Judicial Rulings

Breslin seating question moot

Rep. Peg McDonnell Breslin (D., Serena) won a marginal victory of sorts to retain her retroactive claim to a 38th district House seat in the 80th General Assembly, when the Illinois Supreme Court on January 12 threw out a circuit court decision that unseated her. The court declared it a moot question whether Breslin was entitled to an 80th session House seat, since the 80th General Assembly had ended its two-year session January 10. Thus the Supreme Court avoided becoming involved in a legislative controversy with strong constitutional overtones.

Breslin was elected to the House in November 1976 and an immediate challenge began, attempting to unseat her on the grounds that she had not lived in the district from which she was elected two years prior to the election, as required by the 1970 Illinois Constitution, Article IV, sec. 2(c). On June 30, 1977, the House voted to unseat her on that nonresidency basis 91-75. Later the same day she was reappointed by a five-member Democratic committee from the 38th District, empowered by the Illinois election code (. Rev. Stat. 1975, Ch. 46, sec. 25-6). Then the election code was challenged in a suit filed by three legislators, Rep. Edward E. Bluthardt (R., Schiller Park), Rep. Philip W. Collins (R., Calumet City) and Rep. Richard A. Mugalian (D., - Palatine), all members of the House Com-mittee on Elections. A Sangamon County court found "the statutory method of appointment unconstitutional, and the appointment of defendant made pursuant thereto invalid."

The state Supreme Court refused to rule on the merits of the case on appeal. Instead, the justices ruled unanimously, in an opinion delivered by Justice Thomas J. Moran, "If it becomes apparent that an opinion on a question of law cannot affect the result as to the parties or controversy in the case before it, the court should not resolve the question merely for the sake of setting a precedent . . . ." Bluthardt v. Breslin.

On January 26 the Illinois Supreme Court struck down section 19.3 of the new Illinois Currency Exchange Act (///. Rev. Stat. 1977, Ch. 16'/2, sec. 49.3) as unconstitutional. The case involved two owner-operators of currency exchanges, challenging the methodology by which the state Department of Financial Institutions regulates "schedules of maximum rates which can be charged for check cashing and writing of money orders by community currency exchanges and ambulatory currency exchanges," as defined by the new law which became effective October 1, 1977. The court struck down the new law's key section, declaring that there were no intelligible standards or guidelines provided by the legislature for rate setting. Based on earlier rulings, the court found that standards were not meaningful since they were "devoid of any reference to the harm to be remedied." In the case of Thygesen v. Callahan, the court concluded "the legislature has not only failed to provide any additional standards to guide defendant's discretion, but has failed to communicate to defendant the harm it intended to prevent, it is clear that the legislature has unlawfully delegated its power to set such maximum rates."

A residency requirement for firemen in Harvey, Illinois, is a permissible requirement for employment, the Illinois Supreme Court ruled January 26. The justices reversed an appellate court ruling which said there was no city authority to require residency under the Illinois Municipal Code'scivil service section. Instead the court ruled that section 10-1-5 of the code (. Rev. Stat. 1975, Ch. 24, sec. 10-1-18) "shows a legislative intent that municipal civil service commissions were to have the power to make rules for removals .... We consider that the commission has the authority to regard an employee's moving his residence from the city of Harvey as'cause' for discharge" {Harvey Firemen's Association v. The City of Harvey).

A factory ventilation system with an inseparable push-pull design should qualify for pollution control tax exemptions under the Retailers' Occupation Tax Act(///. Rev. Stat. 1975, Ch. 120, sec. 440a) and the Use Tax Act (Rev. Stat.

1975, Ch. 120, sec. 439.2a), the Illinois Supreme Court ruled December 4. "The evidence was that the intake section was part of an overall or single system for the removal of pollutants . . .," the decision said in Du-Mont Ventilating Company v. The Illinois Department of Revenue, thus affirming an appellate court reversal of a revenue department ruling. The revenue department had claimed that the system in question could be partially taxed — only on those materials used in construction of the air intake apparatus.□

Strikers shouldn't prosper

The Illinois Supreme Court struck down January 26 an arbitrator's interpretation of a 1975 collective bargaining agreement between the Chicago city junior college system and its largest teachers union. The court held that the determination ran contrary to the public interest, even though it was within the arbitrator's authority and was arrived at properly.

"We do not regard the award to be neutral in its respective application to strikers and nonstrikers. The unavoidable effect of the award is to comprehensively realign the priority system for extra-work assignments to the advantage of the unlawfully striking teachers .... Here, the intolerable unfairness is that the award necessarily benefited all unlawful strikers at the relative expense of all nonstrikers, and that the imbalance would not have occurred but for the illegal activity," said the unanimous opinion, delivered by Justice Thomas J. Moran. "The injustice which results when persons gain advantage from their illegal acts is graphically illustrated in this case," Justice Moran wrote, in The Board of Trustees of Community College District No. 508, County of Cook v. Cook County College Teachers Union, Local 1600, AFT, AFL/CIO. The case involved an illegal three-week strike in August and September of 1975, when 90 percent of the faculty of seven junior colleges refused to go back to work, despite a circuit court injunction.

Federal court redistricting

Illinois' federal court districts will be changed from two to three effective April 2. A central district will be created between the existing northern and southern districts. The rearrangement will bring the courts closer to the population centers of Illinois and will reduce the travel time for many attorneys, clients, witnesses and other persons using the courts. The number of judges will increase to 21 judges. The northern district will acquire three additional judges, bringing the dis-trict's total to 16; the central district will have three instead of twojudges, and the southern district will remain at two.

March 1979/Illinois Issues/31