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The Public Servant
The newsletter of the ISBA’s Standing Committee on Government Lawyers

December 2002, vol. 4, no. 3

Case law update

Administrative law

Southern & Central Illinois Laborers' District Council v. Illinois Health Facilities Planning Board, 331 Ill. App. 3d 1112 (5th District, July 1, 2002). The circuit court did not err when it denied defendant's motion to transfer venue in a mandamus action seeking to compel defendant agency to comply with the provisions of the Administrative Procedure Act with regard to a union complaint that "the hospital had failed to comply with the conditions of its construction permit relating to local union issues." Pursuant to section 2-103(a) of the Code of Civil Procedure (735 ILCS 5/2-103(a) (West 2000)), actions must be brought against a public, municipal, governmental, or quasi-municipal corporation in the county in which its principal office is located or in the county in which the transaction giving rise to the cause of action arose. Venue may properly lie in more than one jurisdiction. Because defendant is a State governmental agency venue would have been proper in Sangamon or Cook County. Defendant, however, did not satisfy its burden of showing that the transaction which gave rise to the action did not occur in Williamson County and that the selection of venue in Williamson County was improper.

JMH Properties, Inc. v. Industrial Comm'n., 332 Ill. App. 3d 831 (4th District, July 9, 2002). The Industrial Commission acted outside its statutory authority when it pierced plaintiff's corporate veil and allowed claimant to enforce his workers' compensation award against plaintiff's officers, directors and shareholders. Piercing the corporate veil is an equitable remedy. The Commission does not have the authority to grant equitable relief.

Nudell v. Forest Preserve District, No. 1-00-3220 (1st District, August 19, 2002). The circuit court lacked subject matter jurisdiction to hear the administrative review complaint filed by an employee of a forest preserve district because it was filed more than 35 days after service of the administrative decision was deposited in the United States mail addressed to the attorney for employee. The 35-day period provided in section 3-103 of the Administrative Review Law (735 ILCS 5/3-103 (West 1998)) commenced when the decision was deposited in the United States mail.

Luchesi v. Retirement Board of the Firemen's Annuity & Benefit Fund, No. 1-01-1195 (1st District, August 19, 2002). The trial court correctly found that the decision of defendant board to deny duty disability benefits because of claimant's failure to attend physical therapy was against the manifest weight of the evidence. Board physician unequivocally opined that claimant suffered work related injury causing his inability to perform work duties; record contains no evidence that, but for refusal to attend therapy, claimant would be able to return to work. Nothing in the language of the pertinent provisions of the Illinois Pension Code authorizes the board to reduce or suspend benefits payable to a claimant who unreasonably refuses medical treatment that might improve his condition.

Bagnola v. Smithkline Beecham Clinical Laboratories, No. 1-00-0224 (1st District, August 23, 2002). Because the earlier administrative review of plaintiff's termination from the police department, based upon positive test results of two urine specimens for cocaine, involved the same group of operative facts as the current claim for spoliation of evidence based upon destruction of the urine specimens, res judicata and collateral estoppel bar plaintiff's subsequent complaint for spoliation against the laboratory and the city of Chicago in privity with it. Therefore, defendants were entitled to summary judgment.

Hwang v. Illinois Department of Public Aid, No. 1-01-2992 (1st District, August 30, 2002). Plaintiff was properly terminated as a provider in the Department of Public Aid's Illinois Medical Assistance Program (305 ILCS 5/5-1 et seq. (West 2000)) for failure to provide the Department with the opportunity to inspect his medical records. Plaintiff received proper notice in accordance with the provisions of section 104.230 of the Administrative Code (89 Ill. Adm. Code ''104.230 (West 2000)), after he was served at three addresses by certified mail with notice of his right to request a hearing to contest termination of his certificate and of the entry of an order of default after he failed to request a hearing. On review, plaintiff is precluded from raising any issues other than subject matter or personal jurisdiction.

Trettenero v. Police Pension Fund of the City of Aurora, No. 2-01-0544 (2d District, September 5, 2002). The decision of the board of the police pension fund to terminate plaintiff's not-on-duty disability pension, because it found that plaintiff was no longer disabled based on the opinion of one out of three medical experts, was not against the manifest weight of the evidence. Moreover, it does not violate the constitution for the Illinois Pension Code to require that the plaintiff present more medical documentation of her disability in order to qualify for pension benefits initially than the board was required to present in order to terminate her pension.

Minifee v. Doherty, No. 1-01-3670 (1st District, September 13, 2002). The trial court erroneously concluded that the Department of Employment Security's regulation 2920.75(d) (56 Ill. Adm. Code '2920.75(d) (2000)) was invalid and reversed the Department's decision regarding plaintiff's claim for unemployment benefits. The regulation, dealing with the allocation of lump-sum retirement benefits as disqualifying income, is a reasonable interpretation of section 611(B) of the Unemployment Insurance Act (820 ILCS 405/611(B) (West 2000)) and is not arbitrary or capricious.

Pierce v. Illinois Educational Labor Relations Board, No. 1-01-2076 (1st District, September 23, 2002). Petitioner's appeal from a decision of the Illinois Educational Labor Relations Board must be dismissed for lack of subject matter jurisdiction because petitioner failed to file his exceptions to the recommended decision of the administrative law judge within the 21-day deadline prescribed by the Board's regulations (80 Ill. Adm. Code '1105.220 (1991)).

Civil procedure

Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95 (July 3, 2002). The appellate court had jurisdiction to consider the Board of Education's motion seeking relief from a final judgment, brought more than 30 days from the judgment's entry under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2000)). Further, the trial court erred when it found that it lacked personal jurisdiction based upon service of summons on the receptionist of the Board's law department pursuant to the provisions of section 2-211 of the Code of Civil Procedure (735 ILCS 5/2-211 (West 2000)). The Board's president had delegated authority to accept service to a receptionist in the Board's law department; the Board put into place an alternate means of accepting service of process to facilitate the orderly administration of the Board's business.

Marion Hospital Corp. v. Illinois Health Facilities Planning Board, No. 91426, 91479 cons. (September 19, 2002). Because appellant failed to obtain a stay of the Health Facilities Planning Board's decision to grant a permit to construct a "limited specialty orthopedic ambulatory surgical treatment center," and the facility was built and completed prior to the issuance of the appellate court opinion, the matter became moot. The appellate court should have dismissed the appeal as moot.

Lake County Riverboat L.P. v. Illinois Gaming Board, 332 Ill. App. 3d 127 (1st District, June 28, 2002). Plaintiff lacks standing to challenge the constitutionality of the 1999 amendments made to section 11.2 of the Riverboat Gambling Act, which allowed the riverboat gambling license issued to Emerald Casino, Inc., to be relocated anywhere in the state, because plaintiff could never have obtained the reissued license to locate a gambling boat on the Fox River prior to the amendment of the statute. Emerald's license was limited to the Mississippi River. Therefore, plaintiff suffered no direct injury by the enforcement of the challenged statute.

American Federation of State, County, and Municipal Employees, Council 31 v. Ryan, 332 Ill. App. 3d 866 (4th District, July 10, 2002). Only the State and its agencies have standing to seek injunctive relief to enforce compliance with the provisions of the Health Facilities Planning Act. Therefore, the trial court exceeded its authority when entering a temporary restraining order at the request of plaintiff (union, employees, legislators and patients) to enjoin the State from closing Lincoln Developmental Center without first obtaining a permit from the Health Facilities Planning Board.

Illinois Licensed Beverage Assoc. v. Advanta Leasing Services, No. 4-01-0998 (4th District, July 26, 2002). Motion for substitution of judge as of right under section 2-1001(a)(2)(ii) of the Code of Civil Procedure (735 ILCS 5/2-1001(a)(2)(ii) (West 2000)) was timely filed despite previous entry of preliminary injunction order, because trial court lacked jurisdiction when it entered preliminary injunction order, thus making it void and a nullity.

Constitutional law

Lyons v. Ryan, No. 92503 (September 19, 2002). Plaintiffs, private citizens, lack standing to recover for Illinois taxpayers funds alleged to have been received illegally by officers and employees of the Secretary of State's office. The real party in interest is the State of Illinois, and the Attorney General possesses the exclusive constitutional power and prerogative to conduct the state's legal affairs. Thus, to the extent that section 20-104(b) of Code of Civil Procedure (735 ILCS 5/20-104(b) (West 1998)) purports to confer standing on private citizens to sue in cases where the state is the real party in interest, it is unconstitutional.

Stroger v. Regional Transportation Authority, No. 92473 (September 19, 2002). Legislation creating the Regional Transportation Authority (RTA) and setting forth procedures for the appointment of the boards of directors of RTA, METRA and PACE by the mayor of the city of Chicago and by members of the Cook County Board from specified districts, the residents of which are primarily outside of the city of Chicago, does not violate the Illinois Constitution's "one person, one vote" principle or separation of powers provisions. The General Assembly had authority to create the various boards and set forth a mechanism for appointment of members on a rational basis. The Illinois Constitution does not confer on the president of the Cook County Board any specific powers. Therefore, the Regional Transportation Authority Act does not deprive the president of the Cook County Board of any inherent appointment powers.

Criminal law


People v. Kolzow, 332 Ill. App. 3d 457 (1st District, June 28, 2002). The filing of a notice of appeal transfers jurisdiction to the appellate court instanter and simultaneously divests the trial court of jurisdiction to enter additional orders of substance in a case. In the instant case, the trial court entered an order denying defendant's motion seeking early release but allowing her to remain free on bond pending the outcome of her appeal of that order. Plaintiff subsequently filed a notice of appeal indicating her intent to appeal that order. The filing of this notice of appeal operated to transfer jurisdiction to the appellate court and to divest the trial court of jurisdiction to enter any additional orders of substance. Because notice of appeal divested trial court with authority to adjudicate matters relating to defendant's probation, trial court lacked jurisdiction to enter order terminating defendant's probation while case was pending on appeal. The trial court's order denying defendant's motion to bar her incarceration is affirmed.

People v. White, No. 2-01-0481 (2d District, September 5, 2002). Supreme Court Rule 606(b) requires that a notice of appeal in a criminal case be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from. Although defendant's notice of appeal was initially mailed to the appellate court instead of the circuit court

clerk, it is deemed filed on the date it was originally mailed to the court and is timely. The trial court correctly held that, because court costs, probation fees, and lab analysis fees are not "fines" as that term is used in section 110-14 of Code of Criminal Procedure of 1963 (725 ILCS 5/110-14 (West 2000)), defendant is not entitled to credit for those monetary obligations for each day incarcerated prior to sentencing.



People v. Cunningham, 332 Ill App. 3d 233 (1st District, June 28, 2002). Record supports trial court's denial of motion to suppress confession given by juvenile defendant at police station despite refusal to allow defendant's father to be present during interrogation. Statement was given within 30 minutes of defendant becoming suspect and was repeated in presence of defendant's father. Further, the State did not violate Supreme Court Rule 412 in failing to provide the defense with the State's shoe print overlays, because the defendant did not specifically request the overlays and because a report on the overlays was provided to the defense prior to witness' testimony. Objections to testimony about chances of random shoe matches were waived.


People v. Hanna, 332 Ill. App. 3d 527 (5th District, July 2, 2002). The trial court acted correctly in granting defendants' motions to suppress the results of breathalyzer machine testing in their prosecutions for driving under the influence of alcohol. The trial court correctly interpreted the regulations of the Illinois Department of Public Health, (77 Ill. Adm. Code '510.40(c) (2000)), when it concluded that breathalyzer test results from the Intoxilyzer 3000 and the Intoxilyzer 5000 were inadmissible, because the Department had failed to conduct its own tests before placing the machine models on the Illinois approved list.

Toia v. People, No. 1-00-3999 (1st District, August 12, 2002). Trial court correctly concluded that the amendment to section 5-6-3.1 of the Unified Code of Corrections (730 ILCS 5/5-6-3.1(f) (West 1994), as amended by Public Act 89-637, effective January 1, 1997), which specifically excluded DUI arrest records from those court supervision dispositions that may be expunged, does not violate the provisions of the United States or Illinois Constitutions prohibiting ex post facto legislation.


People v. Gathing, No. 3-01-0328 (3rd District, September 12, 2002). The trial court was required to give the defendant credit under section 110-14 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-14 (West 2000)) for each day of presentence incarceration against the mandatory drug assessment (720 ILCS 570/411.2(a)(1) (West 2000)). Moreover, the trial court erred when it ordered the Department of Corrections to deduct 50 percent of defendant's income to pay fines and costs. Allowing a withholding of 50 percent exceeds the statutory maximum and defendant was not afforded a wage deduction hearing. In addition, the trial court incorrectly imposed a laboratory fee for $100 under section 5-9-1.4 of the Unified Code of Corrections (730 ILCS 5/5-9-1.4 (West 2000)), which authorizes a $50 fee for each offense for which a defendant is convicted. Defendant was convicted of only one offense.

Guilty pleas

People v. Vasquez, 332 Ill. App. 3d 269 (1st District, June 28, 2002). Despite a negotiated plea agreement with the state, the trial court was required by Supreme Court Rule 402 to advise defendant of the minimum and maximum sentences prescribed by law, and that he could receive an extended sentence and of the period of mandatory supervision following his incarceration before accepting his guilty plea to aggravated criminal sexual abuse. Because it failed to do so, defendant must be allowed to withdraw his guilty plea, the trial court must vacate his conviction and sentence, and permit the defendant to plead anew.

People v. Johnson, 332 Ill. App. 3d 81 (1st District, June 28, 2002). Even after defendant has been sentenced for violation of probation following entry of conviction on guilty plea and sentence of probation, defendant must still be given admonishments and opportunity to file motion to withdraw guilty plea. Because trial court failed to advise defendant of his right to file appeal as required by Supreme Court Rule 605(b), this case was remanded to the circuit court for the defendant to be admonished.

Jury instructions

People v. James, 331 Ill. App. 3d 1064 (4th District, July 3, 2002). The modified IPI 11.65E jury instruction proposed by the prosecution gave an erroneous definition of >sexual penetration;' which was emphasized in the state's closing argument. Therefore, defendant's conviction of predatory criminal sexual assault of child must be reversed as plain error.

Post conviction proceedings

People v. Boclair, No. 89388, 89471, 89534 cons. (August 29, 2002). Because time limit in section 122-1 of Post Conviction Hearing Act (725 ILCS 5/122-1(c) (West 1998)) is not jurisdictional, the circuit court may not summarily dismiss post-conviction petition on the basis of timeliness. Further, the timing requirement of section 122-1(c) of the Post Conviction Hearing Act is not unconstitutionally vague. As used in section 122-1 of the Act, the phrase "culpably negligent" contemplates something that is akin to recklessness. The amendment to the Act contained in Public Act 83-942 is not violative of the single subject rule.

People v. Hager, No. 90115 (August 29, 2002). The appellate court erred when it concluded that defendant's post conviction petition was subject to summary dismissal as being untimely pursuant to section 122-1 of the Post-Conviction Hearing Act (725 ILCS 5/122-1 (West 2000)). Because the appellate court in defendant's first appeal reversed defendant's sentence, there was no "conviction" for purposes of the Post-Conviction Hearing Act. Therefore, the six-month limitation period within which defendant must file a post conviction petition did not begin to run until after defendant was re-sentenced and the appellate court affirmed defendant's sentence.

People v. Britt-El, No. 89837 (August 29, 2002). Defendant's second post-conviction petition was subject to summary dismissal as an improper, successive petition that was not permitted under the Post-Conviction Hearing Act. Because People v. Boclair may not be applied retroactively to defendant's first post-conviction proceeding, defendant cannot establish cause for proceeding on the claims of ineffective assistance of counsel which are repeated in his second petition. Thus, the claims of ineffective assistance of counsel which are repeated in defendant's second post-conviction petition are procedurally barred from consideration on the merits.


People v. Thornton, No. 1-99-3356 (1st District, August 16, 2002). Defendant's conviction of aggravated kidnaping was not subject to reversal because court spoke with juror, who reported illness during deliberations, in chambers with counsel only present. Although court should have advised the other jurors to cease deliberations until ill juror rejoined them, jury deliberations during ill jurors absence did not taint proceedings. Ill juror was not one of two holdouts.

People v. Stroud, No. 3-01-0804, 3-01-0805 cons. (3d District, August 19, 2002). The trial court erred when it dismissed defendant's post-conviction petition alleging a violation of his constitutional rights when the trial court accepted his guilty plea over closed circuit television. A guilty plea hearing on closed circuit television denies the defendant a substantial right and deprives him of fundamental fairness.

Prosecutorial misconduct

People v. Williams, 333 Ill. App. 3d 204 (1st District, August 5, 2002). The State erred both in attempting to impeach defendant with unsupported cross-examination questioning and in using the unsupported cross-examination during its rebuttal argument to argue defendant's guilt to the jury. The persistent use of paternity test results to buttress the unsupported theory that defendant shot the victim, because he knew he was going to be declared victim's child's father at an upcoming court hearing and wanted to avoid paying child support may have mistakenly led the jury to convict defendant on considerations other than the evidence alone. Prosecutor's improper impeachment was so egregious that case must be remanded for new trial.

People v. Collins, 333 Ill. App. 3d 20 (2d District, August 23, 2002). Because prosecutor actively concealed relationship between confidential informant, who was presented by State as witness at trial, and police lied to the court and withheld material information from defendant prior to trial, defendant was deprived of a fair trial.

Search and seizure

People v. Avant, 331 Ill. App. 3d 144 (4th District, June 17, 2002). Police officer lacked probable cause to stop and search defendant after he observed defendant walking back and forth on sidewalk in high drug area and stopped defendant to introduce himself. Once community-caretaking function had been taken care of by introduction, police officer lacked specific articulable reason to conduct Terry stop. Therefore, it was error to deny motion to suppress drugs seized pursuant to search of defendant.

People v. Granados, 332 Ill. App. 3d 860 (4th District, July 26, 2002). After defendant had been stopped and cleared at temporary roadblock, police lacked probable cause to later detain the defendant and order him to submit to alcohol testing when officer noticed shotguns in the bed of defendant's truck. Therefore, trial court properly granted motion to rescind statutory summary suspension of defendant's driver's license.

Sexually Violent Persons Commitment Act

In re Detention of Lieberman, 201 Ill. 2d 300 (July 3, 2002). When General Assembly enacted Sexually Violent Persons Commitment Act, it intended to include offense of rape within definition of "sexually violent" offenses subjecting convicted individual to involuntary civil commitment under the Act. The conduct subjecting individual to conviction for rape would also subject individual to conviction for subsequently created offense of criminal sexual assault, which replaced it.

People v. Lindsay, 333 Ill. App. 3d 474 (5th District, August 29, 2002). Defendant's motion to dismiss petition brought by the Attorney General pursuant to the Sexually Violent Persons Commitment Act when he was scheduled to be released after sentence served pursuant to negotiated plea agreement was properly denied. Trial court was not required to admonish defendant of potential for detention pursuant to Act at time plea agreement was entered, and any agreement with the State's Attorney's office that it would not seek civil commitment pursuant to Sexually Dangerous Persons Act had no bearing on Attorney General's petition under the Sexually Violent Persons Commitment Act.

Speedy Trial Act

People v. Izquierdo-Flores, 332 Ill. App. 3d 632 (2d District, August 1, 2002). Trial court erred when it dismissed second indictment charging first-degree murder based upon Speedy Trial Act (725 ILCS 5/103-5(a) (West 2000)). Although defendant had been in custody for more than 120 days on charge of second degree murder, continuances charged to defendant while second degree murder charge was pending also applied to first-degree murder indictment, it being essentially the same offense.

Election law

Brooks v. Board of Election Commissioners, No. 1-01-2283 (1st District, August 30, 2002). Local proposition ballot was sufficient to comply with both the Liquor Control Act of 1934 (235 ILCS 5/1-1 et seq. (West 1996)) and the Voting Rights Language Assistance Act of 1992 (42 U.S.C. '1973aa-1a(b)(1)(b)(2)(A)(i) (I)(1994)) despite positioning of proposition on ballot whereby English version was emboldened and Spanish version was not; and both were contained in same rectangle resulting in "yes" appearing adjacent to English version and "no" appearing adjacent to Spanish version.

Freedom of Information Act

Chicago Tribune Co. v. Board of Education, 332 Ill. App. 3d 60 (1st District, June 28, 2002). The trial court erred when it denied the Board of Education's motion to dismiss, pursuant to the provisions of section 2-0619 of the Code of Civil Procedure (735 ILCS 5/2-0619 (West 1998)), an injunction action filed by the Chicago Tribune seeking certain student record data pursuant to the provisions of the Freedom of Information Act. The requested documents are per se exempt by virtue of section 7(1)(b)(i) of the Freedom of Information Act (5 ILCS 140/7(1)(b)(i) (West 1998)).

Labor law

City of Northlake v. Illinois Fraternal Order of Police Labor Council, Lodge 18, 333 Ill. App. 3d 329 (1st District, August 2, 2002). Arbitrator did not exceed his authority when, upon finding written collective bargaining agreement between police officers' union and municipality ambiguous with regards to method of calculating compensation for sick leave upon separation from employment, he referred to a tentative agreement to ascertain intent of the parties.

American Federation of State, County & Municipal Employees v. Illinois State Labor Relations Board, No. 5-00-0439 (5th District, August 16, 2002). There was a change in the law sufficient to allow the Office of the Appellate Defender to petition the State Labor Relations Board seeking a finding that assistant appellate defenders are managerial employees based upon the court's holding in Chief Judge of the Sixteenth Judicial Circuit v. Illinois State Labor Relations Bd., 178 Ill. 2d 333 (1997)), despite the assistant appellate defenders' inclusion in a prior collective bargaining agreement. Further, the State Labor Relations Board correctly found that assistant appellate defenders are managerial employees for purposes of the Illinois Public Labor Relations Act (5 ILCS 315/1 et seq. (West 2000)), because they are closely identified with their employer. It was not an unfair labor practice to refuse to negotiate with the assistant appellate defenders' because they are managerial employees.

Vorpagel v. Maxell Corporation of America, 333 Ill. App. 3d 43 (2d District, August 21, 2002). Trial court erred when it dismissed plaintiff's complaint for retaliatory discharge for cooperating in the criminal investigation of his supervisor. The criminal conduct reported need not relate to employment to create cause of action, and complaint sufficiently alleged that supervisor was acting as agent for defendant corporation when he fired plaintiff.

Municipal law

Village of Oak Park v. Illinois Department of Employment Security, 332 Ill. App. 3d 141 (1st District, June 28, 2002). The Illinois Department of Employment Security's Board of Review erred when it concluded that an employee of a municipality terminated for misconduct was entitled to receive unemployment benefits. The terminated employee is precluded from relitigating the issue of whether he engaged in misconduct that merited discharge.

Keefe-Shea Joint Venture, Inc. v. City of Evanston, 332 Ill. App. 3d 163 (1st District, June 28, 2002). Plaintiff, the unsuccessful bidder for a municipal construction project requiring competitive bidding, could show irreparable harm by denial of its right to participate in fair bidding process. Therefore, trial court erred when it concluded plaintiff failed to present prima facie case in hearing on motion for preliminary injunction barring city from allowing successful bidder to commence project pending litigation.

City of Chicago v. Taylor, 332 Ill. App. 3d 583 (1st District, June 28, 2002). A home rule municipality's ordinance requiring that any firearm within the city limits be registered and requiring the destruction of any unregistered firearm seized within the city is a permissible exercise of the city's home rule powers and does not violate the constitution. Therefore, after a gun was seized in defendant's home in the city, and the defendant pled guilty and was placed on court supervision for criminal offense of possession of a firearm without a Firearms Owners Identification Card, the trial court did not have the authority to grant a third party's petition for return of the seized firearm, claiming to be the rightful owner.

U.S.G. Italian Marketcaffe, L.L.C. v. City of Chicago, 332 Ill. App. 3d 1008 (1st District, July 19, 2002). Although the city had the statutory authority to levy a litter tax on carry-out food served by dine-in restaurants under section 11-42-5 of the Illinois Municipal Code (65 ILCS 5/11-42-5 (West 1998)), its ordinance violates the uniformity clause of the Illinois Constitution (Ill. Const. 1970, art. IX, '2). The ordinance makes classifications that are not reasonably related to its legislative purpose of raising revenue in order to remove and dispose of litter caused by patrons of places for eating which sell carry-out food, nor is it reasonably related to the city's stated purpose of reducing the amount of litter generated. Moreover, the ordinance is also unconstitutionally vague.

City of Springfield v. Hashman, 332 Ill. App. 3d 748 (4th District, July 29, 2002). Because section 11-125-2 of the Illinois Municipal Code (65 ILCS 5/11-125-2 (West 1998)) gives the city the power to prevent or punish any pollution to a source of water within 20 miles of its corporate limits, and because the city of Springfield has proven that there is the potential for pollution of its water source by the proposed subdivision development which utilizes private septic systems, the trial court erred when it refused to enjoin the development of the subdivision without the approval of Springfield Planning Commission.

Luise, Inc. v. Village of Skokie, No. 1-00-4213, 1-01-0857, 1-01-2556 cons. (1st District, September 6, 2002). Trial court erred when it granted summary judgment in favor of defendant and dismissed other complaints with respect to the placement of a mechanic's lien on proceeds of public construction contracts for hauling materials and debris to and from construction site. The court's conclusion that, as a matter of law, hauling services are not lienable pursuant to section 23 of the Mechanics' Lien Act (770 ILCS 60/23 (West 2000)) is inconsistent with the liberal interpretation that reviewing court's have adopted.

Sovereign immunity

Cooper v. Illinois State University, 331 Ill. App. 3d 1094 (4th District, June 11, 2002). Plaintiff's complaint, based on the Age Discrimination in Employment Act of 1967 (ADEA) (29 U.S.C. ''621 through 634 (1994)) and Title VII of the Civil Rights Act of 1964 (42 U.S.C. '2000e through 2000e-17 (1994)), was subject to dismissal under section 2-0619 of the Code of Civil Procedure (735 ILCS 5/2-0619(a)(2) (West 2000)), because sovereign immunity prohibits the filing of federal claim in state court without approval by the state, and in Illinois, age discrimination claims are exclusively permitted only through compliance with the Human Rights Act (775 ILCS 5/1-101 et seq. (West 2000)).

City of Carbondale v. Bower, 332 Ill. App. 3d 928 (5th District, July 10, 2002). The trial court misapplied section 11-301 of the Code of Civil Procedure (735 ILCS 5/11-301 (West 2000)). Section 11-301 is to be construed to restrain and prohibit the disbursement of funds. The doctrine of sovereign immunity deprived the trial court of the authority to enter a mandatory injunction requiring state officials to disburse transportation funds and revenue sharing funds according to the 1990, rather than the 2000, census figures.

Special prosecutors

McCall v. Devine, No. 1-01-0182 (1st District, August 30, 2002). Trial court properly granted intervenor-State's Attorney's motion for judgment on the pleadings and dismissed plaintiff's complaint for appointment of a special prosecutor to investigate and prosecute members of the city of Chicago police department with respect to the fatal shooting of plaintiff's son while in custody. The complaint failed to allege sufficient specific facts to establish that the State's Attorney was personally interested in the case. There was no conflict of interest by virtue of the political closeness and camaraderie between the State's Attorney's office and the police department.

People v. Woodall, No. 5-00-0478 (5th District, September 17, 2002). Although attorneys from the State's Attorney Appellate Prosecutor's office had no statutory authority to prosecute defendant on the state's behalf, the defendant suffered no harm and there is no reason to overturn his conviction.

State matters

American Federation of State, County, & Municipal Employees, Council 31 v. Ryan, 332 Ill. App. 3d 965 (1st District, July 15, 2002). The trial court properly denied the labor union's requested temporary restraining order requiring the Illinois Department of Corrections to continue to expend appropriated funds for the operation of a youth detention facility. The Department has discretion to spend or not to spend appropriated funds within the parameters set by the General Assembly. Plaintiffs failed to establish that they have a protectable right to prevent closure or a likelihood of success at trial on the merits.

Diggs v. Snyder, 333 Ill. App. 3d 189 (5th District, August 13, 2002). Inmate's complaint for an injunction and declaratory judgment based on the Illinois Religious Freedom Restoration Act (775 ILCS 35/1 et seq. (West 2000)) was properly dismissed. Inmate could not prove that confiscation of pamphlet constituted a substantial burden on the practice of his religion. Further, the pamphlet's inflammatory language and accompanying pledge form could logically have been construed by the facility to present a message that would jeopardize the safety and security of the facility. Therefore, the trial court properly found that the Department was justified in construing the pamphlet to be unauthorized contraband. Moreover, it is necessary for an inmate, not the Department, to request the review of any religious tract he would like to possess or run the risk of being ticketed for possession of contraband material.


U.S.G. Italian Marketcaffe, L.L.C. v. City of Chicago, 332 Ill. App. 3d 1008 (1st District, July 19, 2002). Although the city had the statutory authority to levy a litter tax on carry-out food served by dine-in restaurants under section 11-42-5 of the Illinois Municipal Code (65 ILCS 5/11-42-5 (West 1998)), its ordinance violates the uniformity clause of the Illinois Constitution (Ill. Const. 1970, art. IX, '2). The ordinance makes classifications that are not reasonably related to its legislative purpose of raising revenue in order to remove and dispose of litter caused by patrons of places for eating which sell carry-out food, nor is it reasonably related to the city's stated purpose of reducing the amount of litter generated. Moreover, the ordinance is also unconstitutionally vague.

Tort Immunity Act

Basham v. Hunt, 332 Ill. App. 3d 980 (1st District, July 17, 2002). The trial court erred when it dismissed plaintiff's complaint upon motion for summary judgment based on limitations period of the Tort Immunity Act (735 ILCS 5/1-1 (West 1996)). Plaintiff proved that she was suffering from a "legal disability" within the meaning of section 13-211 of Code of Civil Procedure (735 ILCS 5/13-211 (West 1996)). Therefore, she was subject to the one-year statute of limitations in section 8-101 of the Act (735 ILCS 5/8-101 (West 1996)).

Ramos v. City of Peru, 333 Ill. App. 3d 75 (3d District, August 8, 2002). Plaintiff filed a complaint based on the Illinois Uniform Conviction Information Act (20 ILCS 2635/1 et seq. (West 2000)), defamation, false light and invasion of privacy against the local police department which published a Crime Stoppers advertisement with a photograph of plaintiff over the name of an individual wanted for aggravated criminal sexual abuse. Trial court determined that defamation, false light and personal injury claims were subject to dismissal based upon section 2-107 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/2-107 (West 2000)).

Courson v. Danville School District No. 118, 333 Ill. App. 3d 86 (4th District, August 14, 2002). Decision of a junior high shop teacher that a malfunctioning safety guard on a table saw was more dangerous with guard on than off was within the scope of the authority granted to the teacher by his employing school district to "operate the wood shop in the manner he saw fit." The decision was discretionary. Therefore, the decision was within the protections granted by section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/2-201 (West 2000)). Moreover, the provisions of section 3-102 of the Act (745 ILCS 10/3-102 (West 2000)) impose a duty upon the school district to exercise reasonable care to maintain its property, the intentional removal of a safety shield, cannot be characterized as a failure to maintain property. Summary judgment in favor of the school district dismissing personal injury complaint of student injured by saw was proper.


Fisher v. Burstein, No. 2-01-0661 (2d District, September 17, 2002). Defendants, operators of a ski resort which was developed prior to the enactment of the county's zoning ordinance and which was grandfathered in as an existing nonconforming use at the time of the enactment of the zoning ordinance, could properly expand their business on their existing site (including the creation of a ski trail and a "terrain park" for snowboarding, construction of a chairlift, and installation of light towers, snow-making and snow-grooming machines, electric and water infrastructure, and signs) without applying for or obtaining any zoning permits from the county.