Judicial Rulings

Search warrants: between the extremes

Anonymous information used to secure a search warrant may be a basis for challenging the warrant under the Illinois Supreme Court's February 20 decision in People v. Sam Lucente (Docket No. 62629).

The defendant moved to quash a warrant under which his apartment had been searched, leading to a charge of possession of a controlled substance with intent to deliver. The warrant had been issued on the basis of anonymous information. The state claimed that under rulings in Franks v. Delaware ((1978). 438 U.S. 154. 57 L. Ed. 2d 667, 98 S. Ct. 2674) his failure to make a "substantial preliminary showing" should have barred an evidentiary hearing. Under Franks the warrant could still have been issued, after excision of proven untruths in the warrant affidavit, if the balance established probable cause. The defendant claimed that under People v. Garcia ((1982). 109 Ill. Ap. 3d 142) any untruth in the warrant affidavit was sufficient for it to be quashed. The high court followed the U.S. Supreme Court's rulings under Franks.

Under Franks the defendant is required to make a "substantial preliminary showing" of a false statement in the warrant affidavit. Here the defendant brought testimony that provided him with an alibi for the time covered by the anonymous information. The state refused to divulge the informant's identity. When the police officer who procured the warrant admitted that the informant had sometimes been unreliable, the trial court ordered the warrant quashed.

The state argued that Franks required the defendant to show in advance that the officer made false statements in the warrant affidavit, and that his alibi was not sufficient preliminary evidence for a hearing to be granted. Justice Howard C. Ryan's opinion said: "One need not be overly cynical realize that such a rule would enable the police to insulate perjury from discovery by the simple expedient of a fabricated informant." The court set limits to the proof needed to secure an evidentiary hearing. It must be more than a defendant's unsubstantiated denial of facts but less than a preponderance of evidence proving his innocence, which is the standard set by Franks for the evidentiary hearing. Between these extremes the trial judge must decide if there is adequate cause for a hearing. According to Ryan. "The determination in a given case must be based upon a careful balancing of the statements in the warrant affidavit versus those in support of the defendant's challenge to the warrant."

In a special concurrence Justice Seymour Simon criticized his fellow justices for unnecessarily going beyond the questions raised here in attempting to separate Garcia from Franks, terming it "an example of misguided judicial activism."

Collective bargaining comes to the courts

Collective bargaining by nonsupervisory employees of the courts is constitutional, according to a unanimous decision handed down February 20 by the Illinois Supreme Court. Two cases were consolidated, and Justice Ben Miller wrote the opinion in County of Kane v. Carlson (Docket Nos. 63084 and 63116, cons.).

In one case, Kane County sought to prevent the Illinois State Labor Relations Board from proceeding on a petition by the American Federation of State, County, and Municipal Employees to conduct a representation election under the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1985, ch. 48, secs. 1601 through 1627) among nonsupervisory employees (deputy clerks) of the circuit county clerk's office. The county claimed that the employees did not fall within the scope of the act.

In the other case Harris Agnew, chief judge of the 17th Judicial Circuit, raised similar questions about the scope of the act. He petitioned to prevent the state board from proceeding on complaints of unfair labor practices brought against him because he refused to sign a collective bargaining agreement with probation officers in Winnebago County.

The Supreme Court decision found that the circuit clerk's authority to hire deputies is sufficient to identify him as employer and thus subject to the act, even though his office is under general control of the court. It also found the act "sufficiently broad . . . to include the chief judge in his capacity as employer of the probation officers."

General infringement on separation of powers, an issue raised in both cases, was not found because "the judicial system is one of the three branches of state government, and there is no intent expressed in the Act to exclude the judiciary from its scope." Decisions going back to 1839 were cited, and Miller summarized: ". . . we hold that the inclusion of judicial employees within the Act does not by itself trench on the separation of powers principle or on the general administrative and supervisory authority granted by the Constitution to the judicial branch." The courts will continue to control matters of law, and Miller predicted: "Particular problems, including some on a constitutional level, are sure to arise as the broad provisions of the Act are applied to the unique workings of the judicial branch."

Other constitutional points raised by Judge Agnew were found not to affect the court's decision.

If at first you mix up bushels and money, try again

The doctrines of merger and res judicata do not prevent secured creditors from enforcing their security interest in property given as collateral. A bank won the argument when it had to go back to court to recover assets on a defaulted loan. The bank mistakenly accepted the sale of grain for $5,142, which was the number of bushels sold not the amount of the sale. The two legal doctrines generally prohibit reopening a claim already settled, but Article 9 of the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, sec. 9-101 etseq.) provides for multiple and cumulative remedies upon a debtor's default.

The Illinois Supreme Court sided with the provisions of the Uniform Commercial Code in its February 20 decision in State Bank of Piper City v. A-Way Inc. (Docket No. 62594).

Contingency fee contracts enforceable — if reasonable

Contingency fee contracts may be limited by court rules in the case of minors or incompetents, but they are enforceable. Justice Seymour Simon wrote the opinion for the Illinois Supreme Court's decision of February 20 in Arnold v. Northern Trust (Docket No. 62924).

In this case the parents of a child injured at birth sued for damages after signing an agreement with attorneys calling for a contingency fee of 33 1/3 percent of any award. Upon settlement the circuit court applied a rule of the 19th Judicial Circuit limiting contingency fees to 25 percent in cases involving minors. The appellate court upheld the decision and remanded with a direction that the circuit court determine whether any contingency fee was justified.

The Supreme Court ruled that the obligation of the judicial system to protect minors makes contingency fees enforceable unless they are unreasonable. "A court can do nothing for a minor not before it, and injured minors are as likely as adults to require the key to the courthouse which contingent-fee contracts provide," said Simon.

The court rejected the attorneys' claim that the rule of the circuit court changed the substantive law. It found the rule to be procedural since it "only establishes a benchmark for the reasonableness determination" not contained in the law itself. Attorneys can claim a higher percentage if they submit a separate petition showing their work and hours and "other relevant factors" justifying a higher payment.

F. Mark Siebert

May 1987/Illinois Issues/27