Judicial Rulings
Board of Elections sent back to legislature and governor's removal powers restricted
IN A TRAIL-BLAZING case, the Illinois Supreme Court placed limitations on the governor's power to remove members of independent boards. The case involved the chairman of the State Board of Elections, and on the same day, in another case, the court held that the election board was unconstitutionally appointed and its statu- tory tie-breaking procedure was invalid.
In the first case, Lunding v. Walker, Board Chairman Franklin J. Lunding had been removed by Gov. Dan Walker for failure to file the financial disclosure statement required by Executive Order 4— 73 setting up the governor's board of ethics. This occurred in May 1975, and the Circuit Court of Cook County restrained the governor from implementing Lunding's removal. On September 26, 1975, the court held that Lunding could be removed (see Illinois Issues, Dec. 1975, p. 380) but the court later (November 21, 1975) granted a rehearing.
Follow federal decisions
As a result of the decision following the
rehearing, the question of Lunding's remov-
al can be reviewed by the courts. In reaching
this conclusion, the Illinois court departs
from a precedent in 1878, Wilcox v. People
ex rel. Lipe and follows a line of recent
federal decisions that restrict the removal
powers of the president of the United States.
"To subject a neutral, bipartisan, and
independent board to the unbridled whim of
the Governor under the Wilcox rule would
destroy its purpose and its efficacy," the
court said. Whether Lunding's removal for
failure to file a financial disclosure statement
"is sufficient 'neglect of duty' to justify the
Governor's exercise of his removal power is
a question which is properly reviewable by
the courts." But that finding, the opinion
indicated, must initially be made by the
lower courts — in this case, by the Cook
County Circuit Court which stopped Lund-
ing's removal. Justices Underwood and
Schaefer dissented in the case.
The court's decision in the second case, Walker v. State Board of Elections, upheld the Sangamon County Circuit Court's decision (see Illinois Issues, Dec. 1975, p. 380); however, to permit the board to function until the legislature can create a valid board, the effect of the court's judgment was stayed until March 15, 1977.
Two names for the board are submitted to the governor by each of the four legislative leaders; the governor must pick one of each pair. The court said that this constituted executive appointment by the legislature, which is forbidden by Article V, section 9(a) of the state Constitution. The court rejected the argument that the board was not an executive branch agency.
Tie-breaker invalid
When a tie vote of the four members of the
board occurs, the name of one member is to
be drawn by lot, and he is excluded from
voting on the action that resulted in the tie.
The court said this procedure caused
decisions to be arrived at in an arbitrary
manner, which would violate due process of
law. In addition, the Constitution provides
that no political party shall have a majority
of the board (Article III, section 5), but the
tie-breaking procedure gives a majority to
one party and thus violates the state
Constitution. Justice Underwood dissented
as to the invalidity of the tie-breaking
procedure, and Justice Schaefer took no
part in the decision.
Other court rulings
Young mothers eligible for ADC
Judge Thomas R. McMillen of the Federal
District Court in Chicago ruled on November 12
that the Illinois Department of Public Aid must
grant full welfare benefits to needy mothers under
21. Under existing rules, such mothers who live
with their parents are often not eligible for Aid to
Dependent Children (ADC). The department said
it would appeal the ruling, which reportedly would
affect at least 10,000 welfare mothers and cost the
state millions of dollars.
Legislator must repay salary advance
Former state Sen. Esther Saperstein (D.,
Chicago), who left the Senate in April 1975 to run
for Chicago alderman (she was elected) after
drawing a full year's salary in January, was
ordered November 3 by Cook County Circuit
Judge Arthur L. Dunne to return $11,897 to the
state. This represents unearned salary for nine
months of the year.
Illinois Supreme Court
Attorney general's role
A controversy involving representation of both
the Department of General Services and the
Illinois Commerce Commission by the attorney
general was apparently resolved by the Supreme
Court in an opinion November 15 by Justice
Crebs, Scott v. Cadigan—Scon v. Friedman. The
court permitted the attorney general to withdraw
as counsel for the commission and to continue to
represent, or appoint representatives, for the
department in judicial proceedings involving a
review of a commission order granting rate
increases sought by Illinois Bell Telephone
Company.
Curfew law upheld
The state law imposing a curfew on minors was
upheld by the Supreme Court in an opinion by
Justice Schaefer, People v. Chambers, decided November 15. The court reversed an earlier ruling
by the Appellate Court for the Second District
that the curfew law unconstitutionally restricted
the rights of minors to move about and exercise
their First Amendment rights. "The statute
proceeds upon the basic assumption that when
child is at home during the late night and early
morning hours, it is protected from physical as
well as moral dangers," the court said.
Equalization law valid
The transition period provided in Public Act 79-
703 to move toward a 33 1/3 per cent assessment
equalization level among counties was upheld by
the Supreme Court on November 15. "The three-
year transition period ... is not, in our judgment,
so patently unreasonable that it must be struck
down," wrote Justice Underwood in Hamer v. Kirk.
Transporting untaxed cigarettes
The Supreme Court set new guidelines for the
Department of Revenue to use in discouraging the
movement of untaxed cigarettes into Illinois. The
court set aside an injunction by lower courts forbidding enforcement of a "transporter"
provision of the Cigarette Tax Act against
individuals bringing untaxed cigarettes into the
state for their own use and not for sale. The court
said the legislature intended the term "tranporter" to have a general application rather than
being limited to tobacco retailers or distributors.
But the court suggested the department was remiss
in not making transporter permit application
forms readily available to individuals. Justice
Underwood wrote the opinion on this case
O'Leary v. Altphin, decided November 15.
Cook County board procedure
The Supreme Court upheld the validity of
action by the Cook County Board of Commissisioners in adopting by majority vote a resolution
setting aside a two-thirds vote requirement for
appropriations in excess of $2,500 in an opinion
by Justice Goldenhersh. The combined cases,
Alien v. County of Cook—Hansen v. County of
Cook, decided November 15, involved a disagreement between the ten board members from
Chicago and the six members from county
suburban areas. ˛
28 / January 1977 / Illinois Issues