Court Briefs                                                                    

Baby Richard case settled?

Yogi's theorem seems to apply in legal matters: "It's not over until it's over." The Illinois Supreme Court has issued a detailed explanation of its January 25 decision to award immediate custody of Baby Richard to his biological father, Otakar Kirchner. Attorneys for the adoptive parents (referred to in court documents as the Does) told the press that they may request a rehearing, in Illinois and in the U.S. Supreme Court (which has already refused twice to take the case).

The court said applying custody changes to Baby Richard would be neither legal nor prudent

The state court ruled on June 16, 1994, that Kirchner's parental rights had been violated through subterfuge and deceit by the Does and their attorney and that the adoption was defective. In the latest opinion, a document that runs to 70 pages, the court considered the Does' dispute of its earlier custody decision.

Provisions of the Marriage and Dissolution of Marriage Act and recent legislative amendments to the Adoption Act (triggered by this case) permit a hearing on custody, in which the best interests of the child are the priority. Simply stated, the court held here that activating these provisions would be neither legal, since the biological father's rights take precedence, nor prudent, since it might encourage future fraud in adoption cases with an eye to later invocation of the custody rules.

The opinion in In re Petition of Otakar Kirchner (Docket No. 78101) was issued per curiam - that is, by the entire majority, unsigned. Justices Benjamin K. Miller and Mary Ann McMorrow dissented, holding that the ruling on Kirchner's parental rights merely settled the question of the Does' adoption of Richard but not of custody, which is still subject to hearing. McMorrow's dissent was particularly detailed, running to 37 pages. She argued that the record did not document fraud on the part of the Does and that they properly raise the issue of custody. The majority said her dissent "is, quite simply, wrong in its assertions and wrong in its conclusions."

Murder after nine years

A gunman can be charged with murder if his victim dies years later - even though he has already been convicted for attempted murder. The Illinois Supreme Court ruled on People v Carrillo (Docket No. 76395) earlier this year.

The defendant had claimed double jeopardy, that is being tried twice for the same offense. The high court, however, cited an exception to double jeopardy limitations created by the U.S. Supreme Court (the so-called Diaz, exception) for cases where the state cannot initially bring a more serious charge because "additional facts needed to sustain that charge have not yet occurred." In other words, there is no murder until there is a dead victim.

Perhaps of more general interest was the court's ruling on the defendant's invocation of a common law principle that murder can only be charged if the victim dies within a year and a day of the offense. The court cited the 1961 recodification of the Illinois Criminal Code: "No conduct constitutes an offense unless it is described as an offense in this code or in another statute of this state" and concluded that "the plain language of the statute indicates that the drafters intended that the 1961 Criminal Code be all-inclusive."

Frequent flyer still flying

In January the U.S. Supreme Court ruled that the suit against American Airlines over changed frequent flyer rules could go forward. This was a partial affirmation of an earlier Illinois Supreme Court decision (see Illinois Issues, February 1994, page 33).

The Illinois plaintiffs (American customers) argued that American could not retroactively change its policies on miles already earned. American cited the Airline Deregulation Act, which prohibited state laws affecting "rates, routes or services of an air carrier." The Illinois ruling had said that the suit could be brought under both the state's Consumer Fraud Act and contract law, since it had to do with enforcement of a contract and not directly with rates, routes or services.

The U.S. decision turned largely on highly complex interpretations of a precedent. The majority concluded that the suit could not be brought under the Consumer Fraud Act but that it could be brought under contract law since it deals only with "the airline's alleged breach of its own self-imposed undertakings." Justice Ruth Bader Ginsburg wrote the opinion. Justice Sandra Day O'Connor, joined by Justice Clarence Thomas, held that the precedent was applicable here and that the suit could not be brought, while Justice John Paul Stevens held that it could also be brought under the state's Consumer Fraud Act.

This decision, like the Illinois high court decision, simply allows the case to be litigated. Justice Ginsburg pointed out that it does not address the question of whether American preserved the right to alter frequent flyer regulations retroactivel (as some other airlines seem to have done).

The case is American Airlines v Wolens (No. 91-1286).

Sexual assault and the OBGYN

An exception for gynecologists to the offense of criminal sexual assault is constitutional, according to the Illinois Supreme Court. The court found the requirement that examinations observe "reasonable medical standards" is not unconstitutionally vague.

To convict, the state must prove the act of sexual penetration, that the defendant knew that the patient did not consent and that the defendant intentionally transgressed reasonable medical standards. A defense could rebut evidence on the standards, on the defendant's mental state or on the patient's consent. The court said, "The testimony of experts is needed to establish the applicable standard of care."

Justice James D. Heiple wrote for the majority in People v Burpo (Docket No. 76424). Justice Charles E. Freeman concurred, but argued that the state's level of proof had been elevated. Justice Moses W. Harrison II dissented, arguing that the statute is too vague. Since interpretation of standards may vary from place to place, Harrison feared that the law might be used by state's attorneys in pro-life areas to intimidate doctors in Planned Parenthood clinics.

42/April 1995/Illinois Issues