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Judicial Rulings

Ragsdale settlement

On March 22 U.S. District Judge John A. Nordberg approved the out-of-court settlement of Ragsdale v Turnock reached November 22, 1989. The settlement prevented a hearing by the U.S. Supreme Court scheduled for December 5. Rockford physician Dr. Richard Ragsdale had challenged regulations by the Illinois Department of Public Health (IDPH) controlling performance of abortions in ambulatory surgical treatment centers (ASTCs). His class action suit represented all Illinois physicians who want to perform abortions and Illinois women of child-bearing age who want abortions or may want them in the future.

Both the U.S. district court and court of appeals had ruled unconstitutional Illinois' Ambulatory Surgical Treatment Center Act (see Illinois Revised Statues 1987, ch. 11 1/2, sec. 157-8.1 et seq) and IDPH regulations implementing the act under the department's licensing powers. The settlement modifies the IDPH regulations, which were more restrictive than required by the statute. IDPH Director Bernard J. Tumock said that "we have accomplished all that we would have hoped to accomplish'' in protecting the health and safety of women having abortions in Illinois.

The broad effect of the settlement was to postpone U.S. Supreme Court reconsideration of Roe v Wade. The immediate effects in Illinois are:

Restoration of IDPH's authority to regulate outpatient abortions, impaired by the rulings of unconstitutionality.

A slight strengthening of abortion regulations.

Availability of abortion up to 18 weeks in a new class of lightly regulated abortion clinics.

Availability, under some conditions, of abortions in a physician's office.

Higher standards for clinics providing abortions after 18 weeks.

Requirement that physicians providing abortions at clinics have surgical privileges at a licensed Illinois hospital.

IEPA does not preempt zoning

Some actions of the Illinois Environmental Protection Agency (IEPA) do not preempt local zoning regulations, according to the Illinois Supreme Court's decision of March 29. The agency had issued a permit for plant modifications at the Carpentersville plant of Cargill Inc.; these included a 100-foot smokestack, which conflicted with the village's limitation to 35 feet.

Before 1981 the court had issued several decisions holding that IEPA permits preempted local zoning. Subsequent amendments to the Environmental Protection Act have included language requiring applicants for permits to secure "all necessary zoning approvals from the unit of government having zoning jurisdiction over the proposed facility" (see III. Rev. Stat. 1987, ch. Ill 1/2, sec. 1039(c)).

The court interpreted the Illinois Constitution (art. XI, sec. 1) as giving the state a leadership role in formulating a statewide plan for pollution control without infringing local action. As to the intention of the framers the court said, "It would be improper for this court to transform statements made during the constitutional convention into constitutional requirements where such statements are not reflected in the language of the constitution." It said specifically, "[T]he General Assembly . . . has made clear that it no longer intends for the Act to preempt local zoning ordinances."

The decision in Village of Carpentersville v Pollution Control Board (Docket No. 68074) was unanimous, with an opinion by Justice William G. dark.

Defendant can't request probation revocation

Only the state can move for revocation of probation, said the Illinois Supreme Court on March 29. A defendant on probation after pleading guilty to theft over $300 was convicted of forgery in another county and sentenced to imprisonment. This would have made impossible the restitution of $57,000 that was a condition of probation, so she filed a motion requesting termination of probation.

The portion of the Unified Code of Corrections on revocation of probation (see Ill. Rev. Stat 1987, ch. 38, sec. 1005-6-4) does not say who may file a petition. It does require the state to prove by a preponderance of evidence that the defendant violated conditions of probation. The court reasoned that this would allow the defendant to place on the state the burden of making a case. The court concluded that the code "contemplates the revocation of an offender's probation only upon filing by a proper party of a petition charging violation of a condition of probation." A defendant may request modification of probation, but the court reasoned that revocation is not modification since it would require imposition of a new sentence.

Justice Ben Miller wrote the opinion in People v Dinger (Docket No. 68234).

Vehicle fines mandatory

The Vehicle Code (and presumably other statutes) means what it says when it sets mandatory fines for operating overweight vehicles. On March 29 the Illinois Supreme Court said that judges may not reduce the amount.

The Vehicle Code says that violators "Shall be fined according to the following schedule" and provides amounts for various violations (see Ill. Rev. Stat. 1987, ch. 95 1/2, sec. 15-113(a)). On the matter of imposition of fines the Unified Code of Corrections permits the court to consider "the financial resources and future ability of the offender to pay the fine" (see Ill. Rev. Stat. 1985, ch. 38, sec. 1005-9-l(d)(l)). The high court concluded that this option applies "only to those situations where the legislature has given the court discretion to determine the amount of a fine, for example, where the legislature has provided a range of permissible fines."

The court pointed out that under sec. 15-301 of the Vehicle Code the Department of Transportation may issue permits to operate overweight vehicles based on weight and mileage. In the present case the correct fine would have been $6,385, but the trial court only imposed a fine of $100. The court concluded thai "a violator of the overweight vehicle statute could be fined less than it would have cost to obtain a permit; for some operators, that result would remove any incentive to obey the overweight vehicle statute and would thwart the goal of recovering the cost of damage done to the State's highways by overweight vehicles."

The decision was unanimous in People v Ullrich (Docket No. 68392), with an opinion by Justice Ben Miller.

Right to bench trial only for defendant

The Illinois Supreme Court declared retroactive an earlier ruling that only the defendant, and not the state, has the right to a trial by jury In Daley v Joyce ((1988), 126 Ill. 2d 209; reported in Illinois Issues, March 1989, p. 28) the court had held unconstitutional portions of the Code of Criminal Procedure that required the prosecution to concur in a waiver of jury trial (see Ill. Rev. Stat. 1987, ch.38, sec. 115-1),

In its March 22 decision the court pointed out that permissible legislative changes in existing statutes and the common law are sudden and should not be applied retroactively. To this it contrasted the situation with laws found unconstitutional: "A constitutionally repugnant enactment suddenly cuts off rights that are guaranteed to every citizen, and instantaneously perverts the duties owed to those citizens, To hold that a judicial decision that declares a statute unconstitutional is not retroactive would forever prevent those injured . . . from receiving a remedy for the deprivation of a guaranteed right."

Justice John J. Stamos wrote the opinion in People v Gersch (Docket No. 68199). In a special concurrence. Justice Ben Miller took a

26/May 1990/Illinois Issues

different path of reasoning in order to establish the principle that each case should be judged on its own merits. His reason was to avoid the numerous appeals of previous cases resulting from retroactive application.

Taking the fifth is not memory loss

One aspect of rules covering hearsay evidence was clarified by an Illinois Supreme Court decision of March 22. The Code of Criminal Procedure permits introduction of prior statements that are inconsistent with trial testimony if they were made under oath and are subject 1) cross-examination (see Ill. Rev. Stat. 1985, ch 38, sec. 115-10.1).

A witness in a murder trial was reluctant to repeat incriminating evidence he had earlier given to a grand jury. His court-appointed attorney informed the judge and prosecutor that the witness would assert his Fifth Amendment privilege against self-incrimination to avoid giving the testimony. The judge permitted introduction of the testimony by allowing the prosecutor to read the transcript and ask the witness if he gave the testimony, to which the witness asserted the privilege. The judge also allowed cross-examination about the transcript as well as defense questions about statements the witness made recanting the grand jury testimony. The witness invoked the Fifth Amendment on all of this.

The high court pointed out that the witness "neither admitted nor denied the content of his testimony before the grand jury." This created neither an inconsistency with the grand jury testimony nor a memory loss that could be regarded as establishing an inconsistency. This also "prevented defendant an opportunity to I cross-examine . . . in any meaningful manner."

The court declined to accept other exceptions to the hearsay rule contained in federal rules of evidence, saying, "Our General Assembly has made a determination that prior inconsistent statements may be admitted as substantive evidence only when the requirements of section 115-10.1 are met. We are unwilling to judicially amend section 115-10.1 to include a catch-all 'residual exception' to the hearsay rule."

The high court pointed out that "assertion of the privilege may not be based merely on the 'say-so' of the witness. ..." The record did not show that the trial court had established the existence of reasonable grounds for the witness' fear of self-incrimination and warned that it must do so on retrial. It also noted the availability of a grant of immunity.

Justice Horace L. Calvo wrote the opinion in People v Redd (Docket No. 62053). Justice Ben Miller wrote a special concurrence, saying, "The majority's conclusion . . . leaves several points unanswered."

F. Mark Siebert

May 1990/Illinois Issues/27

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