Judicial Ruling
U.S. Supreme Court The conspiracy and mail fraud convictions of three ex-state legislators and one former state employee and the extortion conviction of a fourth former lawmaker were affirmed by the U.S. Supreme Court October 3. The convictions arose out of a scheme whereby legislators solicited payment of graft from the ready-mix cement industry in exchange for favorable legislation. Former Reps. Louis A. Market (D., Mount Sterling) and Robert Craig (D., Danville) were convicted in 1977 of conspiring to commit extortion and of committing mail fraud when they used threats of legislation in a scheme to squeeze $1,500 from Illinois Car and Truck Rental Leasing Association. In 1976 Rep. Craig and Peter V. Pappas, an employee of the secretary of state's office and lobbyist, as well as former Rep. Frank P. North (R., Rockford) and former Sen. Jack E. Walker (R., Lansing) were found guilty of conspiring to commit mail fraud and of committing mail fraud when they sold their votes on a bill to increase the weight limit on trucks carrying ready-mix concrete. The federal high court found no reversible error in the cases of any of the five defendants, thus review of the facts in the cases was denied. The convicted conspirators had claimed, among other things, that a state legislator is privileged under the Speech or Debate clauses of both the federal and state constitutions to prevent introduction of evidence concerning his legislative actions in a federal criminal prosecution. The justices made no comment on any of the claims by defendants, but let stand the federal convictions, prison sentences and fines. North v. U.S., Walker v. U.S., Pappas v. U.S., Craig v. U.S. and Market v. U.S. Unprofessional advertising Restrictions on advertising by health care professionals under the Illinois Medical Practice Act (Ill. Rev. Stat. 1977, Ch. 91), does not suppress free speech guaranteed under the First Amendment, at least when applied to one case involving a Cicero chiropractor in Talsky v. Ill. Dept. of Registration and Education. Illinois Attorney General William J. Scott told the justices that although the state law banning medical advertising may be outdated, chiropractor Richard J. Talsky's "false and misleading" advertising is not entitled to any constitutional protection. Scott argued, "It is safe to assume that the Illinois Legislature will act on the recommendation of the Illinois Supreme Court to conform Illinois law with the dicates of this court." Scott was referring to last year's U.S. Supreme Court
decision which ruled that an absolute ban on legal advertising was a violation of free speech guarantees. That decision dealt only with lawyers, but some experts feel it may yet be applied to other professions as well. However, Scott contended that the Talsky case "has no national or statewide significance nor does it affect litigants other than Dr. Talsky," because Talsky's ads were patently false and misleading. Talsky published newspaper advertisements claiming that all drug use is harmful and that most illnesses can be cured without drugs through chiropractics, Scott said. "The second [false and misleading] theme is that people will live happy and healthy lives only if they receive periodic chiropractic care," Scott charged. In his U.S. Supreme Court appeal, Talsky said the state court did not consider the special problem he faced in trying to "overcome a cultured and encouraged bias against chiropractic care." But the justices apparently agreed with Scott for they denied a review of the case. Invalid abortion law On October 16 the U.S. Supreme Court left intact the April 1978 judgment by a district court which struck down as unconstitutional a 1975 Illinois law to regulate abortions. The court denied its jurisdiction in the appeal of a declaratory judgment invalidating the law. Justices recommended appeal to a lower federal appeals court instead. Cook County State's Attorney Bernard Carey and Illinois physician Eugene F. Diamond separately appealed a three-judge ruling against the abortion law. Carey argued, in his attempt to reinstate the abortion limits, that federal courts have no jurisdiction in the controversy. "Abstention in is deemed appropriate where there are difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case at bar," Carey wrote. The abortion law at issue (Ill. Rev. Stat. 1977, Ch. 38, sec. 81-21 et seq.) attempted to regulate abortions by requiring those women seeking abortion to certify their knowledge of the fetus' physical characteristics and by requiring physicians to notify women of the dangers of abortion. The law has never taken effect because of federal court intervention. The justices said in rejecting consideration of the case "the declaratory judgment is appealable to the Court of Appeals, and we are informed that appeals to that Court have been taken." Justice John Paul Stevens took no part in the consideration or decision of the case. Carer v. Wynn and Diamond v. Wynn. Delivery room fathers An Illinois Department of Public Health rule barring prospective fathers from hospital delivery rooms when caesarean surgery is performed was left intact by the U.S. Supreme Court, October 3. The justices declined, without comment, to review charges that the state regulation constitutionally violates the right of marital privacy. Peter Praetz, the father who challenged the rule, said he and his wife "have a fundamental right to be together during the birth of their child, whether that birth be by caesarean section or normal procedures." The attending physician, both parents and the hospital had consented to the father's presence, but the Chicago Board of Health interpreted the state rule with a memorandum barring Praetz. The rule does not allow "lay persons" to be present on the grounds that Caesarean section is more complicated and dangerous than natural delivery. Praetz v. Petersen. Nazi march in Skokie The U.S. Supreme Court refused on October 16 to review two cases attempting to prevent a Nazi march in Skokie. Justices Harry A. Blackmun and Byron R. White dissented from the ruling which let stand a lower federal court decision that said Skokie ordinances preventing the march were unconstitutional. The lower courts had held that several Skokie ordinances were in violation of the Nazis' First Amendment right to free speech and assembly. The justices upheld without dissent an Illinois Supreme Court decision which ruled unconstitutional an attempt by Jewish survivors of the Nazi holocaust to gain an injunction against the march of American Nazis in Skokie. In Justice Blackmun's dissenting explanation favoring review of the Skokie ordinances, he wrote "when citizens assert, not casually but with deep conviction, that the proposed demonstration is scheduled at a place and in a manner that is taunting and overwhelmingly offensive to the citizens of that place, that assertion . . . deserves to be examined." Smith v. Collin and Goldstein v. Collin.
Illinois Supreme Court Among the powers and duties of the Illinois attorney general is the power to initiate and prosecute a criminal action where county state's attorneys do not object, the Illinois Supreme Court ruled October 6. Questioned was the legal authority of Attorney General William J. Scott to prosecute a criminal violation in Cook County against Benedetto J. Massarella who, with Scott's aid, was convicted of state tax fraud in 1974. Massarella challenged the lower court's ruling, successfully arguing before the appellate court that the attorney general had neither the constitutional nor statutory power to allow him to "take exclusive charge" of the prosecution or appear before a grand jury to obtain criminal indictments. The Supreme Court said, however, that under common law the attorney general is the state's chief legal officer and has "the competence to control all litigation on behalf of the State including intervention in and management of all such proceedings." The court also cited a decision by the Montana Supreme Court, State ex rel. Nolan v. District Court (1899) which says the attorney general has an obligation to assist the state's attorneys and since the attorney general has that duty, he can appear before the grand jury where there is no objection by the state's attorney. Chief Justice Daniel P. Ward, the only dissenter in the case, Illinois v. Massarella et al., agreed with the appellate court's decision. Chief Justice Ward said the authority given the attorney general by statute "does not empower the Attorney General to participate in a prosecution in the absence of any request to do so from the state's attorney, and that passivity, acquiescence, and mere failure to object by the state's attorney does not constitute a request for assistance." Chief Justice Ward also pointed to attempts by Scott to have the General Assembly adopt legislation to create a statewide grand jury as further evidence that the appellate court was correct in its decision.
Illinois Appellate Court In determining base charges to customers, utility companies must use the original cost of company property, rather than fair market value, the Fourth District Illinois Appellate Court ruled October 17. Utilities may not charge their customers an amount based on the cost of replacing used equipment at current prices — thus lowering the rate of return compared to cost. In Union Electric v. Illinois Commerce Commission, Justice James C. Craven wrote for the court, "Union Electric asked for a lower rate of return (7 per cent) on 'fair value' and admitted the revenues generated would approximate the 9 per cent return they sought on net original cost." The decision "will have no affect whatsoever on rates," according to Illinois Commerce Commission economic analyst Michael Schmidt. "The utilities wanted a political advantage, showing lower rates of return on equal, unchanged revenue totals." Original cost has been the factor used in computing Illinois utility rate bases since 1973. The court in Springfield reversed the Jersey County Circuit Court, and allowed that "determination of a 7.38 per cent rate of return in the instant case was within the statutory authority of the Commission and not against the manifest weight of evidence." Justice John T. Reardo concurred with Justice Craven, and Justice Harold F. Trapp dissented. December 1978/Illinois Issues/31
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