Court Briefs                                                                   

Customers to pay for cleanup

Federal and state laws require utility companies to remove hazardous wastes. Now an Illinois Supreme Court decision allows those companies to bill current customers for the cost of cleaning up old gas plants.

For a century manufactured gas was used for heating and cooking. In the 1950s it became feasible to switch to natural gas, and the old gasworks shut down — leaving a residue of hazardous waste.

The Illinois Commerce Commission had ruled that the cost of the cleanup should be spread over five years and that companies could not charge interest on the unpaid amount. The high court disallowed this scheme.

The court found that because the cleanup is required by law, it constitutes a cost of doing business. The court also cited decisions by the commission and the courts that have historically allowed companies to pass the costs to customers.

Two justices dissented. Justices Moses W. Harrison II and Charles E. Freeman argued that there is no benefit to current customers from a cleanup that, had its necessity been recognized at the time, should have been paid for by past customers.

"Plain touch" applies in Illinois

One Illinois Supreme Court justice believes that "the pendulum has swung too far" in the war on crime. Justice James D. Heiple made the comment in his dissent to the court's decision that contraband can be seized if an officer feels it during a patdown search for weapons.

In this case, an officer had stopped a car that was running without lights. He noted drug paraphernalia on the front seat, which allowed him to conduct a legal frisk for weapons. In a shirt pocket he felt a hard substance in a plastic baggie, which he concluded to be rock cocaine.

He was correct. The driver was eventually found guilty of possession.

The Illinois court followed the U.S. Supreme Court in extending the "plain sight" doctrine — which allows seizure of contraband observed during a legal vehicle search for weapons — to a "plain touch" doctrine.

The court also stipulated that the officer must identify the object by initial touch and not by further manipulation and that there must be probable cause to believe it to be contraband (in most cases this means drugs).

Heiple worried that the "plain touch" doctrine will encourage officers to investigate any lump or bulge in a person's clothing or pockets that arouses their curiosity during the course of a patdown search.

Attorney-client privilege may be extended to others

The Illinois Supreme Court acted to safeguard the attorney-client privilege by extending the privilege to other client relationships — even when the public's interest in the prosecution of crime may suffer.

The court ruled that the state could not subpoena notes and testimony of a psychiatrist retained by the defense but not called as a witness.

The defendant, charged with murder, had first planned an insanity defense. A defense-retained psychiatrist examined her two weeks after the crime, but when she pleaded guilty, the insanity issue was dropped.

Four years later she was able to withdraw the plea because of ineffective assistance of counsel. She renewed the insanity defense when the state reopened the case. When her attorneys announced that the psychiatrist's testimony would not be used, the state sought to subpoena it as the only examination made near the time of the crime.

In February 1994 the Illinois Supreme Court had ruled in this case that the state could have the evidence (see Illinois Issues, April 1994, p. 38). It applied the attorney-client privilege to psychiatrists retained by the defense to help prepare its case but not called as witnesses. However, because of the unique facts of this case, it created an exception in favor of the need of the courts to determine the truth.

Now the court has reversed itself.

Writing for the majority. Justice Mary Ann McMorrow paraphrased Justice Moses W. Harrison II's dissent in the original opinion: "If we were to accept the argument that the relevance of the evidence justified its admission, notwithstanding the attorney-client privilege, no claim of privilege could ever prevail. The exception would devour the rule."

Justice James D. Heiple added a general caution: "Justice belongs not alone to a defendant, but to the public as well. The truth-seeking function of a trial should not be written off or incautiously disregarded."

Contraband in prisons

It seems simple: Possessing contraband in prison — generally weapons and drugs — should be prohibited.

The law is rarely that simple. An Illinois Supreme Court decision was needed to settle four separate challenges, on constitutional grounds, to the law prohibiting such possession.

In these cases visitors were caught with contraband (marijuana in two cases, PCP in one, a small knife in the fourth) and brought successful challenges in lower courts because the statute makes a person guilty of a class 3 felony for possession "regardless of the intent with which he possesses it."

On the street the possession would be less serious or, in the case of the knife, not even a misdemeanor. The high court managed to preserve the statute's constitutionality by finding that this must be "knowing possession."

Co-owners of cars have rights

A father who co-signed his son's auto loan and was listed as co-owner cannot be held responsible for injuries to a third party in an accident involving the car.

If he had given or sold the car to the son, the situation might be different. The father merely signed an order to make the sale possible, but he had no intention of exercising any control over the car.

The son was an adult living away from home. Because of the son's bad driving record, the plaintiff argued that facilitating the purchase in the first place was a case of "negligent entrustment." The Illinois Supreme Court disagreed.

Because the son traded in a car. Justice Benjamin K. Miller said that "it is speculative at best to say that, but for Robert's agreement to co-sign the loan, Daniel would not have enjoyed the possession and use of the vehicle."