998; (5) the

Board unconstitutionally increased the length of Ganci's sentence

by denying him parole, using criteria not in effect when Ganci

committed the crime for which he was serving sentence; (6) those

criteria were unconstitutionally imposed, not by the legislature,

but by the executive branch of government; (7) were the Board to

consider Ganci's case under the criteria in effect on June 8, 1974,

it would have found him eligible for parole and ordered him

released; and (8) Ganci's continued confinement is therefore

unconstitutional.  

	The complaint also alleged that (1) Ganci was convicted of

aggravated battery while incarcerated at Pontiac Correctional

Center and was sentenced to four years in prison; (2) Ganci's disciplinary record contains 12 violations in his first 10 years in

prison; (3) in 1989, he was "written up" for two assaults on guards

but was acquitted of one of those charges in a criminal trial; (4)

Ganci received a disciplinary violation in 1992 but has had no

discipline problems since; (5) every year, at least three witnesses

have appeared at Ganci's parole hearing to urge his release; (6) no

witness has ever appeared to testify against his release; (7) two

letters, one from the Cook County State's Attorney and the other

from the Livingston County State's Attorney, were received, stating

that Ganci remained a danger to the community; (8) he has main

tained close ties with his family; (9) the record is "replete with

specific, uncontradicted evidence" demonstrating that Ganci poses

no threat should he be paroled; (10) four offers of employment, if

Ganci should be paroled, have been renewed each year that he has

appeared before the Board; and (11) certain people in Chicago,

where Ganci would live, have written letters to the Board support

ing his parole.

	The complaint also alleged that every year in which parole was

denied, the Board cited only one statutory criterion as the basis

for denying parole, i.e., that parole would deprecate the "very serious nature" of Ganci's offense and promote disrespect for the

law.  

	Ganci further alleged that (1) based on evidence in the

record, his age, background, institutional record, and his support

system, there was "very little chance" that he would commit another

crime or violate the conditions of his parole; (2) no evidence

suggested that his release would have any adverse impact on

institutional discipline; (3) on information and belief, prior to 1974, when Ganci committed the murder, the average length of time

actually served by prisoners sentenced for murder was less than 20

years and an "extremely small" percentage of such prisoners served

over 20 years; (4) from 1978 when the Board began considering

parole cases, through 1981, the Board granted parole to 47% of the

13,591 prisoners whose parole cases it heard; (5) in 1982 alone,

the percentage was 57%; (6) in 1983, the percentage dropped to 28%

of cases heard; (7) between 1984 and 1992 (the last year for which

statistics were available), the Board released between 2% and 5% of

prisoners whose cases it considered; (8) on information and belief,

virtually all prisoners who appeared before the Board from 1978 to

the present were serving sentences for murder; (9) no change

occurred in either the applicable statutes or administrative

regulations that would account for the dramatic decrease in the

number of prisoners approved for parole; (10) the Board effected

the reduction in parolees by reinterpreting the third statutory

criterion, i.e., the seriousness of the offense; (11) prior to 1983, the Board interpreted this criterion to require prisoners to

serve about one-half of their minimum sentences, while after 1983,

the Board's new interpretation barred parole for almost all

prisoners serving sentences for murder; (12) on information and

belief, the Board's reinterpretation was politically motivated,

based on directives received from then Governor James R. Thompson

and then Cook County State's Attorney Richard M. Daley, who

complained about the short length of time that the average person

convicted of murder served in prison; (13) in essence, Thompson and

Daley "direct[ed]" the Board to increase the punishment given to

prisoners convicted of murder; and (14) on information and belief, the Board denied Ganci parole in each of the years he appeared

before it, based on its reinterpretation of the applicable

statutory criteria.  On defendants' motion, Ganci's complaint was

dismissed with leave to amend.  

	B. Amended Complaint

	On July 22, 1998, Ganci filed an amended complaint of two

counts, the first for declaratory judgment and the second for a

writ of mandamus.  In count I, Ganci alleged the same factual matters as in his original complaint.  He alleged that the actions

of the Board in denying him parole each year were arbitrary,

capricious, and against the manifest weight of the evidence.  He

also alleged that the actions were unconstitutional, based on an ex post facto change in the parole standards that had the effect of retroactively increasing his sentence in violation of the four

teenth amendment to the United States Constitution (U.S. Const.,

amend. XIV) and section 16 of article I of the Illinois Constitu

tion of 1970 (Ill. Const. 1970, art. I, §16).  Ganci also alleged

that the Board's decision to change its interpretation was based on

a decision by the executive branch of government, rather than the

legislative branch, in violation of the doctrine of separation of

powers contained in section 1 of article II of the Illinois

Constitution (Ill. Const. 1970, art. II, §1).  He requested an

order declaring that the Board had increased his punishment in

violation of his constitutional rights and requiring the Board to

consider his parole case under the criteria in effect on June 8,

1974.  

	In count II of the amended complaint, seeking a writ of

mandamus, Ganci alleged that, in denying his application for parole every year, the Board failed to perform its legally mandated duty under Illinois law and administrative regulations, thus violating

Ganci's legal rights.  Ganci further alleged that, since he filed

his original complaint in 1996, the Board was on notice of his

demands and failed to follow proper procedures in 1997 and 1998. 

He asked for a writ of mandamus commanding the Board to hold a new parole hearing in which all the procedures he identified be

followed.  

	On August 24, 1998, defendants filed a "MOTION FOR SUMMARY

JUDGMENT," alleging that the trial court had previously found,

pursuant to defendants' motion to dismiss Ganci's original

complaint, that count I failed to state a cause of action on which

relief can be granted.  As to count II, defendants alleged that the

hearings were conducted pursuant to the applicable law and attached

affidavits of Board members Barbara Hubbard and Anne Taylor.  In

conclusion, the motion alleged that no genuine issues of material

fact were raised that would preclude entry of judgment in favor of

defendants and requested that summary judgment be entered.  

	In a supporting legal memorandum, defendants noted, as to

count I, that Ganci had presented the same arguments in his

original complaint and that his amended complaint added nothing to

suggest that the trial court was incorrect in dismissing it. 

Defendants argued that parole is a matter of grace and executive

discretion and not subject to the ex post facto prohibition.  The facts, as pleaded in the complaint, show that no new parole rule or

regulation was in effect.  Defendants also argued that no separa

tion of powers violation occurred, because the Board did not change

Ganci's sentence.  The decision to release him prior to completion of his sentence is an executive function.  In conclusion, defen

dants stated that "[a]s this [c]ourt has previously found, [c]ount

I fails to state a cause of action upon which relief may be

granted.  Plaintiff is not entitled to the relief sought on [c]ount

II.  Judgment should be entered in favor of defendants and against

[Ganci]."  

	Ganci's counsel requested that he be allowed to delay his

response to defendants' motion to engage in discovery on procedures

used by the Board in Ganci's case.  The record does not show that

any order was entered on this motion.  However, the process of

discovery began.  At a hearing on Ganci's motion to compel

discovery as to his mandamus cause of action, the trial court ordered defendants to supply the requested materials and answer

interrogatories.  Defendants refused to produce certain notes of

members of the Board.  While Ganci's discovery requests were

pending, the notes in question were destroyed.  In a written order

entered on September 29, 1999, the trial court found that the notes

were relevant to Ganci's allegations that meetings of the Board did

not comply with the law.  The trial court awarded judgment to Ganci

on count II of his complaint as a sanction.  The court further

ordered defendants to grant Ganci a new hearing before the Board

and to comply with all statutory and administrative rules.  

	Ganci filed a response to defendants' motion for summary

judgment, entitled "PLAINTIFF'S RESPONSE TO DEFENDANT'S SECTION 2-

615 MOTION TO DISMISS AS TO COUNT ONE."  Ganci argued that (1)

defendants' factual arguments and the affidavits of Hubbard and

Taylor were directed at count II of the amended complaint; (2)

defendants alleged as to count I of the complaint that Ganci had failed to state a cause of action; and (3) since defendants did not

cite or rely on any evidence outside the four corners of the

amended complaint, their motion was, in effect, a motion to dismiss

under section 2-615 of the Code of Civil Procedure (Code) (735 ILCS

5/2-615 (West 1998)).  

	In a written order entered on January 18, 2000, the trial

court granted defendants' motion as to count I.  The court cited

cases in which the ex post facto clause was applied to the parole system.  However, the court noted that, in those cases, the

prisoner had earned specific rights that were later revoked.  The

court noted that Ganci did not allege that parole rules had

changed; rather, he alleged that their interpretation had changed. 

Whether a change in attitude was made based on political pressure

or a changing view of society, such change is permitted in a

discretionary act.  It is the eligibility for parole that may not

be changed without violating the ex post facto clause.  Ganci's eligibility remained unchanged.  The trial court noted that, at

best, it could be alleged that members of the Board are more

sensitive to the protection of the public than were their predeces

sors or that they are more sensitive to the opinions of the

political forces to whom they owe their appointment to the Board. 

Regardless of the reason, the Board does no more than exercise the

discretion with which it is vested.  This appeal followed.

	II. ANALYSIS

	A. Proper Construction of Defendants' Motion

	Ganci argues that defendants' motion as to count I is properly

construed as a motion to dismiss under section 2-615 of the Code. 

That section allows parties to object to pleadings by motion.  The motion may request that the pleading be stricken as substantially

insufficient in law, that the action be dismissed, a pleading be

made more definite, designated immaterial matter be stricken, or

necessary parties be joined or disjoined parties be dismissed.  735

ILCS 5/2-615(a) (West 1998).  Defendants styled their motion as one

for summary judgment.  Such motions are governed by section 2-1005

of the Code.  735 ILCS 5/2-1005 (West 1998).  Summary judgment is

entered only if the pleadings, depositions, and admissions on file,

together with any affidavits presented by the parties, demonstrate

that no genuine issue of material fact exists and that the moving

party is entitled to judgment as a matter of law.  735 ILCS 5/2-

1005(c) (West 1998).  

	In ruling on a section 2-615 motion to dismiss, the court

accepts as true the complaint's well-pleaded facts and all

reasonable inferences drawn therefrom.  The ruling on a motion to

dismiss is reviewed de novo.  Nall v. International Ass'n of Machinists & Aerospace Workers, 307 Ill. App. 3d 1005, 1008, 719 N.E.2d 300, 302 (1999).  

	The affidavits of Hubbard and Taylor supported defendants'

motion as to count II of Ganci's complaint.  Recognizing this fact,

defendants argue on appeal that their motion as to count I of the

amended complaint may still be characterized as a summary judgment

motion, as Ganci failed to produce any proof to support his

allegations in count I.  Defendants rely on Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), in support of their argument.  

	In that case, Celotex filed a motion for summary judgment

without supporting affidavits.  The motion alleged that Catrett had failed to identify in discovery any witnesses who could testify

that her deceased husband had been exposed to Celotex's asbestos

products.  Celotex, 477 U.S. at 320, 91 L. Ed. 2d at 272, 106 S. Ct. at 2551.  The district court granted the motion because no

showing was made that the decedent had been exposed to Celotex's

products.  Celotex, 477 U.S. at 319, 91 L. Ed. 2d at 271, 106 S. Ct. at 2550.  The court of appeals reversed, holding that Celotex's

failure to produce any evidence negating such exposure precluded

entry of summary judgment.  Celotex, 477 U.S. at 319, 91 L. Ed. 2d at 271, 106 S. Ct. at 2550. 

	The United States Supreme Court found that the court of

appeals' decision was contrary to Rule 56(c) of the Federal Rules

of Civil Procedure.  That rule provides that summary judgment is

proper if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show

no genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law.  The Court found that the

plain language of the rule mandates the entry of summary judgment

after adequate time for discovery and on motion against a party who

fails to make a showing sufficient to establish the existence of an

element essential to that party's case.  Celotex, 477 U.S. at 322, 91 L. Ed. 2d at 273, 106 S. Ct. at 2552.  

	The Court noted that the moving party in a summary judgment

procedure always bears the initial responsibility of informing the

district court of the basis for its motion and identifying those

portions of the pleadings and discovery materials that it believes

demonstrates the absence of any genuine issue of material fact. 

Celotex, 477 U.S. at 323, 91 L. Ed. 2d at 274, 106 S. Ct. at 2553.  The Court noted that the action was filed in 1980, and Celotex

filed its summary judgment motion in 1981.  The parties had

conducted discovery, and Catrett could make no claim that she was

"railroaded" by a premature motion for summary judgment.  Celotex, 477 U.S. at 326, 91 L. Ed. 2d at 276, 106 S. Ct. at 2554.

	This court recognized a Celotex-type motion in Hutchcraft v. Independent Mechanical Industries, Inc., 312 Ill. App. 3d 351, 726 N.E.2d 1171 (2000).  There, plaintiff, a laborer, received an

electrical shock while working at a construction site.  Plaintiff

sued defendants alleging negligent operation, placement, and

inspection of welding units and welding lead lines at the site. 

Hutchcraft, 312 Ill. App. 3d at 352, 726 N.E.2d at 1173.  Defen dants moved for summary judgment.  The trial court granted the

motions on the basis that plaintiff could not establish causation

in fact based on surmise or conjecture as to the injury's cause.  Hutchcraft, 312 Ill. App. 3d at 352, 726 N.E.2d at 1173.  

	On appeal, this court noted that there are two types of

summary judgment motions.  The first affirmatively shows that some

element of the case must be resolved in defendant's favor.  This

method requires the defendant to prove something that it would not

be required to prove at trial.  The second type of summary judgment

motion is the Celotex-type motion, in which the defendant points out the absence of evidence supporting the plaintiff's position.  Hutchcraft, 312 Ill. App. 3d at 355, 726 N.E.2d at 1174-75.  We noted that some Illinois cases may require the defendant to do more

than merely point out the absence of evidence.  A Celotex motion is unusual in that it essentially places the burden of proof on the

nonmovant.  In both types of motions, once the defendant has satisfied its initial burden of production, the burden shifts to

the plaintiff to show some factual basis that would arguably

entitle him to a judgment.  Hutchcraft, 312 Ill. App. 3d at 355, 726 N.E.2d at 1175.  

	In Hutchcraft, the defendants filed Celotex-type motions, arguing that plaintiff could not establish who owned or was using

the welding unit and lead lines at the time of the accident. 

Hutchcraft, 312 Ill. App. 3d at 355-56, 726 N.E.2d at 1175.  This court noted that the issues of ownership and/or use of the welder

and lead lines were critical to plaintiff's case.  Discovery had

been taken on these issues.  While most witnesses were unable to

say who owned or used the equipment, a few testified that one of

the defendants owned the welding unit and that employees of the

other defendant were using the lead lines at the time of the

accident.  Hutchcraft, 312 Ill. App. 3d at 356, 726 N.E.2d at 1175.  This court found that this evidence presented fact questions as to

ownership and use.  Accordingly, we reversed the grant of summary

judgment as to those two defendants.  Hutchcraft, 312 Ill. App. 3d at 357, 726 N.E.2d at 1176.

	Defendants in this case argue that their summary judgment

motion was a Celotex-type motion because Ganci was unable to produce any evidence to substantiate his allegation that the Board

had secretly adopted a rule that was applied to him retroactively. 

They note that Ganci had the opportunity to file counteraffidavits,

but did not do so.  Ganci argues that defendants' "improper

attempt" to transform their section 2-615 motion into a motion for

summary judgment should be rejected by this court as "severely

prejudicial" to him.  He maintains that all parties and the trial court treated defendants' motion as a section 2-615 motion to

dismiss.  

	We conclude that defendants' motion as to count I should be

considered a section 2-615 motion to dismiss and not a motion for

summary judgment.  We agree with Ganci that to treat the motion as

one for summary judgment would result in unfair prejudice to him. 

Defendants did not argue to the trial court that their motion

should be treated as a Celotex-type summary judgment motion.  No discovery had taken place regarding count I of the amended

complaint.  The allegations of the motion itself, together with the

arguments contained in defendants' memorandum of law in support of

their motion, raise issues relating to the dismissal of Ganci's

complaint, not summary judgment.  Accordingly, we address whether

the trial court properly dismissed count I of Ganci's complaint.

	B. Dismissal of Count I of the Amended Complaint

	Section 3-3-5(c) of the Unified Code of Corrections (Unified

Code) (730 ILCS 5/3-3-5(c) (West 1998)) provides that the Board

shall not parole a person eligible for parole if it determines that

(1) a substantial risk exists that the person will not conform to

reasonable conditions of parole; or (2) his release at that time

would deprecate the seriousness of his offense or promote disre

spect for the law; or (3) his release would have a substantially

adverse effect on institutional discipline.  Section 3-3-5(h) of

the Unified Code (730 ILCS 5/3-3-5(h) (West 1998)) provides that

the Board shall promulgate rules regarding the exercise of its

discretion under the section.

	In Hanrahan v. Williams, 174 Ill. 2d 268, 269, 673 N.E.2d 251, 252 (1996), a prisoner sued the Board challenging the denial of his parole.  He was convicted of murder and other offenses in 1976 and

was sentenced to indeterminate prison terms.  He became eligible

for parole in 1983.  In 1993, the Board conducted parole hearings

and denied parole.  Hanrahan, 174 Ill. 2d at 270, 673 N.E.2d at 252.  The prisoner requested a writ of certiorari to review the Board's decision.  He alleged that the decision was arbitrary and

capricious, an abuse of discretion, contrary to law, and against

the manifest weight of the evidence.  The trial court granted the

Board's oral motion to dismiss that count of the complaint as

insufficient in law.  The appellate court reversed the dismissal,

noting that no other avenue of review was open to the prisoner. 

The Supreme Court of Illinois granted the Board's petition for

leave to appeal.  Hanrahan, 174 Ill. 2d at 270-71, 673 N.E.2d at 252-53.  

	The supreme court noted that a writ of certiorari is a general method for obtaining circuit court review of administrative actions

when the statute conferring power on the agency does not expressly

adopt the Administrative Review Law and provides for no other form

of review.  Hanrahan, 174 Ill. 2d at 272, 673 N.E.2d at 253.  The Board's duties are set forth by statute and by administrative rules

promulgated by the Board.  Hanrahan, 174 Ill. 2d at 274, 673 N.E.2d at 254.  Rules adopted by the Board state that the Board grants

parole as an exercise of grace and executive discretion and that

the parole release decision is a subjective determination based on

relevant information.  Hanrahan, 174 Ill. 2d at 275, 673 N.E.2d at 254-55.  The rules list factors that may be considered by the Board

in determining whether to grant or deny parole.  However, the rules

state that the parole decision is not limited to consideration of only those factors listed.  Hanrahan, 174 Ill. 2d at 275, 673 N.E.2d at 255.  

	The supreme court noted that, in addition to the Board's

rules, criteria have been set forth by the legislature under which

the Board must deny parole.  The court noted that the statutory

provisions do not state when the Board must grant parole.  The Board may consider any relevant information.  Thus, the court held

that the statutory criteria and the Board's rules do not provide

standards for release on parole that are sufficiently objective to

allow a court to evaluate the Board's decision denying parole.  The

legislature, in drafting the statutory language, intended the Board

to have complete discretion in determining whether to grant parole

when denial of parole is not mandated by statute.  Hanrahan, 174 Ill. 2d at 276, 673 N.E.2d at 255.  The court noted that, while

amici curiae filed briefs contending that certain constitutional rights of inmates subject to parole had been violated, neither

party to the case raised those issues.  Accordingly, the court

declined to address them.  Hanrahan, 174 Ill. 2d at 281, 673 N.E.2d at 257.  

	Unlike the prisoner in Hanrahan, Ganci alleges, not that the Board abused its discretion in denying him parole, but that the

Board has informally changed the standards that it uses to make

parole decisions for prisoners convicted of murder.  In doing so,

according to Ganci, the Board violated the ex post facto clauses of the United States and Illinois Constitutions.  In addition, Ganci

has squarely raised constitutional issues that were not addressed

in Hanrahan.  Therefore, that case does not apply to prevent Ganci from pursuing his present action.  

	The ex post facto clause is aimed at laws that retroactively alter the definition of crimes or increase the punishment for

criminal acts.  California Department of Corrections v. Morales, 514 U.S. 499, 504, 131 L. Ed. 2d 588, 594, 115 S. Ct. 1597, 1601

(1995).  However, changes in rules effected by a parole board may

also contravene the ex post facto prohibition.  For instance, in Garner v. Jones, 529 U.S. 244, 247, 146 L. Ed. 2d 236, 242, 120 S. Ct. 1362, 1365 (2000),  Jones was convicted of murder and given a

life sentence.  He escaped from prison, and before his recapture,

committed another murder, for which he received a second life

sentence.  A Georgia statute required the parole board to consider

a prisoner serving a life sentence for parole after seven years.  Garner, 529 U.S. at 247, 146 L. Ed. 2d at 242, 120 S. Ct. at 1365- 66.  When Jones committed his second offense, the parole board's

rules required reconsideration to take place every three years. 

Thereafter, the parole board amended its rules to provide that

reconsideration of prisoners serving life sentences who had

initially been denied parole would take place at least every eight

years.  At all hearings denying Jones parole, the parole board

cited his multiple offenses and the circumstances and nature of the

second offense.  Garner, 529 U.S. at 247-48, 146 L. Ed. 2d at 242, 120 S. Ct. at 1366.

	Jones sued, claiming that application to him of the parole

board's amended rule violated the ex post facto clause.  The district court denied Jones' request for discovery and granted

summary judgment to the parole board.  The court of appeals

reversed, finding a violation of the ex post facto clause.  Garner, 529 U.S. at 248, 146 L. Ed. 2d at 243, 120 S. Ct. at 1366.  The Supreme Court reversed the court of appeals.  The Court noted that

determining whether retroactive application of a change in parole

law violates the ex post facto prohibition is particularly difficult when the discretion vested in a parole board is taken

into account.  Garner, 529 U.S. at 249-50, 146 L. Ed. 2d at 244, 120 S. Ct. at 1367.  However, the Court observed that the presence

of discretion does not displace the protections of the ex post facto clause.  The danger exists that legislatures might disfavor certain persons after the fact in the parole context, and the ex post facto clause guards against such abuses.  Garner, 529 U.S. at 253, 146 L. Ed. 2d at 246, 120 S. Ct. at 1369.  

	The Court rejected the court of appeals' finding that the

change in the rule seemed certain to result in some prisoners

serving extended periods of incarceration.  A more rigorous

analysis of the level of risk created by the change in law was 

necessary.  When the rule, by its own terms, does not show a

significant risk, the prisoner must demonstrate, by evidence taken

from the practical implementation of the rule by the agency charged

with exercising discretion, that the rule's retroactive application

will result in the prisoner serving a longer period of incarcera

tion than he would have served under the previous rule.  Garner, 529 U.S. at 255, 146 L. Ed. 2d at 247, 120 S. Ct. at 1370.  

	The Court found that little evidence existed in the record

about the level of risk created by the change in law.  Without such

information, Jones' claim rested on speculation.  Thus, the Court

could not determine on the record that the change lengthened Jones'

actual time in prison.  It also stated that the matter of discovery

was one for the court of appeals on remand.  The Court reversed the court of appeals' decision and remanded to that court for further

proceedings.  Garner, 529 U.S. at 256-57, 146 L. Ed. 2d at 248-49, 120 S. Ct. at 1370-71.  

	Here, no discovery was conducted regarding Ganci's allegation

that the Board's alleged change in standards effectively denied him

parole and thereby lengthened the time that he spent in prison. 

Ganci cites People v. Fair, 193 Ill. 2d 256, 260, 738 N.E.2d 500, 502 (2000), in which a postconviction petitioner alleged that

circuit court Judge Paul Foxgrover, who presided over his trial and

sentenced him, was corrupt.  Both before and after petitioner's

trial and sentencing, Foxgrover had engaged in sentencing defen

dants to probation with fines or restitution and later converting

the funds for his personal use.  Foxgrover was charged with and

pleaded guilty to numerous criminal offenses.  Fair, 193 Ill. 2d at 259, 738 N.E.2d at 502.  The circuit court denied petitioner's

discovery motion (Fair, 193 Ill. 2d at 263-64, 738 N.E.2d at 504) and granted the State's motion to dismiss, holding that petitioner

failed to establish a nexus between his trial and Foxgrover's

criminal conduct (Fair, 193 Ill. 2d at 260, 738 N.E.2d at 502).  On appeal, the supreme court held that petitioner must establish (1)

a nexus between Foxgrover's criminal conduct and his conduct at

petitioner's trial and (2) (a) actual bias resulting from

Foxgrover's extrajudicial conduct or (b) Foxgrover had personal

interest in the outcome of the trial.  Fair, 193 Ill. 2d at 263, 738 N.E.2d at 503-04.  

	In light of this holding, the supreme court agreed with

petitioner that, if he must establish a nexus between Foxgrover's

criminal conduct and his conduct at petitioner's trial, the circuit court erred in denying petitioner's request for discovery to

uncover the full extent of Foxgrover's corruption.  Fair, 193 Ill. 2d at 263, 738 N.E.2d at 504.  The court noted that, since

Foxgrover pleaded guilty, petitioner was denied a public source of

information that would have existed had Foxgrover gone to trial. 

All the evidence of Foxgrover's criminal conduct remained in the

exclusive control of the State.  Thus, it would be virtually

impossible for petitioner to establish a nexus between Foxgrover's

criminal conduct and petitioner's murder trial without access to

the evidence possessed by the State.  Fair, 193 Ill. 2d at 266, 738 N.E.2d at 505.  The court held that petitioner was entitled to an

opportunity to discover whatever evidence existed that connected

Foxgrover's criminal conduct to his ability to preside impartially

at petitioner's trial.  Fair, 193 Ill. 2d at 267, 738 N.E.2d at 506.

	Defendants point out that the petitioner in Fair identified in his discovery motion specific items that he wished to discover,

such as Foxgrover's confession and any interviews of witnesses

conducted in the course of the investigation.  Fair, 193 Ill. 2d at 263-64, 738 N.E.2d at 504.  In contrast, Ganci has not identified

any specific materials for discovery.  However, Ganci is in an even

more difficult position here than was the petitioner in Fair.  Ganci alleges that Board members have, in essence, entered into a

"gentlemen's agreement" to treat applications for parole by

convicted murderers differently than those submitted by other

prisoners.  He has cited statements made by former Governor James

R. Thompson and former Cook County State's  Attorney Richard M.

Daley that were critical of the short length of time convicted murderers spent in prison.  He has alleged that the Board was

influenced by those "directives" and changed the standards used to

evaluate convicted murderers' parole applications.  Ganci has also

cited statistics that suggest a significant reduction in the number

of convicted murderers being paroled since 1983.  No formal changes

in the Board's parole rules have been made, nor any statutory

amendments passed by the legislature, that would explain this

change.  In contrast, the petitioner in Fair was able to identify specific items for discovery because a record was made of the

proceedings surrounding Foxgrover's involvement in the criminal

justice system.  

	All well-pleaded facts contained in Ganci's amended complaint

must be taken as true for purposes of a section 2-615 motion to

dismiss.  Ganci alleged that the Board had secretly adopted a new

rule and cited statistics to support his allegations.  Any evidence

concerning the adoption of this alleged unwritten rule lies within

the exclusive control of defendants.  We recognize that Ganci did

not request discovery as to count I of his amended complaint prior

to its dismissal.  However, we do not view this fact as signifi

cant.  We conclude that the allegations of count I are sufficient

to withstand a section 2-615 motion to dismiss at this stage of the

proceedings.  

	III. CONCLUSION

	Accordingly, we vacate the trial court's dismissal of count I

of Ganci's amended complaint and remand for further proceedings.  

	Vacated and remanded.  

	MYERSCOUGH and COOK, JJ., concur.