Judicial Rulings                                                     

A "new majority" of the Illinois Supreme Court (to use Justice Michael A. Bilandic's term) has overturned a decision filed on December 4, 1992, the last working day for retired Justices William G. Clark, Thomas J. Moran and Joseph F. Cunningham. American Telephone and Telegraph Co. v Village of Arlington Heights (Docket No. 72315) had granted a number of municipalities the right to collect franchise fees from the utility because its proposed fiber optic cable would cross beneath their streets (see Illinois Issues March 1993, page 28). AT&T petitioned for rehearing and convinced the "new majority" to file a decision favorable to it on August 26.

The court said in its August opinion: "Regardless of the name given to this particular method of revenue enhancement,... it is, in its essence, a toll" and pointed out that if all 2,817 governmental units in Illinois that have roads "had the right to charge tolls for conduits going under and over their streets, the effect would amount to legalized extortion and a crippling of communication and commerce as we know it."

The court held that Illinois statutes generally and the pertinent section of the Cities and Villages Act in particular (see Illinois Revised Statutes 1987, ch. 24, par. 8-11-2(4)) give municipalities regulatory rather than proprietary authority over streets. The court said, "The streets exist for the benefit of the entire public and are subject only to reasonable regulations regarding usage." Thus municipalities — even those with home rule — are barred from charging rent or use taxes on public streets.

Two of the towns involved are home rule units whose powers must be liberally construed. The court said, however, that "the power of a home rule municipality to levy a tax is limited to issues of local rather than statewide concern. A telephone company which is running a fiber optic cable across the State ... is not a matter of purely local concern and is an issue of statewide concern."

Justice James D. Heiple wrote the opinion filed August 26. Justice Mary Ann McMorrow did not participate. Justice Charles D. Freeman's special concurrence went only to the facts of this case because he said, "A realistic uncertainty as to the nature and extent of future uses of municipal property convinces me that the facts of this case provide no reason to assert that such fees could never be proper." He questioned the majority reasoning on the issue of a municipality's proprietary interest in the streets, saying that "[t]he court has spoken inconsistently on this issue" and that this decision does not clarify.

Justice Michael A. Bilandic, sole surviving member of the "old majority," dissented, raising points not contained in the December opinion. He pointed out that AT&T paid well for the right to lay cable on private property. Since the cable would increase its profits, the denial of a fee in fact caused residents of the munipalities to subsidize AT&T and amounted to a tax on them. The court's action, in his view, thus breaches separation of powers and due process guarantees. Further, "It was the intention of the drafters [of the Illinois Constitution] to give home rule units the authority to exercise any power and perform any function concurrently with the State, unless the General Assembly specifically limits the concurrent exercise of such power or specifically declares that the State's exercise is exclusive." He said that the court has recognized "the proprietary power of home rule units over public property and also has rejected the ... premise that home rule powers may not extend to matters which touch issues of State-wide concern." The majority, he said, "entirely denied and preempted fundamental home rule powers and authority."

Consolidated adoption cases gave the Illinois Supreme Court the opportunity to clarify the source of courts' jurisdiction. In three instances the Cook County Juvenile Court had terminated parental rights and attached conditions to a court-appointed guardian's authority to approve adoption — specifically the requirement that the adoptive parents agree to maintain contact with members of the child's biological family. Although the adoptive parents were willing to provide such contact they did not want it made part of the adoption order. In its August 26 decision the high court ruled against such conditions.

Termination of parental rights is covered by the Juvenile Court Act, with provision for appointment of a guardian with authority to approve adoption (see Ill. Rev. Stat. 1989, ch. 37, par. 802-29(2)). The act requires the juvenile court to give paramount attention to the best interests of the child. For this reason the high court held that the courts "had inherent authority to condition the guardian's consent."

Adoption occurs under the Adoption Act (see Ill. Rev. Stat. 1989, ch. 40, par. 1501 et seq.). The act describes the matters to be considered by the court, of which contact with the biological family is only one.

At issue was the broader question of the source of the circuit court's power and the appellants' claim that the juvenile court could exercise its power to enforce the best interests of the child. The court said, "Adoption ... is a creature of statutory enactment, nonexistent at common law." Taken together the Juvenile Court Act and the Adoption Act constitute a comprehensive statutory scheme controlling adoption, with limitations on the authority of the circuit court. The juvenile court cannot exercise powers beyond those granted by statute — in this case the appointment of a guardian with authority to consent.

In an earlier case, Ardt v Illinois Department of Professional Regulation (154 Ill. 2d 138, 145 (1992)) the court stated, "generally, that jurisdiction of the subject matter of a case is conferred on courts either by statute or by the constitution." Here it amplified. When the legislature has passed a statute "creating rights and duties which have no counterpart in common law or equity," the constitution gives courts the "power to adjudge concerning that right. However, it is by reason of the statute that the justiciable matter exists," and therefore the statute may limit the authority of the circuit court.

Justice Charles E. Freeman wrote the opinion in In re M M. et al, Minors (Docket Nos. 73377 and 73439 cons.). Chief Justice Benjamin K. Miller, joined by Justice Michael A. Bilandic, specially concurred, approving the court's correction of what he termed the "overbroad" declaration of Ardt.

In another case a divided Illinois Supreme Court also relied on an exact reading of the statute to permit a class action by customers against Illinois Bell for alleged damages resulting from the 1988 fire in the utility's Hinsdale switching station.

The automated station, which can handle 3.5 million calls daily, is often unattended. It had no automatic firefighting systems, and its alarm system rang in Springfield, rather than at the local fire company. As a result

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the fire burned for an hour before discovery and totally destroyed the station's equipment. Bell had no emergency backup equipment. As a result customers in Chicago's western and southwestern suburbs lacked service for more than a month. Understandably annoyed, customers brought five class actions, consolidated here. They argued that Bell had failed to provide "service ... in all respects adequate, efficient, just and reasonable" as required by the Public Utilities Act (see 220 ILCS 5/8-101 (1992)). Nor did Bell fulfill requirements of the the Illinois Commerce Commission to "make reasonable provision to meet emergencies resulting from . . . fire . . ." (83 Ill. Adm. Code sec. 730.408(a)(1991)).

Bell argued that under its tariff filed with the commission, "The liability of the Company for damages . . . shall in no event exceed an amount equivalent to the proportionate charge to the customer for the period of service during which such . . . interruption . . . occurs." Section 5/13-101 of the Public Utilities Act makes the company liable for "all loss, damages or injury." The court said, "To say such duties are not controlling is tantamount to holding that by filing a tariff... a utility has the power to nullify the regulatory scheme enacted by the General Assembly."

Bell also argued that claims could only be filed under contract law under the doctrine announced in Moorman Manufacturing Co. v National Tank Co. (91 Ill. 2d 69 (1982)). The so-called "Moorman Doctrine," the subject of considerable controversy over the years, holds that only personal damages can be sought in tort and that economic damages are a matter of contract. Here, however, the statute speaks of recovery for "all damages," for which reason the court held that Moorman does not apply.

Writing for the majority in In re Illinois Bell Switching Station Litigation (Docket No. 73999) was Justice Moses W. Harrison II. Justice Charles E. Freeman dissented in part, including rejection of the majority's Moorman argument, but held that the company's failure to provide a program to prevent service interruptions, required by Section 730.402 of the Administrative Code, and to try to meet emergencies caused by fire required by Section 730.408 were an adequate basis for plaintiffs' action. Justice Mary Ann McMorrow concurred with Freeman but wrote an extended analysis of the reasons for applying Moorman. Justice James D. Heiple dissented, arguing that the company's tariff provisions had been in existence for over 40 years and that any public objection to them can result in a hearing by the Illinois Commerce Commission. He also argued that Moorman should apply.

F. Mark Siebert

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