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Illinois Supreme Court

Home construction defects
HOME building contractors may be held liable for shoddy construction if the home buyers discover defects before the deed is delivered, the Illinois Supreme Court ruled unanimously May 18. In a decision which may have sweeping effects on the housing construction industry, the court set a precedent by ruling that "it is an implied covenant by the builder-vendor that the house which he contracts to build and to convey to the vendee is reasonably suitable for its intended use." Thus the justices widened the interpretation of "the implied warranty of habitability" doctrine to include more than "the mere fact that the house is capable of being inhabited."

"Many new houses are, in a sense, now mass-produced. The vendee buys in many instances from a model home or from predrawn plans. The nature of the construction methods is such that a vendee has little or no opportunity to inspect. The vendee is making a major investment, in many instances the largest single investment of his life. He is usually not knowledgeable in construction practices and, to a substantial degree, must rely upon the integrity and the skill of the builder-vendor, who is in the business of building and selling houses. The vendee has a right to expect to receive that for which he has bargained and that which the builder-vendor has agreed to construct and convey to him, that is, a house that is reasonably fit for use as a residence," wrote Justice Howard C. Ryan, in explaining the groundbreaking decision of Petersen v. Hubschman Construction Co., Inc.

The case involved a Lake County couple who sued their housing contractor after they failed to receive satisfactory relief from complaints they lodged over construction defects in their new home. A Lake County Circuit Court held that the couple were entitled to $19,688.58 in damages, equal to the down payment and the value of the labor and materials they provided toward the home construction.

"We do not decide in this case what the appropriate remedy would have been if the defects had not been discovered until after the deed had been delivered," the opinion noted.

Theft or robbery?
When property is stolen without violence to a person or threats of physical force the crime should be theft, not robbery, the Illinois Supreme Court held May 18. In a case involving purse snatching, the court ruled unanimously that a Peoria County trial court improperly convicted a defendant of robbery, rather than theft. Theft is a lesser offense -- a Class 3 felony, rather than a Class 2 felony -- and carries a lesser sentence than robbery.

According to trial testimony, Mrs. Rita Alexander's purse was stolen as she was on her way to church in Peoria Heights in 1976. Although her arm was thrown back "a little bit" bv a "swift grab," as she put it, Mrs. Alexander was not injured or threatened by the thief, nor was there a struggle. However, the prosecution contended "that any amount of physical force whatsoever, employed to overcome the force exerted by the person to maintain control over the object in hand, is sufficient to bring the act of taking within the robbery statute . . . (III. Rev. Stat. 1975, ch. 38, sec. 18-1 (b)). The defendant contends that his behavior, without more [violence or threat of violence], amounted only to theft from the person."

Relying upon earlier cases, the court held in People v. Patton that "where an article is taken, as it was put in Hall v. People (1898) . . . 'without any sensible or material violence to the person, as snatching a hat from the head or a cane or umbrella from the hand' the offense will be held to be theft from the person rather than robbery." The opinion, delivered by Justice Daniel P. Ward, upheld an appellate court judgment which reversed the robbery conviction and remanded the cause to a Peoria circuit court "with directions to enter a judgment of conviction for the less serious offense of theft. . . ."

Representation of special purpose hoard
The Illinois Supreme Court ruled May 18 that a nonelective special purpose district board need not represent all constituents governed by its decisions on a one-man, one-vote basis. The justices voted 6-0, with Chief Justice Joseph H. Goldenhersh taking no part, that "there is no constitutional requirement that the appointed governing body of a district be so constituted that a majority of its members 'represent' the more populous of the areas which compose the district. Indeed, when an officeholder need not be elected at all, it seems questionable to speak of him as a 'representative.'"

Eastern v. Canty involved a complaint by a member of the Metro-East Sanitary District commission, Robert Eastern. His term as commissioner was to expire in November 1977. Under section 3-1 of the sanitary district act (///. Rev. Stat. 1977, ch. 42, sec. 503-1), Eastern was to be replaced by a person nominated by Nelson Haghauer, the chairman of the Madison County Board, from among Madison County sanitary district residents, rather than from St. Clair County sanitary district'residents. Madison County was favored under section 3-1 on the grounds that "the equalized assessed valuation of property located in the Madison County portion of the district now exceeded that of property located in the St. Clair County portion." Eastern contended that section 3-1 violated the equal protection clause of the U.S. Constitution, an argument supported by the trial court decision in St. Clair County.

The Supreme Court disagreed. "What we see as of first importance ... is that the district's commissioners are not elected but appointed," wrote Justice Daniel P. Ward. He cited many "applicable decisions of the Supreme Court of the United States."

U.S. Appellate Court

Mandatory retirement
The United States Court of Appeals for the Seventh Circuit upheld an Illinois statute requiring judges to retire at age 70, in a March 16 decision. The court found that the retirement law (///. Rev. Sta,: 1977, ch. 37, sec. 23.71-2) does not violate the equal protection or due process clauses of the U.S. Constitution. Section 1 of the law provides that a judge must retire "on the first Monday of December next after the general election at which members of the General Assembly are elected immediately following the attainment of age 70 of such judge." Section 2 of the act allows judges in office prior to the effective date of the act -- September 12, 1973 -- to remain in office until they had served long enough to secure certain pension rights.

The court ruled that the equal protection clause does not prohibit the legislature from adopting a more rigorous policy for assuring excellence of the judiciary than for other elective offices. The court emphasized that the right to hold government office and the right to run for elective office are not fundamental in our society, nor is age limitation an unfair restriction of those rights.

The court held in Trafelet v. Thompson that "any limitation on voting rights was incidental to a classification not aimed at voters or elections."

July 1979 / Illinois Issues / 28