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Judicial Rulings

Involuntary medication
A 1991 statute permitting administration of psychotropic drugs to incompetent mental patients without their copnsent is constitutional (see 405 ILCS 5/2-107.1 (West 1992)). The Illinois Supreme Court filed its decision May 19.

This provision of the Mental Health Code became effective in August 1991. It sets out conditions under which drugs may be administered involuntarily, upon petition to the circuit court of anyone over 18. The plaintiff's court-appointed guardian argued that previously a guardian could give consent to any treatment considered usual and ordinary and that the new provisions effectively blocked this consent power by requiring court action. Proponents of the regulations argue that they safeguard against misuse of medication to control or punish institutionalized patients.

The consitutional argument rests on a patient's right to refuse medication under liberty guarantees. The court reasoned that, because of the invasive nature of psychotropic drugs and the danger of side effects, as well as possible misuse for patient control, a patient does have the right to refuse them. In precedent decisions the court recognized the possibility of "substituted judgment," whereby a guardian decides such questions for an incompetent person based on an attempt, by reason of intimate knowledge of the person, to determine what the person would decide (see In re Estate of Longeway 133 111. 2d 33 (1989), reported in Illinois Issues , January 1990, p. 27, and In re Estate of Greenspan 137 111. 2d 1, 13 (1990), reported in Illinois Issues , August-September 1990, p. 63). The court held that sec. 2-107.1 rests on the state's "interest in providing for persons who, while suffering from serious mental illness or developmental disability, lack the capacity to make reasoned decisions concerning their need for medication." If the patient's wishes are known, the court is not barred from considering them. Where they are unknown it applies the "best interests" test, defined as "an objective standard of what a reasonable person would prefer under the circumstances of the particular case."

Justice May Ann McMorrow wrote for the court in In re C.E. (Docket No. 73605).

Discrimination in Higher Ed
The Illinois Department of Human Rights lacks jurisdiction over charges of discrimination in academic programs at public universities, a split Illinois Supreme Court ruled on May 19.

Three students at Southern Illinois University filed racial or sexual discrimination charges with the Department under the Human Rights Act. The act forbids discrimination in "any public place of accommodation" (see Illinois Revised Statutes 1989, ch. 68, par 5- 102(A)) and defines such places in Sec. 5- 101 (A). According to the court, these are "fundamentally different from institutions of higher education" because the act lists as examples "facilities for overnignt accommodations, entertainment, recreation or transportation." Sec. 5-102(C) makes it unlawful for a public official to deny anyone "the full and equal enjoyment of the accomodations ... of the official's office ..." The court equated this with the "public accommodations" cited earlier.

In 1983 the legislature added Art. 5A to the act, giving the department jurisdiction over charges of sexual harassment in higher education. The court reasoned that this had not been previously present since it was not mentioned, and that racial discrimination and sexual discrimination (as different from sexual harassment) must still be excluded since they also are not specifically mentioned.

Justice James D. Heiple wrote the majority opinion, Justice Moses W. Hamson not participating. Justice John L. Nickels, joined by Justice Charles E. Freeman, dissented. Nickels argued that since the act is the sole means of redressing civil rights violations it should be broadly interpreted to achieve its purpose. He pointed out that "under the majority's reasoning, the legislature 'intended' to protect a student from discrimination suffered at the hands of a university cafeteria worker or bookstore employee, but not from a professor or administrator of an academic program at the same public university."

Fuel tax in three collar counties
A special motor fuel tax in three of the collar counties withstood a class action challenge on constitutional grounds. The Illinois Supreme Court upheld the pertinent provisions of the County Motor Fuel Tax Law (see III. Rev. Stat. 1991, ch. 34, par. 5-1035.1) in a May 19 filing.

The law permits DuPage, Kane and McHenry counties to levy a special tax on motor fuel in order to provide funds for highway construction. The plaintiffs claimed that this violates provisions against special legislation of the Illinois Constitution (see Art. IV, sec. 13 and Art. IX, sec. 2) and equal protection provisions of state and federal constitutions.

Challenges concerning special legislation and equal protection have the same basis, namely that a statute treats individuals or groups in a different manner from others similarly situated. The plaintiffs argued that the law focuses only on the three counties. In response to the counties' point that these were the three fastest growing counties in the state and thus in need of extraordinary highway construction, the plaintiffs pointed out that Lake and Will counties were growing almost as rapidly but were not included.

When the challenge does not concern a fundamental right or creation of a suspect class, the test is whether a rational basis exists for the differential treatment. The court said, "Transportation needs, by their nature, involve territorial differences. Requiring more than a rational basis for such legislative action is unwarranted."'

Justice John L. Nickles wrote the .majority opinion in Cutinello v Whitley (Docket no. 75468). Justice Charles E. Freeman's dissent will follow.

Communicating with a jury
The Illinois Supreme Court divided on whether defense counsel should have been notified of a judge's non-answer to a jury's question. In this instance the jury was told, "You have received your instructions as to the law, read them and continue to deliberate." This came while the judge was dining with the prosecutor, whom he notified. He informed the defense counsel when court reconvened. In response to the defense's objection he said that, since the jury was obviously confused and he was not sure what it was asking, he responded as he did.

Since 1860 Illinois' rule was that any such communication was not permitted, whether it affected the outcome of the trial or not. This court said, "The rationale was that it would be unjust to impose upon defendants the burden of discovering and showing actual prejudice from communications that should not have taken place and from which they were improperly excluded." More recently they are permitted if the state can prove beyond reasonable doubt that the error was harmless.

Here "the judge had the obligation to inform all parties of the question, seek clarification of it, allow counsel the opportunity to suggest an appropriate response, and then attempt to dispel the jury's confusion with a clear and specific answer." The court stated five fundamental prionciples governing such situations. Here it was not convinced that the judge's response did not affect the verdict.

Justice Mary Ann McMorrow wrote the May 19 majority opinion in People v Childs (Docket No. 74024).Justice Moses W. Harrison II, in a special concurrence, held that all such communications should result in a new trial, asking, "Can we expect a defendant to make a full and informed assessment of the effect of events that he had no chance to witness?" Justice James D. Heiple's dissent held that the judge's answer was no answer and therefore harmless. He concluded, "The majority opinion in this case subverts the jury-deliberation process. It is yet another case of judicial handwringing in the search for that unreachable goal — perfect justice." 

F. Mark Siebert

July 1994/Illinois Issues/39