Judicial Rulings

Qualifying for collective bargaining: some supervise; some don't

Police lieutenants and sergeants qualify as supervisors for collective bargaining purposes in ways that other employees with similar functions do not. The Illinois Supreme Court interpreted pertinent language of the Illinois Public Labor Relations Act (see Illinois Revised Statutes 1987, ch. 48, sec. 1603(r)) in its ruling of April 18.

The act excludes supervisors from collective bargaining units. It establishes four identifying characteristics for supervisors but excludes police personnel from the fourth, which says that supervisors devote a preponderance of their time to exercising authority defined in the first three.

Thus police lieutenants and sergeants in Freeport were excluded from the bargaining unit while fire lieutenants in Wheeling were not, even though the court found that "[l]ike the ranking officers in the Freeport police department, the lieutenants here [Wheeling] exercise supervisory authority in several areas most likely to fall within the scope of union representation." The court found that the Wheeling lieutenants had disciplinary authority that fell within the scope of supervisors as defined by the act, but that they exercised it so rarely as to make it less than a preponderance of their activity;

The decision was unanimous in City of Freeport v Illinois State Labor Relations Board; Village of Wheeling v Illinois State Labor Relations Board (Docket Nos. 67147, 67152, 67181 cons.) with an opinion by Justice Daniel P. Ward.

Sometimes spouses can testify against each other

Sixth Amendment guarantees of confrontation of witnesses take precedence over the marital immunity protecting communications between husbands and wives (see Ill. Rev. Stat. 1985, ch. 38, sec. 155-1), according to the Illinois Supreme Court's decision of April 18.

In this case the wife had agreed to cooperate with police because of charges for heroin possession pending against her. She notified them of her husband's participation in a conspiracy to kill a police officer. He was ultimately acquitted of the charge but convicted for possession of heroin discovered at the time of his arrest. At trial the marital privilege was invoked to bar him from questioning his wife about statements and letters to him saying that she had fabricated the conspiracy story.

Although the barred testimony related to the conspiracy charge, on which the defendant was acquitted, the court predicted that the issue is likely to be raised on remand on the heroin conviction. Terming the wife "a sensitive and important witness" the court stated that "an opportunity to cross-examine [her] on the question of fabrication was surpassingly important to a determination of her credibility." Defining the purpose of the marital privilege as promotion of marital harmony, the court said, "Barring the defendant from cross-examining his wife . . . could not, under the circumstances, further a legislative policy of preserving and promoting marital harmony."

Justice Daniel P. Ward also wrote for the court in People v Foskey (Docket No. 67926).

Quick, pass a new law!

What do you do when two laws contradict each other and lead to litigation? You pass a new law and the Illinois Supreme Court says that it applies. That's the story of a decision filed April 18.

Law No, 1 was the School Code that authorized certain school districts to issue bonds at a rate not to exceed 7 percent and said that the statute "constitutes complete authority for the issuance of bonds as provided in this Section notwithstanding any other statute or law to the contrary" (see III. Rev. Stat. 1983, ch. 122, sec. 17-2.1 la). At the same time there was Law No. 2, the Bond Authorization Act, that allowed public corporations to issue bonds at 9.75 percent, "Notwithstanding the provisions of any other law to the contrary" (see Ill. Rev.Stat. 1983, ch. 17, sec. 6602).

When the Allendale school district issued bonds at the higher rate a group of taxpayers sued, claiming that the School Code controlled. When the appellate court ruled in favor of the taxpayer group there was consternation at high levels of government because of the potential damage to bonds already issued. Law No. 3 was the solution: The General Assembly passed Public Act 86-4, effective June 6, 1989, confirming the Bond Authorization Act, amending the School Code and retroactively validating bonds such as those in question.

The newest law says that it was always the intention of the General Assembly to allow the higher rate, which disagrees with the interpretation of the appellate court. The high court bristled: "It is apparent that the legislature, unhappy with the appellate court's interpretation . . . is attempting to attribute to section 17-2.1la a construction different than the one given to that section by the appellate court. The attempt is clearly a contravention of the principle of separation of powers."

Since the law was changed while the case was pending in the Supreme Court, the case was disposed of ''under the law as it then exists, not as it was when the judgment was entered in the lower court." The court ruled that the bonds were not void but valid and their defects cured by the new law.

Justice William G. Clark wrote the opinion in Bates v Board of Education (Docket No. 68681).

Walking into posts

A concrete post, 5 by 1 1/2 feet, should be obvious enough so that a person would not walk into it. If the post's owner can anticipate that the person might be distracted or forgetful, however, he has a duty — possibly very slight — to provide some safeguards. This was the decision, extending to posts and similar obvious hazards, of the Illinois Supreme Court on April 18.

A man carrying a bulky parcel walked into such a post outside a K Mart store. The court held that he was entitled to damages from the store, reduced by 20 percent as his portion of negligence. The court said the greater negligence was by the store because "defendant can be expected under certain circumstances to anticipate that customers even in the general exercise of reasonable care will be distracted or momentarily forgetful." A number of appellate decisions have taken this direction, but this was apparently the first such decision by the high court.

The court reversed circuit and appellate courts in Ward v K Mart Corporation (Docket No. 68962. Justice Howard C. Ryan wrote the opinion.

F. Mart Siebert

32/June 1990/Illinois Issues