Judicial Rulings

Budget cutting authority in court

By DIANE ROSS

AS OF February 7, the Illinois Supreme Court had temporarily blocked Gov. James R. Thompson from cutting $54.6 million in general funds spending for public aid in fiscal 1983, pending a final ruling in the case, Burl Warrior v. Thompson. The high court, however, had apparently temporarily authorized Thompson to cut the other $104.4 million in general funds spending allowed under emergency legislation for this fiscal year ending June 30, 1983. Those cuts, which apparently took effect as scheduled on February 1 came chiefly in elementary and secondary education ($41.6 million), higher education ($20.1 million) and mental health ($16 million).

The case is on direct appeal from Cook County Circuit Court, and oral arguments were set before the high court for February 17 in Chicago. Circuit Court Judge Albert S. Porter had granted a preliminary injunction to stop the public aid cuts, but had ordered Thompson not to cut any of the funds. The plaintiffs in the case are the Legal Assistance Foundation, the Illinois Hospital Association, Cook County and the City of Chicago.

Two other cases concerning the cuts are pending. The American Federation of State, County and Municipal Employees and the Illinois Federation of Teachers have filed a joint suit in Cook County Circuit Court seeking an injunction blocking all the cuts. In the other, the Illinois Health Care Association filed suit in U.S. District Court in Chicago, and in late January, U.S. District Judge Stanley J. Roszkowski issued a temporary injunction to block Thompson from cutting $9.1 million in public aid spending, which represents part of the 7.5 percent the governor proposed cutting in state reimbursements to those who provide medical services to public aid clients under Medicaid.

'Accountability' key factor in review of death sentences

By NORA NEWMAN JURGENS

TWO DEATH sentences were upheld December 17 by the Illinois Supreme Court, while a third was overturned. In its majority decision, the court upheld the death sentence of Andre Jones, an East St. Louis man convicted for the 1979 murders of Richard Stolz, Samuel Nersesian and Debra Brown. The high court said there was no evidence of reversible error in the sentencing proceedings and set a date of May 18 for Jones' execution at the Illinois State Penitentiary in Joliet.

In the case, People v. Andre Jones, Jones had pleaded guilty to the murders and asked for a separate sentencing hearing in front of a jury. A sentence of death was returned, and the case was automatically appealed to the Supreme Court. The defense claimed Jones had been denied a fair hearing.

Agreeing with the defense in his dissent, Justice Seymour Simon said remarks made by the trial judge may have prejudiced the jury in sentencing Jones to death.

Also indicted for the same murders was Freddie C. Tiller, who was tried separately for the murders of Nersesian and Brown. In People v. Freddie Tiller Jr., the high court overturned the death sentence, saying the evidence did not prove Tiller was accountable for the murders. Citing a similar case in Florida (Enmund v. Florida (1982)), the court said Tiller "was not shown to have planned or in any manner participated in the killings. . . ." The case was returned to the St. Clair County Circuit Court for resentencing.

In a strongly worded dissent, Justice Thomas J. Moran said the majority interpreted the Florida case too narrowly. Moran argued that Tiller did plan to rob Nersesian's store and was present when he and Brown were murdered. Moran said the high court's application of accountability, as in the Florida case, set an "unfortunate precedent." "It will be difficult indeed to impose the death penalty for any unwitnessed murder in which the defendant is not the actual 'triggerman. . . .' The position adopted by the majority benefits those defendants who are careful not to leave any witnesses to the crime," Moran said.

In the third case, the high court upheld the death sentence of Luis Ruiz, who, with fellow gang member Juan Caballero, was convicted in a Cook County Circuit Court for the 1979 murders of three rival gang members. The court said Ruiz' guilt as a willing participant in the murders had been proven beyond a reasonable doubt. The case is being appealed to the U.S. Supreme Court.

As in People v. Tiller, the defendant in People v. Luis Ruiz argued that because there was no evidence that he had actually killed any of the participants, Ruiz' conviction on the principal of accountability could not form the basis for his death sentence. In the majority opinion, Chief Justice Howard C. Ryan said, "There is no doubt that Ruiz was legally accountable for the conduct of his companions, and, as such, shares equally in their guilt."

In his dissent, Justice Simon said he was not convinced that the state had proved that Ruiz intended to commit the murders or that he was an active participant. Taking issue with the principal of accountability, Simon said, the placement of death penalty provisions within the state's murder statute suggests that "the death penalty was never meant to be imposed on a person who committed none of the acts which caused the victim's death and who can be convicted of murder only by means of accountability."

Trial judge overstepped authority in two criminal cases

A TRIAL JUDGE cannot order a state's attorney to file charges on the basis of the judge's own motion to do so, the Illinois Supreme Court ruled January 14. In the case, People ex. rel. Richard M. Daley v. Matthew J. Moran, the high court granted Daley, state's attorney in Cook County, a writ of mandamus overturning decisions in two separate criminal cases by Moran, a trial judge in Cook County. The high court's decision returns both cases to the Cook County Circuit Court for rehearing.

One case stemmed from an assistant state's attorney's refusal to file aggravated battery charges against two brothers accused of attacking a police officer with a car jack, because the state wanted a preliminary hearing on the charges. Disregarding the state's request, Moran directed the clerk, over the state's objection, to assign an information number to the case, and accepted the defendants' guilty pleas to aggravated battery.

In the other case, Moran accepted a guilty plea from a man charged with felony theft, and placed him on one year's probation, again over the objection of the state. Both cases were stayed by the high court pending a decision on Daley's request for the writ.

In granting the writ, the high court said Moran had no authority to direct that charges be filed, or to accept the guilty pleas of the defendants over the objections of the state's attorney. Justice Robert C. Underwood, writing for the majority, said, "We consider such action by a trial judge to be an impermissable exercise by the judicial branch of powers belonging exclusively to the executive and in direct contravention of the applicable statutory mandates."

March 1983 | Illinois Issues | 31

No state tax allowed on interstate phone calls

THE Illinois Bell Telephone Company is exempt from paying state taxes on receipts from long distance calls between the states, and on long distance calls within the state by customers of other phone companies. The Illinois Supreme Court issued the ruling December 17, in the case of Illinois Bell Telephone Company v. Robert H. Allphin (former director of the Department of Revenue). The ruling upheld a 1979 appellate court decision reversing a circuit court judgment for back taxes on interstate receipts. The high court also upheld both lower courts' decision that Illinois Bell is exempt from taxation on intrastate messages.

The high court pointed out that Illinois' statutes have since 1935 exempted receipts from interstate telephone messages from taxation. Taxing interstate commerce is also prohibited under the U.S. Constitution, the court said.

On the question of taxes on intrastate message receipts, the Department of Revenue argued that Illinois Bell has underpaid because it bases its payment on gross services rather than on gross receipts. Illinois Bell countered that it owes the tax only on the portion of receipts it retains after settling with the other telephone companies for the share of receipts to which they are entitled for transmitting the calls. The high court agreed, pointing out that under the Illinois Messages Tax Act, only receipts that represent a company's compensation for furnishing services or facilities are taxable. The justices also said the Department of Revenue's regulations have said, since the first message tax went on the books in 1935, that the tax was only upon amounts received and retained by a company as its consideration for its part in the transmission of messages.

Justice Joseph H. Goldenhersh concurred with the majority ruling, but not with all of its reasons. Goldenhersh said the only reason Illinois Bell does not have to pay the intrastate taxes is because the department did not interpret the statutes correctly when it wrote the taxing regulations. He also disagreed with the high court's interpretation of the taxing laws as they apply to interstate messages. "The only common sense reading of the statute is that the General Assembly wished to extend the scope of the tax to the extent constitutionally permissible. It is unfortunate that the failure to promulgate appropriate regulations permits the taxpayer to escape payment of the tax," he said.□

March 1983 | Illinois Issues | 32