Grand jury subpoenas, generally needed to procure testimony determining whether a crime should be charged, are sometimes used to gather evidence. An Illinois Supreme Court decision of October 15 established rules for such use to assure there is no abuse, especially to rights of privacy guaranteed under the Illinois Constitution.

In this case, two men were acquaintances of a deputy sheriff who had disappeared. They were not charged with any crime or even identified as suspects, but investigative authorities had the Will County grand jury issue subpoenas requiring their appearance in a lineup and submission of fingerprints and palm prints, blood samples and samples of head hair and pubic hair. The men claimed protection under guarantees of privacy in federal and state constitutions.

Under the Code of Criminal Procedure a grand jury has the power "to obtain and examine any documents or transcripts relevant to the matter being prosecuted by the State's Attorney" see (Illinois Revised Statutes 1991, ch. 38, sec. 112-4(b)). Courts have historically protected investigative functions of grand juries, and the court said here, "We do not believe that section 112-4, by its terms, excludes the right of the grand jury to demand physical evidence from witnesses ... ." Subpoenas for such evidence, however, must be "within the limitations imposed by constitutional guarantees of individual rights."

The Illinois Constitution protects citizens against "invasions of privacy" (see Article II, sec. 6). Referring to interpretation at the Constitutional Convention, the court said, "Thus, the Illinois Constitution goes beyond Federal constitutional guarantees by expressly recognizing a zone of personal privacy. The protection of that privacy is stated broadly and without restrictions."

The first step in procuring a subpoena for investigative purposes is to establish relevance of the request via "a brief statement of the nature of the investigation." Appearance in a lineup and procurement of certain evidence such as fingerprints is considered non-invasive since they involve items openly displayed, but the state's attorney must file an affidavit of "individualized suspicion" stating the possibility that the person involved may be connected to the crime. This requirement for noninvasive investigations agrees with federal standards. Illinois' greater protection involves invasive demands — for such things as blood samples and pubic hair — and the more demanding standard of probable cause applies: It must be shown that the person is more likely than not to have been involved with the crime.

Justice Thomas J. Moran wrote the opinion in In re May 1991 Will County Grand Jury (Docket No. 72421).

"Whether a statute is wise or unwise, and whether it is the best means to achieve the desired results, are among the matters for the legislature and not the courts." Working from this premise the Illinois Supreme Court declared constitutional portions of the Controlled Substances Act that impose stiffer penalities for drug offenses that occur in or near public housing than for those that occur elsewhere (see III Rev. Stat. 1991, ch. 56 1/2,sec. 1407 for current language, but note that the court found conflicts in the act, III Rev.Stat. 1989, ch. 56 1/2, sec. 1407 as it existed at the time of the offense). The defendant claimed that these penalties violate equal protection guarantees of the federal and state constitutions.

To the argument that the penalty is harder on those who live in public housing than on those who can afford to live elsewhere, the court replied, "The statute does not regard where a drug offender lives; it regards only where a drug offense occurs."

The court also rejected the claim that the act creates an unconstitutional classification. The court applied the rational basis test — determination that the law furthers a legitimate state interest — rather than strict scrutiny since no suspect classification (race, gender, etc.) nor fundamental right was at issue. The court rejected the claim that incarceration involves liberty rights, saying, "Personal liberty, when deprived by lawful incarceration, is not a fundamental right for purposes of equal protection analysis." Here the state's purpose is "simply to deter narcotics activity in public housing, an area where the impact of this evil has been severe."

The court filed its decision in People v Shephard (Docket No. 72805) on October 22, with an opinion by Justice Charles E. Freeman.

Dealers in illicit drugs are required to pay taxes on them (see III. Rev. Stat. 1989, ch.120, 2151 et seq.). The state will probably collect only from those who are found guilty of narcotics violations, but the tax and its penalties for nonpayment do not constitute double jeopardy according to the October 22 decision of the Illinois Supreme Court.

In this case the defendant had handled approximately $300 worth of drugs and ended up with a bill of $213,675 from the Department of Revenue for tax, interest and penalties. The circuit court judge agreed with him that this was punishment on top of the sentence he received on the narcotics charge and thus constituted double jeopardy.

The high court said, "The statute itself is labeled a 'tax' and the legislature provided a distinctly civil procedure for collecting both the tax and the addition to that tax." Thus the money penalty was a punishment for the failure to pay the tax and did not constitute double jeopardy for the narcotics offense.

The high tax rate and even higher penalty might seem to be a criminal punishment within a nominally civil statute. The court did recognize a deterrent intention in them but said, "Every tax discourages or deters the activity taxed to some degree." Further, the tax had a legitimate alternative purpose: "to provide revenue to compensate the State for costs incurred as a consequence of illegal drug manufacture and use." It noted several reasons for high penalty amounts, including one rather unlikely concept since paying the tax would likely be admission of conducting the illegal activity: "Imposition of a substantial penalty . . . encourages 'dealers' to pay the tax before transferring drugs so as to avoid the penalty imposed for nonpayment of the tax."

Thus the penalty for nonpayment of tax is not unconstitutional on its face. The court

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Judicial Rulings                                                                       

noted a number of reasons for high penalty levels within the statute. If, however, the penalty in a specific case is unreasonably high, it would be unconstitutional double jeopardy in that individual case. Here the courts must determine "whether the civil penalty at issue bears a rational relationship to the damages suffered by the government. "In this case the court found insufficient information in the record. It returned the case to the circuit court for further hearing and gave two tests for determining the relevance of the civil penalty amount to the government's expenses: how it compares to other civil penalties, and how it compares to penalties imposed in other states.

Justice Michael A. Bilandic wrote the opinion in Rehg v the Illinois Department of Revenue (Docket No. 72374).

When an unauthorized person attends grand jury proceedings, the indictment can be dismissed only when the defendant demonstrates "substantial injustice." The Illinois Supreme Court made this distinction in a ruling October 30.

Here a teacher was charged with fondling a 13-year-old girl. Without any authorization by a court, the girl's mother attended during the girl's testimony. The Code of Criminal Procedure says, "Only the State's Attorney, his reporter and any other person authorized by the court or by law may attend sessions of the Grand Jury" (see Ill Rev. Stat.1989, ch. 38, sec. 112-6(a)), and it allows a court to dismiss an indictment "by a Grand Jury which acted contrary to Article 112 of this Code and which results in substantial injustice to the defendant" (see sec. 114-l(a)(5)). The circuit court dismissed the indictment, and the appellate court confirmed.

The high court said that the statute codified principles going back to cases from 1910 and 1925 requiring "something more than mere violation of the statute, such as showing that the purposes of the secrecy requirement were not met, or that, in fact, the indictment was obtained as the result of undue influence or coercion."

The opinion in People v Fassler (Docket No. 72153) was by Chief Justice Benjamin K. Miller. Justice William G. Clark, joined by Justices Michael A. Bilandic and Charles E. Freeman, dissented. Clark said, "The unauthorized person's presence alone is a violation of the secrecy required in a grand jury proceeding." He distinguished this case from the two early cases cited as precedent and pointed out a danger here: "The daughter's testimony was crucial to the indictment; therefore, the danger of the mother's presence as an influence on the jury was all the more significant."

F. Mark Siebert

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