No child porn in home

The statute prohibiting possession of child pornography in the home was found to be constitutional by the Illinois Supreme Court. At issue was a challenge under the first and 14th amendments to the U.S. Constitution and Article I, sections four and six of the Illinois Constitution. The opinion was filed March 23.

The Criminal Code prohibits the possession of child pronography as well as its production and distribution (see Ill. Rev. Stat. 1985, ch. 38, sec. ll-20.1(a)(2)). The majority opinion cited the U.S. Supreme Court's decision in New York v. Ferber ((1982), 485 U.S. 747, 73 L.Ed. 2d 1113, 102 S. Ct. 3348) as excepting child pornography from free speech protection because of an overriding interest in preventing and punishing child abuse. About Illinois' law the court mixed a metaphor: "In prohibiting without restriction possession of child pornography, the legislature has sought to 'dry up' the final and most important link in the chain of distribution of child pornography."

Justice Daniel P. Ward wrote the majority opinion in People v. Geever and People v. Sotos (Docket. Nos. 64173 and 64466 cons.).

Justice William G. Clark dissented, terming child pornography "repugnant" but presenting some of the classical arguments on the matter of free speech. He also pointed out that "Ferber neither reached nor purported to reach the question of a ban on private possession." He also argued that statutes abridging constitutional guarantees for an overriding concern must be "narrowly tailored" to achieve their ends. He also argued that the Illinois Constitution contains guarantees of privacy not found in the U.S. Constitution, saying, "I am concerned with the absolute subservience to Federal precedent. . . ."

More on DUI suspensions

The Illinois Supreme Court further clarified its position on the state's statutes dealing with drunk drivers in two decisions handed down March 23.

In one case, People v. Esposito (121 Ill. 2d 491), the defendant challenged the statute because drivers who fail a breathalyzer test receive summary suspensions (see Illinois Revised Statutes 1985, ch. 95 1/2, sec. 11-501.1), while some others, including those charged with driving under the influence (DUI) of drugs other than alcohol, first receive a hearing. She also pointed out that breathalyzer tests are only required for drivers stopped on public roads. Defendant was claiming unconstitutional violations of equal protection guarantees.

On both points the court found no improper classification in the statute since licenses can be suspended for any driver judged to be under the influence of an illegal subsance:

• "The General Assembly. . .may have rationally concluded that a statutory measure designed to remove drunk drivers from the roadways was more urgently needed than a measure to remove other categories of impaired drivers from the roads."
• "The legislature apparently did not regard the menace which intoxicated drivers pose to be the same to persons using private ways. . . as it was to to persons on public highways."

Justice Daniel P. Ward wrote the opinion, which also explained that the defendant lacked standing on another claim: that the statute discriminates in favor of first offenders by allowing them to petition the court for a judicial driving permit (JDP — see sec. 6-206.1). She had benefitted by this provision.

In its second DUI opinion, the court clarified the statutory requirement that the arresting officer immediately submit a sworn report to both the secretary of state and the circuit court when summarily suspending a driver's license after the driver fails the breathalyzer test.

Defendants in these four consolidated cases from two different counties challenged the sufficiency of the police officers' statements on their traffic tickets. The Uniform Traffic Ticket only provides space for the officer to "solemnly, sincerely, and truly declare" the facts of the citation. While upholding the need for sworn testimony in all legal actions, the court felt that "the summary suspension provisions should be liberally construed," so that a drunk driver could not "escape responsibility. . . by pointing to this technical deficiency in the completion of the officer's report." The court held that it would be adequate if the officer swore to the charges at the hearing.

Justice Joseph F. Cunningham wrote the opinion in People v. Badoud (122 Ill. 2d 50), pointing out that it in no way impaired the findings in Esposito.

Suit against unions: law is prospective

It is possible for voluntary, unincorporated associations to sue and be sued in their own name, but only for injuries occurring since the effective date of the act reversing the principle of common law preventing such suits. Suits were brought against a Chicago firemen's union for deaths and injuries suffered during a strike in 1980. The circuit court dismissed on the basis of common law, but while appeals were pending the General Assembly passed legislation making such suits possible (see Ill. Rev. Stat 1985, ch. 110, sec. 2-209.1). Gov. James R. Thompson amendatorily vetoed the bill, recommending that it should be prospective.

In debate leading to an override, sponsors in both houses said that the bill was intended to be retroactive. The high court held that intention was not enough; that provision would have to be specifically stated in the statute since it is substantive rather than procedural in nature.

The unanimous opinion (Justice Joseph F. Cunningham not participating) in Rivard v. Chicago Firefighters Union (Docket Nos. 63713 63787 cons.) was written by Justice William G. Clark.

'The domicile controls the law'

If one member of a married couple sues the other, the law of their domicile may control the matter, according to a decision of the Illinois Supreme Court filed March 23. In this case a Canadian woman sued her husband for injuries suffered in an automobile accident in Illinois, and at that time Illinois law on spousal immunity forbade such suits but Canadian law permitted them.

The court affirmed an earlier decision in Wartell v. Formusa (34 Ill. 2d 57 (1966)), which had applied Illinois law to an accident in Florida. The court said that "the marital domicile retains a paramount interest in the incidents of the family relationship and. . . the law of domicile should govern whether interfamily tort immunity exists."

Justice Ben Miller wrote the opinion in Nelson v. Hix (Docket No. 64314).

When is a plea bargain no deal?

A plea bargain is unenforceable until the defendant has pleaded guilty. In this case the defendant claimed to have assisted authorities with information leading to substantial arrests on drug charges, only to have the prosecution refuse to reduce the charges against him, contrary to his expectations under the alleged bargain. The Illinois Supreme Court's decision of March 23 ruled that even if it could be clearly shown that a bargain had been made, the prosecution's refusal to abide by it would not deprive the defendant of any constitutional rights. In Santobello v. New York the U.S. Supreme Court had said, "A plea bargain standing alone is without constitutional significance. . . . It is the ensuing guilty plea that implicates the Constitution." (467 U.S. at 507-08, 81 L. Ed. 2d at 442, 104 S. Ct. at 2546.) The Illinois court said, "Here . . . the defendant has not entered a plea of guilty in reliance on the proposed plea agreement. He cannot say he was deprived of liberty by virtue of the State's refusal to abide by the terms of the claimed plea agreement." Justice Daniel P. Ward wrote for the majority in the Illinois case, People v. Navarrolli (121 Ill. 2d 516).

Justice William G. Clark's dissent disagreed on several legal points, suggesting that the matter might be approached as a question of contract and pointing out that the defendant, if subsequently convicted, would possibly be deprived of constitutional rights to life because "it is no secret that the life of a government informant in prison is. . . often short."

F. Mark Siebert

June 1988 | Illinois Issues | 32