Judicial Rulings By NORA NEWMAN JURGENS

Limited delegation of power upheld in Emergency Budget Act

THE ILLINOIS Supreme Court said that Gov. James R. Thompson was not overstepping his powers in cutting $164 million from fiscal appropriations, and the legislature was not wrong to delegate that power. The opinion was handed down March 14 in the case of Burl Warrior et al. v. James R. Thompson.

In its decision, the high court overturned an injunction granted in January by the Cook County Circuit Court which prevented Thompson and the Illinois Department of Public Aid (DPA) from cutting $54.6 million in medical aid funds. The cuts stemmed from the Emergency Budget Act, passed in December, which gave Thompson the right to cut 1983 appropriations in an attempt to forestall a projected $200 million revenue shortfall. The suit was brought against Thompson and the DPA by the Legal Assistance Foundation, the Illinois Hospital Association, Cook County and the city of Chicago.

In an opinion written by the court as a whole, the justices relied on arguments in Hill v. Relyea, a 1966 case in which the court considered criteria relevant to determining the validity of a legislative delegation of power to an administrative agency. "We see no reason why the same criteria should not apply to the delegation of power to an executive officer," the justices said. They pointed out that the Emergency Budget Act (Senate Bill 1652, Public Act 82-1038) was "simply to create a contingency reserve of $164 million," and therefore it met the standards applied in Hill.

Refuting the plaintiffs' argument that Thompson and the DPA did not have constitutional powers to eliminate or reduce the medical services, the justices said that there were no provisions in those sections of the original appropriation bill setting a certain amount or percentage for those programs.

The high court also skirted the issue of whether the cuts violated the equal protection clause of the Illinois Constitution. Basing their opinion on the "rational relation test," the justices stated only that they saw no "constitutional defect" in the cuts. The test comes from a 1980 U.S. Supreme Court case which determined that if there is some reasonable basis for a distinction between two classes, it is not rendered invalid. The plantiffs in Warrior said that reduction of medical services by the DPA establishes an "impermissible" distinction between recipients who are seriously ill and need hospitalization and those who do not.

And although the plaintiffs contend that there was no emergency which necessitated the cuts, the high court said the only question they were considering was whether the emergency rules set by the DPA were in compliance with the provisions of the Illinois Administrative Procedure Act. "And we hold that they were," the court said. "The question of the extent of permissible budgetary limitations is not for us to decide. It has been determined in this instance by the General Assembly and the Governor, and in compliance therewith the Department has adopted regulations pursuant to which the expenditures will be made."

In their dissents, Justices Daniel P. Ward and Seymour Simon pointed out errors they believe the high court made in ruling in favor of the cuts.

Although Ward agreed that the act is constitutional, he took issue with one section of DPA's emergency rules. Ward agreed with the plaintiffs that section 150.40, limiting payment of hospital bills to $500, does violate the concept of equal protection. He said that the high court "should not defer automatically to the classification decision by the legislative and executive branches but should require a showing that the governmental end or purpose under section 150.40 has a value so compelling as to justify this unequal treatment of injured and sick persons." Ward feels that other measures could have been taken to save state revenues.

Agreeing with Ward on this issue, Simon expanded the argument, saying that the high court's opinion relies on "the general rule" of the rational basis test. "That is all there is to the majority's analysis," Simon said. "There is no discussion of the facts, no speculation as to what might be the rational basis that defeats the plaintiffs' claim. Everything is left to the reader's imagination."

On a more practical note, Simon pointed out that excluding recipients from hospitalization may cost the state more in the long run. Assuming the resumption of medical benefits when the Emergency

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Budget Act expires June 30, the condition of those denied medical attention will have worsened, Simon said. "The hospitalization and medical treatment they will then require is likely to be even more extensive and expensive than if they were treated now."

Simon also disagreed with the high court's decision on the validity of the cuts. In his opinion, the act did not contain any provisions altering existing statutory programs. He said the court did not go far enough in its reliance on the Hill case. Simon pointed out that the justices had said in that case "that the legislature cannot permit the executive branch to decide which statutes shall remain effective and which may be disregarded."

Saying that the high court should uphold the intent of both the original appropriation bill and the Emergency Budget Act, Simon believes, "The majority opinion permits the Governor and his department heads to nullify programs virtually as they please under the banner of 'discretion,' regardless of legislative authorization and governed only by their own predilections."

Municipal utility tax upheld; consumer utility tax is not

CONSUMER UTILITY taxes are an unconstitutional use of home rule powers, the Illinois Supreme Court ruled February 8. In Waukegan Community School District, et al. v. The City of Waukegan, the high court combined the Waukegan case with a suit brought by Illinois Bell Telephone Company against the cities of Oak Park, Evanston and Rosemont.

In both cases, Illinois Bell and local units of government in Lake County challenged the imposition of consumer utility taxes by their respective municipalities. The Lake County local units also said Waukegan's 5 percent municipal utility tax was illegal, because it "impermissibly regulates and taxes their affairs." The high court upheld the municipal tax, which is legal under the Illinois Municipal Code.

In finding the consumer tax unconstitutional, Justice William G. Clark cited the high court's decision in the 1982 case, Commercial National Bank v. The City of Chicago, which dealt with the issue of occupation taxes. The consumer utility tax is an occupation tax, Clark said, and as such, cannot be imposed without legislative authority. "Magic words," which place the tax on consumers, do not change the object of the tax, he said. "The mere recitation in the ordinance that the tax is upon purchasers of service does not eliminate the evils the delegates to the [constitutional] convention sought to prevent," Clark said.

In upholding Waukegan's municipal utility tax, however, the high court said there was no merit to the plaintiffs' claim that the tax "impermissibly" regulates those public corporations. "As utility customers, the plaintiff local government units can claim no tax exemption, since they are not taxpayers," Clark said. The tax is on the utility, not on the customers, according to Clark.

All payments, some $15 million, collected under the various consumer utility taxes, are to be refunded to the customers of the utilities in Lake and Cook counties, the high court said.

Respect for life outweighs cost of supporting it

PARENTS may recover damages for a child born as the result of a so-called "wrongful birth" or failed sterilization, but not for the cost of raising it. The Illinois Supreme Court cited a respect for life in its February 18 decision in the consolidated cases, Donna Cockrum v. George Baumgartner and Edna Raja v. A. Tulsky. Both cases involved the birth of a healthy child after one of the parents had undergone a sterilization operation.

The high court cited numerous cases in other states which have considered "wrongful birth" or "wrongful pregnancy" action. The controversy arises over whether physicians can be sued for the costs of raising a healthy child.

The majority opinion, written by Justice Daniel P. Ward, pointed out that the cost of raising a child is offset by the benefits of the parent-child relationship. He said, "In a proper hierarchy of values, the benefit of life should not be outweighed by the expense of supporting it. Respect for life and the rights proceeding from it are at the heart of our legal system, and broader still, our civilization."

In his dissent, in which he was joined by Seymour Simon, William G. Clark said the court contradicted itself, saying that parents can recover for the pain of childbirth, time lost in having the child and the medical expenses incurred, but that the birth of a healthy child is not an injury.

Clark stated that it is not a question of whether all human life or parenthood is injurious, but that unplanned parenthood and an unwanted birth are cause for compensation. The couples had undergone voluntary sterilization to avoid unwanted pregnancy, Clark said. The procedures failed because of medical negligence. The high court's decision puts a "negative imprimatur"

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on a child's life, Clark said. He asked, "Does that child then become more wanted because this court has seen fit to deny foreseeable expenses in a case where a physician's negligence is undisputed?"

Death sentence upheld where issue was prosecutorial error

THE ILLINOIS Supreme Court added another name to the men waiting execution in the state. In its February 18 decision in People v. Girvies L. Davis, the high court upheld the death penalty of Davis, convicted for the 1978 murder of a St. Clair County man.

The high court turned back Davis' appeal, in which he claimed numerous prosecutorial errors during jury selection and the course of the trial. Davis claimed he was deprived of a fair and impartial jury because several potential black jurors were dismissed through peremptory challenge by the prosecution. The high court cited a 1965 U.S. Supreme Court case, in which the court said a prosecutor can eliminate blacks from the jury. "Only a systematic and purposeful exclusion of blacks from the jury 'in case after case' raises a question under the fourteenth amendment," the court said.

Writing for the majority, Justice Thomas J. Moran said the court will also stand by its decision in People v. Free to allow testimony regarding the family of a murder victim during the sentencing hearing (see "Judicial Rulings," April, page 35). Moran said that in light of Davis' "significant criminal history" the evidence was not significant in influencing the jury in its decision to vote for the death penalty. Davis had been convicted of two previous murders. He is set to die May 24, 1983.

In dissenting, Justice Seymour Simon agreed with the defense that errors in both the guilt and sentencing hearing should have resulted in a reversal and new trial for Davis. Simon repeated his dissent in the Free case, concerning admittance of testimony about the victim. "The only purpose this evidence could serve was as an emotional appeal to the jury," Simon said. He pointed out that the majority itself said that "comments and testimony regarding a deceased's family are generally improper."

Simon pointed to contradictions between Free and People v. Szabo, in which the court turned back the death penalty because of "inflammatory and prejudiced" remarks of the prosecution. "It is my respectful suggestion that there exists a dichotomy between these opinions calling for reconciliation by this court," Simon said.

Legal aid funding wins court approval

CHIEF JUSTICE Howard C. Ryan announced the Supreme Court's approval March 3 of an amended program to help finance free civil legal services for the poor.

In response to a joint petition by the Illinois State Bar Association (ISBA ) and the Chicago Bar Association (CBA), the state court has approved the program and its funding, which will be from interest earned on trust accounts containing nominal and short-term funds being held by attorneys for their clients. The Illinois Law Foundation, a new nonprofit corporation established by the ISBA and CBA, will receive the funds and will use them as grants to support legal aid for the poor throughout the state.

Federal budget cuts in the last two years have resulted in a one-third reduction in the number of legal aid lawyers and offices in Illinois at a time when increased numbers of people are eligible for free legal aid because of rising unemployment. The foundation will also use the interest money to provide loans for law students based on need and merit, to further the administration of justice and for other programs that may be approved by the Illinois Supreme Court.

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