Judicial Rulings By CYNTHIA PETERS Illinois Supreme Court

New appellate court panel to hear worker's comp cases

BY CREATING a new panel of five appellate judges to hear the growing number of worker's compensation cases (WC), the Illinois Supreme Court will have more time to consider other appeals. Justices had decided they were spending too much time on WC cases, which have comprised about a quarter of the court's workload since 1975, when the General Assembly liberalized state WC law.

For the last 20 years, WC case appeals from the circuit courts have gone directly to the Supreme Court, in accordance with the court's rules. But in a rule change effective February 1, the high court dropped the WC cases from its direct appeal docket and created a new five-member appellate panel to hear the WC appeals. The court began hearing WC cases on direct appeal to gain support from organized labor for ratification of the 1964 Judicial Article, which established a more unified, three-tier court system consisting of circuit, appellate and supreme courts.

The new five-member WC panel will consist of Justice Daniel J. McNamara from the First District, Justice Glenn K. Seidenfeld from the Second District, Justice Tobias G. Barry from the Third District, Justice Albert G. Webber from the Fourth District and Justice George W. Kasserman Jr. from the Fifth District.

As before, a WC case will be heard first by an arbitrator from the Illinois Industrial Commission, and then by the full commission. If the case is still disputed, it will go to the circuit court. Now, with the rules change, appeals from the trial courts will go to the new WC appellate panel. The Supreme Court will still hear WC cases if two out of the five WC panel judges believe the case involves a major question of law.

Justice Thomas J. Moran, however, dissented from the rules change, saying it violates the Constitution by improperly creating a new court. By setting up a special appellate court panel to hear WC cases, the court has tampered with the simplicity of the state's court system which provides for one appellate court divided into five geographical districts. The new rule violates the constitutional guarantee that an appeal from a circuit court will go to that court's district appellate court, he said. On a more practical level, he said that the panel would add another, intermediate level of review for appeals of WC cases, further delaying their resolution.

Instead of a change in the court's rules, Moran suggested legislative action giving the district appellate courts the power of direct review of administrative action in WC cases. That, he said, would clearly be constitutional, would take WC cases out of the circuit courts, and would be cheaper and faster.

Divorce fees cannot be used to finance domestic violence shelters

THE STATE was looking for new ways to finance domestic violence shelters in the wake of the Illinois Supreme Court's February 1 ruling that a state law earmarking a $5 increase in divorce filing fees was unconstitutional.

In the case Crocker v. Finley, the court held that the fee was a tax unfairly imposed on a narrow group of litigants, which was used to finance a program available to the general public. The court also held that those who want a divorce should not be required, as a condition of filing, to pay the fee.

The $5 increase in divorce fees — and a $10 increase in marriage fees — became effective in January 1982 under P.A. 82-645, which authorizes the Illinois Department of Public Aid to finance domestic violence shelters through the fee increases. While Illinois has not ruled on the marriage fees, courts in other states have upheld them because they are attached to a licensing instead of a filing procedure and therefore do not interfere with court access.

Justice Howard C. Ryan, writing for the court, said: "We can find no rational basis for imposing this tax on only those petitioners filing for dissolution of marriage, thereby causing members of that class to bear the cost of maintaining the public welfare program provided, while excluding other classes of taxpayers."

Ryan said: "The salutary goals of our new domestic violence acts are not at issue in this case. Nor is the General Assembly's decision that the laws were sorely needed. Instead the question presented is whether the legislature may impose a court filing fee on a limited group of litigants where the funds so collected go ultimately into the State Treasury to fund a general welfare program."

In previous cases, the court has upheld filing fees collected for court-related purposes, such as defraying the costs of litigation. Ryan wrote that "court filing fees and taxes may be imposed only for purposes relating to the operation and maintenance of the courts. We consider this requirement to be inherent in our Illinois constitutional right to obtain justice freely."

Mandatory breath test for drunk driving is constitutional

THE RIGHT to remain silent does not mean a driver has the right to refuse a breath test, the Illinois Supreme Court said in a February 1 ruling which upheld the constitutionality of the state's implied consent law. Under the law, suspected drunk drivers are forced to take a breath test or lose their license for six months; a refusal to take the test is admissible in trial.

The case of People v. Rolfingsmeyer stemmed from a 1982 arrest on drunken driving charges. Rolfingsmeyer refused to take the breath test and filed a motion attacking the constitutionality of Section 11-501.2(c) of the Illinois Vehicle Code which provides that evidence of a driver's refusal to take a breath test is admissible at his civil or criminal trial. A Clinton County Circuit Court agreed that the law was unconstitutional but did not say why. The state appealed directly to the Illinois Supreme Court.

Rolfingsmeyer argued that the law violated the separation of powers provision under the state Constitution by invading judicial authority to determine rules of evidence. He also said the law violated his privilege against self-incrimination under both the Illinois and U.S. constitutions by allowing the state to use his silence, or refusal, against him.

The high court disagreed, holding that separation of powers was not violated because the legislature has the power to prescribe and alter rules of evidence. Nor was Rolfingsmeyer's privilege against self-incrimination violated, said Justice Daniel P. Ward, writing for the court. Ward cited a 1983 U.S. Supreme Court ruling (South Dakota v. Neville) that a driver has no constitutional right to refuse a breath test and therefore evidence of his refusal can be admitted at his trial. In Neville, Ward said, the U.S. Supreme Court pointed out the basis for an implied-consent statute: By using the public highways, a driver has implicitly consented for reasons of public safety to submit to a breath test.

Justice Simon, in a separate but concurring opinion, added that the state court is

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not bound or limited by the U.S. Supreme Court's decisions when interpreting sections of the Illinois Constitution.

Unemployment benefits hinge on location of a 'labor dispute'

WORKERS who refuse to cross picket lines but are not involved in a labor dispute are eligible for unemployment insurance, the Illinois Supreme Court ruled February 1. In the case, O. Dunaway v. The Department of Labor, the court ruled that members of the Progressive Mine Workers of America (PMWA) can collect benefits for work missed at the Sahara Coal Company because of a strike by the United Mine Workers of America (UMW) against a non-related group of coal companies.

The basic issue in the case was whether there was a labor dispute at the Sahara mines. Under Section 604 of the Unemployment Insurance Act, workers are not eligible for benefits if work stops due to a labor dispute at their place of employment. The court said there was no dispute.

The problem began when the UMW went out on strike against the Bituminous Coal Operator's Association (BCOA), a group of coal companies to which Sahara did not belong. The UMW also set up picket lines at the Sahara mines and PMWA members refused to cross them — several who did received threatening phone calls. The picket lines were later removed by presidential order under the Taft-Hartley Act, and the PMWA went back to work.

Justice Seymour Simon, writing for the court, said the labor dispute concerned only the UMW and the BCOA. By refusing to cross picket lines, PMWA members created a work stoppage but not a labor dispute, he said. In addition, Simon said: "Sahara's workers stayed away from work because of the threat of violence if they crossed the picket line. A claimant need not experience actual bodily harm before he can refuse to cross a picket line; a reasonable fear of either actual or potential violence is sufficient."

Another feature of the case was a "most favored nation" clause in PMWA's contract with Sahara, which allowed both the PMWA and Sahara to benefit from any favorable terms negotiated by another union and another coal company. When the UMW negotiated a $2-per-day raise after the strike, the PMWA received the same raise, retroactive to the date of the new UMW contract. The Illinois Department of Labor argued that the PMWA had a vested interest in the dispute and its members were not eligible for unemployment insurance, but the court said that since no labor dispute existed at Sahara, it was not necessary to consider whether PMWA members had a direct interest.

Quotas for traffic tickets are okay

TRAFFIC TICKET quotas do not violate public policy and can be used to evaluate a police officer's performance, the Illinois Supreme Court ruled January 20. In the case, Richard Begg v. Board of Fire and Police Commissioners of the City of Park Ridge, Begg filed suit after he was suspended without pay for three days for allegedly failing to meet certain standards — including traffic ticket quotas. He contended that the standards for issuing traffic tickets were quotas which were arbitrary, violating public policy. A Cook County Circuit Court ruled in Begg's favor. The Third District Appellate Court disagreed, arguing Begg had failed to prove the regulations were arbitrary or unreasonable, and the Supreme Court agreed.

The high court noted that Park Ridge had been faced with an increasing number of accidents, and the standards were an attempt to reduce the accidents. Justice William G. Clark, writing for the court, said there was no evidence that the officers were forced to issue more tickets than were justified in order to meet the standards. Clark said: "This regulation is presumed to be valid and we will not set it aside unless it is shown to be arbitrary, unreasonable or capricious."

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