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Class action restrictions

THE Illinois Supreme Court ruled 5-2 April 18 that a class action suit is not appropriate in the case of a man convicted and fined under a now-invalid narcotic law, since all common questions of law or fact had been settled by previous Supreme Court rulings. In sanctioning the dismissal of a class action suit, the majority found that a Champaign County circuit court was correct in holding that all class action questions had already been settled -- namely the constitutionality of the Illinois Uniform Narcotic Drug Act (///. Rev. Stat. 1969, ch. 38, sec. 22-1 through 22-9.1). "That law, as it related to marijuana, was declared unconstitutional in People v. McCabe ( 1971)," the justices noted. "Subsequently, this court ruled that all those convicted under the Act had a right to the expungement of their conviction and the return of any fine money and court costs attributable to those convictions."

The ruling, in the present case of McCabe v. Burgess, overturned an appellate reversal of the trial court. The Supreme Court ruled that the appellate court had no authority to assess the facts of the case since the trial court had exercised its legally prescribed judicial discretion, and the appellate court had not challenged that, nor had it found that the trial court's discretionary power was abused.

Justice Thomas J. Moran dissented from the majority opinion of Justice Howard C. Ryan. Justice Moran offered the opinion that "plaintiff has satisfied the common-question requirement and that the trial court abused its discretion in granting defendant's motion to dismiss." Justice William G. Clark joined in the dissent.

Drivers license decisions

"The courts have no authority to suspend a license or even determine whether a license should be suspended," the Illinois Supreme Court ruled 5-2 April 3, in Illinois v. Malloy, a case involving a man arrested for drunk driving in 1977. The man, Thomas G. Malloy, refused to take a breathalyzer test and received a hearing in Moultrie County Circuit Court -- a hearing he requested to prevent the state from revoking his driver's

June 1979 / Illinois Issues / 26

license. Driver's license suspension is automatic in Illinois under the "implied consent" law (///. Rev. Stat. 1977, ch. 95'/2, sec. 11-501 (a)), if one refuses to submit to breath analysis and is properly warned after a proper arrest for drunk driving. However, the Moultrie County Court "ruled that defendant had not been adequately advised of the consequences of a failure to submit to breath analysis."

The Illinois Appellate Court for the 1st District in Chicago ruled 2-1 March 28 that the state statute prohibiting possession of small amounts of certain narcotics --including heroin, cocaine and LSD -- is unconstitutional. The court held in Illinois v. Natoli that the state statute sections (///. Rev. Stat., 1977, ch. 56'/2, sec. 1401-1412) on penalties for possession of small amounts of 19 depressants, as well as heroin, morphine and other narcotics prescribes more severe penalties for possession of certain drugs than for the sale or distribution of the same drugs. The opinion, delivered by Judge Seymour Simon, reversed the conviction of a Chicago man who was sentenced to 2 to 6 years in prison for possession of a narcotic.

Bureau County Circuit Court Judge Frank X. Yackley issued a preliminary injunction order March 27 requiring Nuclear Engineering Company (NECO) to maintain its nuclear waste disposal site near Sheffield. NECO announced March 8 that it had "unilaterally terminated" its 99 year lease and license to operate the nuclear burial site for "low level" wastes. Judge Yackley ordered NECO to resume its surveillance of the site eight hours a day, seven days a week, and to correct any deficiencies.

The order was issued at the request of the Illinois Department of Public Health. The Illinois attorney general's office has opposed a plan by NECO to expand the radioactive waste disposal site, where 34 pounds of plutonium and 70.8 pounds of enriched uranium are buried.

Judge Yackley's order directs NECO to: (1) repair and maintain fences; (2) conduct an eight-hour, seven-day per week watch at the site; (3) verify precise location of each trench where waste material is buried; (4) repair and maintain trench covers; (5) have the trenches pumped dry in 15 days; (6) keep all water collected from trenches in drums or tanks at the site until a method of disposal is determined; (7) pump all other trenches dry whenever the state health department detects water in them; and (8) permit the state health department access to the site and all wells. The ruling also states that the Illinois Department of Public Health may issue orders pertaining to the site.

On March 16, the health department's special counsel, attorney Clifford L. Weaver, filed a complaint against NECO, its president James Neel and its parent company Teledyne, Inc. The complaint led to the March 27 ruling by Judge Yackley.

The U.S. Supreme Court ruled 7-2 April 17 that violations of the fair housing act by realtors who "steer" prospective homeowners into racially determined "target" areas, may be remedied by monetary or other awards to those who are actually victims of such discrimination. The court interpreted title VIII of the Civil Rights Act of 1968 (82 Stat. 81, 42 U.S.C. sec. 3601 el seq.) as granting a community or individual residents of a community the right to bring suit in federal district court against discriminitory housing practices, whether respondents were actually attempting to purchase homes or were merely attempting to test to see if realtors were engaged in racial steering. The court held, however, that individuals who don't reside within the "target" areas do not have standing to bring suit.

The case involved two realty firms in Bellwood, near Elmhurst, where complaints alleged realtors had steered prospective black home buyers toward an integrated area "12 blocks by 13 blocks in dimension, and away from other predominately white areas." The complaints said that the "Village of Bellwood has been injured by having [its] housing market . . . wrongfully and illegally manipulated to the economic and social detriment of the citizens of [the] village," and that the individual respondents "have been denied their right to select housing without regard to race and have been deprived of the social and professional benefits of living in an integrated society."

The federal northern district court of Illinois first held that respondents did not have standing to sue since they had been acting only as testers. However, the 7th Circuit Court of Appeals, found that the individual respondents were nonetheless entitled to demonstrate that as residents of the "target" area they had been deprived "of the social and professional benefits of living in an integrated society." The U.S. Supreme Court upheld the appeals court decision in Gladstone v. Bellwood, and granted standing to sue to those individuals residing in the "target" area of Bellwood and to the village of Bellwood itself.

U.S. District Judge Robert Morgan of the U.S. District Court in Peoria on February 20 approved a federal judgment order calling for a group of Tazewell County landowners to pay $71,000 for restoration of natural habitat along the Mackinaw River near Pekin. Judge Morgan held that a one-mile section of the river was illegally straightened in 1974 by the 15 landowners with the help of the U.S. Army Corps of Engineers. To protect other Illinois streams against similar alterations, the judge established 33 rivers and streams as "navigable." Before a navigable stream can be altered in any fashion, federal and state permits must be obtained, and all federal laws protecting navigable streams will now apply to the 33 waterways.

Joseph Karaganis, special assistant to Illinois Atty. Gen. William J. Scott -- whose office brought the lawsuit which resulted in the order -- called the ruling a landmark decision and one of the most important environmental court victories in a number of years. "In the past only a handful of streams had been recognized as being 'navigable,' and such a ruling gives added protection to the major streams in Illinois," Karaganis said.

The Illinois Department of Conservation joined with the attorney general in the lawsuit, and the $71,000 settlement is to be paid to the department's fish and game fund, for use in restoring habitat. Defendants in the case, Scott v. Hoffman, included: the Department of the Army, U.S. Corps of Engineers, 15 Tazewell County landowners, William Hellemann, and Roecker Brothers, Inc.

"If we had not taken this case to court and won, it could have been 'open season' on every stream in the state," said Conservation Director David Kenney.

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