Judicial Rulings                                                                   

This summary includes cases decided before new members of the Illinois Supreme Court were seated in December.

"A statute intended to limit or deny home rule powers must contain an express statement to that effect," said the Illinois Supreme Court in 1976 (see Stryker v Village of Oak Park, 62 Ill. 2d 523, 528 (1976)), but some people never learn. In a November 19 decision the court had to apply this principle to a law described by a federal appeals court as containing conflicts that are unavoidable but also "incongruous" and the results of "inartful drafting." In fact, lower courts disagreed in their interpretations.

Des Plaines passed a city ordinance setting more stringent controls on billboards along the Tri-State Tollway than those of the Illinois Highway Advertising Control Act (see Illinois Revised Statutes 1987, ch. 121, sec. 501 et seq.). An advertising firm argued that the ordinance diminishes the state's control of advertising along interstate highways, a control it must maintain at the risk of losing 10 percent of federal funds under the federal Highway Beautification Act (see 23 U.S.C. sec. 131(b) (1970)).

Subsection (d) of the federal act says that signs "may be erected . . . within six hundred and sixty feet of the right of way." Here the court interpreted the word "may" as permissive, saying that "a state or local authority does not have to permit advertising signs . . . within 660 feet of interstate highways." The state act permits them; Des Plaines does not. The court ruled, however, that the ordinance does not conflict with the federal act and thus does not jeopardize federal funds. As to the state act, the court observed that the state and home-rule units exercise concurrent authority in some areas and that localities can make their own rules unless specifically forbidden by statute. Said the court, "The legislature is perfectly capable of being specific when it wants to be."

Justice Thomas J. Moran wrote the opinion in Scadron v City of Des Plaines (Docket No. 72848).

U.S. Supreme Court rulings weakening the exclusionary rule have filtered down to an Illinois Supreme Court decision concerning evidence gathered after a suspect had invoked his right to an attorney.

In this case the suspect's boss had offered him $20,000 to commit murder. He had subcontracted with a third party for the actual hit for $2,000. At trial the defendant established that he had repeatedly requested an attorney, but that police continued their questioning. Police admitted that they had no idea of the identity of the actual shooter until defendant revealed it during the extended questioning. Authorities then entered a plea agreement with the shooter in return for his testimony against the defendant. The defendant claimed that this testimony was obtained illegally. Various interpretations of the Miranda warnings have held that interrogation must cease when a suspect requests an attorney and that statements subsequently made are presumed to be involuntary.

After a complicated analysis of the constitutional background and case history of the Miranda warnings and of the so-called doctrine of the "fruit of the poisonous tree" invoked by the defendant, the Illinois court reached two conclusions central to this decision. First, "Any statement obtained after a defendant has invoked his right to counsel may not be admitted as substantive evidence in the prosecution's case in chief... ." Second, "Where the State seeks to use a statement obtained in violation of the Miranda right to counsel for other purposes, however,... the sole criterion for admissibility is whether the defendant's statement is 'voluntary.' " Obviously a statement could be used to identify a third-party witness.

While a U.S. Supreme Court decision spoke of the application of "traditional standards for evaluating voluntariness ..." the Illinois court was silent on its criteria for finding that the statements here were voluntary.

Justice Michael A. Bilandic's opinion in People v Winsett (Docket No. 73042) was filed November 19.

Provision for restitution to victims in the Unified Code of Corrections (see Ill Rev. Stat. 1989, ch. 38, sec. 1005-5-6) applies to victims of nonviolent crime, according to an Illinois Supreme Court ruling November 19.

In these consolidated cases one defendant was convicted of arson and perjury, while the other was convicted of theft from her employer. Both were required to make restitution as part of their sentences and weakened their appeals by suggesting their willingness to do so at the sentencing hearings. The Supreme Court decided the case in order to resolve conflicting appellate level decisions.

Section 5-5-6 of the code says, "In all... cases the court shall at the sentence hearing determine whether restitution is an appropriate sentence . . . ." In a 1984 amendment the legislature defined victims as those injured by violent crime and spoke

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Judicial Rulings                                                                   

of restitution in terms of recompense for various "injuries suffered by the victim ... ." The court held that the intention before the addition was clearly to provide restitution to all victims and that the addition would be an absurdity if it narrowed the provision.

In order to settle the objection that restitution would impose a civil liability without benefit of jury trial, the court considered the legislative history. It concluded that "an order of restitution issues only after the offender has been convicted. Before that time, the defendant has been provided with all the safeguards of criminal procedure." Although a jury does not determine the amount of restitution as in a civil case, the court said, "Other provisions of the Code deprive offenders of their civil rights through imprisonment."

The opinion in People v Lowe and People v Nasser (Docket Nos. 73054, 73100 cons.) was by Justice Thomas J. Moran.

The Illinois Supreme Court reversed its October 1991 decision that claims for attorney malpractice must be brought under contract law rather than tort law (Collins v Reynard, Docket No. 70325; see Illinois Issues, December 1991, page 30). Now "a complaint against a lawyer for professional malpractice may be couched in either contract or tort and . . . recovery may be sought in the alternative." The decision applies to attorney malpractice alone, as an exception to the so-called Moorman doctrine that solely economic losses must be recovered in contract actions (Moorman Manufacturing Co. v National Tank Co., 91 Ill. 2d 69 (1982)).

Applications of Moorman to claims of professional malpractice have caused a bit of a flap in legal circles, and this case was no exception. The 1991 decision was split, and the court agreed to rehearing in February 1992. Citing the "long line of Illinois cases allowing pleading and recovery in tort for lawyer malpractice," the court said, "Our ruling is grounded on historical precedent rather than logic." As justification it said, "Certainty in the law enables parties to understand their relative rights and duties and facilitates rationality and planning in matters of commerce and social intercourse."

Justice James D. Heiple wrote the opinion, filed December 4. Chief Justice Benjamin K. Miller, who dissented in the original opinion, wrote a special concurrence, joined by Justices Michael A. Bilandic, Charles E. Freeman and Joseph F. Cunningham. Saying that "today's result is dictated not only by custom but by logic as well," he concluded, "The attorney-client relationship is not the sort of commercial context in which limits on the recovery of economic losses are either necessary or properly applied."

The Illinois Supreme Court has affirmed a conviction for murder and imposition of the death penalty even though another person has made statements that he alone committed the crime. The decision rested on the majority's belief that there was overwhelming evidence that the defendant did commit the crime. On the other hand, news stories reported the resignation of a state prosecutor who believes in the innocence of the defendant.

The case involved the kidnap, rape and murder of a 10-year-old girl. A defendant who plea-bargained on similar charges in another county admitted to having committed this crime by himself, but he did so in hypothetical language that he refused to confirm without a guarantee that prosecutors would not seek the death penalty in this case. Prosecutors refused to agree. Making the agreement would have given the third party transactional immunity (immunity from all prosecution on the crime) rather than use immunity (protection from having the specific testimony used against him). The court clarified, "Our statute is specifically a transactional immunity provision" (see Ill Rev. Stat. 1991, ch. 38, secs. 106-1,106-2,106-3).

This matter was central, but a number of other issues concerning the third party were connected to it. The court concluded that "the conviction . . . and imposition of the death sentence were obtained in full compliance with due process of law .... His guilt has been established beyond a reasonable doubt and his eligibility for the death sentence is manifest."

Justice James D. Heiple's majority opinion in People v Cruz (Docket No. 70407) was filed December 4. Chief Justice Benjamin K. Miller, joined by Justice William G. Clark, dissented. Because of the third party statement Miller said, "I do not believe that the evidence of the defendant's guilt is overwhelming." He disputed the majority's interpretation of the force of that evidence leading to a conclusion that there would be transactional immunity. He also noted what he considered errors in the trial. In a separate dissent Justice Charles E. Freeman also concentrated on the force of the third party evidence.

Utility companies must pay municipalities for "extraordinary" use of streets, such as running cables over or under them. The Illinois Supreme Court filed a 4-3 decision on December 4. AT&T wanted to lay an 85-mile fiber optic long-distance cable along a railroad right-of-way. Five Chicago suburbs wanted to negotiate franchise contracts, with fees, because the cable would have to run under their streets. AT&T originally agreed, but when negotiations over fees broke down, it went to court to try to get out of such contracts altogether. At this point Chicago joined the suit, fearing that an unfavorable decision would allow utility companies to stop paying on all such contracts.

While the case was pending the 7th U.S. Circuit Court held in Dignet v Western Union ATS v City of Chicago (958 F. 2d 1388,1400 (1992)) that such fees are not permitted under the Illinois Telephone Company Act (see Ill Rev. Stat. 1991, ch. 134, sec. 20). It said that to permit them would be to act as if Illinois municipalities are "so many little medieval German principalities." It conceded that Illinois courts could overrule the federal interpretation of state law.

In doing so the Illinois decision first cited a long history of such franchise fees between utility companies and units of government. It then said that municipal corporations exercise proprietary rights in the streets in trust for the citizens, who are entitled to use streets for travel. "No person or company ... has an unfettered right to make a greater use of public streets for his or its own private gain," meaning that nontravel use by utilities involves granting of a franchise, for which a fee may be charged.

For non-home-rule municipalities, proprietary authority in the streets, as opposed to merely regulatory authority, is statutory. It has been recognized in decisions reaching back to 1899 and currently derives from the Streets and Public Ways section of the Municipal Code (see Ill. Rev. Stat. 1991, ch. 24, sec. 11-80-2 et seq.). Furthermore, section 4 of the Telephone Act prohibits construction on public ground "without the consent of the corporate authorities of such city, town or village," and "nothing in the ... Act interferes with a municipality's power to condition its consent upon a franchise agreement that requires payment of a fee ... ."

Home-rule municipalities' power to collect fees from utilities in return for granting franchises derives from the Illinois Constitution. While utility lines such as the one in question here run beyond corporate boundaries, "The right to exercise local control over the use of streets ... is a matter of local rather than statewide concern."

Justice Michael A. Bilandic wrote for the majority in American Telephone and Telegraph Co. v the Village of Arlington Heights (Docket No. 72315). Justice James D. Heiple

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Judicial Rulings                                                                   

(joined by Chief Justice Benjamin K. Miller and Justice Charles E. Freeman) dissented. He argued that the fees are a tax or toll not permitted under existing law and accused the majority of "creating new law under false premises." He raised the larger issue of practicality since "Illinois is no longer a vast prairie with Indians and roaming buffalo" but rather a state with 2,817 units of government that could charge franchise fees. He warned, "If this power is fully implemented and utilized it will result in a crippling of communication and commerce as we know it."

Sounds like "My Mother, the Car!" But cars and other inanimate objects can be taken into court. The plot: A college student, stopped for a traffic violation, tried to hide $50 worth of cocaine under a rear seat rug. Upon his guilty plea he was fined $400 and sentenced to 30 months probation. Authorities also brought civil action to forfeit his car under sec. 505(a)(3) of the Controlled Substances Act (see Ill. Rev. Stat. 1989, ch. 56 1/2). While the student did not contest the act's applicability, the Illinois Supreme Court's decision of December 4 said that the act is applicable because a car is subject to forfeiture if used to "facilitate" violation of the act. Since to facilitate is "to make easier," hiding the cocaine in the car would count.

The student also claimed violation of federal and state protections against double jeopardy. He had already been sentenced on the criminal charge and claimed that depriving him of the car, equipped with special controls that he needed because he is a paraplegic, would be impermissible additional punishment. The court cited Various Items of Personal Property v United States (282 U.S. 577,581 (1931)) on forfeitures: "It is the property which is proceeded against, and, by resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and insentient. . . . The forfeiture is no part of the punishment for the criminal offense." The Illinois opinion observed, "The forfeiture proceeding was initiated for the purpose of removing an instrument of crime." Thus forfeiture does not involve double jeopardy.

This case over the car in court was People v 1988 Mercury Cougar (Docket No. 73369) with the opinion by Justice Michael A. Bilandic.

The Illinois Supreme Court affirmed, and perhaps slightly extended, an earlier decision that strict compliance with regulations governing involuntary admission to mental hospitals is not required when the purpose of the statute is served. The earlier case was In re Splett (143 Ill. 2d 225; see Illinois Issues, May 1991, page 30).

When a petition for involuntary admission is filed, "the court shall direct that notice of the time and place of the hearing be served upon the respondent... ." (see Ill Rev. Stat. 1989, ch. 91 1/2, sec. 3-611). The record of this case shows that notice was served one or two minutes after the filing of the petition. The respondent claimed that commitment should be voided because the notice could not have been at the court's direction. Nevertheless he appeared at the hearing, and his attorney presented his case. In response to the judge's question the attorney said, "I believe that the court file does indicate proper service." In Splett the court spoke of the "empty formality" of demanding strict compliance when the legislative purpose was served by actual if not legal notice. It found this case parallel.

Authorities were a day late in filing a petition to continue involuntary commitment. The court found no problem here either, since the proper alternative — discharge with immediate filing for another initial commitment — would have the same requirements and results as the petition for continued commitment.

Justice Michael A. Bilandic's opinion in In re Nau (Docket No. 71903) was filed December 4. Justice Charles A. Freeman dissented in part. He found that the liberty issues involved in the petition for recommitment outweighed interests in "providing care for those who are unable to care for themselves and to protect society from the dangerously mentally ill." Failure to timely file, he said, would result in discharge of the patient (secs. 813(a), 902(b)) with notice to the state's attorney (sec. 902(d)), who could immediately ask for immediate emergency admission (sec. 601 (a)), thus legally achieving the same result.

The Illinois Supreme Court has struck down as unconstitutional required testing for alcohol or drugs when a driver may have caused an accident involving personal injury, even when there is no obvious indication of intoxication (see Ill Rev. Stat. 1989, ch. 95 1/ 2, sec. 11-501.6). Implied consent, under which drivers are assumed to agree to immediate testing for alcohol and drugs under certain conditions in exchange for permission to drive, has been upheld by earlier decisions.

Attacks on implied consent criticize the testing as violating state and federal guarantees against unreasonable search. Search without probable cause to suspect a crime is permissible to further a legitimate state purpose. Since intoxication is the cause of many accidents, the state is legitimately interested in removing drunk drivers from the roads. Statutes upheld by the court (see sec. 11-501.5) properly require probable cause to believe a driver intoxicated before administering the test. Sec. 11-501.6, however, requires probable cause to believe that the driver caused the accident. The court pointed out that "one of the stated purposes for a search under section 11-501.6 is the collection of evidence for use in a criminal proceeding." It concluded, "Because section 11-501.6 is designed to further this law enforcement purpose, we do not believe it falls within the special needs exemption to the probable cause requirement."

Because the Illinois Constitution guarantees protection from "invasions of privacy" (see Art. 1, sec. 6) it goes beyond federal guarantees in recognizing a "zone of privacy." The court cited a recent case on testing and probable cause (In re May 1991 Will County Grand Jury, 152 Ill. 2d 381; see Illinois Issues January 1993, page 28) to conclude that "chemical tests authorized under section 11-501.6 cannot be conducted when the individual is not charged with any offence unless there is probable cause to believe the individual committed a crime." It also said, however, "Given the relatively low threshold required to show probable cause of intoxication, we do not believe that the State's interests will be left unprotected."

Justice William G. Clark wrote for the majority in King v Ryan (Docket No. 72392). Dissents by Chief Justice Benjamin K. Miller and James D. Heiple emphasized the importance of the law as part of comprehensive legislation aimed at ridding the roads of drunk drivers. According to news stories 373 drivers out of 584 suspended under the law during the first eight months of 1991 were found to be intoxicated. Both dissents disputed the majority interpretation of federal and state cases cited by the state as precedents.

Possible speed and efficiency in legal processes may result from amendment of Illinois Supreme Court rules to allow service of various papers by fax. Parties and attorneys must indicate their willingness for such reception and may also rescind consent. Central was an amendment to Rule 11, which covers general procedures for serving papers. Also affected by needed changes in form are rules 12, 101, 107(a), 131(d), 222(b) and 291(b). The court entered its order on October 30, effective November 15.

                                                                                                                                        F. Mark Siebert

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