Judicial Rulings                                                          

One justice called the facts of the case "somewhat bizarre." They were. An appellate decision potentially filled a judicial vacancy with two judges. No one appealed it to the Illinois Supreme Court, but the court itself took it up on its own initiative "as a matter of great importance."

At issue was filling a vacant circuit judgeship in Cook County. Susan J. McDunn and James H. Williams both ran in the Democratic primary in 1990, with Williams the apparent winner. McDunn went to court, looking for a recount. After legal skirmishing, including a trip to the appellate court, the case finally got underway on November 2, 1990. Now, this is quite a saga, going through two election cycles, winding up with both people serving essentially in the same judgeship.

McDunn finished presenting her case on November 5, 1990, the day before the general election. The court found a "reasonable likelihood the recount will change the results of the election." It granted Williams a continuance to November 19, 1990, and ordered that the election should proceed the next day but that the results should be suppressed until the recount could be made. On December 3 Williams was sworn in as a judge; on December 7 the court ordered a recount.

The recount turned up 1,153 uninitialed ballots that had been counted in the tally on primary election night. With them Williams won; without them McDunn won by 167 votes. Ballots for eight precincts were missing, but Williams' only had a 23-vote edge in the totals. The trial court ruled in March 1992 that the uninitialed ballots could not be counted and declared McDunn the primary winner. It ordered her name placed on the ballot for the general election in November 1992. In August the appellate court affirmed the circuit court decision but added that Williams should continue to serve "until his resignation, retirement or failure to be retained."

Yet on November 3, 1992, McDunn, running unopposed, won. On November 18 the Supreme Court stayed the March order of the circuit court in order to decide the issue itself, and on November 23 it appointed Williams to the vacancy, effective back to December 3, 1990, until May 31, 1993.

The Supreme Court declared it has jurisdiction, citing its supervisory authority over all Illinois courts, conferred by the Illinois Constitution (Article VI, section 16). The court said, "This court's supervisory authority is not limited by any rules or means for its exercise." It pointed out that any decision by Williams or McDunn might be questioned if the appellate decision were allowed "to escape review merely because all parties are pleased with the outcome."

The Supreme Court ruled the appellate decision unconstitutional. The curiously split appellate court had found that McDunn had won the primary but that the voters in the general election believed Williams to be the valid candidate. It "fashion[ed] a remedy in the interests of fairness and equity" (see Illinois Revised Statutes 1989, ch. 46, par. 7-63; 134 Ill. 2d R. 366(a)(5)). One justice concurred in the seating of Williams but dissented in placing McDunn on the 1992 ballot, while another dissented from seating Williams but concurred with regard to McDunn.

The Supreme Court said that the seating of Williams might be interpreted as an appointment to a vacancy, a role assigned by statute to the Supreme Court. Further, vacancies can only be filled until the next general election, while the appellate decision seated Williams until his resignation, retirement or failure to be retained in the general election. This would mean that Williams and McDunn might both occupy the seat without any appropriation for the additional seat by the legislature. If the ruling stood, it "would allow courts to create an unlimited number of political offices in the name of equity and justice" and "there could be more than one winner in every instance where uninitialed ballots were a factor."

Those ballots were the third major bone of contention. The Election Code clearly says, "If any ballot card envelope is not initialed, it shall be marked 'Defective' ... and not counted" (see Ill. Rev. Stat. 1989, ch. 46, par. 24A-10.1). Although some exceptions have been made, generally involving absentee ballots, the court found that none of the precedents apply here and that the statute means exactly what it says. The provision is not unconstitutional because it is the method chosen to prevent election fraud. The voter is not seen as deprived of his or her right to vote through another's fault since the initialing process has been used for years and there is nothing to prevent voters' knowledge of it and opportunity to require an initial if it is absent.

The court settled all other matters to allow McDunn's appearance on the 1992 ballot. It had previously validated Williams' interim service by the retroactive appointment.

Justice John L. Nickels wrote for the majority in the August 26 opinion McDunn v Williams (Docket No. 74613). In a strongly worded dissent Justice James D. Heiple approved the majority's legal reasoning but differed with its conclusions. He argued that Williams could not be seated because he had not won the 1990 primary, while McDunn's 1990 victory did not qualify her to be on the 1992 ballot. Justice Charles E. Freeman's dissent argued, from precedent cases, that the uninitialed ballots should have been counted and that Williams should be seated. Chief Justice Benjamin K. Miller, joined by Justice Michael A. Bilandic, specially concurred in order to answer Heiple's dissent.

In a split decision the Illinois Supreme Court approved a state trooper's search of a cigarette case in a car left at the scene of an accident, with the attendant discovery of cocaine. News stories report the predictable disapproval of civil libertarians to the August 26 decision.

The trooper discovered the car in the ditch, with wires from a downed utility pole across it, apparently the result of a one-car accident. The car was locked; the keys were not in the ignition; the driver was absent. The trooper called for a tow truck and began the inventory of the car required by a general order in State Police procedures. The trooper later testified that he opened the cigarette case because in his experience women often leave driver's licenses in them.

The judicially created exception to warrant requirements rests on three conditions: that the vehicle be lawfully impounded; that the purpose is protection of the owner's property, shielding the police from claims of lost, stolen or vandalized property and also protection of the police from danger; that it be conducted in good faith under standardized procedures. The court ruled that "the general order of the State Police [on searches] is adequate to the situation."

Justice James D. Heiple wrote for the majority in People v Hundley (Docket No. 73925). Justice Charles E. Freeman dissented, holding that the search "was not sufficiently regulated" to satisfy the fourth amendment to the U.S. Constitution. He pointed out that the state does not and could not contend that the car was abandoned since a friend of the driver remained at the scene. Thus it came under fourth amendment protection. He also cited precedent decisions by the U.S. Supreme Court that require standardized criteria or established routine for such searches. He said, "The trooper did not open defendant's closed cigarette case based on any standard police policy, including the general order. Rather, he testified that he acted based on 'his experience.'"

Justice Moses W. Harrison II, joined by Justice Michael A. Bilandic, also dissented. He found the general order inadequate in meeting fourth amendment protections because it "did not specifically address the opening of closed containers."

F. Mark Siebert

28/November 1993/Illinois Issues