Judicial Rulings

Mandatory insurance ruled constitutional

A November 21 decision by the Illinois Supreme Court rejected constitutional challenges to the state's mandatory automobile insurance law.

A driver charged that the minimum fine of $500 for driving without liability insurance (see Illinois Revised Statutes 1989, ch. 95 1/2, sec. 3-707) violates equal protection clauses of both the state and federal constitutions by discriminating against the "working poor" since paying it would be a greater hardship for them than for more affluent drivers. He also argued that it is excessive, in violation of the eighth amendment of the U.S. Constitution.

The high court found that the law creates no classification based on wealth because "it is the same for all offenders without regard to any particular characteristic of the individual offender." It recognized the greater impact on the working poor but observed that "under the defendant's argument, any penalty provision in section 3-707 would violate equal protection."

The court cited cases going back to 1894 for its unwillingness to rule fines excessive unless they are cruel, degrading or "wholly disproportionate to the offense committed as to shock the moral sense of the community." In this case the fine is set to "act as a deterrent to those drivers who might opt to flout the law if the fine were less than the cost of procuring the liability insurance."

Justice William G. Clark wrote the opinion in People v Simmons (Docket No. 70542).

Rules for faxes in evidence

The frequent transmission of faxed documents makes it inevitable that they will be introduced in evidence. A November 21 decision of the Illinois Supreme Court set the first ground rules for their use.

In this case the defendant was charged with forgery because he had faxed a letter showing his average bank balances in six figures when they were either very low or even negative. He challenged the admissibility of the faxes.

Making analogies from rules for computer printouts, the court held that faxes are trustworthy when there is "testimony by a person who can explain a business' procedures for compiling information and methods for checking for mechanical and human error; explain the operation of the machine and testify that the machine properly did what it was supposed to do; and testify as to the mechanical reliability of the machine."

Justice Charles E. Freeman wrote the opinion in People v Hagan (Docket No. 70779).

Parents of stillborn can sue for loss of society

Where medical malpractice has caused the stillbirth of a viable fetus the parents may claim damages for loss of society. The Illinois Supreme Court reconciled conflicting appellate level decisions in its decision of November 21.

The court held that the Wrongful Death Act recognizes an unborn fetus as a person (see Ill. Rev. Stat. 1989, ch. 70, sec. 2.2). Drawing upon Illinois case law, the court further held that parents can recover pecuniary damages for the negligently caused death of a viable fetus, and that loss of society falls within pecuniary damages in the death of a minor child. The court said, "We find no valid reason or distinction to deny similar recovery for the death of a viable fetus."

Justice James D. Heiple wrote the opinion in Seef v Sutkus (Docket Nos. 71115, 71118 cons). Justice Michael A. Bilandic did not participate. Chief Justice Benjamin K. Miller's special concurrence analyzed the conflicting appellate decisions. He pointed out that "this court has never held that because loss of society falls within the scope of pecuniary injuries it is always compensible. Rather it has proceeded on a case-by-case basis... ."

Perhaps more far-reaching was his discussion of viability. A 1973 decision had made "the ability of the child to stay alive separate from its mother ... the 'critical stage' within the meaning of the Wrongful Dearth Act," but the legislature eliminated this requirement by law in 1980.

Absolute right to change of venue

When a motion for change of venue alleges prejudice on the part of the judge, it must be granted, according to a November 21 ruling by the Illinois Supreme Court in a case arising in Cook County juvenile court.

The presiding judge had appointed the county's public guardian as guardian ad litem in several cases of abuse and neglect. There seems to have been an ongoing battle since the guardian claimed that the judge was prejudiced against him, had made similar claims in 55 earlier cases and announced his intention of doing so in all future cases involving physical or sexual abuse. The judge first adjudicated the cases on the merits and then rejected the change of venue motions. A similar action had been overturned on appeal, but the trial judge felt that it was incorrectly decided.

Abuse and neglect cases in juvenile court fall under the Code of Civil Procedure, which provides an absolute right to change of venue when judicial prejudice is alleged (see Ill. Rev. Stat. 1989, ch. 110, sec. 2-1001 (a)(2)). The court said that "a general allegation that the trial judge is prejudiced against a party or his lawyer is sufficient to require that the cause be transferred to a new judge."

Justice Michael A. Bilandic wrote the opinion in In re Dominique F. et al., Minors (Docket No.71068).

More on Rutan patronage case

The parties to the Illinois case that struck a serious blow against political patronage were reported in mid-December to be near a settlement out of court.

In June 1990 the U.S. Supreme Court ruled in Rutan et al v Republican Party of Illinois that party affiliation cannot be considered in most state personnel decisions (see Illinois Issues, August-September 1990, page 14). It returned the case to lower courts for consideration of the facts and decision.

Any settlement would first go to U.S. District Judge Harold Baker in Danville for approval. The next step would be notice of the details to the classes among the plaintiffs for their comments, followed by a fairness hearing. No details of the reported settlement had been made public.

F. Mark Siebert

January 1992/Illinois Issues/27