SPECIAL STAFF REPORT

After 5 years, Constitution has both friends and foes

Home rule provisions, the amendatory veto, 8:5 income tax ratio, personal property tax, single-member districts, selection of judges—these are the topics that drew the most attention in a survey by Illinois Issues

Table 1 Special Constitutional Election December 15, 1970       Total vote cast .......... .2,017,717 Approval of the Constitution       Yes .....................1,122,425       No ....................... 838,168 Single-member representative districts       Yes ...................... 749,909       No ...................... 1,031,241 Appointment of judges by governor from nominees submitted by commissions       Yes ...................... 867,230       No ......................1,013,559 Abolishing the death penalty       Yes ...................... 676,302       No ......................1,218,791 Lowering voting age to 18       Yes ...................... 869,816       No ......................1,052,924

AS DECEMBER 15, 1975, the fifth anniversary of the popular ratification of the new Illinois Constitution approaches, a cross-section of informed Illinois citizens have expressed approval of major features of the new charter, but this general approval is accompanied by identification of several alleged defects. In addition, many who responded to a survey thought constitutional amendments were needed. The home rule provisions of Article VII, the local government article, drew the most favorable mentions as well as some of the most adverse criticisms. Article IX, revenue, was also the subject of considerable pro and con comment. In addition, two controversial topics which failed when presented as separate propositions five years ago with the Constitution—single-member representative districts and appointment of judges—surfaced again in recommendations for change. Likewise the governor's amendatory veto—the subject of a proposed constitutional amendment that failed in 1974—stirred comment favorable and adverse. Illinois Issues sent a brief questionnaire in early August to a group which included elected state officials, Constitutional Convention delegates and staff, legislative leaders and chairmen, and officers or spokesmen of civic and other organizations. One hundred and thirty-three questionnaires were mailed out and replies were received from 40 persons (about 30 per cent). The questionnaire asked: 1. What part of the new Constitution is working out best? And why do you think so? 2. What part, if any, is seriously deficient? 3. Are amendments needed? What amendments? 4. Any further comment?

The new basic law was drafted by a convention which met in Springfield from December 8, 1969, to September 3, 1970. The Constitution became generally effective July 1, 1971, after voter ratification in a special election on December 15, 1970. A total of 2,017,717 ballots were cast in the election. The ballot also included four separate propositions (see Table 1)—single member House districts, appointment of judges, abolition of the death penalty, and lowering the voter age to 18.

None of these separate questions passed. A United States Supreme Court decision in 1972 so sharply restricted use of the death penalty that many considered it had been abolished, although legislatures have since sought to conform to the court's guidelines in restoring the death penalty in limited circumstances. The voting age was lowered to 18 in 1971 by ratification of the 26th amendment to the federal Constitution. But single-member districts and the selection of judges remain live issues in Illinois, as the survey shows.

Wide range of opinion
Responses to our survey showed a wide range of opinion toward the new Constitution. Attorney General William J. Scott termed it "a superb document, an enduring credit to the wisdom of President Samuel Witwer and the members of the Constitutional Convention" which "has served the people of Illinois exceptionally well."

On the other hand. Rep. Dwight P. Friedrich (R., Centralia), a Con Con delegate, wrote, "At this point I believe the new Constitution is considerably inferior to the old one." And Rep. Romie J. Palmer (R., Blue Island), minority spokesman on House Judiciary II Committee, said he thought the parts of the Constitution which were working out best were "probably those parts reenacted from the 1870 Constitution because of settled meanings."

December 1975 / Illinois Issues / 355

Home rule offers flexibility, creativity says a legislator, but a labor spokesman says it sets up two law-making authorities

Table 2
Major changes in the 1970 Constitution

Bill of rights: Prohibits discrimination in jobs and housing based on sex or race. Equal rights for women. Prohibits discrimination against the handicapped. Permits freedom from unreasonable eavesdropping.

Legislative: Legislature can override vetoes by a three-fifths vote. Governor given reduction and amendatory vetoes. Annual sessions.

Executive: Executive agencies may be reorganized by governor. Elections in nonpresidential years, starting in 1978. Joint election of governor and lieutenant governor. Comptroller replaces auditor.

Judicial: Judicial Inquiry Board created. Two or more counties may share one state's attorney.

Elections: State Board of Elections provided.

Education: State given primary responsibility for financing education. State Board of Education provided for; Board to appoint chief education officer.

Revenue: Classification of property in larger counties allowed. Corporate income taxes and individual income taxes to be in ratio of 8:5. Legislature to abolish personal property tax by 1979 and provide replacement. Permits certain tax exemptions. Debt restrictions eased.

Finance: New article providing for executive budget, auditor general selected by legislature, and uniform accounting system.

Local government: Home rule provisions for some counties and municipalities. Sheriffs and treasurers may succeed themselves. Enables intergovernmental cooperation. Permits area taxes for special services.

Constitutional revision: Reduces legislative vote and popular approval vote needed to three-fifths. Same for legislative vote on amendments to United States Constitution; also requires general election before legislature can consider such amendments. Provides for popular initiative in certain legislative article changes.

Additions: Environmental article. Economic interest statement for certain officials required. Allows state aid for transportation. Protects public employee pension rights.

Source: Adapted from Samuel K. Gove and Thomas R. Kitsos, Revision Success: The Sixth Illinois Constitutional Convention (National Municipal League, New York, 1974), pages 114--116.

  "Members of the Illinois General Assembly continue to attack the work product of the Constitutional Convention," wrote Rep. Thomas H. Miller (R., South Holland), who was a delegate to the convention. "However, I see no evidence to indicate damage to any Illinois citizen because of its passage."

But the speaker of the House, William A. Redmond (D., Bensenville), is pessimistic. "I am afraid the 1970 Constitution may result in unbridled taxation and expenditure at all governmental levels," he wrote.

Two Constitutions compared
Inevitably the new Constitution is compared to its predecessor, a charter drafted soon after the close of the Civil War which served Illinois for a century. But in its major structural aspects, the new Constitution does not differ markedly from the older document. The membership of the Senate was increased by one. One executive officer, the chief education officer, was made appointive rather than elective, and the title of another was changed (auditor to comptroller). Provision was made for a legislative postauditor. Nevertheless, many changes were made, as shown in Table 2, based on a recent study of the convention.

Local government and home rule
Article VII, the local government article of the new Constitution is new; the previous Constitution had an article dealing with counties which mentioned townships but did not deal with other forms of local government. Article VII provides for "home rule" for counties which have an elected chief executive (thus far only Cook County qualifies) and municipalities with a population of more than 25,000, as welt as municipalities which may elect by referendum to become home rule units. The article provides considerable flexibility in the structure of county governments; provides for the formation, consolidation, or dissolution of townships by referendum; permits additional taxes for special services in a selected area of a county or municipality; and permits intergovernmental cooperation.

More than a third of the survey respondents named the home rule provision as the part of the new charter that is working out best. Examples of comments are:
David Kenney, Southern Illinois University, Carbondale, former delegate: "Home rule is the most significant part. It offers local governments much opportunity to solve their problems."

Rep. Virginia B. Macdonald (R., Mount Prospect), former delegate: "Home rule has offered the most dramatic flexibility and creativity to government in Illinois."

Donna Schiller, state president, League of Women Voters, Chicago: "Home rule has furnished local government with a creative and innovative tool which many are utilizing to strengthen and increase efficiency."

Rep. Gerald W. Shea (D., Berwyn), majority leader of the House: "The home rule section takes the burden of local problems off the legislature, and it has not been abused as critics said it would."

But some take the opposite view with respect to home rule. Examples:
Robert E. Cook, Illinois Association of Realtors, Springfield: "If home rule is carried to the extremes that some city spokesmen have proposed, there won't be enough of the state left for the legislators to bother governing."

Rep. Romie J. Palmer (R., Blue Island): "I question the long-term effect of the home rule section. The Con Con delegates could have set up the conditions for a state within a state."

Lawrence E. Reinold, Illinois Association of Federal, State, County and Municipal Employees, Springfield: "Home rule puts any organization that has statewide programs in a dilemma of not knowing how to achieve goals in each home rule unit .... This constitutional provision affects almost every piece of legislation submitted in the General Assembly. Practically every bill must be amended to read, 'Home rule units are not subject to this act.' This procedure is causing a split in authority. One authority is the General Assembly and covers the smaller communities, and the second authority is the home rule units."

One respondent took a wait-and-see attitude:
Rep. Harold A. Katz (D., Glencoe), chairman, House Judiciary II Committee: "We ought to evaluate particularly carefully in the years ahead the operation of the home rule amendments and the provisions relating to the incurring of debt by the state and by government units. I do have some concern over their long-run effects."

356 / Illinois Issues / December 1975

One respondent supported the local government article's purpose but was critical of its language:
Rep. Miller: "The local government article has created chaos in municipal and local governmental bodies due to a lack of understanding of its provisions by the average municipal official. In this regard, the constitutional convention failed to produce clear, concise language probably due to its adoption in the closing hours of the convention with no time left for a major amendment to rectify."

Other parts of the local government article singled out for favorable mention were provisions for intergovernmental cooperation, special area services, and permitting county treasurers and sheriffs to succeed themselves in office. For example:

Jay Smith, Urban Counties Council, Chicago: "The intergovernmental cooperation and special services areas provisions offer a broad opportunity for innovative arrangements whose impact has not yet been felt."

Clayton C. Harbeck, Illinois Sheriffs' Association, Oglesby, endorses provisions "pertaining to county government, especially with reference to succession of sheriffs and treasurers."

Revenue article
Article IX of the 1970 Constitution deals with taxes and borrowing. This was one of the most "rigid" parts of the previous Constitution where a uniformity clause was thought for many years to prohibit an income tax. But a flat-rate income tax was adopted in 1969 and subsequently upheld by the courts. The new revenue article is flexible with respect to exemptions for nonproperty taxes. It permits classification of real property in counties over 200,000 and allows homestead exemptions or rent credits.

Two features of the revenue article continue to be controversial: the 8 to 5 ratio between the corporation income tax and the personal income tax, and the abolition of the personal property tax. At the 8 to 5 constitutional income tax ratio, the corporation income tax is set at 4 per cent, and the personal income tax at 2½ per cent. The tax on corporations cannot be increased without increasing the tax on persons, for example, since this would change the ratio. Nor for that matter, can either tax be lowered without lowering the other tax.

Personal property taxes applicable to individuals were abolished by an amendment to the old Constitution adopted in its waning hours in November, 1970. The new Constitution retains this abolition but further provides for abolition of all remaining personal property taxes— primarily, taxes on corporate property — on or before January 1, 1979. The lost revenue is to be replaced by a non-property tax on those relieved of the burden of the personal property tax.

Examples of comments on the revenue article: Lester W. Brann, Jr., Illinois State Chamber of Commerce, Chicago: "The revenue article, and related financial provisions, seem to be working out best. The drafters' careful balancing of the limitations in the article... give realistic assurances on maintaining economic balance in Illinois. This balance translates into jobs, continued economic growth, and a realistic method of keeping taxes in check, everyone's taxes." Maurice W. Scott, Taxpayers Federation of Illinois, Springfield, a former delegate, took the position that the "revenue article is working well in that it makes it possible for many of Illinois' taxes to be more equitable when implemented by the General Assembly." But, Scott considered the personal property tax replacement provision deficient "because the intent is spelled out in weak language." Rep. William D. Walsh (R., Elmwood Park), assistant minority leader of the House: "In my opinion the revenue article is working well. There seems to be little doubt as to its meaning. But others disagree. For example: Rubin G. Cohn, University of Illinois College of Law who served on the staff of Con Con: "Article IX prohibitions against graduated income tax and the 8-5 maximum ratio of corporate to individual income taxes . . . impose serious obstacles to a sound and equitable state revenue policy and have no place in the Constitution." Jeannette Mullen, Barrington Hills, former delegate: "The provisions on replacement of the personal property tax are pretty ridiculous and may make it a practical impossibility to remove that tax—all of which was apparent when the amendments [to the original draft] were attached." Joseph T. Meek, Western Springs, also a former delegate, likewise cites as an example of a deficiency "the ambiguities in ad valorem [personal property tax] replacement source problem, as amended by the delegates during the final days of the convention." State debt The old Constitution required a referendum before money could be borrowed against the state's credit; the new Constitution permits borrowing

December 1975 / Illinois Issues / 357

Recommendations for change include two proposals that failed: single-member legislative districts and 'judicial merit selection'

without referendum if authorized by a three-fifths vote of members elected to each house. Comments were both favorable and adverse:
Ann Lousin, John Marshall Law School, Chicago, member of Con Con staff and former House parliamentarian: "The three-fifths vote requirement is an adequate safeguard against bonding to finance special or regional interests at the expense of the whole state. This is superior to the old $250,000 debt limit which provided the impetus for 'quasi-public' agencies which incurred debt and were not responsible to the public."

House Speaker William A. Redmond, Bensenville: "The removal of the bonding limitation and too lenient provisions for issuing new bonds may be a disaster."

Legislative article
Probably the most controversial additions in the new legislative article. Article IV, have to do with the governor's veto powers. In addition to the full veto of a bill and the veto of appropriation items (which were in the 1870 Constitution) the new Constitution added the reduction veto and the amendatory veto. The reduction veto can be used to reduce the amount of an appropriation item. The amendatory veto can be used by the governor to return a bill to the legislature with his recommendations for change. It takes a three-fifths vote of the members elected to each house to override a full veto or item veto or to pass a bill over an amendatory veto, but a majority vote of members elected to each house will suffice to restore a reduced appropriation to the original amount or to accept the recommendations for change in an amendatory veto. Some favorable comments on the legislative article were:

Ms. Lousin: "The deletion of procedural constitutional restrictions on passing bills, such as the three readings at large rule" was an advance. "Nobody heeded these restrictions anymore and their nonobservance in the last 50 years created only disrespect for all constitutional provisions."

Paul E. Mathias, Bloomington, former delegate, favored the reduction and amendatory vetoes because they "permit the governor to reduce or veto appropriation items without vetoing the entire bill [so that he] can eliminate 'pet' projects, control state expenditures, balance budget against an irresponsible legislature."

John D. Wenum, Illinois Wesleyan University, Bloomington, former delegate: "The amendatory and reduction vetoes have given new vitality to state policy-making, despite the continuing debate over the extent of the governor's powers under these provisions. This is of major import in a state where the legislature is subject to (and surprisingly responsive to) pressures from narrow-based interest groups."

One respondent was generally critical of the legislature:
Richard Murphy, Urbana, convention parliamentarian: "The quality of the General Assembly hasn't much improved—the same Chicago-downstate squabbles, the mad rush on bills at the end, and failure of the governor and assemblymen to cooperate."

Others criticized the amendatory veto provision:
Sen. James H. Donnewald (D., Breese), a Senate assistant majority leader: "The authority ... for the governor to issue amendatory vetoes is not clear enough .... There is a real question as to whether the framers meant the amendatory veto to serve just to correct technical errors, or whether it allows extensive rewriting of legislation, as our last two governors have argued."

Rep. Macdonald: "I feel the governor's amendatory veto has been consistently abused and after the test of five years a change is needed."

Sen. Frank M. Ozinga (R., Evergreen Park), chairman, Legislative Council: "The governor has assumed a dimension of power through the use of various vetoes that was not intended to be given."

Election of representatives
The system of cumulative voting for the election of representatives was also the subject of adverse comment and proposals for constitutional change. Under this system, three representatives are elected in each district, and the voter has three votes which he can distribute among candidates as he sees fit. Critics of the system prefer single-member districts (the proposition which was submitted separately along with the Constitution but which failed of adoption) and some would at the same time reduce the size of the House. Some comments were:

David Davis, Bloomington, former delegate: Noted as deficient the "size and selection of legislature."

Elbert Smith, Decatur, former delegate and Con Con vice president: "Amend to provide for election of state representatives from single member districts. Eliminate cumulative voting for state representatives."

Annual legislative sessions
Some respondents opposed unlimited annual legislative sessions:

Sen. Donnewald: "An amendment to restrict one year of a legislative session to consideration of only revenue and appropriation bills should be submitted to Illinois voters."

Sen. Phillip J. Rock (D., Chicago), and assistant majority leader of the Senate, favors "restricting even-numbered year session of General Assembly to revenue and appropriation consideration only."

W. Paul Neal, Jr., Illinois State Chamber of Commerce, Chicago, favors amendment to "restrict the consideration of legislation in odd numbered years to appropriations, revenue and governor's veto action which would still allow emergency general legislation to be considered through special session calls of either the legislative leaders or the governor."

Effective date of laws
One respondent was critical of the provision which requires a three-fifths vote of members elected to each house if legislation passed after July 1 is to become effective prior to July 1 of the following calendar year.

Ms. Lousin: "It serves only to prolong sessions beyond June 30, not to terminate them, as was intended. Now a faction of 40 per cent or more can seek to delay passage of a bill on June 30, so that it is in a better bargaining position on July 1, when the three-fifths requirement goes into effect."

358 / Illinois Issues / December 1975

Bill of rights, finance, education articles receive praise; Common Cause officer critical of state Board of Elections

Judicial article
Several respondents favor the appointment of judges by the governor from names submitted by judicial nominating committees, a reform referred to by its advocates as "merit selection" of judges. For example:

Lawrence X. Pusateri, president, Illinois State Bar Association: "The judicial article is seriously deficient in failing to provide for merit selection of judges on a nonpartisan appointive basis."

William L. Fay, Jacksonville, chairman of Con Con judiciary committee: "We still have a need for merit selection of judges . . . ."

This proposal was one which failed of adoption when separately submitted in 1970 (see Table 1).

The Judicial Inquiry Board, an innovation for Illinois, was commended; the board, composed of two judges, three lawyers, and four laymen, can initiate complaints concerning the conduct of judges and file complaints with the Courts Commission, a disciplinary body. For example:

Rep. Anne Wilier (D., LaGrange), former delegate: "I served on the board for three years and saw a vast improvement in this area compared to the old system."

Mr. Wenum: "The board has brought checks to bear upon members of the court system which were long overdue. No longer can arrogant, incompetent and unethical judges act against the interests of justice and the public with inpunity. Although the number of such judges is, fortunately, small, more of them have felt the pressures of investigation and censure in the last four years than in the previous 50."

Bill of rights
The merits of the new bill of rights, Article I, were noted by the attorney general and by a lawyer who served as chairman of the convention committee on this topic:

Attorney General Scott: "... Important areas of the new Constitution include the bill of rights, including the prohibitions against discrimination in employment and housing and discrimination toward the handicapped."

Elmer Gertz, Chicago, former delegate: "It is arousing no controversy. It has been implemented by legislation and more legislation will be enacted. Court decisions and attorney general opinions have been helpful."

Elections
Some unfavorable comment was directed at the State Board of Elections, provided for in the suffrage and election article, Article III:

David F. Ellsworth, Common Cause / Illinois, Springfield: "By leaving the responsibility to the General Assembly for determining the size, manner of selection and compensation of the Board, party politics were allowed to play a great part in determining the future of what was intended to be a reform provision of the new Constitution."

Education
New is the assertion in the education article (Article X) that the state has "primary responsibility for financing the system of public education." This drew particular mention from a member of the Chicago Board of Education:

Gerald L. Sbarboro, chief clerk of the convention: "This has fostered state legislative action which has led to greater state funding of education— which will have great long-range benefits to our children."

Amending the U.S. Constitution
Amending the federal Constitution now requires (under Article XIV) the affirmative vote of three-fifths of the members elected to each house. This has been criticized.

Ms. Virginia L. Holcomb, American Association of University Women, Springfield: "A constitutional majority (half plus one) would be sufficient considering the two-thirds requirement for both houses of Congress and the required ratification of three-fourths of the states." (Note: Ratification of the Equal Rights Amendment by Illinois has been blocked in the Senate because of a three-fifths requirement.)

Other provisions
Other provisions mentioned favorably were fiscal controls (the new office of comptroller and the Finance Article), the requirement on certain public officers for filing a verified statement of their economic interests, and the assertion that public transportation is an "essential public purpose for which public funds may be expended."

Amendments proposed
While many respondents suggested constitutional amendments to cure defects they perceived, others were silent on this possibility or opposed change at this time. Examples of the latter:

Attorney General Scott: "I see no need for amendments at this time."

Mr. Meek: "I think we should leave the 1970 document alone for yet awhile."

The amendments suggested were in line with the adverse comments described above. The leading topics concerned single-member representative districts with an end to cumulative voting and appointment of judges ("merit selection").

Additional amendment proposals were: Spell out specific duties for the lieutenant governor (Maurice W. Scott). Eliminate the requirement for recording and transcribing legislative debates (Speaker Redmond). Clear up an ambiguity in the language concerning a balanced budget which requires the governor to strike a balance between spending and estimated funds and the legislature to strike a balance between appropriations and estimated funds. (Mr. Brann). Give home rule units unrestricted power to incur debt up to a designated ceiling and require a referendum of the voters to authorize any debt above that ceiling (Maurice W. Scott). Make a county with a county manager form of government eligible for home rule powers (Mr. Wenum). Allow counties to make a service charge for tax administrative services and facilitate the consolidation and abolition of special districts (Jay Smith). Define the lines of authority between the governor and attorney general in regard to acting on behalf of the state in legal actions (Ozinga). 

December 1975 / Illinois Issues / 359