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

June 2002, vol. 3, no. 4

Case law update

Administrative law

Daniels v. Industrial Comm'n, No. 90318 (March 21, 2002). Under section 13 of the Workers' Compensation Act (820 ILCS 305/13 (West 1992)), responsibility for appointing commissioners and for filling vacancies in the office of commissioner of the Industrial Commission is vested in the governor "by and with the consent of the Senate." Where a vacancy occurs while the Senate is in recess, the governor is empowered to make a temporary appointment until the next meeting of the Senate, at which time he is to nominate some person to fill the position. Those procedures were not followed with respect to vacancies occurring on panel "B" of the Industrial Commission. Rather, the Commission Chairman appointed a succession of arbitrators to temporarily fill the vacancies on the Commission. Because the chairman of the Commission did not have the authority to make appointments to fill vacancies in the office of commissioner and because the acts of an administrative agency outside its specific statutory authority are void, the decision of the Commission at issue in this case is vacated and the cause is remanded to the Commission for a decision by a legally constituted panel.

ESG Watts, Inc. v. Illinois Pollution Control Board, 326 Ill. App. 3d 432 (4th District, December 5, 2001). The Illinois Pollution Control Board erred when it determined that it did not have jurisdiction to hear Plaintiff's petition requesting a hearing to appeal the denial of Plaintiff's permit by the Illinois Environmental Protection Agency (IEPA) based upon Plaintiff's lack of financial assurance with respect to Plaintiff's obligations regarding a closed landfill. The IEPA's acceptance or rejection of a performance bond, under the provisions of subsection 21.1(e) of the Illinois Environmental Protection Act (415 ILCS 5/21.1(e) (West 1998)), is a final decision subject to administrative review by Board.

Veazey v. Doherty, No. 1-00-3635 (1st District, January 16, 2002). Plaintiff's complaint for administrative review of a decision of the Department of Employment Security was properly dismissed by the trial court, since Plaintiff's complaint failed to comply with the provisions of section 3-107(a) of the Code of Civil Procedure (735 ILCS 5/3-107(a) (West 1998)) by naming "all persons *** who were parties of record to the proceedings before the administrative agency *** [as] defendants." Plaintiff failed to cure noncompliance with the provisions of section 3-107(a) of the Code by naming company that Plaintiff claims was "true employer," since party that was named as opponent to administrative proceeding in final order was never added as party defendant.

Reichert v. Court of Claims, 327 Ill. App. 3d 390 (5th District, January 18, 2002). Section 2-103(a) of the Code of Civil Procedure (735 ILCS 5/2-103(a) (West 2000)) sets forth the venue provisions for actions against governmental bodies and provides that venue is proper in any county in which a transaction occurred out of which the cause of action arose. Because a petition for writ of certiorari praying for reversal of a decision of the Court of Claims is limited to a review of the record to determine whether a litigant was deprived of due process and cannot go to the merits of the underlying action, all of the facts or "transactions" giving rise to a cause of action for certiorari arose in Sangamon County, where all of the proceedings and decisions of the Court of Claims occurred.

Criminal law

People ex rel. Devine v. $30,700.00 United States Currency , No. 90470 (March 21, 2002). Under the plain language of section 4 of the Drug Asset Forfeiture Procedure Act (725 ILCS 150/4 (2000)), where notice of forfeiture is mailed by certified mail with a return receipt requested, service is complete upon the mere mailing of the written notice. Further, because there is no evidence in the record that the seizing authority knew or should have know that claimant was incarcerated in the Vandalia Correctional Center, the State's failure to address the forfeiture notice to prison did not violate claimant's procedural due process rights. The default order forfeiting claimants interest in the property should not have been vacated.

People v. Purcell, 325 Ill. App. 3d 551 (2d District, October 30, 2001). Defendant was indicted on four counts of first-degree murder. Defendant filed a motion requesting bail. The motion was denied by the trial court, because defendant did not meet his burden of demonstrating that the proof his guilt was not evident and that the presumption of his guilt was not great pursuant to the provisions of subsection 110-4(b) of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-4(b) (West (2000)). The defendant filed a motion seeking a determination that subsection 110-4(b) of the Code was unconstitutional, because it places the burden of demonstrating that the proof guilt is not evident and the presumption of guilt not great upon the individual seeking release on bail. The appellate court held that subsection 110-4(b) of the Code violates defendant's right to the presumption of innocence and that the burden of proof is on the State to show evidence that defendant's guilt was great in order to deny bail when a defendant is charged with a capital offense or an offense for which he may be sentenced to life imprisonment.

People v. Herring, 327 Ill. App. 3d 259 (4th District, January 24, 2002). Defendant's conviction for DUI and for driving while license revoked must be reversed because DUI is a Class A misdemeanor punishable by imprisonment and the trial court was obligated to properly admonish defendant in accordance with Supreme Court Rule 401(a). Because there is no verbatim record of the admonishment and alleged waiver of counsel as required by Supreme Court Rule 401(b), the defendant's waiver of counsel at her DUI trial was ineffective.

Double Jeopardy

People v. Barash, 325 Ill. App. 3d 741 (3d District, November 9, 2001). Defendant was charged with cannabis trafficking and unlawful possession of cannabis with intent to deliver. Defendant entered a guilty plea in Arizona for illegally conducting an enterprise based on the "same acts" for which the defendant was charged with the intent to deliver in Illinois. Defendant filed a motion to bar prosecution on grounds of double jeopardy. The Illinois Appellate Court found that defendant's guilty plea in Arizona was based upon the same acts for which Illinois was seeking to prosecute defendant. Therefore, prosecution is barred by virtue of the provisions of section 13(b) of the Cannabis Control Act (720 ILCS 550/13 (b) (West 2000)).

Evidence

People v. Tisdel, No. 90480 (March 15, 2002). Appellate court erred when it reversed defendant's murder conviction because trial court admitted evidence that witnesses failed to make positive identification at previous lineups that did not include the defendant. Overruling decision in People v. Hayes, 139 Ill. 2d 89, 138 (1990), that nonidentification evidence is admissible under the "out-of-court statement is one of identification" exception to the general rule that a witness may not testify in court as to statements made out of court for the purpose of corroborating his trial testimony concerning the same subject.

People v. Phillips, 326 Ill. App. 3d 157 (3d District, November 19, 2001). Although the Illinois Supreme Court found section 115-15 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-15 (West 1998)) unconstitutional in People v. McClanahan, 191 Ill. 2d 127 (2000), because it impermissibly requires a defendant to take a procedural step to secure his or her constitutional right of confrontation and does not require a knowing, intelligent, and voluntary waiver of this right, defendant stipulated to the admission of certain lab reports at trial. Therefore, the lab reports were properly admitted into evidence pursuant to the stipulation of the parties, and not pursuant to the provisions of section 115-15 of the Code. Defendant's argument that she was denied her right to be confronted with the witnesses against her by the application of section 115-15 of the Code is unavailing.

People v. Reeves, 326 Ill. App. 3d 1083 (4th District, January 14, 2002). In a prosecution for possession of drug paraphernalia, the State must prove that the possessed item was "marketed for use" in growing, producing, storing, or ingesting drugs, as is required by subsection 2(d) of the Drug Paraphernalia Control Act. (720 ILCS 600/2(d) (West 2000).) The State failed to prove that defendant was guilty of possession of drug paraphernalia, because the crack pipe in question was a home-made device that was never "marketed." Defendant's conviction was reversed.

People v. Sutton, 327 Ill. App. 3d 273 (4th District, January 24, 2002). Trial court erred when it granted defendant's motion in limine precluding the introduction of evidence by the State of DNA testing and results. Since mandatory disclosures pursuant to Supreme Court Rule 412(a)(iv) do not include the telephone logs, log sheets, work sheets or any other written memorandum relative to the DNA results, the State was not required to disclose such material until the defendant made a specific request for same and until the trial court ordered such disclosure pursuant to Rule 412(h). Rule 412 does not require the disclosure of evidentiary weaknesses; therefore, the trainee status of the person signing the DNA report was not subject to mandatory disclosure by the State, absent a Rule 412(a)(iv) motion.

People v. Bockman, No. 2-00-1309 (2d District, March 14, 2002). Trial court properly suppressed tapes of recorded conversations overheard pursuant to successive orders authorizing the use of an eavesdropping device, because the orders failed to comply with the requirements of subsection 108A-4(c) of the Code of Criminal Procedure of 1963 (725 ILCS 5/108A-4(c) (West 2000)). Neither the applications for authority to use an eavesdropping device nor the attached State's Attorney's authorizations contained anything that could be construed as a factual basis sufficient to establish a reasonable belief that conversations regarding the alleged felonies would be obtained through the use of the proposed eavesdropping device. Moreover, the good-faith exception to the exclusionary rule did not apply.

Juvenile

In re T.B., B.B., C.R., and I.R., Minors, 325 Ill App. 3d 566 (3d District, October 24, 2001). A permanency review order is not a final judgment. Only the Illinois Supreme Court by rule may provide for appeals from judgments other than final judgments. Thus, subsection 2-28(3) of the Juvenile Court Act of 1987 (705 ILCS 405/2-28(3) (West 2000)) allowing immediate appeal of a decision to change permanency goals violates the separation of powers clause of the Illinois Constitution. Appeal dismissed for lack of jurisdiction.

In re Nicholas K., Jr., 326 Ill. App. 3d 497 (2d District, December 21, 2001). Trial court erred when it ordered thirteen-year-old juvenile adjudged delinquent of criminal sexual abuse to register pursuant to the Sex Offender Registration Act (730 ILCS 150/1 et seq. (West 2000)). Although the Act was amended to include definition of "juvenile sex offender," section 3 of the Act (730 ILCS 150/3 (West 2000), governing who is required to register, was not amended. Further, to require juvenile registration would be inconsistent with the purposes of and the privacy provisions of the Juvenile Court Act.

Procedure

People v. Hurtado-Rodriguez, 326 Ill. App. 3d 76 (2d District, November 30, 2001). Defendant's conviction for harassment of a witness must be reversed based on State's acknowledgment that jury instructions from Third Edition of IPI Criminal (IPI Criminal 3d Nos. 22.11Y, 22.12Y (Supp. 1996)), which contravenes the language of section 32-4a(a) of the Criminal Code of 1961 (720 ILCS 5/32-4a(a) (West 2000)), instead of the corrected Fourth Edition (IPI Criminal 4th Nos. 22.11Y, 22.12Y (2000)), were given.

Prosecutors

People v. Ward, 326 Ill. App. 3d 897 (5th District, January 3, 2002). The Cannabis Control Act (720 ILCS 550/1 et seq. (West 1998)) is not among those instances specifically enumerated in section 4.01 of the State's Attorneys Appellate Prosecutor's Act (725 ILCS 210/4.01 (West 1998)), wherein employees of the State's Attorneys Appellate Prosecutor's office may assist county State's Attorneys in the discharge of their duties. Further, the trial court did not specifically appoint the attorney from the Appellate Prosecutor's office as a special assistant State's Attorney. Conviction vacated and cause remanded so that it may be brought by a proper prosecutor.

Search and seizure

People v. Anthony, 198 Ill. 2d 194 (December 6, 2001). Trial court correctly concluded that Defendant's nonverbal conduct of placing hands on head and spreading legs did not constitute voluntary consent to warrantless search of Defendant's person. Therefore, motion to suppress drugs found on person was properly allowed by trial court and should not have been reversed by appellate court.

Sentencing

People v. Donoho, 326 Ill. App. 3d 403 (3d District, November 27, 2001). Defendant's convictions for aggravated criminal sexual assault must be reversed because trial court erred when it allowed evidence of defendant's 1983 conviction of indecent liberties with a child to be introduced into evidence. There was a significant time lapse between the current charges and the 1983 conviction, the trial judge found that there was no reasonable proximity in time and there were significant differences between the current charges and the prior conviction. Moreover, indecent liberties with a child is a lesser charge which is not substantially equivalent to or more serious than the criminal sexual assault in this case. Thus, the trial court erred in enhancing the criminal sexual assault to a Class X felony under section 12-13(b)(4) of the Criminal Code of 1961 (720 ILCS 5/12-13(b)(4)(West 1998)).

People v. Lee, 326 Ill. App. 882 (3d District, December 7, 2001). Defendant's sentence to eighty years for murder based on exceptionally brutal nature of crime modified to sixty years, the maximum non-extended term for murder. The rule announced in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), speaks to the core of a defendant's due process rights. Requiring sentencing factors to be proven beyond a reasonable doubt before a defendant's sentence can be increased beyond the maximum non-extended term is a watershed rule of surpassing importance in the criminal justice system. The failure to require such proof directly affects the accuracy of a sentence. Therefore, the rule announced in Apprendi is a necessary component of fundamental fairness which falls squarely within the narrow exception announced in Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989); Apprendi applies retroactively to post conviction petitions.

People v. Hope, 326 Ill. App. 3d 857 (2nd District, December 28, 2001). Defendant's sentence vacated. Extended term sentence of six years for aggravated battery, although permissible by virtue of prior conviction for battery, violates Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), because it is not clear from record that sentencing judge relied exclusively on prior conviction as grounds to impose extended term sentence. It appears that the court may have relied upon other aggravating factors under section 5-5-3.2 of the Unified Code of Corrections (730 ILCS 5/5-5-3.2 (West 2000)) in imposing an extended sentence, the sentence would violate Apprendi because those factors were not submitted to the jury and proved beyond a reasonable doubt.

Elections

Lockhart v. Cook County Officers Electoral Bd., No. 1-02-0576 (1st District, March 15, 2002). Section 7-10(c) of the Election Code (10 ILCS 5/7-10(c)) (West 2000) provides for the number of signatures on nominating petitions for county offices, including "county board member to be elected from a district." This language includes an election for membership on the Board of Review. Thus, the Electoral Board correctly found that a candidate for Cook County Board of Review submitted sufficient signatures on his nominating petitions, where he submitted the number of signatures required for county wide county board position, divided by number of districts.

McCaster v. Greenwood, No. 5-00-0691 (5th District, March 21, 2002). Election of a precinct committeeman is governed by Article 7 of Election Code. Therefore, petition for recount of unsuccessful candidate, filed more than ten days after certification of opponent's election, is subject to dismissal pursuant to the provisions of section 7-63 of the Election Code (10 ILCS 5/7-63) (West 1996).

Freedom of Information Act

Chicago Journeymen Plumbers' Local Union 130, U.A. v. Department of Public Health, 327 Ill. App. 3d 192 (1st District, December 21, 2001). A Freedom of Information Act request for the names and addresses of all licensed plumbers and plumber's apprentices was not a request for exempt "personal information" under subsection 7(1)(b)(iii) of the Act (5 ILCS 140/7(1)(b)(iii) (West 2000)), since the records were neither confidential nor private. That portion of the Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401 (1997), opinion interpreting "personal information" is not dictum. Trial court correctly entered summary judgment in favor of plaintiff union.

Illinois Education Ass'n v. Illinois State Bd. of Education, 327 Ill. App. 3d 326 (4th District, January 24, 2002). Trial court properly denied the Illinois Education Association's request to require the Illinois State Board of Education's production, pursuant to the provisions of the Freedom of Information Act, of documents and other communications sent by the Board to the Attorney General in connection with a number of requests for Attorney General opinions. The Board denied the Association access to the materials pursuant to section 7(1)(n) of the Freedom of Information Act (5 ILCS 140/7(1)(n) (West 1998)), "which exempts from disclosure communications between an attorney and a public body that would not be subject to discovery in litigation." The requested documents were considered confidential communications between the Board and its legal representative; as such, the documents were exempt from disclosure pursuant to the provisions of Section 7(1)(n) of Act.

Mandamus

Howell v. Snyder, 326 Ill. App. 3d 450 (4th District, December 5, 2001) and Guzzo v. Snyder, 326 Ill. App. 3d 1058 (3rd District, December 28, 2001). Mandamus action filed by prisoner asking that the Director of the Department of Corrections be ordered to desist in the application of unwritten policy of denying meritorious good-time credit to any inmate who enters the Department of Corrections with a prior charge or conviction for domestic battery or a pending order of protection. Inmate's behavior prior to admission to Corrections is not a legitimate consideration for allowance of good-time credit. Therefore, the Director's policy violates section 3-6-3 of the Unified Code of Corrections (730 ILCS 5/3-6-3(a)(1) (West 2000)).

Municipal law

Schillerstrom Homes, Inc. v. City of Naperville, 198 Ill. 2d 281 (December 20, 2001). Trial court properly granted partial summary judgment to plaintiff-developer, who sued home rule municipality for failure to act upon proposed plat within requisite time. Although home rule municipality's ordinance has language that mirrors section 11-12-8 of the Illinois Municipal Code (65 ILCS 5/11-12/8 (West 1998)) with regards to time within which action of municipality required, home rule ordinance fails to provide a remedy while statute does. Trial court properly applied remedy provision of statute, the statute simply fills that gap by providing a recourse to stalled developers. The ordinance complements the statute; it does not limit sub silencio statutory remedies.

Villarreal v. Village of Schaumburg, 325 Ill. App. 3d 1157 (1st District, October 19, 2001). On de novo review, trial court correctly granted summary judgment to defendant village dismissing plaintiff's mandamus complaint seeking to compel the village to provide free health insurance to plaintiff, retired police officer, and his family. Although plaintiff qualifies for duty related disability, his knee injury does not fit within statutory definition of "catastrophic injury," as that phrase is used in the Illinois Public Safety Employee Benefits Act (820 ILCS 320/1 et seq. (West 1998)).

Alarm Detection Systems, Inc. v. Village of Hinsdale, 326 Ill. App. 3d 372 (2nd District, December 12, 2001). A non-home-rule municipality has the authority, pursuant to sections 11-8-2 and 11-30-4 of the Illinois Municipal Code (65 ILCS 5/11-8-2 and 11-30-4 (West 1998)), to enact ordinances that require commercial buildings in the village to have their fire alarm systems directly connected to the village's monitoring board. The village is not preempted from enacting its ordinance by the Private Detective, Private Alarm, Private Security, and Locksmith Act of 1993 (225 ILCS 446/1 et seq. (West 1998)). Moreover, there is no violation of Antitrust Act (740 ILCS 10/1 et seq. (West 1998)). Therefore, summary judgment correctly entered in favor of village dismissing complaint seeking to enjoin enforcement of ordinance.

People v. Arguello, No. 1-00-3418 (1st District, February 6, 2002). Trial court erred in ruling the City of Chicago's sound-device restriction ordinance unconstitutional. The ordinance is content neutral, excepting only persons participating in a parade or a public assembly for which a permit has been obtained from its provisions. Therefore, the ordinance does not violate the First Amendment to the United States Constitution.

Open Meetings Act

Rice v. Board of Trustees of Adams County, 326 Ill. App. 3d 1120 (4th District, January 24, 2002). Trial court correctly held that a resolution passed by the county board adopting an alternative benefits program for elected county officers was null and void, because it was not specifically identified as an agenda item in violation of section 2.02(a) of the Open Meetings Act (5 ILCS 120/2.02(a) (West 1998)). The agenda item "New Business" does not provide sufficient advance notice to the people of actions to be taken.

Separation of powers

In re Adoption of K.L.P., 198 Ill. 2d 448 (January 25, 2002). Where significant State action has resulted in the custody or guardianship of a minor child being placed with a person other than the parent, equal protection requires that the parent be provided with the assistance of counsel, if she is indigent, in a subsequent action to terminate her parental rights, whether that action is brought pursuant to the Juvenile Court Act of 1987 (705 ILCS 405/1 et seq. (West 1998)) or by the child's guardian or custodian pursuant to the Adoption Act (750 ILCS 50/1 et seq. (West

1998)). The judicial branch has the authority, in order to prevent a violation of equal protection, to order the county treasurer to pay the attorney's fees of counsel assigned to an indigent mother in order to defend against private adoption petition brought by child's father and his wife seeking to terminate the natural mother's parental rights. Mother is entitled to the same procedural protection as if the action had been brought by the State under the Juvenile Court Act.

Tort immunity and liability

Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475 (January 25, 2002). Section 2-201 of the Tort Immunity Act overrules common law special duty exception previously recognized by court and entitles the school district to immunity from liability for ordinary negligence associated with its alleged failure to provide proper safety equipment for roller blade exercise imposed by school during gym class. Trial court was correct to dismiss complaint; appellate court should not have reversed.

Carroll v. Paddock, 199 Ill. 2d 16 (February 7, 2002). Appellate court was correct when it determined that a not-for-profit charitable hospital and a not-for-profitable mental health care organization are not "local public entities" within the meaning of section 1-206 of the Tort Immunity Act; and thus, neither those entities nor their employees are entitled to invoke the protections of the Act. In order to qualify as a "local public entity," a not-for-profit corporation must be "organized for the purpose of conducting public business. " That requires that the entity be subject to the kinds of organizational regulations and control that are typical of other governmental units, e.g. operational control by a unit of local government, subject to regulations such as the Open Meetings Act or Freedom of Information Act or local ordinances that dictate the means and methods to be used by the not-for-profit corporation in conducting its business.

Barnes v. Chicago Housing Authority, 326 Ill. App. 3d 710 (1st District, December 3, 2001). Because defendant-LeClaire Courts Resident Management Corporation, a private, not-for-profit corporation with whom the Chicago Housing Authority had contracted for the provision of management services for the public housing development, is a "local public entity" within the meaning of section 1-206 of the Tort Immunity Act (745 ILCS 10/1-206 (West 2000)), it is immune from plaintiff's complaint alleging negligence for failure to provide adequate security. LeClaire Courts Resident Management Corporation: participates in the business of government; is subject to government oversight and regulations; and is government funded. Further, CHA is immune from allegations of both ordinary and willful and wanton negligence for its alleged failure to supervise LeClaire Courts Resident Management Corporation. Summary judgment dismissing plaintiff's complaint was proper. In addition, plaintiff failed to establish constitutional infirmity of Tort Immunity Act.

Gusich v. Metropolitan Pier & Exposition Auth. & Windy City Maintenance, 326 Ill. App. 3d 1030 (1st District, December 14, 2001). Trial court was correct to grant summary judgment to the Metropolitan Pier & Exposition Authority, the operator of McCormick Place. Because the Metropolitan Pier & Exposition Authority is a local public entity that oversaw Windy City Maintenance's work and directed the Windy City Maintenance cleaning crews as to where to clean, Metropolitan's actions in this case fall within the plain and ordinary meaning of "supervise." Accordingly, section 3-108 of the Tort Immunity Act immunizes Metropolitan from liability for failure to supervise a public place as a matter of law. However, there is a material question of fact with regards to constructive notice of debris on which plaintiff allegedly fell while working for exhibitor on loading dock, since plaintiff's supervisor testified that soda cans and other debris were present on the loading dock since previous day. Therefore, the defendant-contractor, which had contracted to provide clean up of exhibition hall and dock was not entitled to summary judgment.

American National Bank & Trust Co. of Chicago v. County of Cook, 327 Ill. App. 3d 212 (1st District, December 28, 2001). Trial court erred when it granted summary judgment to defendant county for medical malpractice allegedly committed during birth of child based on provisions of section 6-105 and 6-106 of the Tort Immunity Act (745 ILCS 10/6-105, 10/6-106 (West 2000)). Once diagnosis had been correctly made that baby was positioned in transverse lie position, every subsequent examination and treatment of mother for pregnancy fell within administrating treatment which causes injury exception to immunity of 6-106(d) of the Act and removed treatment from immunity for failure to properly diagnose.

Workers' compensation

Baggett v. Industrial Comm'n, No. 90385 (March 15, 2002). To be compensable under the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 1998)), the injury complained of must be one "arising out of and in the course of the employment." (820 ILCS 305/2 (West 1998).) Industrial Commission erred when it required industrial arts teacher, who collapsed at work most likely as a result of a stress induced peptic ulcer, resulting in a heart attack and subsequent brain damage, to prove that he was under more stress than his coworkers and that he was under increased stress at the time of his collapse, in order to receive workers' compensation benefits. It is sufficient that he proved that his employment subjected him to an increased level of stress than members of the general public Further, in a "mental-physical" injury case a claimant need not demonstrate a sole, strict, scientific correlation between stress and physical injury. Arbitrator's award of benefits to the claimant is reinstated.

Daniels v. Industrial Comm'n, No. 90318 (March 21, 2002). Under section 13 of the Workers' Compensation Act (820 ILCS 305/13 (West 1992)), responsibility for appointing Industrial Commission commissioners and for filling vacancies in the office of Industrial Commission commissioner is vested in the governor "by and with the consent of the Senate." Where the vacancy occurs while the Senate is in recess, the governor is empowered to make a temporary appointment until the next meeting of the Senate, at which time he is to nominate some person to fill the position. (820 ILCS 305/13 (West 1992).) The chairman of the Industrial Commission does not have the authority to appoint a succession of arbitrators to temporarily serve as commissioners where a vacancy exists. Therefore, the Industrial Commission did not have the authority to reverse the award of the arbitrator, and the decision by the panel consisting of two improperly appointed commissioners is void. Cause is remanded to the Commission for a decision by a legally constituted panel.

Zoning

Hawthorne v. Village of Olympia Fields, No. 1-01-0447 (1st District, February 8, 2002). Plaintiff, operator of a state-licensed "day care home," was entitled to an injunction prohibiting non-home-rule village from enforcing its zoning ordinance to prohibit her use of her residence after denial of a zoning variance, because the village's ordinance constitutes exclusionary zoning, contains no provision for day care homes, and is partially preempted by the Child Care Act of 1969 (225 ILCS 10/1 et seq. (West 1998)), which gives the Illinois Department of Children and Family Services the authority to issue licenses for day care homes.


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