To what extent will the Illinois Supreme Court follow the U.S. Supreme Court in decisions concerning parallel provisions in the federal and state constitutions? Because the conservative slant of the U.S. Supreme Court is driving more cases into state courts, many state high courts are interpreting such state constitutional provisions more liberally, rather than moving "in lockstep" with federal decisions.

Two recent Illinois decisions come down on opposite sides of the matter, and in one the Illinois Supreme Court said: "This court has not found itself bound in every case requiring State constitutional construction by doctrine derived from Supreme Court interpretation of the Constitution of the United States." After a brief summary of such decisions it said that "this court has . . . found that certain provisions offer our citizens greater protection than that enjoyed under the United States Constitution."

Amicus briefs in one case championing free speech and free elections strongly urged the Illinois court to be more liberal, but it chose not to be. In another case, the Illinois court ruled in favor of stronger rights relating to guarantees against self-incrimination.

In the free speech case, the defendant had been gathering signatures on a nominating petition on supermarket property. When he was charged with trespass, he claimed violation of free speech and free election provisions of the Illinois Constitution (Art. I, secs. 2 and 4; Art. Ill, sec. 3), acknowledging that the U.S. Constitution would not protect his activities but claiming that the Illinois Constitution is more liberal.

While the Illinois Constitution may provide greater protection of free speech than the U.S. Constitution does, the court said that consitutional guarantees have been interpreted "as providing protection only against interference by the government, despite the lack of specific wording to that effect." It held that the present charge, trespass, involves action of an individual, and the court "has not previously determined whether the free speech provision . . . applies to actions by individuals as well as by the State." While several states apply these protections to individual actions, the court chose to align Illinois with those that do not.

The defendant here was arrested for trespass, not for his free expression. Since trespass involves individual action, the free speech guarantees do not come into play. The court said that its analysis was independent of that by the U.S. Supreme Court in similar cases; it arrived at the same answer, however. The disposition of the claim of violation of free election provisions followed much the same path, once it was determined that the store was private property and not a public forum as a shopping mall might be.

There was no dissent to the decision in People v Diguida (Docket No. 72272). Justice Thomas J. Moran wrote the opinion, filed October 1.

Another case, filed one week earlier, had different results. The issues were the defendant's right to adequate counsel and protection against self-incrimination. The basic facts were not in dispute: The defendant had shot and killed an innocent bystander during a street altercation. The prosecution used a statement he had signed during questioning at the police station to rebut exculpatory testimony he gave at trial.

There was disagreement between prosecution and defense about whether the defendant had asked for an attorney, whether he knew that one was present and whether the attorney had been denied access to the defendant. There seems to be agreement that the lawyer was in the station house during some of the questioning and the taking of the statement.

The central issue, then, was "whether defendant's constitutional rights were violated when police failed to inform him that an attorney retained to represent him was present at the place of interrogation and seeking to consult him." Appellate decisions have been divided. The court ruled, "We hold that a suspect's waiver of his right to counsel is invalid if police refuse or fail to inform a suspect who knows that an attorney has been retained for him of the efforts of the attorney, present at the place of interrogation, to render assistance to the suspect."

The court cited Illinois precedents for its decision and rejected the state's contention that they are overruled by the U.S. Supreme Court's decision in Moran v Burbine ((1986), 475 U.S. 412). In this case, People v Griggs (Docket No. 69790), Justice Joseph F. Cunningham's September 24 opinion held that there are factual differences from Burbine. Justice Daniel G. Clark's special concurrence said that "the majority's opinion is unclear whether it reaches its conclusion based upon State or Federal constitutional principles," but that "both constitutions support the majority's decision." He affirmed the position, however, that "in appropriate cases this court has the obligation to interpret our State Constitution more liberally than similar provisions of the Federal Constitution."

Chief Justice Benjamin K. Miller's dissent said, "I believe the present appeal is controlled, as a matter of Federal constitutional law, by the Supreme Court's decision in Moran v Burbine." He reasoned that "we are not free to grant greater rights under the United States Constitution than the Supreme Court has chosen to do." Further, he said, "I do not believe that the Illinois constitutional privilege against self-incrimination, on which the majority does not rely, would compel a different result."

Court has concurrent powers with Pollution Control Board to penalize polluters

Who decides whether polluters should pay for cleanup — and how much? Simply put, the lower courts said that the circuit court is not the forum for such action because the law doesn't say that it is. On the other hand, the Illinois Supreme Court said on October 1 that the circuit court may be the forum precisely because the law does not say that it isn't. In essence, the high court T decided that the Illinois Pollution Control Board and the circuit court have concurrent jurisdiction in the realm of environmental protection under state law.

At the request of the Illinois Environmental Protection Agency the Cook County state's attorney had brought action in circuit court against owners of the site of a defunct paint company. The complaint asked for recovery of costs of cleanup, civil penalties, attorney's fees and punitive damages under provisions of the Environmental Protection Act (see III Rev. Stat. 1991, ch. 110 1/2, sec. 1001 et seq.).

The defendants argued that section 1022.2(i) of the Environmental Protection Act requires such actions to be initiated before the Pollution Control Board. The circuit court dismissed on the grounds that the state had not exhausted its remedies by failing to complain before the Pollution Control Board. The appellate level agreed and added that neither the state's attorney nor the attorney general had authority to initiate action. Thus the attorney general entered the case at the final stage.

The high court said that "no language in this section explicitly excludes the circuit courts from hearing such cases." Since other portions of the act do refer to the circuit court, the omission here was judged to be "merely an oversight." The court ruled that the Pollution Control Board and the circuit court have concurrent jurisdiction over such cases. Since the board has no enforcement powers and must rely on the courts, "The failure to recognize that concurrent jurisdiction exists in the circuit courts would merely frustrate purposes of judicial economy and the ultimate goal of mitigating harm to the environment." Since the attorney general's duties include "representing the People of the State of Illinois and all State agencies," he must have authority to act in such cases as well as in other actions specifically assigned him by the act.

Justice Joseph H. Cunningham wrote the opinion in People v NL Industries (Docket Nos. 72461 and 72505 cons.).

30/ December 1992/ Illinois Issues

Siblings can claim loss of society in wrongful death suits

Siblings of a victim of wrongful death can claim damages for loss of society. The Illinois Supreme Court filed its ruling on October 1.

The Wrongful Death Act allows action for pecuniary damages to "the surviving spouse and next of kin of such deceased person" (see Illinois Revised Statutes 1991, ch. 70, sec. 2). In a series of cases the Illinois Supreme Court has interpreted "pecuniary damages" to include loss of society and loss of consortium. Here it settles disagreement at the appellate level by extending damages for loss of society to include minor siblings.

The court had previously defined next of kin as "those blood relatives of decedent. . . who would take decedent's property if decedent had died intestate." Under the Probate Act these would be the parents and siblings (see III Rev. Stat. 1991, ch 110 1/2, sec. 2-l(d)). The court observed that "it does not necessarily follow that both the parents and the siblings will be treated alike for purposes of the application of the presumption of loss of society." It stipulated further, "Siblings may recover for loss of society of a deceased brother or sister, but such damages must be proven."

Justice Joseph H. Cunningham wrote the opinion in In re Estate of Finley (Docket No. 71800). Justice William G. Clark's special concurrence merely pointed out that "today's decision is the natural extension of several prior opinions of this court."

Substantial compliance OK for involuntary committal

Involuntary committal to a mental health center necessarily has some safeguards, but authorities may use "substantial compliance" as long as the patient does not object. The Illinois Supreme Court filed its decision on October 1.

The Mental Health and Developmental Disabilities Code requires a "dispositional report" before there can be involuntary committal and a "current treatment plan" for continued involuntary committal (see III. Rev. Stat. 1991, ch. 91 1/2, sees. 3-810 and 3-813(a)). The code spells out details required in the documents.

In two cases consolidated here no written documents were submitted, but expert witnesses gave testimony at hearings that, according to the high court, covered the required material. Neither patient objected.

The court saw a precedent in In re Splett (143 Ill. 2d 225 (1991)) where it held that "the State's failure to strictly comply with provisions of the Code may be excused if the record establishes that the purposes of the statute have been achieved." These purposes are "to provide care for those who are unable to care for themselves, and to protect society from the dangerously mentally ill."

Chief Justice Benjamin K. Miller's opinion in In re Robinson and In re Murphy (Docket Nos. 72165 and 72320 cons.) made clear that the court was deciding "only the issues presented by the facts of these particular cases."

Special services tax for Chicago transportation ruled constitutional

A plan by the city of Chicago to levy a special tax on property that would benefit from a central city transportation system is constitutional. The Illinois Supreme Court ruled October 1 on the tax portion of the city's plans to build a "Central Area Circulator."

Under the Special Service Area Tax Act (see Ill. Rev. Stat. 1991, ch. 120, secs. 1308 through 1309a) the plan drew the perimeter of a special service area and provided for financing through a special tax on commercial property within it. Residential property within the perimeter would not be considered part of the area and would thus be exempt from the special tax. This was central to the court's rejection of the argument that the plan violates provisions of the Illinois Constitution that "taxes upon real property shall be levied uniformly . . .." (Art. IX, sec. 4(a)).

The court said, "If complete uniformity of property taxes were required, it would be impossible for local governments to create special service areas as provided elsewhere in the Constitution (Art. VII, sec. 6(1))." Although residential properties create holes in the service area, they are defined as not being in the area, rather than in it but exempt. The reason is the announced purpose of the circulator to increase access to the central city for business, to the advantage of business properties but not residences.

This status basically underlay the court's rejection of most of the additional arguments against the city's ordinances. One of the more interesting ones pointed out that there would also be isolated islands of commercial property surrounded by residential property. The plaintiff cited as example the Hancock building, with the top seven commercial stories cut off from the service area by 49 residential floors and thus violating requirements of contiguity. The court pointed to "the intent of the legislature to broaden the concept of contiguity rather than limit it."

Coming next month in Illinois Issues Profile of Sally Jackson and agenda of the Illinois State Chamber of Commerce by Bob Heuer

Anticipating yearly changes in property classification, the city's ordinances provided for automatic inclusion and separation of property from the area. The court rejected this as changing the boundaries of the special service area. The city "must instead follow the procedures of the Special Services Area Act for enlargement and disconnection. . .."

Chief Justice Benjamin K. Miller wrote the opinion in Grais v City of Chicago (Docket No. 72842).

F. Mark Siebert

December 1992/ Illinois Issues/31