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Judicial Rulings

Docking not an inalienable right

The Illinois Supreme Court torpedoed a class action suit against the Chicago Park District's practice of charging higher mooring rates to out-of-district boat owners. They pay 25 percent more than district residents do.

In their briefs the plaintiffs claimed that the park district takes the sailors for a tidy profit, in some years running over 699 percent! The court rebutted their argument that the park district is not authorized to turn a profit by citing the language of the bonding authority of the park district. This permits funds in excess of those used to service the bonds to be transferred to the district's general corporate fund "for any corporate purpose" (see Illinois Revised Statutes 1987, ch. 105, sec. 333.23s). The court ruled that profits from nonbonded facilities could also be transferred.

The court also rejected the plaintiffs' argument that the differential fee violates federal and state constitutional guarantees of equal protection, saying, "In the absence of a fundamental right. . . similar classes of people may be treated differently, if a rational basis exists." A rational basis was seen in the panoply of costs supported by the district's taxes: ". . . if the mooring fees. . . were the same, the residents of the park district would be paying a disproportionate share of the costs of maintaining the park district's services and facilities."

Justice Howard C. Ryan's opinion in Broeckl v. Chicago Park District (Docket No. 67466) was filed September 20; Justice Ben Miller did not participate.

Victim testimony in sentencing hearings

Victim impact evidence may be introduced at sentencing hearings in noncapital felony cases under the Bill of Rights for Victims and Witnesses of Violent Crime Act (see Ill. Rev. Stat. 1985, ch. 38, sec. 1401 et seq.). In a September 20 opinion the Illinois Supreme Court rejected the argument that the act runs contrary to the U.S. Supreme Court's decision in Booth v. Maryland (1987), 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529). The court quoted Booth's statement that "[f]acts about the victim and family may be relevant in a noncapital criminal trial."

The decision was unanimous, with an opinion written by Chief Justice Thomas J. Moran for People v. Felella (Docket No. 66444).

Street value of drugs

The street value of illegal drugs is what the ultimate user would pay. The Illinois Supreme Court's decision of September 20 rejected a defendant's claim that street value should be what the drugs cost him.

In this case the defendant sold cocaine to a police informer who was ostensibly going to resell the substance instead of using it himself. At trial the arresting officer testified that cocaine usually sold to users for $100 per gram, and this figure was used by the court in fixing the defendant's fine.

The statute imposes on persons found guilty of possession or delivery of a controlled substance a mandatory fine "levied by the court at no less than the full street value of. . . the controlled substance seized" (see Ill. Rev. Stat. 1987, ch. 38, sec. 1005-9-1.1). The court is to determine street value from "testimony of law enforcement personnel and the defendant. . .and such testimony as may be required by the court. . .," according to the same statute.

The defendant argued that the officer's testimony could only establish an average rather than an actual value and that the considerably lower amount he was to pay for the cocaine would accurately reflect its value. The high court pointed out that the clandestine nature of drug transactions makes setting of value different from determination of fair market value in lawful sales. The court also concluded, "The legislature intended that the valuation of the drug would be based on the full amount that an offender could realize for the drug on the street."

Justice Daniel P. Ward wrote the opinion (Justice Howard C. Ryan not participating) in People v. Lusietto (Docket No. 66729).

Rent subsidy adds to value

Rent subsidies provided by a public agency must be considered in assessing property, according to a decision filed September 20 by the Illinois Supreme Court. At issue was assessment of an apartment building in Kankakee County housing elderly residents whose rent

November 1989 | Illinois Issues | 24

was subsidized by the Illinois Housing Development Authority under a federal agreement.

The assessor and the county board of review had considered the subsidy in arriving at their figure, but the Illinois Property Tax Appeal Board adopted the appraisal submitted by the building's owners, which did not include the subsidy in its calculations.

Assessment is meant to establish a property's maket value that could be agreed upon by a willing buyer and seller. The court said, "A willing buyer would most certainly consider the guaranteed income rate set by the Federal government when determining the fair cash value of the property."

Justice Daniel P. Ward wrote the opinion (Justice Horace C. Calvo not participating) in Kankakee County Board of Review v. Property Tax Appeal Board (Docket Nos. 66396 & 66397 cons.).

Words are insufficient provocation

Words alone are insufficient provocation for a reduction of a charge from first degree murder to second degree murder (the present law) or voluntary manslaughter (previous statute). In so ruling the Illinois Supreme Court corrected a line of exception in three appellate decisions beginning with People v. Ahlberg (1973), 13 Ill. App. 3rd 1038.

The present statute says that a person commits second degree murder if "[a]t the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by the individual killed. . ." and defines serious provocation as "conduct sufficient to excite an intense passion in a reasonable person" (see Ill. Rev. Stat. 1987, ch. 38, sec. 9-2). The language duplicates exactly the definition of voluntary manslaughter in the statute under which these present cases were tried (see Ill. Rev. Stat. 1983, ch. 38, sec. 9-2).

In both cases the defendants had longstanding suspicion or knowledge that their wives committed adultery, got into an argument in which the wives admitted adultery and made further insulting remarks, and then shot and killed the wives. The court cited a longstanding principle that mere words are not sufficient provocation and placed an admission of adultery within that category.

The opinion by Justice John J. Stamos in People v. Chevalier and People v. Flores (Docket Nos. 66993 and 67077 cons.) was filed September 20.

More on DUI

Juries may presume that a blood alcohol content of .10 percent or more indicates driving under the influence of intoxicating liquor, but they are not required to do so. In a decision filed September 20 the Illinois Supreme Court ruled that Illinois Pattern Jury Instructions, Criminal, No. 23.06 (2d ed. 1981) does not reflect the statute (Ill. Rev. Stat. 1983, ch. 95 1/2, sec. 11-501 (a) (2)). It concurred with the modification by a Cook County circuit judge that "you may presume that the defendant was under the influence of intoxicating liquor," substituting the word "may" for the word "shall." The opinion by Chief Justice Thomas J. Moran in People v. Hester (Docket No. 68192) discussed the implications concerning burden of proof.

Ignorance of the law

Ignorance of some laws may be an excuse —if you're ignorant enough — according to a decision filed by the Illinois Supreme Court on September 27.

The proprietor of a business was indicted for failure to file the required monthly return for the retailer's occupation tax and failure to remit the tax payment. She replied that business difficulties made it impossible for her to pay the tax and that she thought she would only be subject to civil penalties for failure to file the report.

Failure to file and to pay the tax is a Class 4 felony (see Ill. Rev. Stat. 1985, ch. 120, sec. 452). The court ruled that the statute implies that this must be a knowing failure even though it does not explicitly say so, but that the defendant's knowledge of the civil penalties made her liable for the criminal penalties.

The decision was unanimous in People v. Sevilla (Docket No. 67785), with an opinion by Chief Justice Thomas J. Moran.

More on attorney ethics

An attorney cannot function as a business adviser when his advice concerns his own business ventures. On September 27 the Illinois Supreme Court imposed a two-year suspension on an attorney who had talked legal clients into investing in his own manufacturing concern.

The attorney had handled clients' matters involving money. In at least five cases the invested funds were proceeds of his legal work. He did not disclose the true financial condition of his company nor suggest that his clients seek independent advice. The court said, "An attorney may be subject to discipline for conduct outside his professional capacity for any act that evidences an absence of professional or personal honesty that renders him unworthy of public confidence."

The court, in reviewing the report and findings of the Attorney Registration and Disciplinary Commission (ARDC), accepted the ARDC Review Board's recommendation of suspension rather than the ARDC Hearing Board's recommendation of disbarment. Justice John J. Stamos wrote the opinion in In re Imming (Docket No. 67738).

F. Mark Siebert

November 1989 | Illinois Issues | 25

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