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Judicial Rulings

No pay raise by whatever label during legislator's term

The Illinois Supreme Court on November 30 shot down what might have looked like the legislature's 1989 attempt to give itself a quiet pay boost after it had rejected with some fanfare the raise recommended by the Compensation Review Board in 1988. Increases of as much as $6,000, termed "stipends" and retroactive to January 1989, would have gone to 120 of the 171 legislators because of the additional duties in their positions of leadership.

Article IV, sec. 11 of the Illinois Constitution says that "changes in the salary of a member shall not take effect during the term for which he has been elected." The court said, "The fact that institutional officers in the General Assembly are paid 'an additional amount' above the base amount paid to all other legislators makes it no less a salary. It is merely a larger salary." It observed that new leadership positions had been created by the legislation.

When the 87th General Assembly was seated on January 9, all House members started a new term and thus became eligible for the raise. For senators, whose terms are staggered, eligibility depends on whether they were reelected in November.

Justice Howard C. Ryan wrote the five-page opinion in Rock v Burns (Docket No. 69821).

The court ruled similarly in another case involving county treasurers, whose raises were also labeled "stipends" by statute. Elected officers of local government, like legislators, come under a constitutional prohibition of salary increases during the term in office (see Art. VII, sec. 9(b)). The court said, "The word 'salaries' in section 9(b), we hold, encompasses all forms of compensation paid to the public official for performing the duties of office." If the law had become effective as planned, the case might never have come to court. The act was to have been effective July 1, 1986, but because of a veto and subsequent override by the legislature, it was not effective until December 3, 1986, two days after treasurers' terms began.

Justice Ryan also wrote the opinion in Harblan v Sweet (Docket No. 69305).

When federal Railway Labor Act preempts state law

In a November 20 decision the Illinois Supreme Court held that some, but not all, provisions of the Interstate Commerce Act regulating railroads preempt Illinois law (see 49 U.S. Code, sees. 10101 through 11917).

The Interstate Commerce Commission had approved sale of the Duck Creek South Line of the Chicago and North Western Transportation Co. (C&NW) to the Fox River Valley Railroad Corporation. The Railway Labor Executives' Association and employees of C&NW argued that this was an attempt to defraud employees of some of their rights under a collective bargaining agreement and thus was subject to Illinois' Fraudulent Conveyance Act (see m. Rev. Stat. 1987, ch. 59, sec. 4) then in force but since replaced by the Uniform Fraudulent Transfer Act (see Ill. Rev. Stat. 1989, ch. 59, sees. 101 through 112).

Under the U.S. Supreme Court's interpretation of the Federal Railway Labor Act (RLA —see 45 U.S.C. secs. 151 through 188(1982)) minor disputes — those requiring interpretation of an existing collective bargaining agreement — are under the sole jurisdiction of adjustment boards provided for in the act, and subject only to review by a federal appeals court.

The Illinois court said, "The procedures set forth in the RLA for resolution of minor disputes are mandatory; an employee may not opt against these procedures in favor of State-law actions for what amount to 'grievances' under the RLA.'' The plaintiffs said that they appealed the form of the sale, and the court noted their "artful drafting" in not mentioning their collective bargaining contract. The court said, however, "We fail to see how a court could fashion a remedy for the protection of creditors' rights without consideration of the rights themselves. In the present case, such consideration will require reference to the terms of a collective-bargaining agreement.''

Justice Ryan also wrote the opinion in Gendron v Chicago and North Western Transportation Co. (Docket No. 69582).

Workers' comp act preempts

The Illinois Supreme Court ruled for the first time on whether a worker can sue an employer for injuries willfully inflicted by a coworker. The court said "no" in its decision filed November 30, holding that such action is barred by exclusivity provisions of the Workers' Compensation Act (see Ill. Rev. Stat. 1987. ch.48, sec. 138.1 et seq.).

The plaintiff in this case had admitted to theft from Marshall Field. He subsequently returned to the store to pick up his pay check and was detained by a security guard who turned him over to Chicago police. The store charged him with criminal trespass. He subsequently charged both the guard and the store with false arrest and false imprisonment.

Sections 138.5(a) and 138.11 of the workers' comp act limit an employer's liability for accidental injury to compensation provided by the act. Injuries inflicted by a coworker are "accidental from the employer's point of view, at least where the employer did not direct or expressly authorize the co-employee to commit the assault.'' Since the store did not expressly direct the particular act, the court found it not liable, even though the guard acted in his role as an employee of the store.

The court has never ruled that emotional injuries attendant on false arrest are compensable under the act, but it noted that it has ruled that similar injuries inflicted by a coworker are covered. The plaintiff can sue the coworker, however, according to the court: "The coemployee should not be permitted to assert that the plaintiff's injuries were accidental, and therefore barred under the exclusivity provisions of the Act when he himself committed the intentional tort."

Justice Daniel P. Ward wrote the opinion in Meerbrey v Marshall Field and Company (Docket No. 69652).

Nix on Danville's commissioners-turned-department heads job negotiation

Settlement of voting rights suits contains dangers for city officials in the wake of the Illinois Supreme Court's November 30 decision finding Danville city commissioners guilty of conflict of interest.

A group of minority citizens filed a suit in federal court alleging that Danville's commission form of government deprived them of voting rights. In the wake of the decision in a similar suit finding Springfield's commission form in violation of the federal voting rights act because of its at-large elections, Danville's commissioners decided to enter into a consent decree changing to an aldermanic form. For the transition they were to retain city executive positions, but as department heads, for three years at a salary that they would determine.

In entering negotiations the commissioners involved their interests since they were, in effeet, bargaining their jobs out of existence. Although the court recognized a legitimate concern for smooth transition and avoidance of costly litigation doomed to failure, the court would not condone permitting an arrangement

28/February 1991/Illinois Issues

wereby the commissioners saved their jobs and set their salaries. It said, "The craftiest of corrupt politicians are experts at making their self-dealing appear to be in the best interests of their constituents." The decision turned on interpretation of language in the Illinois Municipal Code (see Ill. Rev. Stat. 1989, ch. 24, sec. 3-14-4(a)), the Corrupt Practices Act (see III. Rev. Stat. 1989, ch. 102, sec. 3(a)) and the Criminal Code [see Ill. Rev. Stat. 1989, ch. 38, sec. 33-3). The court said, "This language implies a 'hands off approach to the type of settlement negotiations that occurred here."

Justice John J. Stamos wrote the decision in, People v Scharlau (Docket. No. 69847); Justice Ben Miller did not participate.

Right to speedy trial

A tactic, exploiting the nolle prosequi, whereby state's attorneys might circumvent a defendant's right to a speedy trial was nipped in the bud by the Illinois Supreme Court's decision of November 21.

A defendant, free on bond on a murder charge, entered a demand for a speedy trial. The state entered a nolle prosequi, an action which on its face drops the charge but in practice may be temporary because the state can reenter the charge. In this case, when the state recharged the defendant, he again demanded a speedy trial and subsequently moved for dismissal on the rounds that the demand had not been granted. The state again nol-prossed, and the defendant objected, urging the court first to consider the speedy trial question. The court refused, the apellate court confirmed the trial court, but the Supreme Court did not agree.

The Code of Criminal Procedure provides that a defendant free on bond who requests a speedy trial must be tried within 160 days (see Ill. Rev. Stat. 1987, ch. 38, sec. 103-5(b)). When a nolle prosequi is entered the state may reinstate prosecution at any time. The court aid, 'The decision to nol-pros a charge . . . can be used ... to purposefully evade the operation of the speedy-trial statute." It said that the right to a speedy trial, granted by federal and state constitutions, "cannot be diminished through technical evasion.'' Because a decision on a speedy trial claim could effectively close a case, the high court ruled that such defense motions be heard before the state moves to nol-pros.

Justice Daniel P. Ward wrote the opinion in People v Woolsey (139 Ill. 2d. 157).

Also noted

On December 3 the Illinois Supreme Court filed its decision in Quake Construction, Inc. v Airlines, Inc (Docket No. 68585), but it was no more earth-shaking than the day proved to be along the New Madrid fault.

F. Mark Siebert

February 1991/Illinois Issues/29

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