Judicial Rulings

Dunne's veto improper; County Board gets raise

COOK COUNTY Board President George W. Dunne acted improperly in lowering the salary increases approved by board members, according to the Illinois Supreme Court in its decision on December 1.

At issue were salary increases for county board members approved after the 1978 November election: When is it proper for the county board to approve salary increases for board members? Does President Dunne have the power to use a partial line item veto to reduce the salary increases approved by the board members?

Three suits resulted, and the case before the court consolidated them: Marshall E. Winokur v. Edward J. Rosewell, Jerome Huppert V. George W. Dunne et al. and Carl R. Hansen et al. v. George W. Dunne.

In the Circuit Court of Cook County, the validity of the pay raises was upheld in Winokur; a petition of mandamus to direct the county comptroller to pay the raises was rejected in Huppert; and the raises were ruled invalid on statutory and constitutional grounds in Hansen. The cases were appealed directly to the high court.

Winokur, who was representing taxpayers, contended that the board members considered the question of salaries at an improper time, according to the Illinois County Act, and the pay raises should be invalidated. The act states that salaries should be considered immediately before the election or at the first special or regular meeting following the election. Winokur also argued that the raises violated Article VII, sec. 9(b) of the Illinois Constitution because they would take effect during the terms of members who had voted on them.

In delivering the opinion of the court. Justice WiUiam G. Clark noted that it has been the custom of the county board since 1962 and continuing after the 1970 Constitution went into effect to set its salary at a meeting held between the time of the election and start of the new terms. He pointed out that this action always included several members who had been reelected and thus were voting on their own salaries. While recognizing this practice has the "potential for abuse," Clark said "in the absence of any evidence indicating something other than an effort to set appropriate level of compensation," this longstanding practice does not violate the 1970 Constitution.

Concerning Dunne's use of a partial line item veto to reduce, but not to eliminate the salary increases, Clark said Dunne's veto is invalid because the law does not provide the county board president with this type of veto.

Strong dissent on 'Cutback Amendment' ruling

THE Illinois Supreme Co'urt released its written opinion December 1 on the "Cutback Amendment" decision it made September 2, with two justices dissenting. The "Cutback Amendment" was ratified at the November 4 general election and thus changes the state Constitution to eliminate cumulative voting, establish single-member House districts and reduce the membership of the House from 177 to 118 members, effective for the 1982 general election.

One central issue of the decision involves the validity of a new law requiring signers of petitions proposing a legislative initiative to reside in the same election district as the petition circulator and notary.

The other main issue was whether the "Cutback Amendment" met the test of proposing one question on a single subject.

The court upheld the signature provision but not its strict application in the sense that an entire petition be disregarded if one or more signatures are not of the same election district.

The court held that the proposal to eliminate cumulative voting at the same time it reduced the size of the House and created single-member districts was a proper proposal. The court said, "... we do not believe that the related questions before us are constitutionally prohibited."

The handing down of the written opinion prompted the filing December 22 of a petition to the court to reopen the case. Filing the petition was Andrew Raucci, lawyer for the Committee for Representative Government, a legislators' group which opposed the "Cutback Amendment."

The dissenting opinions to the majority in this case, Coalition for Political Honesty et al. V. State Board of Elections et al., very strongly disagree with the majority on both central issues.

The "Cutback Amendment" is the first successful legislative initiative under the 1970 Constitution; the first to get on the ballot and the first to be approved.

Juvenile Offender Act upheld by Supreme Court

THE constitutionality of the Illinois Habitual Juvenile Offender Act was upheld by the Illinois Supreme Court on December 1.

The Cook County Circuit Court found the act to be unconstitutional, and the state appealed directly to the high court.

The act states that if a minor commits a third offense, which would be considered a felony if he were adult, he can be tried as a habitual criminal and held under Department of Corrections' custody until he is 21 years old. Further, the juvenile has no chance for parole but can accumulate one day of good-time credit for each day in custody to be used against his determinate sentence. Under the act, the minor also has the right to trial by jury for the third offense, which is not constitutionally required for juveniles.

The Cook County Circuit Court said the act denied juveniles due process, was arbitrary in sentence length and represented cruel and unusual punishment.

In delivering the opinion of the high court, Justice Thomas E. Kluczynski rejected those arguments: "The apparent predominant purpose of the Act is to protect society from an individual who, having committed three serious offenses, would have appeared to have gained little from the rehabilitative measures of the juvenile court system. In furtherance of this purpose, the legislature has determined that an individual who is subject to the Act shall be confined until the age of 21. As a result, an habitual juvenile offender may be confined longer than one who is older, and it is argued that this disparity in treatment adversely affects a juvenile's fundamental interest in liberty and is not justified by any compelling interest. We do not agree with the suggested analysis or the conclusion."

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Kluczynski pointed out that setting a minimum sentence is a function of the legislature and there is no constitutional requirement that two persons convicted of the same offense receive identical sentences. He also noted that the state has "traditionally been allowed wide latitude in setting penalties for State crimes, . . . and we do not believe the disposition authorized here rises to the level of cruel and unusual punishment by any stretch of the imagination."

The case stemmed from the consolidation of three cases, People ex rel. Bernard Carey, State's Attorney v. James J. Chras-tka. Judge et al.\ People ex rel. Bernard Carey, State's Attorney v. Milton S. Wharton, Judge, et al,; and People ex rel. Bernard Carey, State's Attorney v. Edward H. Marsalek, Judge, et al.

Open Meetings Act upheld — in Urbana case

RULING on the constitutionality of the Open Meetings Act for the first time, the Illinois Supreme Court in a 5-2 decision December 18 held that the act was not unconstitutional nor vague when applied to Urbana City Council members who met privately and discussed several agenda matters prior to a regularly scheduled council meeting.

The case, People ex rel. Thomas J. Difanis. State's Attorney, v. Joan Barr et al, involved nine of the 15 members on the council who decided to hold what they refer to as a political caucus an hour and a half before that evening's council meeting. In addition to discussing party matters and an upcoming election, the aldermen, eight Democrats and one independent, discussed four items that were on the agenda for the regular meeting. Three of the items were voted on later at the regular meeting.

Both the Circuit Court of Champaign County and the Fourth District Appellate Court ruled that because public business was discussed at the caucus, this gathering was held in violation of the Open Meetings Act, which states that public bodies, in whole or in part, that receive tax revenue, must conduct business in an open forum. The Supreme Court agreed.

The council members argued they had not broken the law because their gathering was not a meeting subject to the Open Meetings Act. They contended that the language of the act was "vague, uncertain and indefinite" with regard to what constitutes a meeting of a legislative body and it was overly broad, making public officials afraid to discuss any public business outside of a pubhc forum.

Speaking for the majority. Justice William G. Clark said a "body" as referred to in the act "must necessarily be interpreted to mean an informal gathering of nine members of a legally constituted public body." He said that the Open Meetings Act is neither vague nor too broad, and that the council members' "conduct fell within the 'hard core' of the act's proscriptions."

Justices Daniel P. Ward and Robert C. Underwood dissented and felt the majority left "a cloud of constitutional doubt hanging over this important statute." Ward said the majority "implicitly acknowledges constitutional problems" because the decision was reached based only on the facts of this particular case.

Attorney General Tyrone C. Fahner said he was pleased the court had upheld the constitutionality of the act, but since the decision only looked at one situation, the act still "gives no guidance on the question or definition as to what constitutes a meeting." His office still plans to draft legislation to clarify the act.

Murder conviction, by itself, not test of parent's fitness

EVEN though a person is convicted of murdering his spouse, he is not necessarily an unfit parent, according to a 4-3 decision of the Illinois Supreme Court on December 1.

The Champaign County Circuit Court found Lonnie Abdullah to be an unfit father by reason of depravity after he was convicted of murdering his wife, Anna, the mother of their child. The Fourth District Appellate Court reversed this finding. In the case. In re Hannibal Abdulla a Minor (People V. Lonnie Abdulla a/k/a Yumba Lasumba), the appellate court said that a criminal conviction was not enough in itself to establish depravity, and the Supreme Court agreed with this decision.

The Supreme Court ordered a new trial for Abdullah to determine his fitness as a parent. Delivering the opinion of the court. Justice Thomas J. Moran said, "The trial court was mistaken as to the quantum of proof required to establish depravity by clear and convincing evidence." Moran pointed out that there was no factual basis on which to judge Abdullah's prior battery conviction and no reasoning presented for the extended sentence he received for the murder conviction.

The dissenting justices, William G. Clark, Robert C. Underwood and Howard C. Ryan, held that "the facts which are of record are sufficient to establish depravity in a clear and convincing manner .... By murdering the child's mother, [Abdullah] has demonstrated his disregard for his child's best interest." Clark also compared this case to the recent Jarrett case, where a divorced mother lost custody of her children because she was living with her boyfriend. He said, "... cohabitation may justify losing custody of children, but the murder of one's wife, the mother of the child, will not."

If Abdullah were to be found unfit, his child could be placed for adoption by the Department of Children and Family Services.

Toy gun does not an armed robber make

A PLASTIC toy gun used to commit a robbery is not a "dangerous weapon," and its use constitutes simple robbery not armed robbery, the Illinois Supreme Court ruled December 1.

In the case, People v. Ricky Skelton, the high court upheld the Fifth District Appe! late Court's reversal of a Williamson County Circuit Court conviction of armed robbery against Ricky Skelton, with the direction to enter a judgment of guilty of robbery. Skelton was convicted of using a plastic toy revolver to rob a store near Marion in 1978.

Noting that Illinois law makes a distinction between robbery and armed robbery, Justice Robert C. Underwood, delivering the high court's opinion, said that a "dangerous weapon" must be used in the act to constitute armed robbery. He pointed out that even if the object is not "deadly per se [it] may still be a dangerous weapon because of its capacity to inflict serious harm even though not designed for that purpose, as in the case of a baseball bat."

The four-and-a-half-inch-long plastic toy gun used in the robbery was made mostly of hard plastic but with a thin, tin-like metal cylinder. . . it is harmless," Underwood said. "It simply is not, in our opinion, the type of weapon which can be used to cause the additional violence and harm which the greater penalty attached to armed robbery was designed to deter."

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