Judicial Rulings

Sweeping clean the rules on particulate emissions

ILLINOIS Pollution Control Board (PCB) will have to come up with new regulations for controlling paniculate emissions from coal-fired furnaces. The Illinois Supreme Court February 4 struck down the last such remaining rule when it overturned a decision by the PCB to deny an operating permit to a Peoria roofing plant.

In Celotex Corporation v. The Pollution Control Board, the high court invalidated a state standard on "opacity," the amount of light that can pass through the smoke coming out of a smokestack.

Justice Daniel P. Ward, writing for the court, pointed out that the standard (Air Pollution Rule 202) was tied to similar rules that had been declared invalid in a 1976 case because the PCB did not consider their "economic reasonableness."

The high court did not agree with the appellate court decision in this case which declared all of Rule 202 invalid. The high court let stand the provisions dealing with pollution sources that do not involve coal-burning.

The PCB was ordered to reconsider Celotex' request for a permit, and the permit can now be denied only if the corporation does not comply with other pollution rules.

The varied views of justices on death penalty procedures

WHAT SHOULD be allowed as evidence during the sentencing hearing in a death penalty case? Should limits be placed on the prosecution? Should the Illinois Supreme Court step in as an advocate for a condemned person if his/her attorney fails to raise objections during the hearing?

These and other questions divided the high court in three death penalty rulings January 24. Justices Seymour Simon, William G. Clark and Joseph H. Goldenhersh signed dissent opinions in one ruling that upheld the death penalty. In the second case, only Simon and Clark signed dissents. In the third case, which was returned to the circuit court for reconsideration, Chief Justice Howard C. Ryan, along with Justices Daniel P. Ward and Robert C. Underwood, took exception to the majority opinion.

In the two cases upheld, People v. Robert Kubat and People v. James P. Free Jr., the dissenting justices said that errors committed by the prosecution during the sentencing hearings should have negated the death penalty. The majority of the justices had said that the fact the defense failed to object constituted a waiver of any appeal on the basis of the errors. Commenting in the dissent on Free, Simon pointed out that the high court has frequently addressed "plain errors that affect substantial rights of the parties. . . . even though there was no objection at trial."

In both Kubat and Free, the dissenting justices agreed with the defense that irrelevant and inflammatory evidence brought up in the sentencing hearing prejudiced the juries. Clark disapproved of the prosecution's introduction of evidence of a burglary for which Free was not charged. He said guidelines are needed "because of the frequency with which this court has been confronted with questions of possible prosecutorial overreaching in the sentencing hearing." Clark said that either the high court or the legislature should place limitations on the type of evidence which can be introduced in sentence hearings where the death penalty may be given.

"Prosecutorial overreaching," among other errors, resulted in the high court's decision to vacate the death penalty in People v. John L. Szabo. The case was returned to the Will County Circuit Court for possible retrial because notes made by the prosecution, during pretrial interviews with its main witness, were not available to the defense. During the course of the trial and hearing, the defense had never objected to statements made by the prosecution. This prompted Ryan's dissent, in which he called for a consistent policy for dealing with the question of whether the high court should step in on behalf of the defendant. Ryan believes the high court should do so only in extreme cases. It should not attempt to guess why the defense did not object to a possible error, he said.

In the two death sentences upheld, an execution date of May 12 was set for Kubat, and May 24 for Free.

Domestic violence act is constitutional

ILLINOIS' DOMESTIC violence act is constitutional, the Illinois Supreme Court ruled January 24. The high court's decision freed up about $350,000 collected from marriage and divorce fees under the Domestic Violence Funding Act. The money has been held in escrow since a challenge was filed in Winnebago County Circuit Court in January 1982.

In the case, Paul P. Gill, County Clerk et al., v. Jeffery C. Miller, Director of Public Aid, Gill and Winnebago Circuit Court Clerk Ronald Kotche contended that the law was unconstitutional because it bypassed the county treasurer in the collection and depositing of the fees. The circuit court agreed, but ordered the clerks to continue collecting the money while the case was under appeal. In the meantime, the legislature amended the act to be in accordance with the Constitution.

The high court ruled that the money collected between January 1, when the original act took effect, and August 5, 1982, the date of the amendment, should go to the Domestic Violence Fund. In the opinion, Justice Daniel P. Ward noted, "Undoubtedly the provision that the county clerk rather then the county treasurer should deposit the fees was simply a legislative inadvertence or mistake."

Eligibility for supervision in misdemeanor cases

A PERSON found guilty of a misdemeanor is as eligible for supervision as one who pleads guilty, the Illinois Supreme Court ruled February 4. In the unanimous decision in People v. Barbara Boykin, the high court agreed with the appellate court.

In an extensive examination of the legislative history of the issue, the high court pointed out that it had referred the matter to the legislature in 1976 after the court had determined that judges did not have the authority to place defendants on supervision. The eventual legislation, according to the high court, allows defendants found guilty of a misdemeanor to be placed on supervision. The case has been returned to Cook County Circuit Court, which will reconsider Boykin's eligibility for supervision.

Policemen and polygraphs

IN A DECISION that will affect the internal operations of police departments across the state, the Illinois Supreme Court ruled January 24 that police officers cannot be forced to take lie detector tests. The court also said polygraph evidence cannot be included as part of a police department administrative hearing.

In John Kaske, et al., v. The City of Rockford, two policemen brought suit in 1981 against the city and the chief of police

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to block an order that they submit to polygraph testing. The consolidated case included the appeal of an Itasca officer, Robert Collura, who challenged his firing by the Itasca fire and police commission based on the results of a lie detector test.

Saying police officers should have the same rights as the criminals they arrest, the high court cited its decisions in criminal cases barring the use of the tests as evidence. Justices also agreed with a 1981 Illinois appellate court decision, Sommer w. Goetz: "that while the rules of evidence are not as rigidly applied at an administrative hearing, such a relaxation of rules 'cannot abrogate the right to a just, fair and impartial hearing.'"

Abortion clinic's patients identified for grand jury

THE STATE'S RIGHT to ferret out wrongdoing overrides patient confidentiality, the Illinois Supreme Court ruled January 24. In People v. Regalado Florendo, the high court upheld a Cook County Circuit Court ruling ordering Florendo, who operates an abortion clinic in Chicago, to reveal names of patients to a grand jury, which wants to subpoena them.

The main issue in the case centered on whether disclosure of a patient's name to a grand jury violated the physician-patient privilege. Writing for the court, Justice Thomas J. Moran said only the grand jury would hear the testimony of the women who received services at the clinic. He also noted that the names had already been disclosed to the Illinois Department of Public Aid, which paid for the treatment.

Justice Seymour Simon took exception, saying that the grand jury showed no clear purpose for wanting the names, or why they were investigating the clinic. He also charged that the women were being discriminated against because they had received public aid. Simon suggested that the court's decision will "chill the exercise of the constitutional right recognized in Roe v. Wade," the 1973 U.S. Supreme Court case, which legalized abortions.

Du Page County squabbles over courtroom space

ACTING as mediator between the Du Page County Board and the Du Page County Circuit Court, the Illinois Supreme Court January 24 upheld the right of the chief circuit judge to demand adequate space and facilities for his court. (The court has added four judges to accommodate rapid population growth in the county.)

In Jack T. Knuepper v. Bruce R. Fawell, the high court said that while Chief Judge Fawell was correct in ordering the county to provide additional space, steps should be taken to reach a compromise. With the high court as supervisor, the two branches of local government were given 120 days to come up with a plan.

The circuit court and the county board have been struggling for two years to find room for additional court facilities. With 28 judges trying to work in 24 courtrooms, Fawell issued an order in January 1982, telling the county he would "seize 8,100 square feet in Du Page Center" (the county's administrative building), if the county did not come up with an expansion plan.

County Board Chairman Knuepper appealed to the high court, saying Fawell had "exceeded the scope of his authority." He said the judiciary has the power to regulate only those facilities already existing. The high court said that while counties have the primary responsibility to provide judicial facilities, and Fawell had the right to issue his order, "such [judicial] power is to be exercised sparingly. . . . and only in exigent circumstances."□

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