# People Ex Rel. Difanis v. Barr

> Illinois Supreme Court · December 19, 1980 · 83 Ill. 2d 191

URL: https://www.frixlaw.com/law-library/cases/9711169

## Case

- **Full name:** The PEOPLE Ex Rel. THOMAS J. DIFANIS, States’s Attorney, Appellee, v. JOAN BARR Et Al., Appellants
- **Court:** Illinois Supreme Court
- **Decided:** December 19, 1980
- **Citations:** 83 Ill. 2d 191; 46 Ill. Dec. 678; 414 N.E.2d 731; 1980 Ill. LEXIS 447
- **Precedential status:** Published
- **Opinion:** Dissent by Ward
- **Judges:** Clark, Ward, Underwood
- **Cited by:** 58 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

MR. JUSTICE WARD, dissenting:
The majority leaves a cloud of constitutional doubt hanging over this important statute.
The statute expressly states that it shall apply to meetings of executive as well as legislative bodies and raises serious questions as to whether it violates the constitutional assurances of separation of governmental powers. Is the Act to apply to meetings of the governor’s cabinet, for example, or to meetings of officials of the Attorney General’s office or State’s Attorneys offices? The statute was amended in 1979 to make it inapplicable to “that portion of meetings of law enforcement agencies, committees or commissions involved in the investigation of criminal activities which are concerned with or are to discuss informant sources, the hiring or assignment of undercover personnel, the purchase and assignment of undercover autos, or actual ongoing, prior or future investigations, or any budgetary considerations specifically concerning any of the foregoing.” Ill. Rev. Stat. 1979, ch. 102, par. 42(h).
But what about meetings of officials of the Attorney General’s office or the State’s Attorneys offices with discussions not regarding criminal investigations, but prosecutions? Topics discussed might be flaws or merits in the particular case, trial strategy, summoning of witnesses and their suspected unreliability, caliber of defense counsel or trial judges and the like. It is to be noted that the Act states that its intent is that “deliberations be conducted openly.” Ill. Rev. Stat. 1977, ch. 102, par. 41.
The Act fairly bristles with questions regarding the separation of powers and other constitutional areas. The opinion of the majority implicitly acknowledges constitutional problems, stating that the decision here is only “under the narrow facts presented” (83 Ill. 2d at 202) and that “[w] hether the Act applies to other meetings and whether it is constitutional in other settings or as applied to other public officials must await further determination” (83 Ill. 2d at 211). But the deep and troubling problems will not go away. I believe it is a disservice not to address the problems and permit the legislature, if the Act is in fact determined to be unconstitutional, to take fresh legislative action.
As a general proposition it is said that a court, of course, will avoid constitutional questions if possible and will decide only the question before it. But this court on its own initiative will consider constitutional problems and will if necessary declare legislation unconstitutional. People ex rel. Peoria Civic Center Authority v. Vonachen (1975), 62 Ill. 2d 179 .
There is a severability provision in the act here (Ill. Rev. Stat. 1977, ch. 102, par. 45) but if the legislature intended the provisions of the Act as a whole piece of legislation, as unquestionably was the case here, the entire act would fall. People ex rel. Peoria Civic Center Authority v. Vonachen (1975), 62 Ill. 2d 179 .
MR. JUSTICE UNDERWOOD joins in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9711169. Public record. Not legal advice.