Judicial Rulings                                               

In a very unusual action, the Illinois Supreme Court voted on March 29 to rehear two cases that it had decided on December 4. In all of 1992 the court only voted favorably on one rehearing petition out of 67 filed. Acceptance of two in one day may well be a precedent. Of course, since the original decisions were handed down December 4, the Illinois court has changed by three members.

One case is American Telephone and Telegraph v Village of Arlington Heights (Docket No. 72315; see Illinois Issues, March, 1993, page 28). It was a 4-3 decision in which the three justices who retired on December 7 — William G. Clark, Thomas J. Moran and Joseph F. Cunningham — concurred with Justice Michael A. Bilandic, author of the opinion. The three dissenters, Chief Justice Benjamin K. Miller and Justices Charles E. Freeman and James D. Heiple, remain on the bench. The decision allowed municipalities to charge AT&T a fee for use of streets to be crossed by a proposed 85-mile fiber optic cable.

The other case. Roach v Springfield Clinic (Docket No. 73394), involved a charge of medical malpractice. With no written dissent and with Chief Justice Miller not participating, the court affirmed lower court rulings excluding from evidence testimony of an anesthetist based on a conversation with a physician-administrator concerning the anesthetist's late call to the operating room.

"The Sixth Amendment requirement of a fair cross section on the venire is a means of assuring, not a representative jury (which the Constitution does not demand), but an impartial one (which it does)," according to the U.S. Supreme Court decision in Holland v Illinois (493 U.S. 474, 480). This principle underlay the March 18 decision of the Illinois Supreme Court on a central issue in a complex appeal of a death penalty. Among the defendant's numerous points was the claim that the method of drafting juries in Cook County is unconstitutional. The court rejected the argument.

The Jury Commission Act (see Illinois Revised Statutes 1987, ch. 78, par. 32.2) allows court rules for drawing jury members from parts of single-county circuits with more than one million inhabitants. Its provision, "Such rule may utilize established divisions within the county," is implemented in Cook County by dividing the county into a northern and a southern section, with persons reporting for jury duty in the section where they reside. Each section contains almost exactly half of the county's population, but 75.4 percent of the county's African-American voters live in the southern section. A random drawing of jurors in the northern section, the location of this trial, would obviously yield a smaller percentage of black jurors than the percentage of black voters in the entire county population.

The defendant claimed that this violated his right under the Sixth Amendment of the U.S. Constitution to a jury drawn from a fair cross-section of the population. He also claimed violation of 14th Amendment equal protection guarantees of a jury free from taint of discrimination. Central to the court's lengthy analysis was the position that the northern half of the county, the location of the crime as well as of the defendant's residence, constitutes a community for purposes of jury selection. Here African Americans would not be underrepresented by random jury selection. Furthermore, the smaller percentage of African Americans in the section than in the population of the entire county is not the result of systematic discriminatory exclusion.

Justice Charles E. Freeman wrote the opinion in People v Peoples, (Docket No. 70354).

F. Mark Siebert

May 1993/Illinois Issues/31