Judicial Rulings

Trial in absentia: no exception to rule or right

A defendant who flees to escape trial cannot be tried in absentia unless duly notified of that possibility, the Illinois Supreme Court ruled on March 26.

In this case the defendant was arraigned on charges of armed robbery. Neither then nor at subsequent court appearances was he warned that failure to appear for trial could lead to trial in absentia. He ducked several court appearances because of alleged hospitalization, finally left the hospital against medical advice and disappeared. The court tried him in absentia.

The Code of Criminal Procedure provides for warning at arraignment or any subsequent court appearance that failure to appear in court when ordered can lead to trial in absentia (see Illinois Revised Statutes 1989, ch. 38, sec. 113-4(e)). Here the state argued for an exception to the rule in the case of seasoned criminals who are acquainted with this rule from prior trials, holding that their failure to appear constitutes a voluntary waiver of their rights. The court said, "We are powerless to annex to a statute a provision or condition which the General Assembly did not see fit to impose," and further, "We decline to equate knowledge of the law with waiver of a right." In this ruling the court settled disagreement at the appellate level.

The court also advised, "Given that the necessity of trial is determined at arraignment, we believe that the admonishment is most effective at that time, when the defendant is also being informed of other significant protections ...."

Justice Charles E. Freeman wrote the opinion in People v Garner (147 Ill. 2d 467).

A little light on ComEd

In the protracted and complex Commonwealth Edison (ComEd) rate case the Illinois Supreme Court ordered a first round of refunds to customers and approved some lower court procedures that may set patterns for future cases. This seems to be the first final action, rather than a decision that sent the affair back to the Illinois Commerce Commission or the lower courts (see Illinois Issues, February, page 27). The opinion was filed April 16.

The end, however, is still not in sight. The order covers the period April 29, 1986, through December 31, 1988. Plaintiffs and intervenors had asked that it run through 1989. That year is still a matter of dispute since ComEd had requested and received a second rate increase while the first, now settled, was still under litigation. The court also rejected the second, presently under consideration by the commission. A refund for 1989 would obviously add further to an already messy case.

The court set 9 percent as the interest rate to be applied. The refund will be made via a credit to present rather than actual ("historical") customers. The court said, "Since mid-1986, approximately half of the historical customers have moved, some more than once, and some to locations outside of its service area. Edison would therefore be required to process approximately 378 million records. ... and to issue and mail approximately 2 million refund checks to historical customers at their last known address."

The court observed that "at the time it [the circuit court] granted its May 1986 stay order, there was no statutory or case law precedence for the equitable remedy of a refund." The court found that the circuit court rather than the commission has jurisdiction in determining corrective measures for the excessive rate increase and approved the process followed here, which could be a pattern for similar cases in the future. The circuit court permitted ComEd to continue collecting the higher rate while appeal was pending but ordered that the excess be kept in escrow with regular accounting to the court.

Justice Michael A. Bilandic wrote for the majority in People ex rel Hartigan v Illinois Commerce Commission (Docket Nos. 71154, 71155 cons.). Justice Charles E. Freeman dissented on the matter of payment to current customers, saying that responses from historic customers could be solicited via media announcements.

As to practical results, there were press estimates of a $40 refund per residential customer. On the other hand, a report in the Chicago Tribune said that ComEd's ongoing rate uncertainties now jeopardize the company's dividend, while the price of its stock has dropped 20 percent since the first of the year.

Sexual abuse of minors

The Illinois Supreme Court ruled constitutional the statutory distinction between criminal sexual abuse and aggravated criminal sexual abuse of a minor by an adult. If the victim is between the ages of 13 and 17 and the adult is less than five years older, the charge is criminal sexual abuse, a Class A misdemeanor. If the adult is more than five years older, the charge is aggravated criminal sexual abuse, a Class 2 felony with greater penalties (see Ill. Rev. Stat. 1989, ch. 38, secs. 12-15(c) and 12-16(d)).

Here the defendant claimed violation of equal protection and due process guarantees of both state and federal constitutions. He pointed out that a 19-year-old would receive unequal treatment depending on whether the victim was 14 or 15.

The court ruled that since this was neither a "suspect" classification, such as race, or a question of fundamental constitutional right, this classification, resting as it does on age, need only survive a rational basis test: "If any state of facts may be reasonably conceived to justify the enactment, it must be upheld."

The court said, "Imposing a greater penalty on adults who engage in sexual conduct with minors is the method chosen by the legislature to protect minors from sexual exploitation by adults ...." Further, "We do not find it irrational for the legislature to designate a five-year age difference as the threshold at which a greater penalty is imposed" since it termed activity beyond the five-year age difference "indefensible."

Chief Justice Benjamin K. Miller's opinion in People v Reed (Docket No. 71707) was filed April 16.

Hazing law constitutional

Illinois' 90-year-old law against hazing, rarely enforced, was found constitutional by the Illinois Supreme Court. It filed its opinion April 16.

A new member of the Western Illinois University lacrosse club died of alcohol poisoning allegedly brought on after candidates for initiation had to ingest a nauseating mess containing alcohol and top it off with further drinks. Twelve members of the club were charged with hazing. They challenged the hazing statute (see Ill. Rev. Stat. 1989, ch. 144, sec. 221) as unconstitutionally vague and infringing on free speech.

Central to the court's decision was the statutory provision that the victim suffer "injury to his person," which it interpreted as bodily injury. From this it ruled that "the hazing statute ... is unlikely to implicate speech or conduct protected by the First Amendment at all, much less to do so in an overbroad manner."

About the challenged vagueness of the statute the court said, "We will not require the legislature to specify every activity that could be a 'pastime or amusement' or in which a person might be held up to ridicule." It cited the civil case Quinn v Sigma Rho Chapter of Beta Theta Pi Fraternity (155 Ill. App. 3d 231 (1987)) in which the appellate court called excessive drinking "clearly an illegal hazing activity" and said that the hazing statute applied to such dangerous activities.

The court rejected unequal protection arguments since the law has a rational relation to the

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Judicial Rulings

legitimate state objective of preventing bodily injury, and "hazing occurs in colleges, universities and other schools."

Chief Justice Benjamin K. Miller wrote the opinion in People v Anderson et al (Docket Nos. 71877-71888 cons.).

New and amended rules

The Illinois Supreme Court has amended 11 rules and issued 14 new ones in an order entered April 1. Perhaps the most interesting of the amendments concerns Rule 66, the restrictions imposed 10 months ago on outside activities of judges. The amendment raised the limit for honoraria from $2,000 to $3,000 for a six-month period, while compensation for writing was removed from the category of restricted activities. Some judges had resigned or planned resignation because the compensation limit was too far below their earnings for teaching and other nonjudicial activities.

New Rules 100.1 through 100.13 concern expedited child support. They were made necessary by the Expedited Child Support Act (see III. Rev. Stat. 1989 suppl., ch. 40, secs. 2701-2710), which became effective September 10, 1990.

F. Mark Siebert

26/June 1992/Illinois Issues