Illinois Supreme Court

One provision of abortion clinic ordinance ruled unconstitutional

THE ILLINOIS Supreme Court in a June 26 ruling struck down a portion of an Oak Lawn ordinance regulating the operation of "ambulatory treatment centers" specializing in first-trimester abortions. It also reversed and remanded a circuit court decision ruling the entire ordinance unconstitutional.

In the case, The Village of Oak Lawn v. Stewart Marcowitz, Oak Lawn charged Dr. Marcowitz with operating an ambulatory surgical treatment center without a license. Marcowitz alleged the Oak Lawn ordinance pertaining to ambulatory treatment centers was an unconstitutional restriction upon abortions.

The court struck down a provision of the ordinance that separated ambulatory service clinics into those which performed abortions and those which performed other types of surgery, with different requirements for each. In the opinion of the court, Justice Robert C. Underwood stated, "Legislation which requires a permit and a substantial fee, and regulates in some detail a facility in which a single abortion is performed, but exempts facilities in which it is conceivable that 49% of the activity involves the performance of other, but not necesarily less hazardous, medical procedures is ... simply incompatible with the Supreme Court's interpretation of equal protection and privacy standards. ... It severely restricts the fundamental privacy right to secure a first-trimester abortion. . . ."

The remainder of the ordinance, which was left standing, included a controversial 24-hour waiting period before an abortion can be performed. The court said, "The State has an interest ... in insuring the integrity of the woman's decision. . . . [which would be] furthered by requiring a reasonable interval . . . between the initial examination and the abortion." The court ruled that other areas of the ordinance were not unreasonable in that "certain health and safety standards had been met" and that the village has "authority to enact ordinances imposing reasonable regulations for the purpose of protecting the health-and safety of its residents."

The court also upheld an initial licensing fee imposed upon the abortion clinic of $5,000. In a concurring opinion, Justice Seymour Simon noted the fee "appears suspect," but that Marcowitz did not offer enough "factual basis" for the court to uphold the circuit court's ruling that the ordinance was unconstitutional.

Civil Service, not courts, determines 'reasonable' firings

THE DECISION to discharge a state employee for cause rests not with the courts but with the Civil Service Commission, unless the decision is "arbitrary, unreasonable, or unrelated to the requirements of service," the Illinois Supreme Court ruled June 26.

The case, The Department of Mental Health and Developmental Disabilities v. The Civil Service Commission et al., stemmed from an incident in which Wayne Du Frenne, an employee of the department, punched and kicked a patient who had been placed under restraint after punching Du Frenne in the face. The department suspended Du Frenne for 30 days pending discharge for mistreatment of a patient. He then demanded a hearing before the Civil Service Commission. The hearing officer for the commission recommended that rather than discharging Du Frenne, the department should add 90 days to his suspension because of the mitigating circumstance of Du Frenne being attacked first and losing his temper.

On review sought by the department, the circuit court reversed the commission's decision and directed the department to discharge Du Frenne. The appellate court concurred. The Supreme Court then granted the commission leave to appeal.

In the opinion reversing the lower courts' rulings, Justice Thomas J. Moran said, "... several appellate decisions in this State have held that the question of whether there is sufficient cause of discharge is generally for [the commission] to determine." When reviewing any discharge proceeding, Moran said, "the court must determine if the agency's findings of fact are contrary to the manifest weight of the evidence. . . . [then] determine if the findings of fact provide a sufficient basis for the agency's conclusion that cause for discharge does or does not exist. . . . From our review of the record, we cannot say that . . . the Commission's decision [to suspend rather than fire Du Frenne] was arbitrary, unreasonable, or unrelated to the requirements of service."

In a dissenting opinion, Justice Daniel P. Ward said, "I do not . . . think that the continued employment of an attendant whose loss of self-control lead him to punch and kick a mental patient who was under restraint can be condoned."

No part-time tenure rights

BEING RETAINED as a part-time teacher after a probationary full-time term is not reason to be granted tenure, the Illinois Supreme Court ruled June 26. In the case, Jennifer Johnson v. The Board of Higher Education of Decatur School District No. 61, Ms. Johnson served the required probationary period as a full-time high school teacher for the 1974-75 and 1975-76 school terms. In March 1976 she was given adequate notice for dismissal due to a cutback in staff; then before the end of the term, was offered part-time work for the 1977-78 term, which she accepted. Finally, she was given notice stating she would not be employed during the ensuing year.

The court ruled that after her dismissal in March 1976, Johnson did not have the status of tenured teacher and denied the reinstatement and damages requested by her. Judge Underwood stated, "If the legislature had intended to accord tenure rights to those who teach on less than a full-time basis it would surely have given some guidance with respect to the difficult questions which would result."

28 | October 1981 | Illinois Issues