Judicial Rulings                                                                 

Effective immediately, hearing boards of the Attorney Registration and Disciplinary Commission (ARDC) will be able to include nonlawyer members. The Illinois Supreme Court issued changes in Rule 753(c) on October 15.

Three-member panels of hearing board members hear charges made against attorneys that have previously been judged subject to detailed investigation by an ARDC review board. In effect, they try the case. Since 1989 the three-member review boards have included one nonlawyer member. The changed rule on hearing boards does not specify the number of nonlawyer members for hearing boards, but implies that there shall be one. It provides specifically that the lawyer to nonlawyer ratio in the membership of the hearing board itself shall be 2 to 1.

The move extends the overhaul of the attorney disciplinary system begun in 1989 in an attempt both to improve function and to reverse a perceived diminution in public confidence (see Illinois Issues, December 1989, page 22). The actual implementation will probably not occur until March, when terms of current board members expire.

On the same date the Supreme Court issued some technical changes to make language of the Code of Professional Conduct gender-neutral. Perhaps more significant were changes in Rule 63 A(8)(9) and the committee commentary, prohibiting sexual harassment by judges as well as discrimination for race, gender, religion or national origin.

The Illinois Supreme Court may have been sending a message to attorneys about more careful observance of rules. On September 23 it imposed a three-year suspension on a divorce attorney after the Hearing Board of the Attorney Registration and Disciplinary Commission (ARDC) had recommended only a one-year suspension, and the ARDC Review Board had reduced this to six months.

The Hearing Board had found seven counts of misconduct against the attorney, centering on improper handling of client's funds in seven cases between 1983 and 1989. It was found that his normal workday was from 4:30 a.m. to 7:15 p.m., that he often had several hundred active cases and that he was also active in coaching and officiating school athletics. The Hearing Board said, "Corners were cut, not dishonestly or fraudulently, but in order to keep pace with the demands of trying to handle too many cases without proper assistance."

The court imposed the stiffer penalty after finding precedent in several similar cases in order "to ensure predictability and fairness in future disciplinary cases."

Justice John L. Nickels wrote the opinion in In re Timpone (Docket No. 74928); Justice Mary Ann McMorrow did not participate.

The Illinois Supreme Court has ruled constitutional varying regulations for home rule jurisdictions with different-sized populations. At issue was a 1988 amendment to the Public Employee Disability Act that gives a year's pay to certain disabled employees but does not apply to jurisdictions with populations over one million (see 5 ILCS 345/1 sec. 1).

The city of Springfield had refused to give a disabled fire fighter more than 90 days pay provided under city ordinance. It claimed that the act violated equal protection guarantees of the state Constitution. The court observed that its decision would also apply to federal protections since state and federal clauses are determined under the same standard. Since the act does not affect a fundamental right nor implicate a suspect class, the test is whether the challenged classification rationally relates to a legitimate state interest.

Chicago and Cook County are the only jurisdictions touched by the act's exception, and at the time of the amendment both granted the affected classes of employees the one-year benefit, achieved by collective bargaining. The court said, "The legislature might have considered that the relative bargaining strength of the employees in those two localities made State intervention unnecessary." A number of other statutes relating to wages and benefits make similar distinctions according to population.

Nor did the court accept the argument that selective preemption of home rule powers violates the constitutional establishment of those powers (Art. VII, sec. 6). Section 6k classifies home rule units according to population for tax purposes, and the court would not agree that this implies that they must be treated equally for all other purposes. It said, "Apart from section 6(k) ... we do not discern ... any additional restriction on legislative action, or any limitation peculiar to preemption, that would further limit the authority of the legislature to distinguish among units of local government, including home rule units."

Chief Justice Benjamin K. Miller wrote the opinion in Nevitt v Langfelder (Docket No. 74405), filed September 23.

The Illinois Supreme Court has ruled that all payments received under the Workers Compensation Act (see Illinois Revised Statutes 1983, ch. 48, par. 138.8) will offset disability payments due under the Illinois Pension Code (see Ill. Rev. Stat. 1983, ch. 108 1/2, par. 9-159(c)). The opinion was filed September 23.

A plumber injured while working at Cook County Hospital received 66 2/3 percent of his salary as temporary total disability benefits under section 138.8b of the Workers Compensation Act. Under section 138.8d(2) he also received a lump sum settlement of $48,848.92 as a permanent partial disability benefit for 65 percent loss of use of his right arm. Since the Pension Code provides for payment of 75 percent of salary for periods of disability resulting from work injury, he claimed payment for the same period under which he received the temporary total disability payments.

The Pension Code says, "If an employee who shall be disabled receive[s] any compensation or payment from the county for specific ... disability ... under the Workers Compensation Act, the disability benefit ... shall be reduced by any amount so received or recoverable." The plaintiff claimed that this should apply only to the temporary total disability benefits and that he should receive an additional 8 1/3 percent of salary. The court said that the language of the Pension Code "does not distinguish between temporary total disability benefits and permanent partial disability benefits under the Workers Compensation Act."

The opinion in DiFoggio v Retirement Board (Docket No. 74563) was by Justice Charles E. Freeman.

The Illinois Supreme Court found that the legislature went too far in its attempt to keep parties in the process of divorcing from disposing of marital property. Its decision was filed September 23.

Once a divorce action has been instituted a dissolution stay goes into effect, under which both parties are prevented from "in any way disposing of any property, without the consent of the other party or an order of the court," (see 750 ILCS 5/501.l(a)(l)). Parties must notify each other and the attorneys of intention to dispose of property. Exceptions are made for ordinary business and living expenses and

December 1993/Illinois Issues/25

Judicial Rulings                                                                 

attorneys' fees. The provision became effective January 1, and on January 20 the Supreme Court amended its rules to take account of the provision. On January 4 the plaintiff in this case filed for divorce and immediately challenged the constitutionality of the provision.

The court rejected the state's description of the provision as no more than a requirement of notice. The court said, "It is plain that the effect of section 501.1(a)(l) is to restrain each party ... from disposing of any and all property, including that qualifying under the Act for the designation 'non-marital property.'" This restrains the disposition of "property to which the other spouse can lay no claim upon the division of 'marital property'" and is not a rational means of achieving the legislature's purpose.

Justice Moses W. Harrison II wrote the opinion in Messenger v Edgar (Docket No. 75132).

The equivalent of malpractice insurance for realtors does not cover them when they are sued for illegal activities. The Illinois Supreme Court filed its decision on September 23.

In this case two employees of Dependable Realty Inc. left the company and went to Mid-State Realty Inc. Because of their actions Dependable charged Mid-State with eight counts of unfair and illegal practices, such as stealing customers and secret sales techniques. Mid-Sate tried to get its insurers, Crum and Forster, to defend it.

The policy is a common type, known as an "error-and-omissions" policy; it requires the insurer to defend against claims "arising out of the Insured's profession as a real estate agent or real estate broker ...." The court said, "Dependable's claims are not made ... because the insureds somehow incorrectly performed real estate services such as the listing of properties. Dependables claims ... have arisen because of the insureds allegedly tortious conduct and unfair business practices." The latter activities do not fall within the policy.

While the underlying action was pending, Mid-State went into receivership, with its rights under the policy going to the Resolution Trust Corporation, which thus became defendant. Justice Michael A. Bilandic wrote the opinion in Crum & Forster Managers Corp. v Resolution Trust Corp. (Docket No. 74673).

Some clarification of the jury selection process, or rather the process whereby some types of persons are not selected, emerged from a decision of the Illinois Supreme Court filed October 21. In this murder case the defendant had moved for mistrial following jury selection, claiming that the state had used peremptory challenges to exclude African Americans solely because of race — a purpose forbidden by the Batson decision (Batson v Kentucky (1986), 476 U.S. 79).

Of the 42 persons interviewed for the jury 14 were African-American. Three were chosen to serve, but the state used five of its 11 peremptory challenges to excuse African Americans. Both the defendant and his victims were African Americans.

The Illinois Supreme Court has held that the defendant must first make a prima facie showing of discrimination. Significant factors would include racial identity between the defendant and the prospective jurors, a disproportionate use of challenges against African Americans, whether those excluded were a heterogeneous group with race as the only common characteristic, a pattern of challenges against African Americans and the nature of the state's questions. Then in a clear second step the trial court requires the state to explain the questioned challenges. Batson proceedings apply to the specific case, not to a pattern of behavior by the state over many cases.

Here the trial judge made remarks that implied application of the pattern standard. Furthermore, the state only explained its reasons about one prospective juror, and the high court saw a muddling of the two-step process. The court said, "We find it highly significant that the excluded prospective jurors were a heterogenous group that shared race as their only common characteristic," and it added, "The excluded African-American venire members shared non-racial characteristics with the other venire members who were accepted by the prosecution." Also significant was the prosecution's use of nearly half of its challenges on African-Americans. It concluded, "The circumstances ... were sufficient to establish a prima facie case ... and the prosecution should have been called upon to provide reasons for its peremptory challenges of all of the African-American prospective jurors excluded by the prosecution."

The case was remanded, and the state must explain all its challenges to see whether they violated the Batson standards. Justice Mary Ann McMorrow wrote for the majority in People v Wiley (Docket No. 71320). Chief Justice Benjamin K. Miller's dissent pointed to a case in which the court overruled a Batson challenge where there were similar proportions of challenges to African Americans. He found no discriminatory intent in prosecutor's remarks and said, "I would conclude that the trial judge's ruling was not against the manifest weight of the evidence."

F. Mark Siebert

26/December 1993/Illinois Issues