Evidence 439 (McNaughton rev. 1961), the Court endorsed "the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them: the Amendment 'does not preclude the inference where the privilege is claimed by a party to a Civil cause.'" 425 U.S. at 318.
The reasoning of Baxter has been followed in the context of other administrative proceedings. In Arthurs v. Stern, 560 F.2d 477 (lst Cir. 1977), the Court of Appeals reasoned that a medical disciplinary board was entitled to draw an adverse inference from a physician's refusal to testify before that board, when he was also the subject of a pending criminal indictment. Citing the Supreme Court's decision in Baxter and the First Circuit's decision in Arthurs, the Illinois appellate court ruled that a negative inference could be drawn from invocation of the Fifth Amendment privilege in a civil service hearing brought to discharge a community services supervisor employed by the Illinois Commission on Delinquency Prevention. In Giampa v. Illinois Civil Service Commission, 89 Ill. App. 3d 606, 411 N.E.2d 1110 (1st Dist. 1980), a hearing officer considered the evidence presented, together with a state employee's invocation of the Fifth Amendment, at the civil service hearing that was convened to determine whether the employee should be discharged. In upholding the employee's dismissal, the appellate court explained that "[t]he constitutional guarantee against self-incrimination protects a witness from being forced to give testimony leading to the imposition of criminal penalties, but it does not insulate a witness from every possible detriment resulting from his testimony." 89 Ill. App. 3d at 613, 411 N.E.2d at 1116.
Subsequently, in Canter v. Cook County Officers Electoral Board, 170 Ill. App. 3d 364, 523 N.E.2d 1299 (1st Dist. 1988), the appellate court upheld the drawing of a negative inference on the basis of a non-party witness' refusal to testify. Canter was a democratic candidate for circuit court judge, whose nominating papers were challenged before the Cook County Officers Electoral Board. At a hearing, after evidence was presented challenging the authenticity of certain signatures on several sheets of the nominating petition, the named circulator of those sheets was subpoenaed to testify; he refused to do so, invoking the Fifth Amendment. The electoral board found the circulator's oath on those sheets to be "incredible" and struck the oath, relying, in part, on the negative inference that it drew from the circulator's refusal to testify.
The appellate court found "ample support" for the electoral board's conclusion and rejected an argument that it was error for the board to draw a negative inference against Canter because of a non-party's refusal to testify. Citing an absence of law to preclude the drawing of a negative inference under these circumstances and reasoning that the inference drawn in this case did not go to the issue of Canter's credibility, but only to the issue of the circulator's credibility, the court stated that "it is apparent that the trier of fact in a civil case, unlike a criminal case, is not barred from considering a witness' refusal to testify." 170 Ill. App. 3d at 370.
The Canter decision has apparently never been cited in a published opinion discussing the Fifth Amendment issue, but the U.S. Court of Appeals for the Second Circuit has, more recently, considered at length the evidentiary significance of a non-party witness' invocation of his right to remain silent. Although the Second Circuit discusses a civil, rather than an administrative law, matter, the court's thorough analysis flows from Baxter v. Palmigiano and should be persuasive authority in either type of forum.
In LiButti v. United States, 107 F.3d 110 (2d Cir. 1997), the court of appeals addressed an effort by the IRS to collect Robert LiButti's unpaid income taxes by placing a tax levy on a race horse named "Devil His Due." Edith LiButti, Robert's daughter, brought a wrongful levy action against the government, claiming that she, and not her father, was the sole owner of Devil His Due. Included in the complicated factual scenario before the court was the information that Robert, when called upon to give a deposition in his daughter's action, refused to answer any of the questions put to him regarding ownership of the horse. The district court, however, declined to draw any adverse inference on the basis of Robert's silence and ruled in Edith's favor. The government appealed.
Citing "the undeveloped posture of the law pertaining to adverse inferences when non-party witnesses invoke the Fifth Amendment in civil litigation," 107 F.3d at 120, the Second Circuit provided a detailed examination of pertinent law and commentary. It then identified a number of non-exclusive factors to consider in reaching a decision whether to draw a negative inference against a party to a civil action on the basis of a non-party's refusal to testify in that action: (1) the nature of the relationship between the party and the non-party witness; (2) the degree of control of the party over the non-party witness; (3) the compatibility of the interests of the party and non-party witness in the outcome of the litigation; and (4) the role of the non-party witness in the litigation. 107 F.3d at 123. The court of appeals concluded that an adverse inference could and should be drawn against Edith on the basis of her father's invocation of the Fifth Amendment, stating that the circumstances of the case before it "compel[led] the admissibility and consideration by the trial court of Robert's refusals to answer the questions addressed to him that struck directly at the only issue before the court--whether he or his daughter was the effective owner" of the race horse. Id. at 124. It went on to discuss the weight to be accorded an adverse inference, noting "Justice Brandeis' classic admonition: 'Silence is often evidence of the most persuasive character,'" id., but also acknowledging that a negative inference alone cannot automatically result in the assessment of a serious penalty against the person who exercises his Fifth Amendment privilege.
The court of appeals remanded the case to the district court for reconsideration of "who is due Devil His Due." Id. at 125. On remand, the district court accorded "considerable weight" to the adverse inference drawn on the basis of Robert's silence, concluded that Edith held title to the horse only as her father's nominee, and ruled in favor of the government. See LiButti v. United States, 178 F.3d 114, 117, 120 (2d Cir. 1999).
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*This article was first published in the ISBA's Administrative Law newsletter, April 2000, Vol. 29, No. 5, and is reprinted with permission.
By Cynthia Ervin, Springfield
The following is the third article in a series of articles summarizing pieces of legislation enacted by the 92nd General Assembly and signed into law by Governor Ryan that may be of general interest to government attorneys. (See, "Legislative Update" ISBA Standing Committee on Government Lawyers newsletter, April 2002, Vol. 3 No. 3, for a summary of Public Acts 92- 178 through 92-521; See also, "Legislative Update" ISBA Standing Committee on Government Lawyers newsletter, August 2002, Vol. 4 No. 1, for a summary of Public Acts 92-522 through 92-583). The 92nd General Assembly resumes for six days on November 19, 20, and 21, 2002, and December 3, 4, 5, 2002, for veto session before starting the 93rd General Assembly in January 2003.
Public Act 92-588 (SB 2198) - Replaces the Illinois Human Resource Investment Council with the Illinois Workforce Investment Board. Effective July 1, 2002.
Public Act 92-592 (HB 5996) - Amends the Child Labor Law. Excepts 12 and 13 year old minors from the restrictions of the Child Labor Law for the purpose officiating youth sports activities for a not-for-profit youth club, park district, or municipal parks and recreation department, provided certain restrictions are met. Adds a not-for-profit youth club to the list of entities that may employ a minor who is 14 years of age or older. Effective June 27, 2002.
Public Act 92-593 (SB 1545) - Amends the School Code. Allows for fire officials to conduct routine fire safety checks in local schools, provided written notice is given. Provides for the review of building plans and specifications upon request. Effective June 30, 2002.
Public Act 92-0607 (SB 1983) - Amends the Compensation Review Act. Prohibits public officials from receiving any increase in compensation based on a cost-of- living adjustment for or during the fiscal year beginning July 1, 2002. Effective June 28, 2002.
Public Act 92-0612 (SB 1634) - Amends the School Code. Requires the Pledge of Allegiance to be recited each school day by pupils in secondary educational institutions supported or maintained in whole or in part by public funds. Effective July 3, 2002.
Public Act 92-0613 (HB 3363) - Amends the Township Code. Allows a township board to license and regulate horse-drawn vehicles operating within the township. Provides that any fees charged for a license to operate a horse-drawn vehicle must be used for the improvement of township roads. Provides that any annual fee charged for a license to operate a horse-drawn vehicle may not exceed $50. Effective January 1, 2003.
Public Act 92-0614 (SB 1735) - Amends the Park District Code. Authorizes park districts to prescribe fines and penalties not to exceed $1,000 (currently $500) for ordinance violations. Effective July 8, 2002.
Public Act 92-0617 (SB 2135) - Amends the State Library Act. Provides that certain records held by a State agency shall (instead of shall when feasible) be provided to the State Library in electronic format. Provides that the State Librarian shall set by rule the standard to be used for electronic data exchange among State agencies and the State Library. Adds a definition for "published material." Deletes the definition for "printed material." Effective January 1, 2003.
Public Act 92-0627 (HB 4339) - Amends the Township Code. Provides contract procedures for any purchase by a township with fewer than 10,000 inhabitants and located in a county with a population under 3 million for services, materials, equipment, or supplies in excess of $10,000 (instead of $5,000). Effective July 11, 2002.
Public Act 92-0628 (HB 4618) - Amends the Department of Central Management Services Law of the Civil Administrative Code of Illinois. Provides that the Teacher Health Insurance Funding Task Force shall report its findings and recommendations to the Governor and the General Assembly on or before December 1, 2002, rather than April 1, 2002. Provides that the Task Force is abolished and the section repealed on December 31, 2002, rather than July 1, 2002. Effective July 11, 2002.
Public Act 92-0634 (HB 5829) - Amends the Voluntary Payroll Deductions Act of 1983. Requires inclusion of the last four digits of the employee's social security number on the forms submitted by an organization attempting to qualify for designation as an organization qualified to receive payroll deductions. Requires that an organization return completed designation forms to the State Comptroller's office within the 12-month period the organization has to obtain the designations. Provides that the Comptroller shall establish procedures for verifying signed designation forms. Effective July 11, 2002.
Public Act 92-0643 (SB 1695) - Among other things, amends the Tri-City Regional Port District Act to provide that a mayor may hold the office of Commissioner of the Tri-City Regional Port District simultaneously with the office of mayor. Effective January 1, 2003.
Public Act 92-0645 (SB 1706) - Amends the Freedom of Information Act by changing the exemption from the Act's inspection and copying requirements in subsection 7(1)(c)(i) for computer graphic systems to an exemption for computer geographic systems. Effective July 11, 2002.
Public Act 92-0656 (HB 4335) - Amends the Township Code. Provides that a township may raise money by taxation in order to accumulate moneys in a dedicated fund for a specific capital construction or maintenance project or a major equipment purchase without submitting a proposition to the electors of the district if the annual budget and appropriation ordinance for the township states the amount, purpose, and duration of any accumulation of funds, with specific reference to each project to be constructed or equipment to be purchased. Amends the Illinois Highway Code. Provides that any road district may accumulate moneys in a dedicated fund for a specific capital construction or maintenance project or a major equipment purchase without submitting a proposition to the electors of the district if the annual budget and appropriation ordinance for the road district states the amount, purpose, and duration of any accumulation of funds, with specific reference to each project to be constructed or equipment to be purchased. Effective July 16, 2002.
Public Act 92-0657 (HB 811) - Creates the Building and Construction Contract Act. Provides that a provision in a building and construction contract making the contract subject to the laws of another state or requiring litigation, arbitration, or dispute resolution to take place in another state is void and unenforceable. Further provides that the Act shall not apply (i) to provisions contained in or executed in connection with any building and construction contract awarded by the United States or any other state or (ii) to any person primarily engaged in the business of selling tangible personal property. Effective July 16, 2002.
Public Act 92-0658 (HB 1918) - Amends the Property Tax Code. Provides that if an exemption decision has been made by the Department of Revenue and notice has been given of the Department's decision, any party to the proceeding who feels aggrieved by the decision may file an application for hearing within 60 days after notice of the decision has been given by certified mail (now, 20 days). Establishes procedures for a rehearing, if requested by an aggrieved party, if a decision denying an exemption request is made at hearing. Provides that the Department's decision is final on the later of (i) 30 days after issuance of a notice of decision, if no request for rehearing is made, or (ii) if a timely request for rehearing is made, upon the issuance of the denial of the request or the issuance of a notice of final decision. Changes the time within which an owner may apply for review of a decision by the Department to remove an exemption from 10 to 60 days after notice. Effective July 16, 2002.
Public Act 92-0660 (HB 3672) - Amends the School Code. In a provision concerning a school board employee being mobilized to active military duty, removes the requirement that the mobilization be a result of an order of the President of the United States. Provides that the active military duty shall not result in the loss or diminishment of any employment benefit, service credit, or status accrued at the time the duty commenced if the duty commenced on or after September 1, 2001. Effective July 16, 2002.
Public Act 92-0681 (HB 4988) - Amends the Illinois Municipal Code. Provides that if the court dismisses an action to prevent the demolition, repair, enclosure, or removal of garbage, debris, or other substances from property, then the municipality must send the objector a copy of the dismissal order and a letter stating that the demolition, repair, enclosure, or removal will proceed unless, within 30 days after the copy of the order and letter are mailed, the objector moves to vacate the dismissal and serves a copy of the motion on the chief executive officer of the municipality. Provides that if the objector does not file a motion and give the required notice, if the motion is denied by the court, then the dismissal is with prejudice and the demolition, repair, enclosure, or removal may proceed forthwith. Effective January 1, 2003.
Public Act 92-0683 (HB 5681) - Amends the State's Attorneys Appellate Prosecutor's Act. Allows the Office of the State's Attorneys Appellate Prosecutor, when requested and authorized by the Attorney General, to file briefs with and argue before the Illinois Supreme Court. Allows the Office to assist State's Attorneys in connection with the Cannabis Control Act and the Drug Asset Forfeiture Act. Allows the Office to prosecute other cases, with the consent of the State's Attorney responsible for the case. Allows the Office to act as Special Prosecutor if appointed by a court having jurisdiction. Provides procedures for the appointment. Effective July 16, 2002.
Public Act 92-0695 (HB 3713) - Among other things, amends the Illinois Vehicle Code. Provides for computerized recording of parking ticket notices. Provides that computerized records of the ticket are presumed to be correct and are admissible in administrative or legal proceedings. Effective January 1, 2003.
Public Act 92-0696 (HB 4188) - Amends the Counties Code. Provides that county boards may license or regulate a business operating as a public accommodation that permits the consumption of alcoholic liquor on the business premises and that is not licensed under the Liquor Control Act of 1934. Defines "public accommodation." Amends the Illinois Municipal Code. Provides that the corporate authorities of each municipality may license or regulate businesses operating as a public accommodation that permit the consumption of alcoholic liquor on the business premises and that are not licensed under the Liquor Control Act of 1934. Defines "public accommodation." Effective July 19, 2002.
Public Act 92-705 (SB 1537) - Creates the Emergency Evacuation Plan for People with Disabilities Act. Provides that by January 1, 2004, every "high rise building" owner (defined as the owner of any building 80 feet or more in height) must establish and maintain an emergency evacuation plan for disabled occupants of the building who have notified the owner of their need for assistance. Specifies elements of plans. Specifies additional requirements for hotels that are high rise structures. Provides that emergency evacuation drills shall be conducted at least once per year. Provides that the Act does not apply within a municipality with a population of more than 1 million that, before the effective date of the Act, has adopted an ordinance establishing emergency procedures for high rise buildings. Provides that failure to comply with any provision of the Act is a petty offense punishable by a fine of $500. Amends the State Mandates Act to require implementation without reimbursement by the State. Effective July 19, 2002.
Public Act 92-716 (HB 4457) - Amends the Military Code of Illinois. Adds provisions for reemployment rights of members of the Illinois National Guard who are on State Active Duty, including the right of a National Guard member to reemployment in the position that he or she left, with the same increases in status, seniority, and wages that were earned during the member's period of State Active Duty by persons in like positions. Provides for rights in connection with health insurance and other employment benefits. Provides for a stay of prosecution of civil proceedings and for rights in connection with school attendance and tuition. Repeals provisions concerning retirement from the Illinois National Guard. Effective July 24, 2002.
Public Act 92-724 (HB 6038) - Amends the School Code. Allows a school board to utilize volunteer personnel from a regional School Crisis Assistance Team to provide assistance to schools in times of violence or other traumatic incidents within a school community by providing crisis intervention services to lessen the effects of emotional trauma on individuals and the community. Effective July 25, 2002.
Public Act 92-730 (SB 1795) - Amends the Illinois Vehicle Code. Provides that a school bus driver may not operate a school bus while using a cellular radio telecommunication device. The prohibition does not apply when the school bus is parked. Allows use when the device has a two-way radio service capability and the devise is used as a two-way radio. Creates exceptions for emergency situations. Provides that a violation is a petty offense punishable by a fine of not less than $100 and not more than $250. Effective July 25, 2002.
Public Act 92-732 (SB 1930) - Amends the Local Governmental and Governmental Employees Tort Immunity Act. Authorizes a school board to make a one-time transfer from any fund in which tort immunity moneys are maintained to the fund or funds from which payments to a joint-self-health-insurance cooperative can be or have been made in connection with the payment of liability claims, and allows such a transfer in an amount that the school district paid within the two years immediately preceding the effective date of this amendatory Act. Effective July 25, 2002.
Public Act 92-738 (SB 2022) - Amends the Mental Health and Developmental Disabilities Confidentiality Act. Provides that upon request of a peace officer or prosecuting authority who has a valid forcible felony warrant issued, a facility director shall disclose: (1) whether the person who is the subject of the warrant is present at the facility; and (2) the date of that person's discharge or future discharge from the facility. Effective July 25, 2002.
Public Act 92-747 (HB 4078) - Creates the Lawyers' Assistance Program Act and amends the State Finance Act. Authorizes the Illinois Supreme Court to enter into contracts or agreements with or make grants to non-profit entities to provide assistance to lawyers who are addicted, abuse alcohol or other substances, or are in need of mental health assistance. Requires the Attorney Registration and Disciplinary Commission to collect an annual fee from licensed attorneys in the amount of $7 or as set by Supreme Court rule. Creates a special fund in the state treasury for deposit of the fees and for payment for the lawyers' assistance program. Effective July 31, 2002.
Public Act 92-748 (HB 1720) - Amends the Illinois Educational Labor Relations Act. In the provision defining "short-term employee," provides that the employee must not have a reasonable expectation (instead of a reasonable assurance) that he or she will be rehired. Effective July 31, 2002.
Public Act 92-754 (HB 5807) - Creates the Organ Donor Leave Act. Provides for time off with pay for state employees who donate an organ or bone marrow. Provides that a state employee may use up to 30 days of organ donation leave in any 12-month period to serve as a bone marrow donor. Adds that state employees donating blood or blood platelets may request organ donation leave with pay. Leave may be up to one hour every 56 days for the donation of blood. Leave may be up to two hours and not more than 24 times in a 12-month period for the donation of blood platelets. Requires the Department of Central Management Services to adopt rules. Effective January 1, 2003.
Public Act 92-759 (SB 2068) - Amends the Toll Highway Act. Provides that the Illinois State Toll Highway Authority may not enter into any agreement or understanding for the use or acquisition of land that is intended to be used or acquired for toll highway purposes unless full disclosure of all individuals and entities holding any beneficial interest in the land is made. Provides that if the Authority commences condemnation proceedings to acquire land for a toll highway, holders of all beneficial interests must make full disclosure, unless the court determines that disclosure would cause one or more of them irreparable harm. Requires the statement to be in writing, verified under penalty of perjury, and recorded. Provides that a person who violates the provision is guilty of a business offense and shall be fined $10,000. Effective August 2, 2002.
Public Act 92 768 (HB 4023) - Among other things, creates the Local Planning Technical Assistance Act. Requires the Department of Commerce and Community Affairs to promote the principles of sensible planning. Defines "sensible planning." Allows the Department to make grants to counties and municipalities to develop, update, administer, and implement comprehensive plans, subsidiary plans, land development regulations, and development incentives that conform to the principles of sensible planning. Requires the Department to set eligibility criteria for the grants, criteria for the use of grant funds, and reporting requirements. Allows the Department to prepare model ordinances, manuals, and other technical publications that are founded upon the principles of sensible planning. Allows the Department to provide educational and training programs promoting the principles of sensible planning. Requires the Department to report at least annually to the Governor and the General Assembly on (i) the results and impacts of county and municipal activities funded by the grants; (ii) the distribution of the grants; (iii) model ordinances, manuals, and technical publications prepared by the Department; and (iv) educational and training programs required by the Department. Effective August 6, 2002.
Public Act 92-774 (HB 5577) - Among other things, amends the Illinois Municipal Code to provide that the definition of "municipal convention hall" includes necessary adjuncts to the building or auditorium including, but not limited to, hotels, restaurants, and gift shops. Provides that the definition of "municipal convention hall" includes a building or auditorium with all necessary adjuncts thereto that will become municipally-owned at a date certain. Provides that a municipality with a population exceeding 40,000 may acquire, construct, manage, control, maintain, and operate a municipal convention hall. Provides that corporate authorities of a municipality with a population between 40,000 and 75,000 may not levy a property tax for the purpose of a municipal convention hall. Effective January 1, 2003.
Public Act 92-798 (HB 5803) - Amends the Auction License Act to provide that an auction license is not required for auctions conducted by an agent of the federal, State, or local government in the conduct of his or her official duties. Effective August 15, 2002.
Public Act 92-813 (HB 5000) - Amends the Liquor Control Act of 1934. Provides that the Illinois Liquor Control Commission may appoint, at the Commission's discretion, hearing officers. Authorizes the issuance of a license to sell alcoholic liquor at retail on certain premises within 100 feet of a church or school if there was a preexisting license authorizing the sale of alcoholic liquor at retail at the premises and if the premises are located in a home rule municipality. Effective August 21, 2002.
Public Act 92-816 (HB 5647) - Amends the Election Code. Changes the period during which a person may not register to vote to 27 days, rather than 28 days, before an election. Effective August 21, 2002.
Public Act 92-817 (SB 39) - Among other things, amends the Code of Civil Procedure to provide that a judgment may be revived in the seventh year after its entry, or in the seventh year after its last revival, or at any other time thereafter within 20 years after its entry, and sets forth the procedures for doing so. Effective August 21, 2002.