Judicial Rulings                                                          

The Illinois Supreme Court may have added one small link to a chain of decisions regarding the constitutional status of various clinical tests. On May 20 it ruled that when a police officer was required to report for a urinalysis that this did not constitute an "examination."

The department requested the test because it was investigating the officer for possible cocaine distribution. The officer refused three times and was discharged, after departmental hearing, for refusing to obey an order. He claimed that the orders for the urinalysis did not afford him protections provided by the Municipal Code, which says, "Before any such officer or employee may be interrogated or examined by or before any disciplinary board,... the results of which hearing, interrogation or examination may be the basis for filing charges seeking his removal or discharge, ... he must be advised in writing that his admissions made in the course of the hearing, interrogation or examination may be used as the basis for charges seeking his removal or discharge; and he must be advised in writing that he has the right to counsel..." (see Illinois Revised Statutes 1991, ch.24, par. 10-1-18.1).

The court said that the word "examination" had to be considered in the broad context of the statute and concluded, "The rights plaintiff seeks . . . simply do not apply when an officer is ordered to submit a urine sample." Since it is reasonable for a department to order a urinalysis, "It would be pointless for the General Assembly to prohibit the collection of urine until an attorney assures a police officer that the collection is authorized." While the court took no position on the matter when such a urine test would be used in a criminal proceeding, it ruled, "A urinalysis is not an examination under the Code, and administrative warnings need not be issued before an officer is ordered to submit a urine sample."

The court overturned the appellate court's finding for the officer. That decision had relied on City of Springfield Department of Public Affairs v Civil Service Comm 'n (112 Ill. App. 3d 856 (1983)), which involved a breathalyzer test. Since the court held the Springfield decision erroneous, the present case would seem to apply to breathlyzer tests as well.

Justice James D. Heiple wrote the opinion in Corgiat v Police Board of the City of Chicago (Docket No. 74148).

The Illinois Supreme Court has not resolved disagreement at the appellate level over the doctrine of "limited-authority." The court summarized the doctrine as stating "that authority to enter a building for a specific lawful purpose is vitiated when the wrongdoer departs from that purpose and commits a felony or theft." Appellate courts disagree as to whether the doctrine applies to private as well as public buildings. The high court stopped short of addressing the issue.

In this case the defendant had helped his aunt move to a new address, but he had returned to the old address by himself and stole guns and a VCR belonging to the roommate. The aunt testified that she had asked him to return to check for items she might have forgotten. The appellate court concluded that the lower court could have convicted only under the limited-authority doctrine, and it refused to apply it to private buildings.

The aunt's son and the defendant both testified that the aunt had not sent the plaintiff back. The appellate court relied on a single statement by the circuit judge. The high court said, "While the judge referred to case law in which the limited-authority doctrine was applied, the judge rejected the testimony which would have made resort to the doctrine necessary. The appellate court should not have reached the issue of the limited-authority doctrine . . . ."

Judge James D. Heiple wrote the opinion, filed May 20, in People v Timothy Wilson (Docket No. 74104).

"Mathematical theories and formulas are only as accurate as the measurements on which they are based and are completely reliable only if precise measurements are available." With these words the Illinois Supreme Court rejected the Pythagorean Theorem as the basis for a defense against a charge of armed violence.

In this case the defendant, caught red-handed with a load of cannabis in his car, pleaded guilty on a narcotics charge. When police stopped him he was standing outside the open passenger window of the car, while a pistol and rifle lay on the passenger seat. The jury convicted him under the armed violence statute (720 ILCS 5/33A-2), which provides that an individual who commits any felony while armed with a dangerous weapon also commits armed violence.

The statute defines "armed" as carrying a weapon on the person or being "otherwise armed." The Supreme Court has interpreted this to mean "having immediate access to or timely control over the required weapon." The defendant cited the Pythagorean Theorem to establish that the distance to the weapon was too great for him to reach. The court said, "Distance is not, however, a concrete fact, but rather a mere estimate absent actual measurement." The court observed that the appellate court, in reversing the conviction, accepted arresting officers' estimate of the distances necessary for the Pythagorean calculation — a lay judgment — but rejected their assertion that the defendant could have reached the guns — a professional one.

The court pointed out that precedents

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cited by the defense were "limited to the issue of constructive possession based solely on the presence of a weapon." These were not sufficient for a conviction of armed violence. Here "the evidence supported the jury's finding that defendant had immediate access to and control over the weapons during the course of the underlying felony." The court found that the appellate decision rested on "speculative estimates compounded by misapplication of an inappropriate precise mathematical formula."

Justice John L. Nickels' opinion in People v Hare (Docket No. 74317) was filed May 20.

The Illinois Supreme Court has remanded a case contesting the will of H. Earl Hoover, inventor of the first practical vacuum sweeper, to the circuit court for jury trial. This leaves unanswered questions raised in oral argument over constitutionality of law governing charges of frivolous suit in such cases. The contested estate has been estimated at between $40 million and $80 million, and the case has seen several luminaries of the Illinois bar lined up on the opposing sides. In several codicils Hoover disinherited his adoptive son, Robert C. Hoover, and five of Robert's children. Robert charged that the senior Hoover lacked testamentary capacity and had been unduly influenced by Robert's estranged wife and by his stepmother. The circuit court granted the motion by the other heirs for summary judgment. It also granted their motion under the Code of Civil Procedure (see Ill. Rev. Stat. 1987, ch. 110, par. 2-611, now preempted by Supreme Court Rule 137 (134 Ill. 2d R. 137)) for sanctions against Robert and his attorneys for filing frivolous or false proceedings. The sanctions imposed totalled nearly $1 million.

According to reports in the Chicago Daily Law Bulletin, at the oral argument attorneys for Robert's attorneys raised the question of constitutionality of sec. 2-611 of the Code, claiming that it is legislative regulation of attorneys.

The high court agreed with the appellate court that the circuit judge abused discretion in granting summary judgment, saying, "Clearly, the evidence presented by the parties raised numerous issues of material fact which must be resolved by a trier of fact." It summarized, "Where fair-minded persons could draw different inferences from undisputed facts, then a triable issue of fact exists."

On the sanctions question the court said that "the record demonstrates that the ... award was based in large part upon a mistake of law. . . . The trial court erroneously concluded that, since H. Earl Hoover was mentally competent, he could not have been unduly influenced . . . ." Under Illinois law, "A testator may have had the requisite testamentary capacity to execute his will while at the same time operating under undue influence." The high court sustained the appellate court's reversal of sanctions but refused to consider further questions of sanctions as hypothetical at this time. This would seem to leave unresolved a challenge to the appellate court's denial of sanctions against the junior associate who actually signed the pleadings, and its ruling that sanctions would have to be against the law firm.

One positive result was the court's ruling, for judicial economy, that testimony by Robert's expert witness will be admissible on remand. Concerning what defendants termed an inadmissible "psychiatric autopsy," the court stated the general principle, "Illinois law does not require an expert witness to physically examine or personally know the patient in order to render an expert opinion in the case."

Justice Michael A. Bilandic's opinion in In re Estate of Hoover (Docket No. 73519) was filed June 17. Justice Moses W. Harrison II did not participate.

F. Mark Siebert

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