Illinois Supreme Court
Attorney general vindicated
THE ATTORNEY GENERAL is the only state officer authorized by the Illinois Constitution to institute and prosecute cases before the Pollution Control Board, the Illinois Supreme Court decided in People ex rel. Scott v. Briceland, handed down Decembers. The opinion, written by Justice Ryan, affirmed a judgment of the Sangamon County Circuit Court, and held unconstitutional a section of the Environmental Protection Act authorizing the Environmental Protection Agency (EPA) to prosecute actions before the board.
The question was one which was explored earlier in Illinois Issues (Rubin G. Cohn, "Attorney General and Governor fight over control of lawyers employed by executive agencies," Jan. 1975, p. 9ff) and the opinion .cited the article by Cohn, who is professor of law at the University of Illinois. The court relied heavily on Constitutional Convention debates in deciding that there was no intent to change the interpretation of the attorney general's broad powers as "the only officer empowered to represent the State in any suit or proceeding in which the State is the real party in interest."
The attorney general, who had instituted the case against EPA, had also sought to hold Richard H. Briceland, EPA director, and Jeffrey R. Diver, deputy director, "personally liable for all litigation costs and expenses expended by the EPA for the prosecution of enforcement cases before the Board." This the court refused. "It is well established that a public officer is immune from individual liability for the performance of discretionary duties undertaken in good faith .... The defendants cannot be held liable for such an exercise of discretion which was made in their official capacities." The court also said the EPA and its officers were entitled to counsel other than the attorney general in this case testing EPA's legal representation authority.
The attorney general also figured in another case, Fuchs v. Bid-will, decided on Decembers. Fuchs and Businessmen for the Public Interest had sought to recover from legislators profits which they allegedly made from the purchase and resale of race track stock made available to them in return for influencing passage of legislation favorable to racing. The court, in an opinion by Justice Goldenhersh, held that only the attorney general had authority to bring a suit of this kind and "the public interest will not be served in permitting persons, without limitation, to institute actions of this nature against public officials when the Attorney General has declined to act." In dismissing the case, the court affirmed the original holding of the Sangamon County Circuit Court and reversed the Appellate Court.
Justice Schaefer was joined by two other justices, Kluczynski and Crebs, in dissenting, saying "in our opinion the public interest clearly requires that the merits of this claim be decided. Instead, the majority avoids that important decision by giving the Attorney General the exclusive right to bring this action — a right which he has not claimed and does not want." The case involved sale of stock by Marjorie Lindheimer Everett, who was also involved in the distribution of stock to the late Gov. Otto Kerner in a case in which Kerner was convicted. The stock was sold at $1 per share to the legislators, it was charged, and repurchased at prices ranging from $3 to $7 per share. The suit alleged that their profits ranged from $6,000 to $294,000.
The influence is 'evil'
The conviction of a DuPage County
board member of violation of the Corrupt
Practices Act was upheld by the Supreme
Court in an opinion by Justice Kluczynski
handed down December 3 on the case,
People v. Savaiano. Patrick Savaiano, in his
ex officio capacity as a forest preserve
commissioner, served as chairman of the
finance committee of the forest preserve
commissioners. During that time, his
committee recommended purchase of two
tracts of land of which Savaiano was a secret
part-owner. But, Savaiano disposed of his
interest before the commissioners authorized the purchase of the tracts which were
subsequently subject to a condemnation
proceeding during which Savaiano's interest was discovered.
The Corrupt Practices Act makes it a class 4 felony for certain public officials, including county board members, to be directly or indirectly interested "in any contract or the performance of any work in the making or letting of which such officer may be called upon to act or vote." Savaiano argued that he did not own the property at the time the contract was let. The court said this was too narrow an interpretation of the act. "It not only forbids an official from having a private interest in situations in which a binding
February 1977 / Illinois Issues / 27
contract exists but also from allowing
himself to be placed in a situation where he
may be called upon to act or vote in the
making of a contract in which he has an
interest. The evil exists because the official is
able to influence the process of forming a
contract."
Inheritance fee invalid
A four per cent fee which the inheritance
tax law says counties may retain for
collecting the tax was held unconstitutional
by the Supreme Court on December 3 in
Goldstein v. Rosewell, written by Justice
Ryan. The act violates Article VII, section 9
(a) of the 1970 Constitution which provides,
"Fees shall not be based upon funds
disbursed or collected, nor upon the levy of
extension of taxes."
The decision affirmed an opinion by the attorney general which he gave in 1971 after the new Constitution became effective. All but eight counties (Clinton, Cook, Hancock, Jersey, Lake, Madison, McLean and St. Clair) have followed the legal opinion. Now these eight will have to turn over to the state almost $10 million they have been holding back, ranging from $19 from Jersey County to more than $8,000,000 from Cook.
Chicago penalty must be paid
Public schools which do not operate 176
days per year are penalized, under state law,
1 /176th of their state aid allowances for each
day under 176 that they do not operate.
When this penalty was applied to the
Chicago schools for operating only 162 days
in 1975-76, the state applied the penalty, but
the Chicago board of education went to
court and sought to have the penalty
provision invalidated. This the Supreme
Court refused to do in Cronin v. Lindberg,
decided December 3, reversing a decision by
the Cook County Circuit Court. The high
court's opinion by Justice Underwood, said
this was not actually a penalty but "simply
the recovery of State aid which was paid in
advance but which the Chicago Board was
not entitled to as a result of its failure to
comply with the requirements for eligibility
as set forth in the School Code."
The court also upheld the action of Joseph M. Cronin, state education superintendent, in spreading the recovery over a three-year period by withholding portions of subsequent state grants.
Initiative restricted
The court's reasoning for its action on
August 31 which kept the three so-called
"political honesty" proposed constitutional
amendments off the November ballot was
given in an opinion filed December 3 in the
case of Coalition for Political Honesty v.
State Board of Elections — Gertz v. State
Board of Elections.
The Coalition had filed initiative petitions seeking to submit to the voters three amendments to the legislative article. Proposal 1 would forbid legislators from accepting compensation from any other governmental entity during term of office; Proposal 2 would preclude legislators from voting on a bill in which the member has a conflict of interest, and Proposal 3 would forbid advance salary payments to legislators. A group of former Constitutional Convention delegates and a convention staff member contended the amendments were outside of the scope of Article XIV, section 3 of the Constitution which permits initiative amendments to the legislative article only if they are "limited to structural and procedural subjects." They sought to have the proposals barred from the ballot. The Coalition, on the other hand, sought to compel the State Board of Elections to submit the amendments to the voters.
The court's decision held that the constitutional language required amendments under this provision to be concerned with both structural and procedural matters and held that none of them met this test. The opinion quoted at length from the convention proceedings and maintained that the delegates were thinking primarily of amendments which might do away with cumulative voting for representatives or a bicameral legislature.
Justice Schaefer dissented. He argued that, as used in the Constitution, the work "and" is intended to indicate alternatives. The majority opinion wa.s per curiam -- by the court, not by an individual justice. ž
Content of appropriations bills
Supreme Court in brief
Because the Constitution says that "Appropriation bills shall be limited to the subject of
appropriations," (Art. IV, sec. 8(d)) a provision in
Public Act 79—1267, making an appropriation to
the Department of Labor, is invalid in providing
that an unemployment insurance service office
may not be located within 500 feet of a school in
Chicago. Benjamin v. Devon Bank, decided
December 3 (Justice Kluczynski).
Department of Corrections procedures
The juvenile division of the circuit court
"cannot under the guise of an injunction attempt
to establish procedures and guidelines for the
Department of Corrections for which it [the court]
has no authority under the Juvenile Court Act." In
re Willie Washington, decided December 3
(Justice Kluczynski).
Disposition of traffic fines
Where traffic violators were arrested within a
city and charged by city police who appeared in
court when required, the city — not the county--
is entitled to the fines, even though the state's
attorney may appear in court. City of Decatur v.
Curry, decided December 3 (Justice Goldenhersh).
Sale of submerged land
The state is trustee for the people in the case of
submerged lands in Lake Michigan. A 1963 act
providing for conveyance of 194.6 acres of
submerged land to the United States Steel
Corporation for $19,460 to construct an addition
to its South Works serves a private instead of a
public purpose and is not valid under the public
trust doctrine. People ex rel. Scott v. Chicago
Park District (United States Steel Corporation),
decided December 3 (Chief Justice Ward). Dissent
by Justice Underwood, joined by Ryan and Crebs,
arguing that the question had already been settled
in an earlier case, Droste v. Kerner, and should not
be reopened.
Capital stock tax
Legislators
without privilege
STATE LEGISLATIVE DEBATE lost its
privileged status in federal criminal cases
when the United States Supreme Court on
December 6 let stand a ruling of the federal
Court of Appeals, 7th Circuit (Chicago), in a
case involving Illinois legislators.
The case, U.S. v. Craig et al. 537 Fed 2nd
95, decided in July 1976, held that federal
rules of evidence did not afford any grounds
for privilege despite a provision of the
Illinois Constitution ("A member of the
[General Assembly] shall not be held to
answer before any other tribunal for any
speech or debate, written or oral, in either
house" — Art. IV, sec. 12). This means that
the votes and speeches of legislators can be
used as evidence against them. The historical
basis of the privilege was the need to protect
members of the British parliament against
harrassment by the sovereign.
The federal district court had originally
upheld the privilege. This was reversed by
the Court of Appeals in two separate
opinions. In the first, a defendant was held to
have lost his privilege by testifying before a
grand jury on his actions as a legislator. In
the second, the ruling was broadened to rule
out the privilege.
The defendants were former Reps. Robert
Craig (D., Danville); Louis A. Markert(D.,
Mount Sterling) and Rep. Thomas J. Hanahan (D., McHenry). They were charged with
political corruption in seeking to block
passage of legislation. Craig served in the
79th General Assembly but was unseated
after conviction in another federal case (see
"Cement Bribery Trial," Dec. 1976, p. 6ff). ž
A variation in the formula to assess capital
stock taxes on insurance companies which alters
the treatment of exempt assets (U.S. bonds and
national bank stock) does not conform to the
provisions of the Revenue Act and is invalid. The
variation was developed by the Department of
Local Government Affairs for the apparent
purpose of increasing the assessments. Federal
Life Insurance Company v. Department of Local
Government Affairs, decided Dec. 3 (Chief Justice
Ward). ž
U.S. Supreme Court
28 / February 1977 / Illinois Issues