Judicial Rulings

By DIANE ROSS

Illinois Supreme Court

School desegregation not a power to be presumed without statute

LOCAL school districts have won their case for control of school desegregation.

The Illinois Supreme Court has ruled the Illinois State Board of Education (ISBE) presumed the power to enforce school desegregation when the legislature clearly gave it to local school boards.

The high court decided the ISBE has no authority to make and enforce its own desegregation rules. The court said that state law gives the power to enforce desegregation to Illinois' 1,000-plus school district boards while it limits the ISBE's authority. The court noted the legislative intent was also specific in the state law that bars the ISBE from mandating that district bus students to achieve desegregation.

Writing for the high court, Justice Thomas J. Moran had some harsh words for the ISBE, implying it has assumed "the role of prosecutor, judge and enforcer of its own sanctions." He said the ISBE apparently disregarded any attempt to seek a state law granting it more powers on desegregation. He also charged the ISBE with failure to play its role outlined in the state law on desegregation: to hear allegations of segregation and refer legitimate cases to the Illinois attorney general.

Moran quoted the court in a 1979 ruling in a similar case (Bio-Medical Laboratories, Inc. v. Trainor): "The court has consistently held that, inasmuch as an administrative agency is a creature of statute, any power or authority claimed by it must find its source within the provisions of the statute by which it is created."

The ruling came October 22 in two consolidated cases: Aurora East Public School District No. 131 v. Joseph M. Cronin (1977) and The Board of Education of School District No. 170 v. Joseph M. Cronin (1981, Chicago Heights).

The decision ended a five-year struggle by seven school districts to overturn the ISBE's desegregation rules, specifically the rule requiring the racial mix in each school to be within 14 percentage points of the racial mix of the entire district. The lower courts, in ruling for the school districts, had decided the racial mix rule, per se, was arbitrary. The high court, in striking down the ISBE's rule-making power altogether, made no decision on the merits of the rule.

When the ISBE adopted the desegragation rules in 1976 only 50 districts had not followed them. Only seven districts, ineluding Aurora East and Chicago Heights

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eventually failed to do so. Suits brought by four of the remaining five districts, Argo-Summit (suburban Chicago Heights), Joliet, Moline and Rock Island, are now moot. The fifth district, Chicago, the nation's third largest, is currently involved in desegregation litigation with the U.S. Department of Justice.

The ISBE decided October 28 not to ask the Illinois Supreme Court to rehear the case and not to appeal the case to the U.S. Supreme Court. But members said they would consider asking the Illinois General Assembly for specific desegregation rule-making power.

Grand jury cannot indict on no evidence; trial court can review

A TRIAL COURT has the power to read a grand jury transcript to decide if the grand jury had any evidence on which to indict; subsequently, the trial court has the power to quash an indictment if it decides the grand jury had no evidence. That was the October 22 ruling of the Illinois Supreme Court in two consolidated cases, People v. Marvin Reed and People v. Frederick Rodgers.

The court drew a distinction between a grand jury indictment based on inadequate evidence and one unsupported by any evidence. "To return a true bill where there is absolutely no evidence connecting the accused to the offense charged," the court said, "would be an abdication of the important responsibility with which the grand jury has been entrusted."

"[W]e hold that a trial court has inherent supervisory authority to review whether grand jury evidence was presented which tends to connect the accused to the offense charged," wrote Justice Thomas J. Moran for the court, which went on to spell out the review procedure.

When the defense alleges the grand jury indicted without evidence, the prosecution must show the trial court where the transcript at least implies the existence of evidence. The prosecution must show "some evidence relative to the charge," Moran said, but the prosecution is not required to show "evidence. . . as to each element of the offense." He said, "This procedure of shifting the burden to the State will satisfy the interests of judicial economy since it will eliminate the need for the trial judge to review the entire transcript."

The two cases, heard in Kane County Circuit Court and the Second District Appellate Court, involved two employees of the Illinois Department of Corrections who were similarly charged with theft, theft of a motor vehicle, and conspiracy to commit theft. The trial court quashed the conspiracy charges in both cases; the grand jury transcript was read in the Rodgers case, but not in the other. The appellate court reversed the decisions and returned the cases to the trial court on the grounds that the judges had no power to read the transcripts. The high court disagreed, but found evidence in the grand jury transcript in the Rodgers case, supporting the conspiracy charge, and returned the case to trial. The transcript, never read in the Reed case, will be reviewed by the trial court.

When to caution jury in death sentence hearing?

A DEATH SENTENCE was voided in a 5-2 decision by the Illinois Supreme Court on October 22 on the grounds that during the sentencing hearing the judge's failure to caution the jury as to the nature of the testimony may have wrongfully prejudiced the jury against the defendant. The minority called the decision an "unprecedented holding."

In sentencing hearings, the judge can allow almost any kind of testimony, including testimony that was not admissible during the trial, as long as the judge allows the testimony to be rebutted to insure accuracy.

In the case, People of the State of Illinois v. James Devin, the high court affirmed the conviction of murder, but returned the case for resentencing.

On the testimony in question, given as evidence of aggravating factors, Goldenhersh said: "The record shows that the psychiatrists who testified were in agreement that a sociopathic personality frequently engaged in fantasies and that much of the criminal conduct of a sociopathic personality resulted from efforts to carry out those fantasies. . . . The jury was given no guidance that would assist them in the determination of whether the conversations to which the witnesses testified purported to recount actual occurrences or whether they were pure fantasy."

Writing for the minority, Justice Robert C. Underwood said, "Illinois law does not require such an instruction, the defendant neither sought nor tendered such an instruction at trial, and he does not even now argue that the absence of such an instruction is error." Underwood said that "the difficulty with the majority's position is that no case cited in that opinion or found by me. . . suggests the need or use of a cautionary instruction when undisputed but uncorroborated testimony is considered."

Insurance company must defend insured

AN INSURANCE COMPANY must defend a policyholder in personal injury suits — even if the company has already paid the maximum claim for which the policyholder is liable. The Illinois Supreme Court made the ruling October 22 in Philip A. Conway v. Country Casualty Insurance Company.

The complicated case stemmed from a 1973 car accident involving Conway, whose policy was with Country Casualty. The company paid the other driver involved the $10,000 maximum for bodily injury and $742.35 claimed in property damage. But the other driver in 1975 filed a personal injury suit against Conway. Country Casualty refused to defend Conway, on the grounds that it had already paid the maximum claim for which he was liable. After Conway agreed out of court to pay attorney fees and another $10,000 for bodily injury in exchange for a release from further liability (for the company as well as himself), he sued Country Casualty in 1977 to recover the additional settlement and the attorney fees. The LaSalle County Circuit Court and the Third District Appellate Court found in Conway's favor, including interest.

The high court upheld the lower courts on the attorney fees, but overturned on the settlement, arguing that Conway had not shown that he would have paid less if Country Casualty had defended him.□

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