Judicial Rulings

Illinois Supreme Court

The public has a right to information on state-funded abortions

INFORMATION about abortions provided under the Illinois Medicaid program must be divulged by providers of abortion services when requested. The ruling by the Illinois Supreme Court handed down May 2 was without dissent; Justice Seymour Simon did not participate. Chief Justice William G. Clark wrote the decision in Family Life League et al. v. The Department of Public Aid et al. (Docket No. 62137).

The Family Life League argued that the State Records Act (Ill. Rev. Stat. 1979, ch. 116, sec. 43.4 et seq) entitles it to lists of physicians, hospitals and other providers of abortion services under the Illinois Medicaid program, as well as the number of abortions performed and the fees received by providers. The Department of Public Aid replied that the act does not require it to create a "special abortion" list and that release of such information would lead to "the unwarranted invasion of the providers' and recipients' rights to privacy."

The league cited language of the State Records Act that entitles any member of the public to copies of public records showing the expenditure or receipt of public funds. Since the act also contains an exemption protecting individual rights to privacy, the department argued that the requested disclosures would directly invade the privacy of recipients. The court pointed out, however, that since identity of recipients was not requested, there would be no direct invasion of privacy.

The department also argued an indirect invasion of privacy, saying that the requested information "might have an inhibiting effect on the number of providers willing to participate" in the Medicaid abortion program and thus conflict with the U.S. Supreme Court's landmark ruling on abortion, Roe v. Wade ((1973) 410 U.S. 113, 35 L. Ed. 2d 147, 99 S. Ct. 705). In that case the court said that "a woman . . . needs to have available to her a physician who is free to exercise his best medical judgment." Both the defendants and the appellate court raised the spectre of undue pressure, terrorism and action of "vigilante groups" against providers of abortions. The high court disagreed. "These assumptions are not in any way supported by the record," said Chief Justice Clark. He pointed out that there are "certainly sufficient legal avenues available to combat criminal and civil wrongful acts. The denial of the People's right to public information is not one of them."

The high court agreed with the appellate court in dismissing the claim that the predicted pressures would be an invasion of the privacy of providers, since many providers are already well-known to the public via listings in telephone directories and newspaper advertising. Physicians providing such services at public expense were found to have a limited right to privacy "decidedly outweighed by the public's interest."

The department finally argued that providing the information requested would mean creating "a new record" devoid of the confidential information kept in its original records. The court said that this interpretation would "gut the Act," whose purpose is "to open the State's books to the light of public scrutiny. That purpose would be totally thwarted if an entire record could be kept closed simply by inserting some minute confidential information."

The defendants are to be granted a reasonable time to prepare the requested information, which requires a special computer program, and the plaintiffs will pay the reasonable cost.

F. Mark Siebert

Muncipalities can insure through IRMA without losing statutory immunity

ALTERNATIVES to the present ruinous rates for liability insurance on municipalities are protected by a decision of the Illinois Supreme Court handed down May 21. "Local public entities are granted certain immunities from tort liability by the Local Government and Governmental Employees Tort Immunity Act (Ill. Rev. Star. 1983, ch. 85, sec. 1-101 et seq.)," and these immunities are preserved when a community self-insures or participates in an insurance pool, said Justice Seymour Simon speaking for the court. The case was Barbara Antiporek v. The Village of Hillside (Docket No. 62420).

The plaintiff brought action against the village for negligence because her daughter was injured while sledding on city property. The village claimed immunity under the act, but the jury found for the plaintiff. On appeal the plaintiff claimed that the village's participation in the Intergovernmental Risk Management Agency (IRMA) was tantamount to insuring because IRMA has many of the functions of a commercial insurance company, including the collection of contributions from members. Section 9- 103(c) of the act provides that buying liability coverage from a commercial insurance carrier waives the immunity extended to municipalities.

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Justice Simon pointed out, however, that the act distinguishes between "insurance" and "self-insurance." In Beckus v. Chicago Board of Education ((1979), 78 Ill. App. 3rd 558, 56) the appellate court held that self-insurance does not constitute a waiver of municipal immunity, even though the act is not specific on this point. When the General Assembly amended the act in 1982, subsequent tothe Beckus decision, it made no changes in the pertinent parts. Participation in an organization such as IRMA resembles self-insurance, since all participants pay contributions out of public funds, and all are assessed equally if withdrawal from funds exceeds reserves.

"Tort immunity is intended to protect governmental funds," and self-insurance preserves the immunity since awards would be paid out of such funds, Simon said. On the other hand, when a community purchases commercial insurance, "the immunity is waived since government funds are no longer in jeopardy and immunity would inure to the benefit of private investors who have assumed the risk of insurers."

Simon concluded: "The substance of IRMA is pooled self-insurance .... For that reason Hillside's immunities have not been waived by its participation in IRMA

F. Mark Seibert

Fines and court costs come first in claims on bail refunds

WHEN a bail deposit is refunded, the money may be used to pay the defendant's lawyer — but fines and court costs take precedence. This is true even when the defendant has made a pretrial assignment of the bail deposit to his attorney with the approval of the court. The ruling, which will affect privately retained attorneys, was handed down by the Illinois Supreme Court May 26 in the case of People v. Dale (Docket No. 62264). Justice Daniel P. Ward wrote the opinion.

Section 110-7(h) of the Code of Criminal Procedure provides for deduction from a bail deposit of bond costs, followed by deduction of any fine and court costs. Section 110-7(f) provides for return to the accused of 90 percent of the deposit when "the accused has been discharged from all obligations in the cause'' (emphasis by the court). It goes on to permit the court to order payment of attorney's fees from the deposit at the request of the defendant.

Justice Ward pointed out that at the time of the assignment of his interest in the bail deposit to his attorney, "the defendant's obligations affecting the deposit had not yet been determined. Van Winkle [the attorney] was assigned the interest in the bail deposit subject to those obligations." Ward said that a previous ruling, People v. Maya (1985), does not apply in this case. In that ruling the court said that the defendant's lawyer can be paid out of the bail deposit when the defendant does not show up at the trial. The purpose of the ruling, Ward said, was to insure "representation for a defendant at a trial in absentia." 

F. Mark Siebert

Taxes paid under protest do not go into general funds

TAX money paid under protest by out-of-state insurance companies must be kept in a "protest fund" and not transferred to the general funds. Fourteen such companies have challenged the constitutionality of both the "privilege tax" and a "retaliatory" tax imposed on "foreign" insurance companies. The former taxes out-of-state firms for the privilege of doing business in Illinois, and the latter is imposed on companies when their home states make Illinois firms pay a higher privilege tax than Illinois is charging. The companies said that the entire amount of protested taxes should be kept in a "protest fund" rather than transferred to the general funds. The Department of Insurance argued that the retaliatory tax that would be due if the companies win their case against the privilege tax should be transferred to the general funds. The Supreme Court disagreed, pointing out that both taxes were being paid under protest. The court did not consider the constitutionality of the two taxes. Justice Ben Miller wrote the opinion handed down May 21 in the case, Metropolitan Life Co. v. Washburn (Docket Nos. 62513 and 62575 COns.).

F. Mark Siebert

Court clarifies standard of evidence for firing tenured teachers accused of crimes

A BIZZARE case involving a school teacher who allegedly solicited students to commit murder led the Illinois Supreme Court to clarify the procedures for firing tenured teachers or other government personnel. At issue was the proper standard of proof in dismissal hearings when the teacher is accused of criminal conduct. The Supreme Court ruled that the standard of a preponderance of evidence should be used in such cases rather than the more stringent standard of clear and convincing proof. Justice Howard C. Ryan wrote the opinion, which was handed down June 6. The case was Board of Education of the City of Chicago v. State Board of Education et al. (Docket No. 62262).

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After the teacher was found not guilty of the criminal charges, administrative hearings determined that he should be dismissed based on the standard of clear and convincing evidence. The circuit court held that the proper standard was the less rigorous one of preponderance of the evidence. The appellate court, on the other hand, found that the hearing officer correctly applied the more stringent test.

The Chicago Board of Education argued that extending the appellate court ruling would make it harder to fire a teacher for assaulting or abusing students than to fire a teacher for failure to turn in lesson plans. The teacher argued that "more than a mere preponderance should be required to deprive a person of a career or profession and stigmatize that individual as much as a criminal conviction would."

Central to these determinations is Drezner v. Civil Service Com. ((1947), 398 Ill. 219). Ryan acknowledged that Drezner "is not clear as to what the applicable standard of proof is in civil cases . . . where conduct that might also constitute a violation of the criminal law is charged" and that the confusion is apparent in similar cases involving other public agencies such as racing, fire and police boards.

The court relied on the U.S. Supreme Court's instruction to balance "the private interests affected by the proceeding; the risk of error created by the State's chosen procedure; and the countervailing governmental interest . . . ."

Ryan said: "It is appropriate to ask teachers and school boards to share the risk of error ... in dismissal proceedings in a roughly equal fashion when the possible harm to each is roughly equal." The preponderance of evidence standard is seen as appropriate because "it is in a school's interest that the standard applied at a teacher-dismissal proceeding be such as to reduce the risk that error by the trier of fact may result in an unfit individual continuing to teach." 

F. Mark Siebert

Suing state? Go to Court of Claims if breach of contract; to trial court if fraud

WHEN payouts for the weekly Lotto turned out to be smaller than advertised, two disappointed winners sued the director of the Illinois State Lottery. In a 5-2 decision handed down June 6, the Supreme Court ruled that the plaintiffs could not sue in the "regular" state courts because they had not made a case for fraud but only for breach of contract. Under the principle of sovereign immunity, the state cannot be sued for breach of contract until all other remedies are exhausted. Justice Daniel P. Ward wrote the opinion for the majority; Chief Justice Clark and Justice Seymour Simon dissented. The cas was John A. Smith et al. v. Michael Jones et al. (Docket No. 61694).

In 1983 the grand prize pool in a weekly Lotto was advertised at $1.75 million, but only $744,471 was divided among 78 winners. The plaintiffs accused the Lottery of going beyond its authority by violating contract law and the director of exceeding his authority by committing both a breach of contract and a fraud.

The defendants termed the suit an action against the state barred by the principle of sovereign immunity. The 1970 Constitution abolished sovereign immunity (art. XIII, sec. 4), but the legislature restored it as permitted by the Constitution when it established the Court of Claims (III. Rev. Stat. 1981, ch. 127, sec. 801). Although not a court of the judicial branch, this executive branch court has exclusive jurisdiction to handle claims against the state based on state law and regulations or on contracts entered into by the state.

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Justice Ward said that suing a state officer is not a way to get around sovereign immunity because in performing his statutory duties the officer is effectively acting for the state. The only exceptions occur when he enforces an unconstitutional law or acts beyond his authority by violating a law. The plaintiffs' suit alleged neither of these exceptions. Ward said. It "alleges the elements of a breach of contract cause of action: offer, acceptance, consideration and failure to perform." It should accordingly, have been pursued in the Court of Claims, which has exclusive jurisdiction over such complaints, or in hearings as provided in the State Lottery Law (Ill. Rev. Stat. 1981, ch. 120, sec. 1157.3)

Chief Justice Clark wrote a dissenting opinion with Justice Seymour Simon concurring. Clark said that the suit alleged facts sufficient to support a charge of fraud and was therefore outside of the jurisdiction of the Court of Claims. He also saw a bigger issue: "What is really at issue in thiscase is the trust and faith of the people of this State who purchase lottery tickets believing that since the lottery is run by the State, it will be run properly."

F. Mark Siebert

The June 20th batch: refining the fine points in Illinois law

AMONG the decisions handed down by the Illinois Supreme Court on June 20 were a larger than normal number with particular significance for court procedures. No one decision is far-reaching, but together give the impression of the court's intention to clean up loose ends for judges and lawyers in the state's courts. Implicit in one decision is the suggestion that the legislation may need to amend laws guaranteeing speedy trials.

Court, not statute, controls judicial assignments on post-conviction hearings. The court overturned section 122 — 8 of the Post-Conviction Hearing Act. The act requires that all post-conviction hearings "shall be conducted and all petitions shall be considered by a judge who was not involved in the original proceeding which resulted in conviction." The act was found to conflict with the separation-of-powers clause of the 1970 Constitution and with Supreme Court Rule 21 on the assignment of judges. Justice Seymour Simon dissented in this case, People v. Joseph (Docket. No. 61826).

Psychiatric evidence refined. The court clarified how the state will follow the federal rules of evidence involving expert psychiatric testimony. It held that the defendant's psychiatric expert may reveal facts and opinions contained in reports or statements made to him by the defendant that were the basis of the diagnosis of insanity. This holds true even if the expert is not the physician who is treating the patient. The court also held that the state cannot introduce the defendant's responses to Miranda warnings as evidence of sanity in this case, People v. Anderson (Docket No. 56043). The ruling is an expansion of the court's recent decision in People v. Stack ((1986) 112 Ill. 2d 301; see "Judicial Rulings," Illinois Issues, July 1986).

Repeating: Implied indemnity not valid. The Supreme Court's adoption in 1981 of the rule of comparative negligence effectively abolished the need for considering implied indemnity. The latter is part of the discarded doctrine of contributory negligence under which the courts had to affix ultimate responsibility for an injury on one party only. The court explicitly stated that implied indemnity should not be considered in lawsuits in the case, Allison v. Shell Oil (Docket Nos. 61799, 61834 cons.).

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Fed conviction affects state sentences. A previous conviction by a federal court sitting in Illinois can be considered by an Illinois court as the basis for imposing an extended-term sentence. Justice Seymour Simon dissented in this case, People v. Hardin (Docket No. 61723).

Timely filing law isn't working. The Illinois Code of Corrections requires that a motion to reduce or modify a sentence and the trial court's ruling on that motion must occur within 30 days of sentencing. This means that if the defendant files the motion on time but the court does not rule on it because of illness, court schedules, etc., the motion fails. Making the ruling "with some reluctance," the court recommended that the General Assembly consider amending the statute. Justice Seymour Simon also dissented in this case, People v. Crefe (Docket No. 62091).

Evidence standards for directed verdicts. The court set out standards of evidence for trial judges to follow when directing a verdict. The trial judge was correct in directing the verdict against the plaintiffs because they had not proven their case in Heller v. Jonathan Investments (Docket No. 62361).

Bartender's liability controlled by Dramshop Act. A person who sells alcoholic beverages to someone who gets drunk and commits an injury can be held liable only under the Dramshop Act. That means a bartender cannot be sued by the intoxicated party to pay a portion of the total settlement based on the relative culpability of himself and the intoxicated party. Justices Joseph H. Goldenhersh and Seymour Simon dissented in this case, Hopkins v. Powers (Docket No. 62491).

Death sentence hearings: procedures and evidence. The Illinois Supreme Court on June 20 affirmed the death sentence of John Szabo, who was convicted and sentenced to death for the 1979 murder of two young men in connection with a drug sale. His sentence had been remanded by the court in a previous case. At issue in this case was whether the defendant in a capital case has to file a post-trial motion after his sentencing hearing and whether during the sentencing hearing he was denied the right to confront adverse witnesses. Chief Justice William G. Clark and Justice Seymour Simon dissented in the case, People v. Szabo (Docket No. 60062). 

F. Mark Siebert

Medical malpractice act: Pretrial panels ruled out, other provisions upheld

TORT reform got a boost from the Illinois Supreme Court when it upheld four out of five key provisions of the 1985 Medical Malpractice Act (Ill. Rev. Stat. 1985, ch. 110, sees. 1-101 through 19C-101). The act affects malpractice actions against doctors and hospitals as well as other health professionals including dentists and psychologists.

In a ruling handed down June 26, the court struck down the pretrial review panels created by the act to screen malpractice complaints, but it upheld provisions for paying future damages in installments, reducing damages when "collateral" funding is available, prohibiting awards of punitive damages and limiting attorneys' contingency fees. Justice Ben Miller delivered the opinion for the majority; Justice Seymour Simon did not participate, and Justice Howard C. Ryan dissented in part. The case was Bernice Bernier v. Roland W. Burris, et al. (Docket No. 62876).

The plaintiff argued that the changes in the law are unnecessary because there is no medical malpractice "crisis" and that the provisions violate equal protection and due process rights as well as the state prohibition against special legislation. The circuit court struck down all five provisions.

The high court disagreed. Justice Miller said that the big issue in equal protection and due process challenges is: "[Whether the legislation bears a rational relationship to a legitimate governmental interest." To decide thatt question, the court applied the rational-basis test, the standard generally used in states where medical malpractice legislation has been challenged, rather than more stringent standards used in North Dakota and New Hampshire where the courts overturned medical malpractice provisions.

Using the rational-basis test, Miller said, "The history of the legislation amply demonstrates that it was enacted in response to what was perceived to be a crisis in the area of medical malpractice." Whether the legislature's perception of the problem is correct is not something the high court has to decide, he said. He cited a U.S. Supreme Court ruling that any attacks on legislation as irrational and thus violating the Equal Protection Clause cannot prevail as long as the question is debatable. Miller concluded: "Our task, therefore, is limited to determining whether the legislation in question is constitutional, not whether it is wise as well."

Although the court spoke to specific issues on each provision, it found in general that there was for each a rational relation to a legitimate governmental interest: amelioration of the high costs of medical malpractice actions. The exception was the requirement for a pretrial determination by a three-member panel whether liability exists and, if so, the possible damages. The panel was to consist of a circuit judge, a practicing attorney and a healthcare professional, with the judge controlling all questions of law. Miller said the panel procedures are unconstitutional because they "do not adequately distinguish between the judicial and nonjudicial members."

Justice Ryan concurred with the majority except that he saw no constitutional problem with the pretrial review panels and thought that the provision shout be retained, with correction of certain other items that bothered him but appeared severable.

F. Mark Siebert

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