Judicial Rulings

Chop shop act constitutional

The Illinois statute intended to prevent illegal modification of stolen vehicles was ruled constitutional by the Illinois Supreme Court. Its May 20 decision reversed a circuit court ruling.

The defendant was charged with unauthorized possession of salvage certificates and with possession of title certificates without complete assignment. He argued that laws he was charged under in the Illinois Vehicle Code (see Illinois Revised Statutes 1987, ch. 95 1/2, secs. 4-104(a)(2) and 4-104(b)(l)) violate due process clauses of the state and federal constitutions by creating "a felony offense with felony penalties without requiring any unlawful purpose, knowledge or intent."

Other statutes in the Criminal Code are intended to prevent imposition of a severe sentence for an offense committed unknowingly. The Criminal Code provides that intent, knowledge or recklessness applies (see III. Rev. Stat. 1987, ch. 38, sec. 4-3(b)).

The General Assembly indicated neither that the offenses covered by these Vehicle Code laws are clear liability offenses, that is, felonies regardless of a lawbreaker's knowledge of the laws, nor that some culpable mental state must be present for guilt to be proved, which is a general standard for felony cases.

The court held that for these sections of the Vehicle Code knowledge applies: that the state must prove "that defendant possessed these certificates of title knowing that he did not have authority or knowing that it was without complete assignment."

Justice William G. Clark wrote the opinion in People v Gean (Docket No. 70660); Justice Horace L. Calvo did not participate.

Sex is not psychotherapy

In a May 30 decision the Illinois Supreme Court allowed a woman to sue her psychotherapist for allegedly having sexual relations with her as a part of prescribed therapy. The court observed that it had "yet to determine the pleading requirements for a plaintiff who has directly suffered emotional distress due to a psychotherapist's negligence." In press reports some observers said this case was the first in the nation in which suit for emotional distress was permitted in the absence of physical injury.

Since the alleged incident, the legislature enacted the Sexual Exploitation in Psychotherapy Act (see 111. Rev. Stat. 1989, ch. 70, sec. 801 et seq.).

Essentially the court decided this case under common law on negligence and said that its decision "is fully compatible with this court's findings regarding the tort of intentional infliction of emotional distress under Illinois law." It joined a number of other jurisdictions in eliminating personal injury as proof of emotional injury, saying, "[E]xpert witnesses such as psychiatrists, psychologists and social wokers are fully capable of providing the jury with an analysis of a plaintiff's emotional injuries."

The therapist in this case was not registered with the state, and the court permitted the plaintiff to bring private suit against him as a public nuisance.

Justice Howard J. Moran wrote for the majority in Corgan v Muehling (Docket No. 67123). Chief Justice Ben Miller's special concurrence said that the court should have followed the statute in identifying the therapist's action as exploitation rather than negligence, while Justice James D. Heiple's strongly worded dissent said, "She knew what she was doing and did it. ...The plaintiff, having willingly engaged in a frolic, now seeks to use the legal system as a tool for a shakedown."

Polluters liable for dumping

In two unrelated but similar cases from La Salle County the Illinois Supreme Court defined the conditions under which landowners cited for violation of dumping regulations of the Illinois Environmental Protection Act (see Ill. Rev. Stat. 1989, ch. Ill 1/2, sec. 1001 etseq.) can bring third-party action for contribution against the producers of the polluting material. The opinions were filed May 30 and were the first such decisions in Illinois.

One suit was against owners of an illegal dump. The other was against owners of a legal or permitted landfill for illegal practices, including burning and pollution of surface water and groundwater. In both the state sought injunctive relief to stop the practices and for payment of cleanup expenses. In both the defendants brought actions for contribution against the producers of the dumped refuse.

Both cases are complex. One was decided largely within the framework of the Environmental Protection Act, the other within the Code of Civil Procedure (see Ill. Rev. Stat. 1987, ch. 110, sec. 2-406) and the Contribution Act (see Ill. Rev. Stat. 1987, ch. 70, sec, 301). Together they probably provide a reasonable amount of guidance for the conduct of such suits.

Both opinions — People v Fiorini (Docket' Nos. 69756 and 69760 cons.) and People v Brockman (Docket Nos. 69932 and 69951) —were written by Justice Charles E, Freeman, with Justice James D. Heiple not participating

A whimper, not a bang:
Tully in, White out

The highly publicized challenge of William S. White, judge of Illinois' First Appellate District, to the constitutionality of the Compulsory Retirement of Judges Act (see III. Rev. Stat., 1989, ch. 37, sec. 23.71) ended inconclusively with a June 4 decision of the Illinois Supreme Court.

Under the act White's term expired automatically December 3, 1990, because he had reached the age of 75. In October 1989 he filed for retention, that is, to place his name on the November 1990 ballot for retention by the voters to another term. In a letter accompanying his filing, he contended that the Illinois law is forbidden by the federal Age Discrimination in Employment Act (see 29 U.S.C. sec. 62k et seq.).

Meanwhile, the State Board of Elections accepted nominating petitions for the March 1990 party primary elections from five candidates for White's seat as if the judgeship were vacant. For the November general election the board directed the Cook County clerk to place White's name on the ballot for retention as well as the names of the candidates nominated in the primary election. In October 1990 John P. Tully, the Democratic candidate, filed in circuit court to have White declared ineligible, but the court decided that it was too late to anything.

In the general election White won retention, and Tully was elected. Three days later White answered Tully's complaint, claiming that the automatic retirement provision is unconstitutional.

The Supreme Court did not reach the constitutional issue in the case. Instead, it applied the doctrine of laches, which bars a litigant's claim when he has knowingly delayed acting to the detriment of his opponent. Among other things the court said, "If White voted in the March 1990 primary, which would be reasonable to assume, he would have noticed that candidates were running to fill a vacancy caused by his automatic retirement. Yet... he sat by and did not raise any objection to their candidacy."

Justice Michael A. Bilandic wrote the opinion in Tully v State of Illinois (Docket No., 71152); Justice Thomas J. Moran did not participate.

F. Mark Siebert

32/July 1991/Illinois Issues