In a complicated series of events the Illinois Supreme Court refused to admit to the bar an applicant who had completed the involved process leading to a favorable recommendation by the State Board of Law Examiners (SBLE). The court handed down its decision August 17 in an opinion by Justice Joseph H. Goldenhersh, his last before his retirement from the court on September 12. An energetic dissent by Justice Seymour Simon has attracted substantial media attention.

The applicant, Edward A. Loss III, both as juvenile and adult had numerous brushes with the law including several convictions stemming from his alcohol and drug dependence. The last was in 1975, after which he began a process of rehabilitation. He started a successful business, and in 1980 he applied for admission to the DePaul University College of Law. He did well in his studies and his application for admission to the bar was supported by an impressive list of members of the legal profession.

His progress through the approval process for bar membership was not without incident, because of his record, but because of his general rehabilitation and apparent establishment of good moral character, it resulted in a favorable recommendation by the SBLE. In June 1986 the Supreme Court issued an order granting Loss leave to file a petition for admission "addressing the question of character and fitness.'' The reason was "the extraordinary circumstances brought out at the hearing before the Character and Fitness Committee," which made it impossible for the court to decide that the applicant was of good moral character. Although Loss never filed the petition, a hearing was held, with the administrator of the Attorney Registration and Disciplinary Commission directed by the court to respond. The court subsequently denied Loss' application but said that he could reapply at some future time.

Because of the attention in the media four members of the court issued a special concurrence on September 2, amplifying the original opinion and sharply criticizing Simon. It was written by Justice Howard C. Ryan, joined by Chief Justice William G. Clark, Justice Ben Miller and Justice Thomas J. Moran. Justice Daniel P. Ward, as former dean of DePaul Law, did not participate in any of the deliberations.

Amid the large number of points raised by the case are some implied irregularities in the court's action, since this is the first instance in which it has rejected a favorable recommendation of the SBLE, and its rules (107 Ill. 2d R 708(c)), since amended, seem to give automatic bar admission to any applicant passed by the Committee on Character and Fitness.

The mechanism by which the court learned of the applicant's checkered career is not clear; Simon alludes to "the possibility that this unusual proceeding was initiated on the basis of rumors or gossip."

Central to Goldenhersh's opinion and Ryan's amplification is the assertion that the Supreme Court alone is responsible for assuring the probity of the legal profession in the state. Despite the "unfortunate language" of Rule 708(c) the Committee on Character and Fitness is only advisory and its recommendation does not carry automatic bar admission. The court can examine any case on its own initiative or on the basis of information; the court appoints one of its members as liaison to each of its agencies (in this case Ward is liaison to the SBLE). The means to bring a favorable decision under court review must be informal since this system is not adversarial, and the candidate will certainly not seek such review.

The case is In re Edward A. Loss III (Docket No. MR 3972). At the end of September Loss reportedly intended to carry the matter to the U.S. Supreme Court.

In an unusual decision, displaying fair unanimity of conclusion but divergent reasoning, the Illinois Supreme Court provided some detail about actions for wrongful birth and wrongful life in Illinois' courts. The decision, handed down August 17, concerned a hemophiliac child whose parents claimed that they would have chosen abortion had they not been inaccurately advised by doctors.

The mother's family had a history of the disorder, but doctors advised her that the likelihood of her being a carrier of classic hemophilia (type A) were "very low." The parents decided against abortion. The child was born with type B ("Christmas Disease"), for which tests are inadequate.

The court emphasized that it was not deciding the merits of the case, but whether the plaintiffs had established "cognizable causes for action" on three counts.

1. " Wrongful Life." The court rejected this claim, first, on the general principle that any life is always preferable to no life, and second, because of the impossibility of "a calculation of damages dependent upon the relative benefits of impaired life as opposed to no life at all."

The court further held that the Illinois abortion law (Ill. Rev. Stat. 1985, ch. 38, sec. 81-21 et seq.) establishes a fundamental "right to life" that militates against this claim. The contradiction with Roe v. Wade ((1973) 410 U.S. 113. 164-65, 35 L. Ed. 2d 147. 183-84, 93 S. Ct. 705. 732-33) was implied though not mentioned in Justice Ben Miller's special concurrence, in which he said that this basis for rejection was not necessary and should not be raised. Justice Seymour Simon cited Roe v. Wade as one basis for his dissent, claiming that it supersedes this portion of Illinois' abortion law.

2.  "Wrongful Birth": the parents' claim that they were "deprived of the option of making an informed and meaningful decision either to abort the already existing and defective fetus . . . or to give birth to a potentially genetically defective child." The court held that such an action is permissible and allowed the parents' claim for extraordinary medical expenses until the child reaches his majority.

3.  The parents' claim for emotional distress: "a natural and foreseeable consequence of the injury they sustained." In rejecting this claim the court applied the "zone of danger" rule established in Rickey v. Chicago Transit Authority ((1983), 98 lll. 2d 546) under which the plaintiff "must have, himself, been endangered by the negligence, and he must have suffered physical injury or illness as a result of the emotional distress."

Justice Howard C. Ryan wrote the opinion on Siemieniec v. Lutheran General Hospital (117 Ill. 2d, 230). Justice Joseph H. Goldenhersh took no part in Part 3. Justice Daniel Ward dissented to Part 2. Justice Ben Miller specially concurred to Parts 1 and 2. Justice Seymour Simon specially concurred to Part 2 and dissented to Parts 1 and 3.

Can a person claim a third party's residence as home in asserting Fourth Amendment protections against such matters as unlawful arrest? On August 17 the Illinois Supreme Court gave some answers in a case of first impression. The defendant in this case had been implicated in a murder. After searching six different addresses, detectives finally arrested him four days later at the home of his brother, where he had been living for seven days. They had not obtained a warrant and did not have the brother's permission to enter the premises. After the arrest police obtained a confession.

The Supreme Court agreed with the trial court that this was an illegal arrest under precedents set in Payton v. New York ((1980), 445 U.S. 573, 68 L. Ed. 2d 639, S. Ct. 1371) and quashed the confession. The Illinois Court thus interpreted broadly: "If ... the suspect does not have a home to which he can return, the suspect may, under the proper circumstances, be entitled to claim the host's home as his own for Payton purposes. Whether he can do so will depend on the particular facts circumstances of the case."

Chief Justice William G. Clark wrote the unanimous opinion in People v. White (117 Ill. 2d, 194).

F. Mark Siebert