Judicial Rulings

Term limits opinion at last: issue won't make it to the ballot

The Illinois Supreme Court on September 12 refused to reconsider its opinion preventing the proposed referendum on legislative term limits from appearing on the November ballot.

State Treasurer Patrick Quinn, the spearhead of the movement for term limits, had called for a rehearing, arguing that since three members of the majority are members of the Chicago Bar Association, the plaintiff organization, they should recuse themselves.

The court had filed its opinion, per curiam, on September 7, explaining its order of August 10.

Justice Moses W. Harrison II's dissent, joined by Justices Benjamin K. Miller and James D. Heiple, had been filed with the order (see Illinois Issues, September 1994, p. 35).

Citizens' organizations had filed valid petitions to place an amendment on the ballot; it would have limited service in the state legislature to eight years (including a provision that would have barred House members with six years' service from running for the Senate). Positions on the question center on the language of the Illinois Constitution pertaining to amendment by citizen initiative: "Amendments shall be limited to structural and procedural subjects contained in Article IV" (Art. XIV, sec. 3).

Previous decisions had held this to mean that amendments would have to affect both structure and procedure (Coalition for Political Honesty v State Board of Elections, 65 111. 2d, 453, 461 (1976) — referred to as Coalition I; Chicago Bar Association v State Board of Elections, 137 111. 2d 394, 396 (1990)). The majority quoted Coalition I: "This court is without authority to substitute 'or' for the 'and' [that] the constitutional convention used. ..." The dissent, relying on a dissent in Coalition I, said: "Conventional principles of construction and English usage, together with the published reports and debates of the constitutional convention, yield the conclusion that amendments by initiative need not deal simultaneously with both procedural and structural subjects."

The majority held that even if the matters are separable the amendment does not pass muster. On structure: "The eligibility or qualifications of an individual legislator does [sic] not involve the structure of the legislature as an institution. The General Assembly would remain a bicameral legislature." On procedure: "The process by which the General Assembly adopts a law would remain unchanged." The dissent argued: "The proposal relates solely to the composition of the legislature as set forth in section 2 of article IV."

The majority did not touch on some of the adverse effects described by the plaintiffs, but the dissent did, saying, "Without an initiative, there is no realistic possibility that a term-limit amendment can ever be realized."

Warrantless search of auto

The Fourth Amendment guarantees against unreasonable searches, not against all searches. Certain searches of a vehicle are reasonable and therefore permissible under the Illinois Supreme Court's ruling of August 4.

In two unrelated cases cars were stopped for minor traffic violations — a missing front license plate and a burned-out license plate bulb. One driver had a suspended license. The other, a minor, was driving a vehicle with an open beer can visible. In both cases officers found cocaine upon searching the vehicles. One defendant had apparently tried to conceal the cocaine. Both defendants argued that the searches were groundless.

The United States Supreme Court provided rules for vehicle searches so that officers can assure that stopped drivers do not have weapons: "When a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile" (see New York v Belton (1981) 453 U.S., 460). Further, "The authority to search does not depend on the probability in a particular case that weapons would indeed be found" (Belton, 461). Here the officers reasonably arrested the defendants, one for the suspended license violation and the other because of the open beer can, and went ahead with the search.

Justice Charles E. Freeman wrote the opinion in People v Bailey and People v Wiest (Docket Nos. 75994 and 76036 cons.).

Jurisdiction on sexual harassment lies with commission

Charges of sexual harassment must be brought before the Human Rights Commission, not in the courts, the Illinois Supreme Court ruled August 4.

An employee charged that her immediate supervisor harassed her sexually, and she brought action against the employing company for negligent hiring and negligent retention under common law and tort. She argued that the supervisor's previous history of harassment could have been discovered as a bar to employment.

When the case reached the Supreme Court the company raised the new argument that her claim was tantamount to a charge of sexual harassment. The Human Rights Act provides that "no court of this state shall have jurisdiction over the subject of an alleged civil rights violation ..." (see ///. Rev. Stat. 1989, ch. 68, par. 8-111(0), while sec. 2-102(D) makes sexual harassment a civil rights violation. Without the charge of harassment, the plain tiff "would have no independent basis for imposing liability on her former employer under the facts present here," said the court.

The Human Rights Act limits recovery to actual damages, and defense will not be as onerous for the employer as a court case would be.

Justice Moses W. Harrison II wrote for the court in Geise v Phoenix Co. of Chicago (Docket No. 76059).

Bell off the hook

The Illinois Supreme Court has reversed its ruling on economic damages resulting from the 1988 fire in Illinois Bell's Hinsdale switching station. No new facts or arguments were introduced on rehearing. In its July 28 opinion the court found reasons to interpret the act more broadly and also said that Moorman principles apply. It allows control by an exculpatory clause in the company's tariff filed with the Illinois Commerce Commission. This limits damages to the amount of fees for services during the period of suspended service.

Justice James D. Heiple, author of a previous extensive dissent, now wrote for the majority in In re Illinois Bell Switching Station Litigation (Docket No. 73999). Justice Moses W. Harrison II, author of the prior opinion, dissented, joined by Chief Justice Michael A. Bilandic. Both generally reiterate reasoning set forth earlier. Justice Benjamin K. Miller wrote a special concurrence calling for separate consideration of the application of Moorman.

Heiple pointed out the tremendous number of calls handled by the station, and said that a practical result of the August decision could be such enormous damages that the subscribers could end up owning the company. Harrison said, "I for one see no particular objection to such a result. If the plaintiff customers were in control of the system ... they might have the sense to call the fire department before a major link in the network is reduced to a mass of melted wire." In August 1992 a divided court said that Bell was liable for all economic damages under the Illinois Public Utilities Act (see 220 ILCS 5/1-101 et seq.; Illinois Issues, October 1993, p. 28). At the same time it rejected the company's argument that claims had to be made under contract law through application of the Moorman doctrine. 

F. Mark Siebert

32/October 1994/Illinois Issues