Judicial Rulings

Retaliatory discharge:
more confusion

Employers can fire noncontractual employees, termed by the courts as "at will" employees, for no reason except when the discharge is retaliatory. The Illinois courts have heard a number of cases, but so far only two clear reasons for finding employers at fault for retaliatory discharge have emerged: discharge of an employee who has filed for workers' compensation (see Kelsay v Motorola Inc., 74 Ill. 2d 172 (1978)) and whistle-blowing — providing information to law enforcement agencies of illegal activity by a co-worker (see Palmateer v International Harvester Co., 85 Ill.. 2d 124, 130 (1981)).

In general the Illinois Supreme Court has sided with employees claiming retaliatory discharge when their discharge controverts the public good; it has ruled for the employer when it can find that an employee's discharge supports the public good. So far there are no clear guidelines on determining "public good."

Thus on Feburary 22 the court ruled in one case against a public employee fired by a mayor. To simplify, the court held that in general the employee's policy making functions required him to support the actions of the mayor since an administration must command loyalty to its policies from its members in order to promote the public good.

Chief Justice Ben Miller wrote the opinion in this case, Fellhauer v City of Geneva (142 Ill. 2d 495). Justice Charles E. Freeman, joined by Justices James D. Heiple and William G. dark, filed a special concurrence but said, "I can readily envision a future situation in which a public employee's 'whistle-blowing' conduct is unambiguously supported by the public policy underlying official misconduct statute . . . ."

On the other hand, late in March the court announced that it was evenly divided (one member not participating) in another case of retaliatory discharge. The plaintiff, a public employee, claimed that he was fired because he refused to cooperate (lie) in the city's fight against a co-worker's claim for workers' compensation. The circuit court's favorable verdict had been overturned at the appellate level because of a question of public policy, and the deadlock in the high court left this decision in place. The plaintiff may seek rehearing of Lambert v City of Lake Forest (Docket No. 69175) with a temporary justice appointed to replace the recused member.

It depends on when you say it

A stipulated bench trial, a device by which a defendant admits prosecution evidence without calling witnesses, can be tantamount to a guilty plea. In a March 21 decision the Illinois Supreme Court clarified the circumstances under which this may happen.

The defendant had two trials, back-to-back, for armed robbery and aggravated battery. His attorney wanted to preserve an attempt to suppress some of the state's evidence and had him waive his jury trial and stipulate the state's evidence. In the first trial his attorney stated in closing argument that the evidence would be sufficient to convict. At the second trial at the point when the attorney had to speak to the stipulation of the state's evidence, he said, "[In] terms of [the] sufficiency of the evidence we are stipulating."

The court ruled that the remarks in closing argument had no force as evidence but that a similar remark in the stipulation did. The latter was ruled tantamount to a guilty plea and entitled the defendant to the warnings or admonishments for such pleas (contained in Supreme Court Rule 402), which were not given. The court remanded the second case for a new trial.

Justice William G. Clark wrote the opinion in People v Horton (Docket No. 69919); Justices Horace L. Calvo, Michael A. Bilandic and James D. Heiple did not participate.

Voluntary and involuntary commitment

In a March 21 opinion the Illinois Supreme Court affirmed its earlier decision concerning involuntary commitment proceedings against inmates when they have voluntarily committed themselves to a mental health facility.

The statute provides for discharge of a voluntarily committed patient within five days of written application for discharge (see Illinois Revised Statutes 1987, ch. 91 1/2, sec. 3-403) and goes on to say, "Hospitalization of the patient may continue pending further order of the court." The court confirmed its earlier interpretation that a patient must first be released from voluntary commitment before proceeedings for involuntary commitment may begin (see In re Hays, 102 Ill. 2d 314, 319 (1984)). It said that the purpose of the provision was to encourage voluntary commitment by guaranteeing control of the commitment by the patient since "a patient who voluntarily undertakes therapy is more likely to be rehabilitated than one who is involuntarily required to undergo treatment."

In this case the state sought involuntary commitment one month after the plaintiff had voluntarily entered a facility. The plaintiff and his attorney attended the hearing and did not contest the action. On appeal plaintiff claimed that he was not a candidate for involuntary commitment since he had never submitted a written request for discharge from his voluntary commitment.

The opinion in In re Splett (Docket No. 70016) was written by Chief Justice Ben Miller, with Justices Horace L. Calvo, Michael A. Bilandic and James D. Heiple not participating

Loss of consortium and comparative negligence

For the first time the Illinois Supreme Court considered the effect of comparative negligence on a spouse's claims for loss of consortium due to permanent injury. It filed its decision March 28.

The court took the position, held by a majority of jurisdictions that have the principle of comparative negligence, that loss of consortium is derivative from the injured party's claims for damages against those contributing to his injuries. That is, if the injured person is found to have contributed 40 percent of the negligence causing his injury, then any damages awarded must exclude that 40 percent.

In this case the plaintiff, William Blagg, had fallen from a fire truck and sued the manufacturer and distributor. His employer, the village of Winthrop Harbor, sought to enforce a workers' compensation lien on any payments to him. The main parties reached a settlement three days before the case was scheduled for trial.

The Supreme Court said, "[P]lacing the value of [his spouse] Marilyn's . . . needs ... at more than three times the value of William's permanent injuries does not appear to be in good faith. The value indicates that the settlements may have been reached in a manner to avoid the Village's lien." It ruled, however, that the wife's claim was independent of the lien, meaning the lien could not be enforceable on the payments to her. The court remanded the case for further proceedings on the settlement.

Justice Thomas J. Moran's opinion in Blagg v Illinois F. W.D. Truck and Equipment Company (Docket No. 69158) was questioned by Justice Horace L. Calvo's dissent. Cases considered by Calvo were found to be inapplicable precedents by the majority. He sees this as atrend by the court away from the old equal attribution of contributory negligence of the injured party to the spouse. He found it "not just to a deprived spouse, who is not at fault, to reduce a consortium award by the amount of fault attributable to any other person."

F. Mark Siebert

30/May 1991/Illinois Issues