Judicial Rulings
Term limits opinion at last: issue won't make it to the ballot
The Illinois Supreme Court on September
12 refused to reconsider its opinion preventing
the proposed referendum on legislative term
limits from appearing on the November ballot.
State Treasurer Patrick Quinn, the spearhead of the movement for term limits, had
called for a rehearing, arguing that since three
members of the majority are members of the
Chicago Bar Association, the plaintiff organization, they should recuse themselves.
The court had filed its opinion, per curiam,
on September 7, explaining its order of August 10.
Justice Moses W. Harrison II's dissent,
joined by Justices Benjamin K. Miller and
James D. Heiple, had been filed with the order
(see Illinois Issues, September 1994, p. 35).
Citizens' organizations had filed valid petitions to place an amendment on the ballot; it
would have limited service in the state legislature to eight years (including a provision that
would have barred House members with six
years' service from running for the Senate).
Positions on the question center on the language of the Illinois Constitution pertaining to
amendment by citizen initiative: "Amendments shall be limited to structural and procedural subjects contained in Article IV" (Art. XIV, sec. 3).
Previous decisions had held this to mean
that amendments would have to affect both
structure and procedure (Coalition for Political Honesty v State Board of Elections, 65 111.
2d, 453, 461 (1976) — referred to as Coalition
I; Chicago Bar Association v State Board of
Elections, 137 111. 2d 394, 396 (1990)). The
majority quoted Coalition I: "This court is
without authority to substitute 'or' for the
'and' [that] the constitutional convention used.
..." The dissent, relying on a dissent in Coalition I, said: "Conventional principles of construction and English usage, together with the
published reports and debates of the constitutional convention, yield the conclusion that
amendments by initiative need not deal simultaneously with both procedural and structural
subjects."
The majority held that even if the matters
are separable the amendment does not pass
muster. On structure: "The eligibility or qualifications of an individual legislator does [sic]
not involve the structure of the legislature as
an institution. The General Assembly would
remain a bicameral legislature." On procedure: "The process by which the General Assembly
adopts a law would remain unchanged." The
dissent argued: "The proposal relates solely to
the composition of the legislature as set forth
in section 2 of article IV."
The majority did not touch on some of the
adverse effects described by the plaintiffs, but
the dissent did, saying, "Without an initiative, there is no realistic possibility that a term-limit
amendment can ever be realized."
Warrantless search of auto
The Fourth Amendment guarantees against
unreasonable searches, not against all searches. Certain searches of a vehicle are reasonable
and therefore permissible under the Illinois
Supreme Court's ruling of August 4.
In two unrelated cases cars were stopped
for minor traffic violations — a missing front
license plate and a burned-out license plate
bulb. One driver had a suspended license. The
other, a minor, was driving a vehicle with an
open beer can visible. In both cases officers
found cocaine upon searching the vehicles.
One defendant had apparently tried to conceal
the cocaine. Both defendants argued that the
searches were groundless.
The United States Supreme Court provided
rules for vehicle searches so that officers can
assure that stopped drivers do not have weapons:
"When a policeman has made a lawful custodial arrest of the occupant of an automobile,
he may, as a contemporaneous incident of that arrest,
search the passenger compartment of that automobile" (see New York v
Belton (1981) 453 U.S., 460). Further, "The
authority to search does not depend on the
probability in a particular case that weapons
would indeed be found" (Belton, 461). Here
the officers reasonably arrested the defendants, one for the suspended license violation
and the other because of the open beer can,
and went ahead with the search.
Justice Charles E. Freeman wrote the opinion in People v Bailey and People v Wiest
(Docket Nos. 75994 and 76036 cons.).
Jurisdiction on sexual
harassment lies with commission
Charges of sexual harassment must be
brought before the Human Rights Commission, not in the courts, the Illinois Supreme
Court ruled August 4.
An employee charged that her immediate
supervisor harassed her sexually, and she
brought action against the employing company for negligent hiring and negligent retention
under common law and tort. She argued that
the supervisor's previous history of harassment could have been discovered as a bar to
employment.
When the case reached the Supreme Court
the company raised the new argument that her
claim was tantamount to a charge of sexual
harassment. The Human Rights Act provides
that "no court of this state shall have jurisdiction over the subject of an alleged civil rights
violation ..." (see ///. Rev. Stat. 1989, ch. 68,
par. 8-111(0), while sec. 2-102(D) makes
sexual harassment a civil rights violation.
Without the charge of harassment, the plain
tiff "would have no independent basis for
imposing liability on her former employer
under the facts present here," said the court.
The Human Rights Act limits recovery to
actual damages, and defense will not be as
onerous for the employer as a court case would be.
Justice Moses W. Harrison II wrote for the
court in Geise v Phoenix Co. of Chicago
(Docket No. 76059).
Bell off the hook
The Illinois Supreme Court has reversed its
ruling on economic damages resulting from
the 1988 fire in Illinois Bell's Hinsdale
switching station. No new facts or arguments
were introduced on rehearing. In its July 28
opinion the court found reasons to interpret the
act more broadly and also said that Moorman
principles apply. It allows control by an exculpatory clause in the company's tariff filed with
the Illinois Commerce Commission. This limits damages to the amount of fees for services
during the period of suspended service.
Justice James D. Heiple, author of a previous extensive dissent, now wrote for the
majority in In re Illinois Bell Switching Station
Litigation (Docket No. 73999). Justice Moses
W. Harrison II, author of the prior opinion,
dissented, joined by Chief Justice Michael A.
Bilandic. Both generally reiterate reasoning
set forth earlier. Justice Benjamin K. Miller
wrote a special concurrence calling for separate consideration of the application of Moorman.
Heiple pointed out the tremendous number
of calls handled by the station, and said that a
practical result of the August decision could
be such enormous damages that the subscribers could end up owning the company.
Harrison said, "I for one see no particular
objection to such a result. If the plaintiff customers were in control of the system ... they
might have the sense to call the fire department before a major link in the network is
reduced to a mass of melted wire." In August
1992 a divided court said that Bell was liable
for all economic damages under the Illinois
Public Utilities Act (see 220 ILCS 5/1-101 et
seq.; Illinois Issues, October 1993, p. 28). At
the same time it rejected the company's argument that claims had to be made under contract law through application of the Moorman
doctrine.
F. Mark Siebert
32/October 1994/Illinois Issues