OSHA does not preempt state law

Employers who knowingly permit dangerous working conditions can be prosecuted under Illinois' criminal code despite regulation of such conditions by federal statute as civil, not criminal, actions. The Illinois Supreme Court handed down its opinion February 2 in a case that attracted national attention.

The Cook County prosecutor's office charged officials of Chicago Magnet Wire Corporation of Elk Grove with aggravated battery, reckless conduct and conspiracy to commit aggravated battery because they knowingly permitted dangerous conditions and the use of dangerous substances in their plant. Injuries to 42 workers were alleged.

Workplace safety is regulated nationally by the Occupational Safety and Health Act (OSHA). The circuit and appellate courts had ruled that this preempted prosecution under Illinois law. The Illinois high court ruled that nothing in OSHA meets the tests for preemption of state law nor requires federal agency permission for such prosecution.

Under OSHA most such cases would only involve civil actions with milder penalties than criminal actions under state law. The high court said, "State criminal law can provide valuable and forceful supplement to insure that. . . particularly egregious conduct receives appropriate punishment." It quoted the report of a congressional committee: "OSHA should take the position that the States have clear authority . . . to prosecute employers for acts against their employees which constitute crimes under State law." Justice Department comments agreed with the report.

The case attracted national interest since it is the first decision in the area by a state supreme court. In the wake of diminished OSHA enforcement during the Reagan administration, state's attorneys in a number of states have been preparing prosecution and awaiting the Illinois decision. The Cook County State's Attorney's Office has several more such cases in process, and the decision will affect another case currently pending in the Illinois appellate court. While there is a strong likelihood that this case will be appealed to the U.S. Supreme Court, some prosecutions may go forward. Some legal scholars expect the U.S. Supreme Court to sustain the Illinois court. Labor leaders are already hailing it as a victory, and business leaders are predicting a "chilling effect."

The court reached unanimous decision in People v. Chicago Magnet Wire Corporation (Docket No. 65588) with the opinion written by Justice Daniel P. Ward.

Privacy partially defined

The Illinois Supreme Court took a cautious step February 2 toward defining the right to privacy by explaining the corollary: when has someone violated that right through "publicity placing another in a false light."

The case involved a farmer who fell behind in second mortgage payments but refused to sell his farm. Without consulting him or instituting foreclosure proceedings, his bank advertised a public auction in the farmer's name. The farmer claimed damages for invasion of privacy by reason of "intrusion upon his seclusion."

The high court said the plaintiff did not have a case based on that reason because there was no offensive prying. The court said that the facts in the case did support a claim for invasion of privacy under the "false light" idea. The court also noted that at this stage of the case, it was premature to decide on the issues of compensatory and punitive damages.

In its decision, the court defined a general right to privacy in Illinois by quoting an appellate court case, Bradley v. Cowles Magazines Inc. ((I960), 26 Ill. App. 2d 331, 334): "To find an area within which the citizen must be left alone." The Supreme Court went on to provide a refresher course in the fine points of Illinois case law on the right of privacy, especially on the "false light" claim of a violation.

Justice Howard C. Ryan wrote the opinion in Lovgren v. Citizens First National Bank of Princeton (Docket No. 66815); Justice Horace L. Calvo did not participate.

No review of handgun ban

The Illinois Supreme Court refused to review Morton Grove's ordinance banning ownership of handguns. Decisions by circuit and appellate courts upholding the regulation thus remain in force. The court made no comment in rejecting the appeal in Village of Morton Grove v. David Thilman (Docket No. 67860).

Treating physician's courthouse exam

In an injury case a plaintiff's treating physician is not to be regarded as an "expert witness," a specific definition that requires pretrial notification to the defendant under discovery provisions of Supreme Court Rule 220 (see 107 Ill. 2d R. 220). That was the decision of the Illinois Supreme Court on December 21 in a case against the Chicago Transit Authority; the court appeared to expand a 1988 decision in another CTA case, Tzystuck v. Chicago Transit Authority (124 Ill. 2d 226).

In the present case the physician apparently examined the plaintiff somewhere in the courthouse on the final day of trial, during noon recess, and then testified as to the permanence of her injuries, apparently even to the surprise of her own attorney. The identity of a treating physician is discoverable under Rule 201(b)(1). The court said: "Defendant knew or should have known that plaintiff's treating physician would testify at trial. Defendant knew that a treating physician may not give an oppinion on the permanency of injuries without a recent examination."

Justice Joseph F. Cunningham wrote the majority opinion in Wilson v. Chicago Transit Authority (125 Ill. 2d 171). Justice Howard C. Ryan's dissent (in which Chief Justice Thomas J. Moran and Justice Ben miller joined) said that the CTA had been "bushwacked." Miller wrote a special dissent as well.

Shades of Oliver North in Lake County

The Illinois Supreme Court ruled December 21 in favor of a defendant who claimed that his right to a speedy trial had been violated. The defense had subpoenaed records of a social worker in the Lake County State's Attorney's Office, and the circuit court found the state's attorney to be in contempt for refusing to comply. Since the defense claimed that it could not proceed without the records and the appeal of the contempt citation delayed the trial beyond the legal limit, the circuit court dismissed the charges.

Justice Daniel P. Ward wrote the opinion in People v. Shukovsky (Docket Nos. 65051 and 65168, cons.). Justice John J. Stamos did not participate. Justice Howard C. Ryan, joined by Justice Ben Miller, concurred in the court's affirmation of the contempt citation but dissented as to dismissal of the charges. F. Mark Siebert

April 1989 | Illinois Issues | 24