Judicial Rulings Board of Elections in court THE BOARD OF ELECTIONS figured in two cases decided near the end
of September. The Sangamon County
Circuit Court ruled that the manner of
selection of the board and its tie-breaking procedure were unconstitutional. A
few days later the Supreme Court, considering a different aspect of the board's
selection, ruled that the governor could
remove a board member. Gov. Dan Walker figured in both
decisions. The circuit court case arose
out of resistance to a hearing by the
board involving the All-Illinois Democratic Committee's failure to report on
campaign funds. The Supreme Court
case concerned a board member who
had failed to file a financial disclosure
statement and was removed by the
governor for neglect of duty as a result. Both decisions alluded to the possibility that the General Assembly could
designate an appointing authority for
the Board in the executive branch other
than the governor. Illinois Supreme Court The Election Board was created by the
legislature pursuant to Art. III, sec. 5 of the
Constitution, which provides no political
party is to have a majority of the board. The
four legislative leaders each submit two
nominees to the governor, and in turn he appoints to the Board one of the nominees of
each legislative leader. Despite this unusual
form of appointment, the court held that the
governor could remove a board member. The court also considered whether the due
process guarantees of the 14th amendment
of the federal Constitution and Art. 1, sec. 2
of the Illinois Constitution permit a removal
without notice, hearing, etc. It concluded
that no protected "property" or "liberty"
interests of Lunding were affected by the
governor's actions. The court pointed out that the legislature
was "authorized by the Constitution to establish other means of selecting the members
of the Board, [yet] nevertheless determined
that Board members were to be appointed
by the Governor." The opinion was written
by Chief Justice Underwood. Sangamon Circuit Court Gov. Walker and others brought this suit
testing the constitutionality of the law creating the State Board of Elections after the
Board had set a hearing on a complaint filed
against Walker and the All-Illinois Democratic Committee charging failure to file reports as required by the Campaign Disclosure Act. Circuit Judge J. Waldo Ackerman held
the law unconstitutional because the manner of selection of board members, he said,
violated the provision in Article V, sec. 9 of
the Constitution. This provision states that
"The General Assembly shall have no power
to elect or appoint officers of the Executive
Branch." (For the manner of appointment,
see Lunding decision above.) Ackerman also found the tie-breaking
procedure in the law unconstitutional.
Where the four-member board is evenly
divided lots are drawn to disqualify one of
the members from voting on the matter. "In
my opinion, any decision which involves individual rights may not be based on the flip
of the coin or by lot," Ackerman said. Ackerman's initial order recognized as
valid prior acts of the board as de facto officers but narrowly restricted its future activity to ministerial functions; this was quickly modified to allow the board to carry
on most of its functions in connection with
election administration and the Campaign
Disclosure Act, but halted the board from
delving further into the complaint. THE DEATH PENALTY, as generally applied, was ruled unconstitutional
by the U.S. Supreme Court in 1972.
This decision was based on the fact that
the penalty was selectively applied in a
manner that discriminated against minorities. In an attempt to restore the
death penalty, the General Assembly in
1973 enacted Public Act 78-921 which
provided for the imposition of the death
penalty by a three-judge court in specified circumstances—in the murder of a
policeman or fireman on duty, for example. This curative legislation was held unconstitutional by the Illinois Supreme Court in a late September ruling. The specific case took place in St.
Clair County where two defendants had
been found guilty of multiple murders
that occurred during the course of an
armed robbery, this being one of the situations in which the death penalty was
to be imposed. Illinois Supreme Court 1. The legislature has no authority to
create a new court (such as the three-judge
court) under the judicial article of the 1970
Constitution. 2. The "mercy provision" is defective
because it does not contain guidelines to be
considered in determining whether there are
"compelling reasons" for imposing a sentence other than death. 3. The statute provides for review of
death sentences by the "appellate court,"
which is in "clear contradiction" to the constitutional provision for appeals in capital
cases to the Supreme Court (Art. VI, sec. 4(b)). The court did, however, indicate that the
situations where the death penalty was to be
imposed were proper. Justice Kluczynski
wrote the opinion; Justice Goldenhersh took
no part in the decision. Justice Ryan specially concurred. Illinois labor preference law upheld
An Illinois law giving preference to
Illinois residents on public works projects
does not violate the privileges and immunities clause of the federal Constitution, the
court said in an opinion by Justice
Goldenhersh. Nor does such a law constitute an undue burden on interstate commerce (citing a United States Supreme
Court opinion upholding a Florida statute
requiring public printing to be done in
Florida). The court did find invalid,
however, parts of the Illinois law giving
preference against employment of resident
aliens and the provision requiring one year's
residence in Illinois to qualify for the preference. These parts violate the equal protection clauses of the state and federal Constitution clauses of the state and federal
tutions. The rest of the statute is constitutional. 380 / Illinois Issues / December 1975
Lunding v. Walker, decided September 26. The Constitution provides that "The
Governor may remove for incompetence,
neglect of duty, or malfeasance in office any
officer who may be appointed by the Governor" (Art. V, sec. 10). Acting under this
power, Gov. Dan Walker sought to remove
Franklin J. Lunding, Jr., for "neglect of
duty" as a member of the State Board of
Elections because Lunding had failed to file
the financial statement required by Executive Order 4—73.
Walker v. State Board of Elections, decided September 24
Death penalty law voided
People ex. rel. v. Cunningham, decided September 29
An Illinois death penalty statute, adopted
in 1973, limits the application of the death
penalty to six sets of circumstances and requires that a court of three circuit judges
determine if any of the circumstances apply
when a conviction of murder has been
secured. If so, this court shall impose the
death penalty unless a majority of the judges
determine that there are "compelling reasons for mercy and that the defendant shall
not be sentenced to death." The court held
this statute invalid on three grounds:
People ex. rel. Holland V. Bleigh Construction Co., decided September 26
Condemnation of scenic area
Acting under its authority to acquire scenic areas adjacent to highways, the Department (now the Department of Transportation) sought to condemn land, part of which was an operating rock quarry. The court, in a decision by Justice Ryan, ruled it would not interfere with the judgment of the Department that the acquisition of a property is necessary for the preservation of the natural beauty of an area unless there is an abuse of the Department's power, and upheld the condemnation action.
Apparently conflicting amendments
In a decision by Justice Ryan, the court dealt with the question of apparently conflicting amendments of the same section of a law passed at the same session. The act last passed does not necessarily control, the court said; rather "two or more acts which relate to the same subject matter enacted by the same General Assembly shall be construed together in such a manner as to give effect to each except in the case of an irreconcilable conflict, in which case the act last acted upon by the Genera! Assembly is controlling to the extent of the conflict."
This case concerned a provision in the Vehicle Code relating to breath analysis tests for drunken driving. One version of the provision required tests be administered more than 15 minutes apart, the other less than 15 minutes apart. Three acts on the subject matter had been passed by the 77th General Assembly, and these were combined in a revisory bill by the 78th General Assembly. The tests were to be administered not less than 15 minutes apart, according to the revisory bill. The constitutionality of the revisory bill was upheld by the Supreme Court.
Garnishment of state employee wages okay
First Finance Co. v. Pellum (Department of Mental Health, appellant), decided September 26
The state is not immune from wage-deduction (garnishment) proceedings involving a state employee under the Wage Deduction Act, the court said in an opinion by Justice Goldenhersh. In an earlier decision, Henderson v. Foster, the court permitted suits of this kind involving local government employees.
The court said that a wage-deduction proceeding "is clearly distinguishable from an action in which a judgment or decree is sought against a defendant and does not serve to make the State 'a defendant or party' within the contemplation of the Immunity Act." (The Immunity Act limits the extent to which the state can be made a defendant or party in court.)
Cook County liquor tax upheld
It was held that Cook County, a home rule county, lawfully levied a tax on the retail sale of alcoholic beverages under its home rule power. The court in an opinion of Chief Justice Underwood rejected the contention that the state had preempted the county's power to tax liquor by its own legislation relating to the liquor industry. It also held that the county liquor tax was not an occupation tax requiring approval by the General Assembly, Contentions that the tax violated due process and equal protection rights were also rejected as well as the contention that adoption of the 1970 Constitution did not afford Cook County voters an opportunity to vote for or against county home rule (they have the constitutional right to divest themselves of home rule, the court said).
Municipal environmental control invalid
Carlson v. Village of Worth, decided
September 26
The Illinois Environmental Protection Agency issued a permit to Carlson for the operation of a sanitary landfill. Worth, a non-home rule municipality, cannot require such a permit-holder to secure an additional permit from the village, since local regulation was preempted by enactment of a state law. The opinion was written by Justice Schaefer.
December 1975 / Illinois Issues / 381