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Government Lawyers NewsletterThe newsletter of the ISBA’s Standing Committee on Government Lawyers

October 2001, vol. 3, no. 1

Case law update

Administrative law

Boards of Trustees of the Chicago Heights Police Pension Fund v. Department of Insurance, No. 1-99-1589 (1st District, June 26, 2001.) Statute creating the Public Pension Division within the Department of Insurance and directing the Division to automate its operations, services and communications "to the fullest practical extent," does not authorize the Department to enact an administrative rule compelling public pension funds to pay their annual compliance fees exclusively by electronic transfer through an automatic clearing house debit. Therefore, trial court properly held that the rule exceeded the administrative agency's statutory authority and enjoined the Department from refusing to accept deposits made in the form of checks.

Illinois State Police v. The Fraternal Order of Police Troopers Lodge No. 41, No. 4-00-0774 (4th District, June 28, 2001.) Trial court erred when it refused to reverse arbitrator's decision allowing grievance filed by union against the Illinois State Police for violation of collective bargaining agreement with regards to investigation of union members for criminal activities. (1) The arbitrator exceeded his authority by applying provision of collective bargaining agreement setting forth procedure for discipline of employees to criminal investigations. An employer cannot by contract give its employees procedural rights and benefits regarding criminal investigations. The fact that the employer in this case is the Illinois State Police is immaterial. When the Illinois State Police is investigating an employee's criminal conduct, it is acting under its statutory duty to enforce the laws of the State of Illinois, not as an employer. (2) Even if the collective bargaining agreement's provisions applied to criminal investigations, the contract would violate public policy as being detrimental to the conduct of effective law enforcement.

Cook County Sheriff's Enforcement Ass'n v. County of Cook, No. 1-99-3710 (1st District, June 29, 2001.) An appeal from an order of the Illinois Local Labor Relations Board directly to the appellate court that does not name the Illinois Local Labor Relations Board as a party, despite being named as a necessary party in an order sought to be reversed, must be dismissed. Further, motion to amend petition for review must be denied, because it does not qualify under the provisions of section 3-113 of the Administrative Review Law ( 735 ILCS 5/3-113 (West 1998.))

Civil appeals

Pappas v. Waldron, No. 4-00-0848 (4th District, July 6, 2001.) The circuit clerk's failure to mail a copy of the docket entry does not excuse plaintiff's late filing of his notice of appeal, and the appeal should be dismissed. Both parties filed motions for summary judgment. The record is not clear whether court pronounced decision from the bench, but docket shows that the court called the case up for decision the same day as it heard arguments, ruled in favor of defendant, and ordered clerk to mail copy of decision to attorneys of record. Clerk failed to mail decision, plaintiff is required to file notice of appeal or post trial motion within 30 days of decision. Parties are required to keep track of status of case, and cannot use clerk's failure to mail decision as an excuse to avoid compliance with the time limits for appeal set out in Supreme Court Rule 303(a)(1) (155 Ill. 2d R. 303(a)(1).)

Criminal­general

People v. O'Brien, No. 90390 (July 26, 2001.) Mandatory insurance requirement of section 3-707 of the Illinois Vehicle Code (625 ILCS 5/3-707 (West 1998)) is an absolute liability offense.

People v. Johnson, No. 4-99-0267 (4th District June 27, 2001). Pursuant to the provisions of section 103-5(c) of the Code of Criminal Procedure of 1963, when the circuit court grants the state's motion to extend time for trial in order to complete DNA testing, it may grant a total of 240 days from commencement of incarceration to trial and is not limited to 120 days from the date the motion is allowed.

Criminal counsel

People v. Bolden, No. 87177 (June 21, 2001.) Murder conviction of defendant not subject to reversal because of refusal of police, after prior agreement to the contrary, to allow defendant's attorney to witness line-up voluntarily participated in by defendant. Refusal of the police to permit defendant's lawyer to observe the witness during the lineup did not convert defendant's voluntary appearance at the police station into a seizure by the detectives. Jury instruction that defendant's right to attorney did not attach to line-up was proper.

People v. Jones, No. 1-99-3858 (1st District, June 18, 2001). It is well-settled that strategic choices made by defense counsel after a thorough investigation of the law and facts relevant to the plausible options are "virtually unchallengeable." Under the Strickland test, defendant was not deprived of effective assistance of counsel in trial for murder and attempted murder because of failure to call exculpatory witness. The witness had made previous inconsistent statements, and the decision not to call him was legitimate trial strategy. However, consecutive sentences must be modified to run concurrently, as there was no serious bodily injury involved in Class X offense as required by subsection 5-8-4(a) of the Illinois Unified Code of Corrections (730 ILCS 5/5-8-4(a) (West 1998,)) since the officer sustained only a "graze" type wound.

People v. Rodriguez, No. 1-00-0635 (1st District, July 27, 2001.) Trial court erred when it granted motion to suppress based on its conclusion that police violated defendant's right to counsel when they refused permission for him to consult with law student during interrogation. The defendant's attorney was not physically present at police station, and there was no violation of defendant's due process rights by refusing permission for attorney's employee, a third year law student, to speak with him.

Criminal prosecutorial misconduct

People v. Roman, No. 1-00-1836 (1st District, July 5, 2001). Defendant's conviction was reversed, because it is plain error to allow police officer to testify that he received commendation for his handling of incident giving rise to charge against defendant of aggravated battery of police officer. Not only is testimony hearsay, its probative value is far outweighed by the potential prejudicial effect. Further, prosecutor's closing argument contained improper references to Columbine shootings, as well as references to drug dealing and other impermissible appeals to fears of jurors, which were amplified by court's failure to make clear and timely ruling on defense objection.

Freedom of Information Act

Southern Illinoisan v. Department of Public Health (5th District, 2001), 319 Ill. App. 3d 979. Trial court erred in entering summary judgment requiring the Department of Public Health to release certain data in the Illinois Cancer Registry, since there exists a material question of fact as to whether the identity of specific cancer victims could be reasonably determined from the information sought (type of cancer, zip code and date of diagnosis.) Section 7(1)(b)(i) of the Freedom of Information Act (5 ILCS 140/7(1)(b)(i) (West 1998)) does not expressly exempt from disclosure information from the Cancer Registry. Moreover, when balancing interests, the Department of Public Health did not meet its burden of proving that the Freedom of Information Act's section 7(1)(b)(i) exemption applies. Cause remanded to determine whether the information sought may reasonably tend to lead to the identity of any person whose condition or treatment is submitted to the Cancer Registry, thereby exempting the information from release under section 7(1)(a) of the Freedom of Information Act (5 ILCS 140/7(1)(a) (West 1998.))

In re Consensual Overhear, No. 2-00-0828 (2nd District, June 29, 2001.) Applications for electronic surveillance of conversations sealed pursuant to section 108A-7(c) of the Code of Criminal Procedure of 1963 are exempt from disclosure under subsections 7(1)(b) and (1)(c) of the Freedom of Information Act (5 ILCS 140/7(1)(b), (1)(c) (West 1998.)) Consequently, news agencies are not entitled to the disclosure of the applications pursuant to the provisions of the Freedom of Information Act. Moreover, the Code contemplates that only law enforcement personnel, subjects of surveillance, and their attorneys may petition for disclosure of application for and contents of conversations intercepted by means of electronic surveillance.

Municipal law

Primeco Personal Communications, L.P. v. Illinois Commerce Comm'n (2001,) 196 Ill. 2d 70. The Telecommunications Municipal Infrastructure Maintenance Fee Act (35 ILCS 635/1 et seq. (West 1998)) is unconstitutional as applied to wireless communications providers, because there is an insufficient relationship between legislative intent of providing reimbursement for use of the public rights-of-way and wireless communications services in violation of the uniformity clause of the Illinois Constitution (Ill. Const. 1970, art. IX, §2.)

Langendorf v. City of Urbana, No. 90635 (July 26, 2001.) Trial court's dismissal of plaintiff's complaint for declaratory judgment, filed more than one-year after entry into annexation agreement between city and adjoining property owner but less than one year after city passed implementing zoning ordinance, should not have been reversed. Since the zoning of parcels of property cannot be separated from their annexation, the one-year statute of limitations contained in section 7-1-46 of the Illinois Municipal Code begins to run when a municipality enters into an annexation agreement. The limitation period cannot be circumvented by attempting to challenge the implementing zoning ordinance. Otherwise, the ban against late filing to "directly or indirectly" challenge an annexation agreement would be meaningless.

Doak v. City of Moline, No. 3-00-0609 (3rd District, July 13, 2001.) Municipal ordinance whereby abutting property owner was delegated responsibility for maintenance of adjoining sidewalk as to proper alignment, grade and surface pursuant to an exercise of the municipality's police powers was ineffective to shift liability for injury sustained allegedly as a result of defective condition of sidewalk. Maintenance of public sidewalks is a non-delegable duty. The ordinance is unenforceable. Therefore, trial court was correct to dismiss third party complaint filed by city against adjacent landowner.

Separation of powers

In re D.S. (2001), No. 88460 (June 21, 2001.) Trial court had the authority under the Juvenile Court Act, after establishing permanency goal of substitute care pending determination of petition to terminate parental rights, to order the state's attorney to prosecute the petition to terminate parental rights without a violation of the doctrine of separation of powers occurring. Further, the Juvenile Court Act contains no provision affording a guardian ad litem or other private party the right to prosecute petitions filed pursuant to the Act.

Sovereign immunity

Busch v. Bates, No. 5-99-0638 (July 25, 2001.) Although plaintiff's (crime scene technician's) complaint against State Police officers for defamation was not barred by sovereign immunity, it was subject to dismissal, because statements made as part of mandated investigation by the State Police are absolutely privileged. Otherwise, employees of the State Police would be subject to the untenable choice of failing to report and face disciplinary action or report perceived official misconduct and face a defamation action.

Taxation

Tazewell County Bd. of Review v. Property Tax Appeal Bd. (2001), No. 3-00-0273 (3rd District, June 19, 2001.) The Property Tax Appeal Board had jurisdiction, pursuant to statute, to adjust real estate tax assessments of objectors' property for years subsequent to those years which were the subject matter of a tax protest, after deadline for filing protest, even though objection adjusting assessed valuation was arrived at by agreement and thereby resulted in the dismissal of the protest.

Gofis v. County of Cook, No. 1-99-4488 (1st District, July 26, 2001.) Trial court was correct when it dismissed class action declaratory judgment complaint against county treasurer seeking to enjoin the collection of a $10 tax automation fee on the redemption of delinquent real estate taxes. The tax automation fee is authorized by section 21-245 of the Illinois Property Tax Code (35 ILCS 200/21-245 (West 1994.)) The collection of the fee is not barred by the county's failure to follow its own rules for enactment of ordinances, and the plaintiff's claims are barred by the voluntary payment doctrine.

Tort immunity

Village of Bloomingdale v. CDG Enterprises, Inc., No. 89963 (June 21, 2001.) The appellate court should not have reversed the trial court's dismissal of a counterclaim filed against the city for tortuous interference with business expectancy and for quasi-contract. To recognize a "corrupt or malicious motives" exception to the Local Governmental and Governmental Employees Tort Immunity Act would violate the separation of powers doctrine. Further, because a quasi-contract is a remedy based upon unjust enrichment principles, it does not qualify under breach of contract exception of section 2-101(a) of the Tort Immunity Act (745 ILCS 10/2-101(a) (West 1998.))

Stein v. Chicago Park District, No. 1-99-3987 & 1-00-0119 (1st District, June 22, 2001.) Plaintiff's verdict for personal injuries which she suffered when she tripped over watering hoses placed across a sidewalk by park district employees without proper warning, reduced by 50 percent for contributory negligence, is supported by the evidence and is not subject to directed verdict based on section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3-106 (West 1998.)) Temporary placement of hoses across sidewalk is not a "condition of any public property" as that phrase is used in section 3-106 of the Act. Further, jury's failure to award medical expenses was cured by additur granted by the trial judge.

Adamczyk v. Township High School District 214, No. 1-99-4075 (1st District, July 27, 2001.) A school district was not immune, pursuant to section 3-106 of the Local Governmental and Governmental Employee Tort Immunity Act (745 ILCS 10/3-106 (West 1996,)) from liability for ordinary negligence in the maintenance of a parking lot adjacent to a public high school. Although the parking lot was adjacent to the entrance of the gymnasium used at the time of plaintiff's injury for recreational purposes, it also provided entrance to several other parts of the high school. Thus, the parking lot was an integral part of the school as a whole. The high school was a multipurpose facility permitting both recreational and nonrecreational activities; therefore, section 3-106 of the Act, which immunizes public entities from injuries sustained on public property used for recreational purposes, does not immunize the school district from its duty to maintain the adjoining parking lot. Therefore, summary judgment was not proper in favor of school district.


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