Judicial Rulings

Illinois Supreme Court

Plugging delay loophole

THE COURT closed a loophole that lawyers had used to drag out cases by giving precedence to its own rule over a provision of the statute. The decision, written by Justice Thomas J. Moran, was handed down April 18 in O'Connell v. St. Francis Hospital (Docket Nos. 61666, 61667 cons.).

The court relied on its constitutional grant of power as the rule-making authority for the judiciary to discontinue the foot-dragging practice of some legal proceedings: allowing a plaintiff to voluntarily withdraw his case after waiting till the last moment to file, and then immediately refiling the same case under provisions of state law. Defendants can use Supreme Court Rule 103(b) to ask for dismissal of a suit filed at the last possible moment on the grounds that plaintiff failed "to exercise reasonable diligence" in seeking court action. Motions based on that rule now take precedence over statutory provisions in the Code of Civil Procedure (III. Rev. State. 1983, ch. 110, sec. 2 — 1009, sec. 13 — 217), which have allowed refiling of those same cases.

The court held that "where a plaintiff relies on sections 2-1009 and 13-217 in response to a pending Rule 103(b) motion, the Rule 103(b) motion must be heard on its merits prior to a ruling on plaintiff's motion to dismiss under section 2-1009." F. Mark Siebert

In wake of U.S. case

A defendant convicted of murder by a jury was entitled to a new trial because of misuse of his response to the Miranda warnings, according to the Illinois Supreme Court in People v. Stack (Docket No. 61166).

The state had countered an insanity defense with the assertion that the defendant's decision not to answer questions proved his lucidity. While the court was considering the case the U.S. Supreme Court issued its decision in Wainwright v. Greenfield ((1986) 474 U.S. , 88L. Ed. 2d 623, 106 S. Ct. 634), which addressed the same issue, with the conclusion: ". . . it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter .... to breach that promise by using silence to overcome a . . . plea of insanity." Justice Seymour Simon's opinion stated that "Greenfield is dispositive in this case." F. Mark Siebert

Judge can accept or reject guilty plea but not change it without a trial

ONLY after a trial can a judge find a defendant guilty of a lesser offense to which the defendant has not entered a guilty plea. At the plea-entry stage a judge is limited to accepting or rejecting a guilty plea as charged. Judge Fred G. Suria of the Cook County Circuit Court told three defendants: "I hope you don't think I'm stupid and don't understand that there was a drug selling operation going on here. What I'm doing is considering all of your lack of any prior record in the field of narcotics and for the most part no felony convictions. . . . I do so in the exercise of my authority and find, based upon the stipulated facts, you guilty of a lesser included offense" (emphasis added by the Illinois Supreme Court). The Supreme Court's decision of March 19 found Judge Suria to be mistaken and ordered him to vacate the findings of guilt and entry of new pleas.

Suria's intention was to avoid imposing a mandatory jail sentence for a Class X offense. The defendants had entered pleas of not guilty to charges of possession of a controlled substance with intent to sell. The judge indicated his willingness to pronounce them guilty of the lesser "included" offense of simple possession and to sentence them to probation if they would plead guilty to the greater charge. The state's attorney did not agree to the plan, but filed the information required to support the charge when the defendants changed their pleas.

Justice Seymour Simon wrote the opinion for the court and pointed out that Supreme Court Rule 402(c) requires a judge to determine whether the facts sustain guilty pleas before accepting them. In acting as he did at this stage, according to Simon, Suria "analogizes his disposition of the guilty pleas in this case to a bench trial in which a trial judge, after hearing evidence, finds a defendant not guilty of a greater charged offense but guilty of a lesser included offense." Since there was no trial, "Judge Suria simply lacked authority to find the defendants guilty of any offense other than the ones to which they entered their guilty pleas."

The case is People ex rel. ft Daley v. Fred G. Suria, Jr., Judge, et al. (112 III. 2d 26).

F. Mark Siebert

34/July 1986/Illinois Issues

Clarifying gag orders

A GAG ORDER by the lower courts was set aside by the Illinois Supreme Court in a decision handed down on April 18. The action was incidental to procedural skirmishing by the defendant, the Monsanto Company, but it may have far-reaching significance. Justice Howard C. Ryan wrote the decision in Kemner v. Monsanto (Docket Nos. 61691, 61749 cons). reportedly the longest case in U.S. history.

The case concerned a rail accident in Missouri, in which the chemical leaking from a tank car was allegedly contaminated by dioxin. Twenty-two complaints were filed in St. Clair County in Illinois. Shortly after the trial began the National Institute of Occupational Safety and Health (NIOSH) announced a possible link between dioxin exposure and cancer. Two weeks later Monsanto responded to the intense media coverage of the story with a letter entitled "Background Information for St. Louis Area News Media." It referred specifically to the trial in process and to the fact that the jury was not sequestered. It gave as its purpose a desire "to sensitize you to the need to be careful, responsible and accurate in the way dioxin subjects are reported in the future." This also received media attention.

The plaintiffs filed a contempt motion referring specifically to cause No. 61749, the case before the circuit court, claiming that Mosanto was trying to communicate with jurors and influence the outcome of the trial and requesting that Monsanto be ordered not to issue any press releases on the matter during the course of the trial, Monsanto argued that such an order would be an unconstitutional prior restraint of free speech, but that it was Monsanto's intention that "that will not occur again."

The court ordered Monsanto to refrain from reference to the trial until its concilision but recognized the company's right to participate in national debate on dioxin, as long as it observed the restrictions concerning the trial. The appellate court confirmed the trial court, but with one justice dissenting.

Ryan identified two possible exceptions to the prohibition on prior restraint: "a clear and present danger or a reasonable likelihood of a serious and imminent threat to the litigants' right to a fair trial." The state high court chose to use the more narrow test of "a clear and present danger," requiring a record of specific findings by the trial court concerning impermissible conduct of parties and attorneys.

Since the plaintiffs did no more than suggest a possibility that jurors saw the new stories, the high court felt that a "serious and imminent threat" was not established. It said further, "The restrictions...prohibiting 'all mention' of this case... whether or not such expressions constitute a serious and imminent threat to the administration of justice, are just too broad to stand constitutional muster."

The court also held that a restraining order must not be vague. Failure of the trial court's order to specify "what conduct and utterances are proscribed" was judged unacceptably vague under which Monsanto might be deterred from exercising permissible rights. The court noted Monsanto's asssurance that it did not intend to engage in expressions prohibited by the order, and called attention to a court's power to punish contemptuous conduct, which would be a less restrictive means of control.

F. Mark Siebert

July 1986/Illinois Issues/35