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Judicial Rulings                   

Child shield act
unconstitutional — again

Back to the old drawing board for the Child Shield Act (and an amendment to the Illinois Constitution might be the only solution).

In 1989 the Illinois Supreme Court declared an earlier version unconstitutional (see Illinois Issues, August-September 1989, page 57). In 1991 the legislature attempted to correct the defects with a new version (see Illinois Revised Statutes 1991, ch. 38, par. 106B-1). It was reportedly modelled on a Maryland statute that had been found constitutional by the U.S. Supreme Court (Maryland v Craig, 497 U.S. 836 (1990)).

The purpose is protection of child victims of alleged sexual abuse from trauma and intimidation while giving testimony. In this version they testify in a separate room. The judge, prosecutor and defense attorney are present and may ask questions. Closed circuit television shows the testimony in the courtroom, with the defendant able to correspond electronically with the defense attorney.

The federal court based its decision on interpretation of the sixth amendment to the U.S. Constitution, which allows the defendant "to be confronted with the witnesses against him." It held that an obvious preference for face to face confrontation could be suspended for a compelling reason, such as the protection of a child's well-being, with the purpose of confrontation — vigorous cross-examination — protected through other means.

Illinois' guarantee, however, says, "The accused shall have the right... to meet the witnesses face to face" (Art. I, sec. 8). The Illinois Supreme Court followed Pennsylvania in holding that this means exactly what it says, and that closed circuit TV is not "face to face." It said that the practice allows a jury to observe and judge better the demeanor of the witness.

Chief Justice Michael A. Bilandic wrote for the majority in People v Fitzpatrick (Docket No. 74768), filed February 17. In a vigorous dissent Justice Charles E. Freeman (joined by Justice Benjamin K. Miller) pointed out that in similar cases some states have followed the decision in Craig. He said that they are possible because of a series of U.S. Supreme Court decisions that establish a preference for face to face confrontation, so that "No distinction can be drawn between the protections provided by the two clauses where the one simply expressly provides for what the other, though stated differently, intends."

Attorney-client
confidentiality extended
with exception for extension

In its first consideration of the question, the Illinois Supreme Court has ruled that a psychiatric examination made in preparation of an insanity defense comes under the attorney-client privilege unless the practitioner is to be an expert witness at trial. Its February 17 decision followed the majority of other jurisdictions that have considered the matter.

In this case the examination was made two weeks after a murder. The defendant pleaded guilty instead of making the insanity defense, but five years later moved successfully for reconsideration on the basis of inadequate counsel. At this point the state attempted to subpoena testimony and records of the psychiatrist, even though the defense did not plan to call him as a witness at the new trial.

The court said, "The raison d'etre of the privilege is to secure for the client the ability to confide freely and fully in his or her attorney, without fear that confidential information will be disseminated to others." Courts have recognized that this may include communication with individuals other than the attorney. The Court's Work-Product Rule (see 134 Ill. 2d R. 412(j)(i)) provides such protection deriving from Common Law principles and constitutional guarantees of effective assistance of counsel and against self-incrimina-tion. The privilege had already been applied to an investigator employed by an attorney (People v Knippenberg, 66 Ill. 2d 276 (1977)) and is here extended to examination of a client's mental condition necessary to consideration or preparation of an insanity defense.

In an insanity defense the prosecution is entitled to its own psychiatric evaluation, but the court held that this does not imply a waiver of the defense's privilege in its own examination. Discovery and disclosure occur only when the practitioner is to be an expert witness. Since the defense's examination was the only one made soon after the murder, the court ruled that public interest in discovering the truth created an exception to the privilege in this case.

Justice Mary Ann McMorrow wrote the majority opinion in People v Knuckles (Docket No. 73616). In dissent Justice Moses W. Harrison II disagreed with the court's exception for this case, pointing out that any privilege is at odds with truth-seeking functions. He said, "If the majority's view were accepted, no claim of privilege would ever prevail. The exception would devour the rule." He suggested that rules in the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1983, ch. 91 1/2, par. 801 et seq.) might permit unchallenged access to such information, but that the issue is not raised here.

Pollution I: Home rule
powers for waste
disposal not preempted

Home rule powers for a village ordinance on waste disposal have not been preempted by the state in provisions of the Public Utilities Act (see Ill. Rev. Stat. 1991, ch. 111 2/3, par 1-101 et seq). The Illinois Supreme Court ruled February 3 in favor of the village of Bol-ingbrook.

The village contracts with Citizens Utilities Company for various services, including sewage disposal. The village filed complaints for 20 incidents of discharge of raw sewage, in violation of two ordinances. The company argued, and lower courts had agreed, that specific language in paragraph 1-102 of the act, "It is ... the policy of the State that public utilities shall continue to be regulated ... comprehensively" satisfies Article VII, section 6(h) of the Constitution that the General Assembly "provide specifically by law for the exclusive exercise by the State of any power or function of a home rule unit." In other words, home rule powers granted by the Constitution to the cities, villages and counties who qualify are only taken away if a statute is passed spelling out precisely that only the state government has that specific power.

The Illinois Supreme Court did not agree with the lower court conclusions on waste disposal powers. Remarking that "the conflict between State and local legislation is one of the most troublesome areas associated with home rule," the high court said that the requirement in Article VII, section 6(i) for express language describing legislation exclusively controlled by the state avoids these difficulties. It cited precedent decisions in cases similar to this one that establish that "it is not enough that the State comprehensively regulates an area which otherwise would fall into home rule power."

Where, as here, state and local interests may overlap, the court applies a three-part test established in Kalodimos v Village of Morton Grove (103 Ill. 2d 483, 501 (1984)). In this case, the court said the interests of waste disposal controls were definitely local.

Justice Benjamin K. Miller wrote the opinion in Village of Bolingbrook v Citizens Utility Co. (Docket No. 74201).

Pollution II: clarifying the
label 'generator' when
disposing of hazardous waste

Under the Illinois Environmental Protection Act (see 415 ILCS 5/39(h)), generators of hazardous waste must have permission from the Illinois Environmental Protection Agency (IEPA) to dump the waste. In a February 17 decision the Illinois Supreme Court clarified the identity of a generator with a little help in

38/April 1994/Illinois Issues

the future from new legislation.

In this case, a Peoria waste disposal facility accepted hazardous waste from a Michigan company, mixed it with other material, treated it to make it less apt to leach and disposed of it in a hazardous waste landfill under IEPA authorization. Another disposal company, an unsuccessful bidder for this contract, complained to the Illinois Pollution Control Board that the Michigan company had not obtained the disposal authorization required of "generators" of hazardous waste by section 39(h) of the act.

The question of law here is the identity of the generator of the waste. Section 39(h) says, "The last person who treats ... the hazardous waste prior to disposal is the generator." The language was added by legislative amendment while the case was pending, but since no vested rights are involved the case is decided under current language. Even before amendment, the generator of "that specific hazardous waste stream" had to obtain the authorization, and in this case the combination with other wastes yielded a new residue, with the treatment facility as generator.

Justice Charles E. Freeman wrote the opinion in Envirite Corporation v Illinois Environmental Protection Agency (Docket No. 75060).

F. Mark Siebert

April 1994/Illinois Issues/39