Judicial Rulings

Illinois Supreme Court

Child custody

The Illinois Supreme Court ruled 5-2 December 20, that a parent can lose custody of his or her children for violating moral standards defined by the state legislature.

The case, Jarrett v. Jarrett, stemmed from a suit filed by Walter Jarrett in which he sought to remove his three daughters from the custody of his former wife, Jacqueline. He asked for the custody reversal after Jacqueline told him she planned to have her boyfriend move into the family's home on the grounds that this living arrangement created a moral environment harmful to the well-being of three young girls.

The Cook County Circuit Court ruled in the father's favor, finding that it was "necessary for the moral and spiritual well-being and development" of the children that he receive custody. But the First District Appellate Court reversed the decision, reasoning the lower court did not prove Jacqueline's relationship with her boyfriend had any negative effect on her daughters. The appellate court declined to consider what future harm the living arrangement might have on the children.

The Illinois Supreme Court ruled Jacqueline's behavior did endanger the moral development of her children, overturning the appellate court.

The Supreme Court said, "The chief issue before us in this case is whether the open and continuing cohabitation of the custodial parent with a member of the opposite sex justifies a change in custody in the absence of any tangible evidence of contemporaneous adverse effect on the children." In delivering the high court's opinion, Justice Robert C. Underwood stated that "under the facts in this case the trial court properly transferred custody of the Jarrett children from Jacqueline to Walter Jarrett."

Underwood linked the Jarrett case with Hewitt v. Hewitt (see November 1979, p. 28). As in that so-called "palimony" case, the court said the social issues of marriage and divorce come under the jurisdiction of the state legislature: "The relevant standards of conduct are expressed in the statutes of this State . . . '[a]ny person who cohabits or has sexual intercourse with another not his spouse commits fornication if the behavior is open and notorious.'" Underwood cited the legislature's purpose in enacting the Illinois Marriage and Dissolution of Marriage Act of 1977 as further evidence that the General Assembly intended to strengthen and protect marriage and the family.

Jacqueline Jarrett, however, argued that live-in relationships like hers are widely accepted and so do not affront public morality. But the high court answered by saying, "The rules by which our society enacts for the governance of its members are not limited to those who agree with those rules — they are equally binding on the dissenters." The majority opinion said that while "the courts have not denied custody to every parent who has violated the community's moral standards," they must "appraise the moral example currently provided and the example which may be expected in the future." Since Jacqueline intended to continue her relationship with her boyfriend, Underwood said her moral values were cause for her to forfeit custody.

Chief Justice Joseph H. Goldenhersh and Justice Thomas J. Moran dissented. The chief justice called attention to the children's health and said they were well adjusted and well cared for. And he said, "I question that any competent sociologist would attribute the increase of 'live-in' unmarried couples to parental example." The dissenters said the majority relied on case law that dated back to 1852 "which, rather than 'prevailing public policy,' more clearly indicates the prejudice extant in that period against interracial sexual relations." Moran and Goldenhersh said the courts are equipped to decide legal issues but should leave questions of morality to theologians.

Prisoners released for 'good time'

An inmate's lawsuit to get more "good time" under Illinois' new Class X law has won early release for hundreds of others. The Illinois Supreme Court ruled December 20 that inmates who went to prison before the new determinate sentencing law took effect are entitled to have the law's more lenient day-to-day "good time" policy applied to the prison sentence remaining on February 1, 1978, the effective date of the law.

The case, Richard Johnson v. Gayle Franzen, director of the Illinois Department of Corrections, stemmed from the indeterminate sentence Johnson received in 1977 under the old law. He filed a class action suit in Cook County Circuit Court in 1978, but it was dismissed for lack of cause of action. Johnson appealed directly to the high court, which overturned the lower court.

Under the old law, the department was allowed to grant statutory good time credits (less than day-for-day) and compensatory good time credits for participation in certain work programs (a maximum of seven and one-half days per month). But under the new determinate sentencing law, the department was required to grant one day of good time credit for each day served, which basically cuts a prison sentence in half.

Johnson said the department denied him the more lenient day-for-day good time credit for time served since the new law took effect in 1978, continuing to grant him the old statutory and compensatory good time credits instead.

In delivering the high court's opinion Justice Thomas E. Kluczynski said, "[i]t is clear from the express statutory language that after February 1, 1978, a day-for-day good-conduct-credit system was established in Illinois and that the new system applies to both determinate and indeterminate sentences.

"[T]here is no authority in the amended code for the Department to promulgate rules providing for less than day-for-day credit," he said. "[P]risoners are to be given day-for-day credit on the maximum term and minimum period of imprisonment, . . . and only indeterminate sentences have maximum and minimum terms."

"We agree with the Director's contention that plaintiff is not entitled to day-for-day credit for time spent in custody prior to the effective date of the amended good-conduct-credit system," Kluczynski said, ". . . there is no clear statutory indication that the day-for-day formula applies retroactively to time spent in custody before the effective date of the amended system."

As a result of the ruling, 146 inmates won early release December 21 followed by another 328 on January 8. In all, there were 401 from state

March 1980/Illinois Issues/25

Judicial Rulings

prisons and 73 from city work release programs. The department expects hundreds more are eligible pending recalculation of good time. In addition to saving the department millions of dollars, the early releases will free hundreds of beds. The department said last fall it is short 2,000 beds for the 13,000 inmates it houses.

Illinois Appellate Court

Rape shield law

In its first constitutional test, the rape shield law (Public Act 80-1159) was unanimously upheld by the Fifth District Illinois Appellate Court January 7. The law makes testimony concerning the prior sexual activity or the reputation of a victim inadmissable as evidence, except when it concerns conduct between the victim and the defendant.

The case, People v. Ernest Cornes, stems from a 1977 rape in Cambria. The Williamsville County Circuit Court would not allow the testimony of a man claiming to know the victim "... had a reputation for being unchaste and immoral" to be heard in court during the original trial.

The defense appealed, arguing that the rape shield law does not contradict the common practice in Illinois allowing evidence of a victim's reputation to be used in rape cases when the defendant claims the victim consented. The defense also argued that if the law precluded such evidence, it should be held unconstitutional because it prohibits evidence relevant to the issue of consent.

The court disagreed, saying a "[Defendant's right of confrontation necessarily includes the right to cross-examine witnesses, but that right does not extend to matters which are irrelevant and have little or no probative value. Complainant's past sexual conduct has no bearing on whether she has consented to sexual relations with the defendant."

The court also said that precluding evidence of a victim's past sexual history "... does not prevent [the] defendant from challenging or otherwise attacking the complainant's credibility. . . ." The law does not infringe on a defendant's right to cross-examine witnesses, rather "it merely denies [the] defendant the opportunity to harass and humiliate the complainant. . . ."

Rep. Aaron Jaffe (D., Skokie) said the court's ruling "provides the people of Illinois with the strongest rape shield law in the nation." Jaffe chairs the House Rape Study Committee which recommended the law.

State Appellate Defender Richard Wilson said he will file for further appeal with the Supreme Court.

26/March 1980/Illinois Issues