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Judicial Rulings

Limit on state's challenges of judge

A prosecutor's right to request substitution of a judge because of prejudice is limited to the immediate case. Repeated challenges of the same judge may not be used to achieve transfer of the judge to a different branch of the circuit court, according to the Illinois Supreme Court's ruling of May 30.

In 1987 the Code of Criminal Procedure was amended to give the state such a right upon timely filing of a motion requesting substitution (see Illinois Revised Statutes 1987, ch. 38, sec. 114-5(c)). Normally the substitution is granted automatically.

Now, however, a state's attorney has challenged the same judge in six criminal cases. He had earlier suggested that the chief judge of the district transfer the judge in question and said that he would continue to use the challenge in all criminal cases assigned to the judge under attack. That, said the court, breaches the separation of powers clause of the state Constitution. The court established a procedure for such cases.

The court said: "First, the trial judge must determine whether there is prima case evidence that the motions are being used to thwart the chief judge of the circuit court's independence in assigning judges in his circuit." It listed factors to be considered. If the judge finds that a case exists, a hearing is to be held before a different judge, at which the prosecutor must give his reasons for alleging prejudice. Past rulings against the state are not sufficient; the prosecutor must show "facts or circumstances related to the particular case at hand which indicate that the judge is prejudiced." If it appears that the judge will be prejudiced against the state in all future cases, the chief judge may reassign the prejudiced judge to a different branch of the circuit court.

The decision was unanimous in People ex rel Baricevic v Wharton (136 Ill. 2d 423) with an opinion by Justice William G. Clark.

ComEd must pay refunds

Out of 40 pages of frightfully dense text came the Illinois Supreme Court's message to Commonwealth Edison: "Pay up!" In December 1989 the court had disallowed a rate increase and ordered refunds. On May 31 it rejected the utility's request for a rehearing.

Edison argued that the December decision only invalidated part of an agreement that it had made with the Illinois Commerce Commission and that the portion covering a refund was not included. The court disagreed. Edison further argued that if the entire agreement was invalid, then the rejected rates were superseded by higher rates requested earlier! Terming this "an incongruous result" the court said, "If Edison's interpretation is correct, then our reversal of the Commission's lower rate increase would result in a higher rate increase, which the Commission found unreasonable."

Don't expect things to clarify, however. The commission has 11 months to decide whatever rate increase, if any, Edison should get on the old application. Anticipating the May decision. Edison in April filed for a new rate increase, Finally, the commission last summer ruled that there was waste in construction of a new reactor, and a circuit judge ordered an additional refund. That one is now in the appellate court.

Justice Horace L. Calvo wrote the opinion in Business and Professional People tor the Public Interest v The Illinois Commerce Commission (136 Ill. 2d 192).

Lawyers shall not steal

On May 30 the Illinois Supreme Court sent a clear message to the legal profession: Conversion of funds using a client's money for personal purposes is grounds for disbarment.

In this case a 26-year-old lawyer used over $15,000 of a client's money to cover his debts in commodities trading. After he moved to another position, his former law firm discovered the matter and notified the Attorney Registration and Disciplinary Commission (ARM), Among other mitigating factors the lawyer advanced his youth and inexperience at the time of the conversion. He requested censure only.

During the ARDC's hearing process, recommendations were generally for a two-year suspension, but at every level at least one vote was cast for disbarment. The Supreme Court said that disbarment was the only possible penalty. While youth and inexperience might mitigate for infractions of portions of the Code of Professional Conduct that are not clear, the court said about this case, "It is a simple rule, easy of application and admitting of no exception: do not steal your client's money."

Justice Horace L. Calvo wrote for a unanimous court in In re Rotman (136 Ill. 2d 401).

DES: No redress in Illinois

The Illinois Supreme Court joined Iowa and Missouri in rejecting a "market share" theory that would enable so-called "DES daughters" to receive damage payments from drug companies. Four states have adopted some version of the theory. The Illinois decision came down July 3.

In these cases pregnant women took diethylstilbesterol (DES) to prevent miscarriage. In 1971 the Federal Drug Administration banned the drug because studies linked it to cancer in

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Judicial Rulings

young adult daughters of these patients. So much time has passed since the administration of the drug, that it has been impossible in many cases to identify which of the more than 300 producers manufactured the pills actually taken by a specific patient. Such a causal connection is necessary under tort law in actions for negligence or strict liability.

Beginning with a California case in 1980, courts have attempted to allow plaintiffs to recover damages based on some scheme measuring the shares of the DES market held by drug manufacturers, even if it could not be proved that a specific company provided the drug taken by a specific mother. In some the plaintiff daughter need only prove that her mother took DES and that she has cancer, whereon the burden shifted to the company to prove that it could not possibly have provided the drug in that instance. If unable to disprove a connection, the company could be held liable for a percentage of damages equivalent to its percentage share of the market.

Each court facing the matter has found problems with previous solutions. Three have attempted new schemes. Lower state courts charged with working out the details have had great difficulty. Supreme Courts in Iowa, Missouri and Illinois have been unwilling to make such radical revisions in tort law, while recognizing that this leaves some plaintiffs with no redress. All, including Illinois, have suggested legislative action.

Justice Howard C. Ryan wrote the complex, 35-page opinion in Smith v Eli Lilly Co. (Docket Nos. 67732 and 67747 cons.). Justice William C. Clark, joined by Justice Horace C. Calvo, concurred in part and dissented in part. Clark felt that Illinois should adopt the plan worked out in New York, whereby damages from drug companies would be based on their share of the national market for DES. He felt that this answered many of the objections of the majority to market share theories as well as many of the difficulties courts have encountered in trying to apply other schemes.

Maybe not fair, but it's the law

A medical malpractice decision July 3 revealed a deep split in the Illinois Supreme Court on the four-year period for claims or '"repose" (in street language, "statute of limitations"). Anyone alleging injury by medical malpractice has four years from the date of the injury in which to bring legal action.

In the present case the plaintiff claimed injuries against a doctor, a manufacturing company and the city of Chicago. He later dropped the case against the doctor. The two remaining defendants brought third-party suits against the doctor while their own cases were still pending, but more than four years after the injury. The court ruled 4-3 that the statute of repose barred the third-party suits. It hinted that this might be unfair, but that's how the state law is written.

Justice Ben Miller wrote the opinion for the court in Hayes v Mercy Hospital and Medical Center (136 Ill. 2d 450). The conflict among the justices started with Justice Horace L. Calvo's dissent (joined by Justices William G. Clark and Daniel P. Ward) and Clark's additional dissent. All questioned the reasoning in the case but went on to attack the period of repose as unconstitutional. Calvo traced the history of the legislation to the mid-1970s crisis over malpractice insurance, and he questioned both the crisis and the effectiveness of the statute. Citing the Illinois Constitution's guarantee of a "certain remedy in the laws for all injuries and wrongs ..." (Art. I, sec. 12), Calvo said, "The legislature has differentiated between those who can discover their right to sue within the four-year period and those who cannot. The latter have been deprived of any remedy through no fault of their own, so that the insurance industry will continue to provide liabilily insurance to the medical profession . . . ." He termed this "economic blackmail."

Them's fightin' words, and Justice Howard C. Ryan, author of an earlier opinion upholding the period of repose, responded. It will be interesting to see how the three new justices to be elected this fall line up on this issue.

DUI in the village

"Everybody wantsa get intuh da act," said Jimmy Durante. Under the Illinois Supreme Court's ruling of July 3 almost everybody can get into the act to penalize driving under the influence (DUI).

A driver, stopped by police in the village of Palatine, refused a breathalyzer test and got the mandatory suspension of his license under a village ordinance that duplicates the state's laws. He challenged the village's authority to suspend his license an the authority of the village attorney to oppose his petition for recission.

The Illinois Vehicle Code says, "The corporate authorities of a municipality may adopt all or any portion of this Illinois Vehicle Code by reference." Thus the ordinance is legal. Like the Vehicle Code, it provides for a report to the Illinois secretary of state, who has the authority to suspend. Thus there was no problem there. Finally, the court pointed out that the driver was charged under a village ordinance and not under the stale law. It is the latter that reserves prosecution rights to state's attorneys.

The decision could raise concern about expanding uneven application of DUI laws, already possible because of the role of state's attorneys, through activity by a host of municipal prosecutors.

Justice William G. Clark wrote for the court in Village of Palatine v Regard (136 Ill. 2d 503).

No judicial subdistricts in Cook County

A plan to get more minority and Republican judges on the circuit and appellate benches of Cook County foundered when the Illinois Supreme Court on July 3 declared unconstitutional the statute embodying the plan (Public Act 86-786, effective September 6, 1989, amending Ill. Rev. Stat. 1987. ch. 37. sec. 72.2 et seq.). Proponents lamented the short-circuiting of its laudable aims. Supporters of merit appointment, who saw the bill as further politicizing the judiciary as well a thwarting their attempts at improving its quality, hailed the decision.

The Chicago Bar Association (CBA) had asked the court to block primary elections to be held under the statute because its provisions for transition would leave vacant judgeships unfilled for too long. The court denied the request, but ruled on the statute's constitutionality even though the CBA had not raised the issue, saying that it had to consider the law's validity before it could rule on issues it affected.

The law fell because of its plan to divide the First Judicial District (Cook County) into five subdistricts for the election of appellate judges. Under the Constitution, "The State is divided into five Judicial Districts for the selection of Supreme and Appellate court judges ...." (Art. VI. sec. 2). It provides that the Judicial Circuits (Cook County is also by itself one judicial circuit) in which circuit judges are selected may, by law, be subdivided. Because of its failure to make similar provision for Judicial Districts, the Constitution "does restrict and limit the power of the legislature to further divide judicial districts for the election of appellate judges...."

The court found "no indication that the legislature would have passed the circuit court provisions of the ... Act without the provision; for the appellate court subdistricts." Thus the court ruled one subdistricting plan for Cook County could not be severed from the other, so the subdistricting plan for circuit judges fell with the one for appellate judges.

The court, however, did separate the provision in the same law which creates two additional appellate judgeships in the Third Judicial District. That remains as law.

The court considered the U.S. Supreme Court decision on the "one-man-one-vote" issue for election of judges, but it concluded that the districts as devised for Cook County circuit judgeships some elected from Chicago, some from the rest of the county and some at large from the entire county would meet any objections without further subdivision. In a special concurrence Justice Howard C. Ryan said that the language of the Illinois Constitution is sufficient in itself to justify the decision.

The main opinion in People ex rel Chicago Bar Association v Illinois State Board of

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Elections (Docket No. 69823) was written by Justice William G. Clark.

The case is not ended, however. The court has agreed to reconsider its decision, on the request of a successful candidate in the primary election for one of the new circuitwide Cook County judgeships provided for in the statute. The argument here is that the provision creating 10 new judgeships for the whole circuit, not from subdistricts, should have been separated and let stand.

Atty. Gen Neil F. Hartigan also has asked the court to reconsider; he argues that the portion on subdistricts for the circuit courts is separable from appellate subdistricts. Another option being considered by supporters of subdistricts is a suit in U.S. District Court.

The Chicago Council of Black Lawyers, charging that Illinois Supreme Court lobbyists opposed the legislation, said that it will ask the Judicial Inquiry Board to consider whether the court violated the Code of Judicial Conduct in ruling on a statute it had actively opposed. Two state representatives have asked House Speaker Michael J. Madigan to name a special House committee to investigate the charges.

More on right to die

In November 1989 the Illinois Supreme Court narrowly (4-2) established principles under which artificial administration of food and water can be withdrawn from a terminally ill patient (In re Estate of Longeway (1989, 133 Ill. 2d 33; summary in Illinois Issues, January 1990, p. 27). On July 9 it issued its first decision taking Longeway as precedent, but problems of interpretation still beset this troubling issue. Perhaps this accounts for the fact that the decision came so long after the court took the case on an expedited basis in November 1988.

As with Longeway, the patient in this case had not executed a living will and was stricken before the enactment of the Powers of Attorney for Health Care Law. The court found that lower court decisions against removal of feeding tubes wrongly interpreted existing legislation and the Longeway precedent, but returned the case to the circuit court for establishment of certain facts necessary to meet the conditions set forth in Longeway.

Justice John J. Stamos wrote the opinion in In re Estate of Sidney Greenspan (Docket No. 67903). Justice Daniel P. Ward, joined by Justice Horace L. Calvo, dissented. Ward had also dissented in Longeway but here limited himself to pointing out ways in which he found Greenspan not to meet the conditions in Longeway. In Greenspan the court agreed with physicians that the patient is terminally ill since he will probably die within a week after the tube is withdrawn. Ward said, "One submits that death for almost anyone would be imminent if nourishment were withdrawn for a week."

F. Mark Siebert

August & September 1990/Illinois Issues/63

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