Judicial Rulings                                                                  

When lawyers do not follow the rules laid down for them they can get into professional trouble. Short of that, they can have a job handed back to them to do over. On February 18 the Illinois Supreme Court made just such a ruling.

The plaintiff here followed a common route. Following the Supreme Court's rejection of his appeal of the death penalty he filed his own petition for relief under the Post-Conviction Hearing Act (see Illinois Revised Statutes 1987, ch. 38, sec. 122-1 et seq.), claiming ineffective assistance of counsel at the death penalty hearing. The act anticipates that such petitions will be largely by indigent prisoners filing on their own behalf (pro se). Section 122-4 provides for court appointed counsel to examine the charges, whip the petition into proper legal shape and provide supporting material, such as affidavits from witnesses. Supreme Court Rules (see 134 Ill. 2d R. 651(c)) spell out duties for attorneys and require an affidavit or a record showing compliance.

Here the attorney's amended petition merely repeated the plaintiffs pro se language, adding two more claims. His affidavit showed that in two years he had made no attempt to contact the potential witnesses named by the plaintiff. The trial court dismissed the petition without a hearing. The Supreme Court reversed and directed that the lawyer perform the required services. It said, "The trial court may then reconsider the State's motion to dismiss the petition on the basis of a record which is properly developed." It rejected the plaintiffs claim that the lawyer should have looked for additional support, saying, "Counsel has no obligation, however, to engage in a generalized fishing expedition ... ."

Justice Michael A. Bilandic wrote the opinion in People v Johnson (Docket No. 70469).

A decision of the Illinois Supreme Court could affect close to 50,000 drivers in a year. In effect it says that the law really means it when it provides for a hearing within 30 days on a petition to rescind a mandatory suspension for driving under the influence of alcohol. The catch is that the request must be strictly according to the rules.

In three consolidated cases, drivers made a written request for rescission of suspension shortly after receiving notice of suspension from the secretary of state. The Illinois Vehicle Code says that a hearing must be held "within 30 days after receipt of the written request... ." (see Ill. Rev. Stat.

April 1993/Illinois Issues/25

Judicial Rulings                                                                  

1989, ch. 95 1/2, sec. 2-118.1(b)). The confirmation notice from the secretary of state instructs, "Petitions must be filed in writing and submitted to the Clerk of the Circuit Court... ." For a different reason in each case the hearing did not take place within 30 days.

The high court settled differences in appellate interpretations: "We conclude that the 30-day statutory period commences on the date of the filing of a proper petition to rescind in the circuit court of venue, with service on the State, in accordance with the rules of this court. The burden to set the court hearing date would then shift to the State." In two of the current cases it lifted the suspension since the plaintiffs had complied with these requirements. It left the third suspension, however, because the plaintiff had not shown service on the prosecutor according to Supreme Court Rules (see 134 Ill. 2d Rules 11, 12).

The central case raised another issue. In several court appearances on other matters related to the case the statement was made that no petition to rescind was on file. The plaintiffs attorney, who had helped draft the statute, did not correct this impression. When the judge finally critizied this, the attorney said, "It is not my duty as a lawyer to either assist my opponent in their case or assist the court in prosecuting my client."

Justice Michael A. Bilandic wrote the opinion, filed February 25, in the consolidated cases People v Schaefer (Docket No. 72884), People v Hill (Docket No. 72946) and People v Puckett (Docket. No. 72996). Chief Justice Benjamin K. Miller wrote a special concurrence. He disagreed with the majority in basing the decision constitutionally on denial of due process. He found a basis for the decision in statutory interpretation.

A limited exception to the rather rigid rules on medical malpractice suits was announced by the Illinois Supreme Court. Its February 25 decision concerns the effect of continuous negligent treatment on the four-year period of repose.

On medical malpractice the Code of Civil Procedure says that "in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death" (see Ill. Rev. Stat. 1989, ch. 110, sec. 13-212(a)). The court ruled for the first time that this bars application of the continuous course of treatment doctrine, under which the four-year period would begin on the last day of a continuous physician-patient relationship.

The court ruled, however, that the word "occurrence" would create an exception when the patient showed: "(1) that there was a continuous and unbroken course of negligent treatment, and (2) that the treatment was so related as to constitute one continuing wrong." As with any other case, "Once treatment by the negligent physician is discontinued, the statute of repose begins to run, regardless of whether or not the patient is aware of the negligence at termination of treatment." When several doctors in a clinic negligently treat a patient, "to the extent a party brings an action against the clinic as an entity in and of itself, rather than on a theory of vicarious liability, plaintiff can state a cause of action against a multispecialty clinic."

Justice James D. Heiple wrote the opinion in Cunningham v Huffman (Docket No. 73263) with Justice Mary Ann G. McMorrow not participating. Chief Justice Benjamin K. Miller dissented. Since claims against the physician who gave the initial negligent care had been dismissed, he held that the matter was finally ajudicated and that the court was not called on to rule on the course of continuous treatment doctrine. He found no basis for action against the clinic.

By F. Mark Siebert

26/April 1993/Illinois Issues