Judicial Rulings

More on obscenity

In a May 23 decision the Illinois SupremCourt clarified two points in the state's obscenity statute (see Illinois Revised Statutes 1985, ch. 38. sec. 11-20). Ironically, the Supreme Court ruled the statute was not vague but that the charge against all four defendants was.

The circuit court had held that the statute was unconstitutionally vague in permitting a defense when dissemination of obscene materials was "to institutions or individuals having scientific or other special justification for possession of such materials" (sec. 11-20(f)(2)). The Supreme Court, however, termed this "a common drafting technique designed to avoid . . . spelling out every pertinent contingency where the statute might be applicable" and found that it met the usual test of being "sufficiently definite when measured by common understanding and practices."

On the charge itself, that defendants "sold or delivered" obscene materials, the court said defendants were not clearly charged because of the '"or.'" Were they charged with selling? Were they charged with delivering? Sale and delivery are "alternate and disparate acts."

The decision was unanimous in People v Capitol News, Inc., People v Central Video Midwest, People v Gentlemen's Adult Bookstore, People v Morgan (Docket Nos. 67480, 67481, 67482, 67483 cons.), with an opinion by Justice Daniel P. Ward.

Architects' malpractice

Claims for purely economic damages resulting from an architect's malpractice are a matter of contract, not tort. In a May 23 decision the Illinois Supreme Court settled the matter, treated inconsistently at the appellate level and in other states.

In an earlier case (Moorman Manufacturing Co. v National Tank Co. (1982), 91 Ill. 2d 69) the court had ruled that purely economic loss cannot be recovered in tort via charges of negligence, but that contract and warranty actions are appropriate. Here the question was whether an exception should be made for malpractice by architects and engineers.

The court has previously applied the Moorman principles to other cases involving the construction industry but never to suits claiming damages resulting from an architect's malpractice. The court concluded, "The architect's responsibility originated in its contract with the original owner, and in these circumstances it should be measured accordingly." It rejected the plaintiff's claim but noted that "we do not intend in the present case to determine the future application of Moorman in all areas of professional malpractice."

Justice Ben Miller wrote the opinion for 2314 Lincoln Park West Condominium Association v Mann, Gin. Ebel & Frazier, Ltd. (Docket No. 68146).

How soon a speedy trial?

A request for a speedy trial must be made when a defendant is on bail or recognizance, not while in custody, according to the Illinois Supreme Court's decision of May 23.

In this case the defendant made three requests for a speedy trial, two of them within two weeks after arrest. He made bail two and one-half months later. Seven months after his arrest he moved to dismiss on the grounds that he had not been brought to trial within 160 days after his demand, as required under the Code of Criminal Procedure (see Ill. Rev. Stat. 1987, ch. 38, sec. 103-5(b)).

Sec. 103-5(a) requires that defendants in custody be tried within 120 days after arrest; this is automatic. Sec. 103-5(b) requires that defendants on bail or recognizance be tried 160 days after their request for a speedy trial. The court said, "Under the statutory scheme, a demand made by an accused in custody is premature, and we do not discern an intent by the legislature that such a demand should have any effect."

Justice Ben Miller wrote for the majority in People v Garrett (Docket No. 68601). Justice Howard C. Ryan, joined by Justice John J. Stamos, dissented, saying, "By making such a demand while in custody, the defendant can be sure of a speedy trial . . . within 120 days if he remains in custody, or within 160 days from the date of demand if he is released from custody. . . ."He also pointed out that under the majority's ruling the state could have nearly 280 days to prepare its case, a result he felt unintended by the legislature.

'Information' includes medium

Illinois' Freedom of Information Act (see Ill. Rev. Stat. 1985, ch. 116, sec. 201 et seq.) is more specific than the federal act in its inclusion of access to information in the medium in which it is stored. So ruled the Illinois Supreme Court on May 23 in a case about computer information.

First, the American Federation of State, County and Municipal Employees (AFSCME) requested lists of employees from the Cook County comptroller. When it received a printout, it asked for the same information on computer tape or diskette. The comptroller refused and, after several additional requests and denials, the matter ended up in the courts.

The statute says that public records must be available "regardless of physical form or characteristics" (sec. 202(c)) and lists tapes among those possible forms. The court said, "Computer tapes are public records and must, therefore, be made available to the public."

The act makes an exception if provision of the records would be "unduly burdensome" and defines repeated requests for the same information as burdensome. The court said that if a record had been received another request could not be made "soon thereafter, even if the requestor asks for the recorded information in a different physical format." The court ruled, however, that "once a proper request has been made, the public body must either comply, or explain why it cannot."

Now the circuit court must decide whether the present case constituted a burdensome repeated request.

Justice Howard C. Ryan wrote for the majority in AFSCME v County of Cook (Docket No. 68677). Justice John J. Stamos, joined by Justice Horace L. Calvo, dissented in part. In a complex analysis Stamos concluded that "a computer tape and a typed printout which contains essentially the same information are not the same 'public record' for purposes of the statute" and felt that the court could have decided for AFSCME.

Lawyer-lawmaker conflict: Vrdolyak censured

The Illinois Supreme Court censured attorney and former Chicago Ald. Edward R. Vrdolyak for representing 35 city employees in workers' compensation cases against the city and, in its decision filed May 30, made clear that lawyers as aldermen, legislators or other government decisionmakers must toe a narrower line to avoid conflicts in their law practices.

Vrdolyak relied on the court's decision In re Becker ((1959), 16 Ill. 2d 488) which he interpreted as permitting such activity. The court said that the Code of Professional Responsibility (107 Ill. 2d R 1-101 et seq.), which has the force of law, "has, sub silentio, overruled prior judicial decisions which conflict with its mandates and proscriptions."

Vrdolyak argued that a state body, the Illinois Industrial Commission, rather than the city council acted in these cases. The court ruled that "a lawyer-legislator may engage in the private practice of law including representing government employees, unless the governmental unit of which he is a member is an adverse or interested party — regardless of forum." It set a high standard, quoting a New Jersey decision: "[A]ttorneys who serve as public officials must avoid not only direct conflicts of interests, but also any situation which might appear to involve a conflict of interest."

The court said that its decision does not bar any governmental unit "from imposing stricter conflict of interest standards on its members, including those who are attorneys."

The opinion was by the entire court in In re Vrdolyak (Docket No. 68665), but the three Chicago justices, Daniel P. Ward, William G. Clark and John J. Stamos, did not participate.

F. Mark Siebert

July 1990/Illinois Issues/41