Judicial Rulings                                                               

This report covers decisions made before December 8 when newly elected justices took their places on the Supreme Court bench.

The Illinois Supreme Court warned the General Assembly to follow constitutional procedures. In a November 19 decision rejecting a challenge to the tax plan to pay for the McCormick Place Expansion Project, it said that "it is apparent to this court that the General Assembly has shown remarkably poor self-discipline in policing itself."

At issue was the "enrolled bill doctrine," under which bills signed by the speaker of the House and the Senate president are presumed to have met all procedural requirements for passage. The intention is to prevent attacks upon legislation because of alleged procedural defects.

In the present case "both parties agree that ignoring the three-readings requirement has become a procedural regularity." The court refrained from rejecting the questioned statute here as a way of disciplining the legislature because "the doctrine of separation of powers is more compelling." Its warning, however, was unequivocal: "If the General Assembly continues its poor record of policing itself, we reserve the right to revisit the issue on another day to decide the continued propriety of ignoring this constitutional violation."

Justice James D. Heiple wrote the opinion in Geja's Cafe v Metropolitan Pier and Exposition Authority (Docket Nos. 73986, 74045 cons.).

To a grammarian "shall" is mandatory and "may" is permissive; in the law this is not always the case. In a November 19 decision relating to attorney-client confidentiality the Illinois Supreme Court had to interpet a statutory use of "may" as mandatory in order for the law to make sense.

In this case a noncustodial father kept his child beyond the time allowed in his visitation rights. The mother asked the court to compel the father's attorney to divulge information about his whereabouts and possible intention to commit the crime of abduction. She refused to do so, even in an in camera hearing, citing the attorney-client privilege. The court found her in contempt. In filing amicus briefs the Chicago Bar Association and the Illinois State Bar Association both pointed out that there are no mechanisms by which an attorney can raise this issue without running the risk of a contempt citation.

The attorney-client privilege permits complete openness in attorney-client consultation, and only the client can waive it. It is in force during any judicial proceedings. There is an exception "when a client seeks or obtains the services of an attorney in furtherance of criminal or fraudulent activity."

Beyond this, the attorney's rule of confidentiality applies "at all times, and to client's secrets, as well as confidences." Under the former Code of Professional Responsibility, in effect at the time, "a lawyer may reveal. . . confidences or secrets when permitted under disciplinary rules or required by law or court order; [or] the intention of a client to commit a crime ... ." (See Illinois Revised Statutes 1989, ch. 110A, Rule 4-10.) The Rules of Professional Conduct now applicable contain similar language, so that this opinion applies to it as well. (See Ill. Rev. Stat. 1991, ch. 110A, Rule 1.6.) An earlier clause says that an attorney "shall reveal" information that would prevent a client from inflicting bodily harm or death, Clearly the attorney could reveal information on her own initiative, but could she be compelled to do so under court order? The court held that the phrase "when . . . required by court order" is mandatory and said, "To hold otherwise would place an attorney's discretion above judicial determination of the matter." It vacated the contempt order here, however, because the trial court had not followed appropriate procedures, which it then described.

The party opposing the privilege must show that the information is not privileged. There must be establishment of a factual basis for a good faith belief that an in camera hearing will reveal a crime-fraud exception. "Disclosure of such material to the court in such a manner does not waive or terminate the privilege." The court reviewed matters to be considered by the trial judge in determining whether there shall be an in camera hearing, and recommended that such a hearing be conducted by a different judge, if possible; limit questioning to preserve confidentiality of the information; begin with a narrow question, such as whether the client sought advice on how to commit the specific illegal act (a positive answer would immediately remove the privilege). A contempt citation may be the appropriate way to test certain collateral orders, but when an attorney's refusal to divulge is made in good faith the citation should be stayed pending appeal.

The court concluded that there is a presumption of privilege when a client consults an attorney in a professional capacity. When the privilege is challenged, the attorney must "prove the existence of the essential elements giving rise to the privilege."

Justice Joseph F. Cunningham wrote the opinion in In re Marriage of Decker (Docket No. 71259). Justice James D. Heiple's dissent said that the opinion's summary of law was excellent but its conclusions incorrect. His argument went mainly to what he termed "a tortured reading of the proceedings." The main body of the opinion answered these objections.

Two mothers were convicted of murder of their children. The women were held accountable, not as actual slayers but because they knew that their boyfriends, who committed the murders, had histories of abusing the children. The Illinois Supreme Court filed its interpretation of the accountability statute (see Illinois Revised Statutes 1991, ch. 38, sec. 5-2(c)) on November 19.

In one case the mother had been ordered to refrain from any contact with the man because of an earlier injury to the child, yet she not only placed the child in his care but made him responsible for the child's discipline. In the other case the child's weekend babysitter observed injuries over an extended period, all explained as results of accidents by the boyfriend who cared for the child while the mother worked. Medical experts testified at trial that the autopsies revealed injuries inflicted over an extended period.

A person is accountable for the acts of another when "Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense" (section 5-2(c)). Murder, the court said, "is a general intent crime, requiring only that the individual charged commit some act the natural tendency of which is to destroy another's life." The court ruled that "one whose guilt of murder, a general intent crime, is established through accountability, need only possess a general intent, with all the requirements that state of mind entails."

Both mothers' knowledge of the ongoing abuse proved that "the defendants voluntarily and willfully committed an act the natural tendency of which is to destroy another's life." They did not need to participate actively or even to be present when the fatal abuse occurred. Furthermore, parents have a duty to come to the aid of a child. On the contrary, placing the children in the care of known abusers aided the abusers.

Justice Joseph H. Cunningham wrote the opinion in People v Stanciel, People v Burgos, People v Peters (Docket Nos. 73097 and 73184 cons.).

F. Mark Siebert

February 1993/Illinois Issues/31