Judicial Rulings

Law upheld denying supervision for repeated drunk driving

THE Illinois Supreme Court upheld a state law prohibiting drunk drivers from receiving court supervision for repeat offenses occurring within five years of their first convictions — even when the first supervision was imposed before the law took effect. In People v. Coleman (111 Ill. 2d 87), the high court January 23 overruled a circuit court decision that the state's 1984 statute dealing with drunk driving (Ill. Rev. Stat., 1984 Supp., ch. 38, sec. 1005-6- 1(d)), effective January 1, 1984, was unconstitutional when applied to a driver whose first conviction occurred before the law took effect and whose second offense occurred afterwards.

The defendant, James Coleman, was arrested for driving while drunk in 1981 and placed under court supervision. In August 1984, he was arrested for the same offense. Coleman pleaded guilty to the charge and requested another term of supervision. The prosecutor argued that Coleman was ineligible for another term of supervision under the 1984 statute. The circuit court agreed with Coleman, saying the new law was both ex post facto and an unconstitutional violation of Coleman's rights to equal protection.

Justice Ben Miller, author of the high court's unanimous opinion, said the law is neither ex post facto nor a denial of Coleman's equal protection rights. The court said that a law increasing the penalty for a second offense is not unconstitutional in cases where the first offense occurred before the law was enacted.

The purpose of the constitutional ban on ex post facto laws is to guarantee that people have fair warning that certain actions are violations of the laws, noted Miller. Coleman had fair warning, according to Miller, since he was charged with the second drunken driving offense seven months after the new law took effect. Miller noted that recent amendments (Public Act 84-916) to the drunk driving statutes do not substantially affect this case.

Porter McNeil

Chicago dock tax upheld

DID the Chicago City Council have the constitutional authority under its home-rule powers to enact a Chicago boat mooring tax in 1983? The Illinois Supreme Court said yes in a decision handed down January 23 (Chicago Park District v. City of Chicago, 111 Ill. 2d 7).

The Chicago Boat Mooring Tax ordinance, passed by the Chicago City Council, levied a tax on the city's moored watercraft; the amount was set at 50 percent of the mooring fee. The city ordinance required those who paid the mooring fee to the Chicago Park District to be liable to the city for the 50 percent tax.

The district argued that the ordinance was unconstitutional because (1) the city of Chicago, as a home-rule unit, does not have the constitutional power to impose the mooring tax, and (2) the amount of the tax "represents an impermissible regulation of or interference with District operations."

Article VII, section 6 of the Illinois Constitution defines the powers of home-rule units as follows:

"Except as limited by this section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt." The district argued that Chicago harbors are not part of the "government and affairs" of the city and, therefore, cannot be taxed under the Constitution's grant of power in section 6. Further, the district cited a number of statutes that it said illustrate a legislative intent to exclude harbors from the "government and affairs" of the city.

Responded Justice Daniel P. Ward, writing for the court, "We do not consider that the simple existence of these statutes shows that the city was deprived of authority to enact the ordinance."

The district also argued that its position was supported by the high court's 1979 holding in Board of Education v. City of Peoria (76 Ill. 2d 469), which invalidated the imposition of a homerule restaurant tax on a local school district. In the Peoria case, the court found it unconstitutional to impose the burden of collecting the tax on the school district, but said it was permissible to impose the responsibility of tax collection on the Peoria Park District. Said Ward, "In reaching the conclusion, the court judged that the General Assembly, by enacting legislation pertaining to park districts, did not manifest an intent to assert an exclusive statewide dominion over parks or park districts."

Nor did the high court agree with the district's argument that several statutes have precluded Chicago city government from "governmental participation in recreational harbors." Ward said that the harbors are within the corporate boundaries of the city and that the city "is simply taxing an event that occurs within its boundaries and in an area for which it provides services."

The district also contended that even if the city had this power to tax, the rate of the tax (50 percent of the mooring fee) is excessive, illegally interferes with the financing of bonds relating to harbors and would decrease the demand for moorings. The high court said those concerns are "merely speculations" and that, ultimately, tax rates are matters for legislative bodies, not courts.

Ward noted that the district's argument that the tax is an unreasonable burden and an abuse of home-rule authority was similarly made in City of Evanston v. County of Cook (1972, 53 Ill. 2d 312), where the county imposed a tax on the sale of new motor vehicles within the county. In that case the court ruled that Article VII, section 6(g) of the Constitution enables the General Assembly to protect against possible abuses of home-rule and "prevent or rectify the hardships which plaintiffs envisage, should they occur." Section 6(g) gives the legislature the authority to deny or limit a homerule unit's power to tax by a three fifths vote of each house.

Porter McNeil

Insurance policies are contracts; no presumptions allowed

AN insurance contract must be cancelled in the same manner as any other contract, that is, by the terms of the policy or by mutual agreement of the parties, according to a January 23 Illinois Supreme Court ruling in Copley v. Pekin Insurance Company (111 Ill. 2d 76).

In this case, Pekin Insurance Company rejected a claim for the December 15, 1981, fire that destroyed Joel Copley's Appliance Alley store. Before the fire, Copley had purchased a second insurance policy on his appliance business from Federated Mutual Insurance Company, with vague intentions of having his policy with Pekin cancelled. Pekin claimed that under the doctrine of cancellation by substitution, Copley had surrendered his Pekin coverage when he bought the second policy from Federated.

Justice Ben Miller, delivering the high court's unanimous opinion, said that under an earlier view of the doctrine of cancellation by substitution, an individual's original policy could be cancelled if he or she merely bought a substitute property insurance policy with the intent to replace the original policy. But Miller said, "A growing number of jurisdictions . . . hold that the purchase of replacement insurance, even with the intent to cancel existing coverage, does not cancel the existing policy."

The insurance company argued that the cancellation doctrine has been a long-standing principle in Illinois insurance law, citing the 1904 case of Larsen v. Thuringa American Insurance Co. (208 Ill. 166). But the Larsen ruling held that an existing policy was cancelled only when the insured gave up his existing policy to the original insurer, Miller said. Copley did not surrender his policy with Pekin, the high court said. Miller wrote, "Testimony at trial court revealed that Copley did not surrender his Pekin policy to Pekin Insurance or to an agent of Pekin" nor did Pekin agree to the cancellation of Copley's policy.

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Concluded Miller, "The substitution rule appears to have little basis within the law of contracts. Accordingly, we hold that insurance policies, like other contracts, may be cancelled only in accordance with the terms of the insurance contract, or through the mutual consent of the insurer and the insured. The weight of modern authority is in accord, [citations] Copley did not cancel his policy with Pekin Insurance pursuant to the terms of the policy."

Porter McNeil

Time closes court doors in medical malpractice, product liability suits

DECISIONS handed down on February 6 by the Illinois Supreme Court concern application of the statute of limitations in medical malpractice and product liability cases. In both instances action was entered after the passage of legislation setting the statute of limitations for occurrences before the effective date of the legislation.

In two cases involving medical malpractice the court ruled that action must commence within two years of the discovery of the injury, but no more than four years after the occurrence. Justice Ben Miller wrote the opinion in the consolidated cases of Mega v. Holy Cross Hospital and Sieman v. Holy Cross Hospital (Docket Nos. 60027, 60038). In both, the plaintiffs received X-ray treatment during the 1940s. Legislation establishing the statute of limitations took effect in 1976, and the plaintiffs filed suit in 1981 and 1982, more than four years after the effective date.

Generally, when a statute shortens a limitations period or establishes one where none existed previously, "... a plaintiff whose cause of action arose before that date will be allowed a reasonable period of time in which to bring his action," according to Miller's opinion. It points out, however, that "the plaintiffs here did not file their actions until more than four years after the four-year repose period took effect. We conclude that the reasonable time to which the plaintiffs here were entitled did not extend beyond that provided by the new repose period, computed from its effective date. . . . Therefore, the actions must be considered untimely, [citations] To allow, as a reasonable time for bringing suit, a period greater than the repose period itself would defeat the purpose of the statute."

Justice Joseph H. Goldenhersh wrote the opinion in Costellox. Unarco Industries Inc. (Docket No. 61490), which involved damages because of product liability. The plaintiff brought the action as executor of the estate of her husband, who was exposed to asbestos particles from 1942-1945, discovered the resulting illness in 1980 and died from it in 1982.

Action was begun in October 1981 and was held by the Circuit Court to be controlled by section 13-213 of the Code of Civil Procedure, which took effect January 1, 1979, and limits action to "12 years from the date of first sale, lease or delivery of possession by a seller or 10 years from the date of the first sale, lease or delivery of possession to its initial user, consumer, or other non-seller, whichever period expires earlier." On this basis the circuit court dismissed the action, and the appellate court affirmed. The plaintiff argued that this did not bar her action, since the alleged tortious conduct — selling the product without adequate warning — occurred long before the establishment of the statute of limitations, that the damage was only discovered in September 1980 and, consequently, that the action of the lower courts barred action at the instant of this discovery.

The high court concluded: "It appears to us that the rationale of. . . the majority opinion in Mega applies here. Plaintiff's cause of action, inchoate at the time of the effective date of the provision for repose, accrued subsequent to that date. . . . [F]or purposes of this appeal the date of discovery alleged in the complaint must be taken as true. The record shows that the action was instituted within three years of the effective date of . . . section 13-213 and two years of discovery, and we hold that plaintiff's cause of action was timely filed."

Chief Justice William G. Clark wrote a special concurrence; Justices Daniel P. Ward and Seymour Simon did not participate.

F. Mark Siebert

Liquor referenda moot; stricter signature requirement upheld for wet/dry questions

REFERENDA to ban the sale of alcohol in three Chicago precincts were invalidated by the Illinois Supreme Court January 23 when the court upheld the state law (section 9-2 of the Liquor Control Act) that mandates at least 25 percent of registered voters in a precinct sign the petitions seeking a local referendum on banning alcohol sales.

Justice Joseph H. Goldenhersh wrote the high court's opinion which overturned Circuit Judge Joseph Schneider's ruling allowing the November 1984 liquor referenda in the three precincts. Petitions to place the question on the ballot contained only 10 percent of the precinct's registered voters, which is the requirement generally in state law. State law, however, has a stricter requirement for petitions seeking referenda on liquor sales (25 percent of registered voters must sign petitions). Schneider ruled that the stricter requirement was unconstitutional because the effect was to deprive voters of their constitutional right to equal protection under the law.

Since a constitutional question was at issue, the appeal went directly to the Supreme Court in the consolidated cases, Walgreen Company v. Illinois Liquor Control Commission and Lewis H. Windon v. Ruth Kurt (111 Ill. 2d 120). The high court saw the issue differently than Schneider.

The court said the higher signature requirement for liquor referenda does not deprive voters of equal protection under the law. The court said the cases cited by the referenda backers, who contended undue burdens were placed on the access to the ballot, were not parallel to the circumstances involved in these local referenda.

Porter McNeil

Death penalty upheld

THE Illinois Supreme Court upheld a lower court death sentence in an opinion released January 23 in People v. Derrick E. King. A petition to rehear the case is expected to be filed.

Porter McNeil

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