Judicial Rulings
No term-limit referendum
The referendum would amend Art. IV, sec. 2 of the Illinois Constitution. The Chicago Bar Association (CBA) sought an injuction in Cook County Circuit Court and also applied for a writ of mandamus from the Supreme Court. Harrison's dissent spells out the reason that mandamus is inappropriate despite the CBA's "artful phraseology" advocating it. While hearing oral arguments on the mandamus application on July 21, the court became aware for the first time of the action in Cook County and, in an extraordinary action, ordered a decision by the following day. The present order affirmed the circuit court's declaration that the proposed amendment is invalid. Any referendum is limited by Art. XIV, sec. 3 of the Illinois Constitution to "structural and procedural subjects." Presumably, the majority finds that term limits would not fall into either category, or that an amendment would have to touch upon both. Harrison discusses his interpretation of precedents and also points out that "without an initiative, there is no realistic possibility that a term-limit amendment can ever be realized."
Insurance firm must cover one accused of retaliatory discharge
Here a worker claimed that he had been illegally discharged for filing worker's compensation claims. The company claimed that its umbrella insurance policy required the insurance company to defend it. The insurer refused, claiming that retaliatory discharge required "actual malice" and that terms of the policy exempted defense against such claims. It relied on a Seventh Circuit interpretation of Illinois law. The Illinois court disagreed, saying that under Illinois law such a claim does not necessarily imply malice but means "merely that the discharge was causally related to the filing of the worker's compensation claims." The policy, therefore, requires the insurance company to defend. The court noted "that it is generally held that a contract of insurance to indemnify a person for damages resulting from his own intentional misconduct is void as against public policy and courts will not enforce such a contract." In this case, however, the court said, "In the absence of clearly articulated arguments or authority, we decline to adopt the public policy against insuring for damages resulting from intentional misconduct here." Justice Bejamin K. Miller wrote the opinion in Dixon Distributing Co. v Hanover Insurance Co. (Docket No. 75675); there were no written dissents.
Lawyer's trick or valid tactic?
This case of a traffic violation rested on identification by the officer who issued the citation. The defense lawyer seated a clerk from his office, who resembled the defendant, next to him while the defendant sat in the gallery. The witness identified the substitute as the defendant. The lawyer made no immediate correction of the court records but later called the clerk as a witness to reveal the misidentification. He got his client off, but also got hit with a $500 fine. The lawyer argued that he acted in good faith to protect his client from faulty identification. The judge based his ruling on the totality of the lawyer's conduct, and the high court agreed that the surrounding circumstances showed "that appellant intended to cause a misidentification, thereby misleading not only the state and its witness but also the court itself." It emphasized his failure to correct the record when the misidentification was made. Chief Justice Michael A. Bilandic wrote for the majority in People v Simac (Docket No. 74843). Justice John L. Nickels dissented, joined by Justices Mary Ann McMorrow and Moses W. Harrison II. He found that the lawyer was respectful of the court throughout, saying, "I am not aware of a duty imposed upon a defense attorney to assist an eyewitness of the state." He said there was not sufficient evidence to infer a contemptuous state of mind or intent, but rather that the circumstances showed a good faith reason to test the prosecution's ability to identify the defendant (after all, the officer did misidentify the substitute). He made no misrepresentations, and the record's statement of the misidentification rested on an assumption by the judge. As soon as possible thereafter he placed the substitute on the stand to correct matters.
Supreme Court rejects rehearing Baby Richard case
September 1994/Illinois Issues/35
attracted widespread attention, including an attempt by Gov. Jim Edgar to file an amicus brief supporting the rehearing petition (rejected), and legislation rushed through the General Assembly reversing the statutory basis of the decision (see Illinois Issues, August '94, p. 27). The legislative action is parallel to recent attempts to focus treatment of children on "best interests of the child" rather than "preservation of the family," following outcry over actions of the Department of Children and Family Services. In re Petition of Doe (Docket No. 76063) concerned a father's attempt to gain custody of his child. Shortly before the child's birth the mother had been informed that he had taken up with another woman. She agreed to give the child up for adoption and conspired with a lawyer and the adoptive parents to prevent the father from asserting his parental rights. She informed him that the child was dead. According to trial records he made efforts to learn the truth, but did not succeed for 57 days, at which point he brought court action. The trial court found him an unfit parent because he had not acted within 30 days. The appellate court considered the fact that three years elapsed before its decision, and it held that after that time the best interests of the child dictated that he remain with the adoptive parents. The high court's June 16 decision held that the father's parental rights were improperly terminated and that the child's best interests should, therefore, never have been considered. Justice James D. Heiple, author of the opinion, considered the matter so clear that his opinion ran to only two and one quarter pages. There were no dissents, but Justice Mary Ann McMorrow wrote a more extensive concurrence (joined by Justices Benjamin K. Miller and Charles E. Freeman) because "the importance of the issues presented in this appeal warrants a more comprehensive analysis than that offered by the majority." Heiple wrote an extensive and blistering opinion supporting the court's rejection of the petition for rehearing. He accused Appellate Justice Dom Rizzi of ignorance of the law, Gov. Edgar of a "crass political move," the General Assembly of attempting to usurp the court's functions, and Chicago Tribune columnist Bob Greene of "journalistic terrorism." On the case itself he simply amplified points in the June 16 opinion. Justice Charles Freeman's opinion held that the law had been correctly interpreted and that "no purpose can be served by allowing rehearing in this case." Justice Mary Ann McMorrow, joined by Justice Benjamin K. Miller, dissented, saying that "the petitioners should be permitted the opportunity, if they are able, to establish reasons why the judgment of this court was erroneous, under existing law." On July 13 the court-appointed guardian asked the Illinois Supreme Court to stay its ruling, pending an appeal to the U.S. Supreme Court. When cops should act
In the following half-hour police allegedly addressed the woman in rude and demeaning language. When they finally entered the apartment they found the intruder raping the daughter, after he had allegedly choked the son. The trial court dismissed all of the woman's charges against the police and the municipality, and the appellate court affirmed. The high court remanded for trial. Under the Tort Immunity Act, "Neither a local public entity nor a public employee is liable ... for failure to provide adequate police protection" (see Illinois Revised Statutes 1987, ch. 85, par. 4-102). Thus, the supervising officer and the municipality were not guilty of simple negligence. The high court said that a reasonable jury could find that, under the circumstances, the supervising officer was guilty of willful and wanton conduct in his conscious disregard of the children's safety. Thus the trial court erroneously dismissed the charge of willful and wanton conduct. The high court also said that a jury could reasonably find the treatment of the woman "outrageous," for which reason trial should have been allowed on the charge of intentional affliction of emotional distress." Since a jury could find the officer's comments and questions based in gender bias, or conversely, indicative of his assessment of the situation as one of domestic strife, the charge of gender discrimination should also have been heard. Justice John L. Nickels wrote the opinion in Doe v Calumet City (Docket No. 75347). Justice James D. Heiple, joined by Chief Justice Michael A. Bilandic, concurred in all but the finding of gender bias. About the latter he said, "The Fourteenth Amendment does not guarantee that a student of Emily Post or Amy Vanderbilt will arrive at the scene when one calls the police for assistance." F. Mark Siebert 36/September 1994/Illinois Issues
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