Judicial Rulings Illinois Supreme Court

Probation for a misdemeanor stays on the record

PERSONS CONVICTED of misdemeanors and placed on probation cannot have their criminal records expunged, the Illinois Supreme Court ruled on March 23.

The ruling came in the case of Audrey Bushnell, who in 1961 was convicted of a misdemeanor for obtaining money under false pretenses. She was sentenced to one year probation and successfuly completed it. In 1981, Bushnell petitioned Cook County Circuit Court to enter an order vacating that judgment so she could have her criminal records expunged, and the court granted the order. The appellate court affirmed, saying that a section of the corrections code provided that discharge of probation may be in effect an act of dismissal which could properly lead to expungement.

But the Supreme Court overturned both lower courts, saying the section of law cited by the appellate court applied only to those people placed under court supervision, not those convicted and sentenced to probation. Justice Thomas J. Moran, writing for the court said: "Examination of the statutory provisions which provide for expungement of criminal records reveals that the legislature has not seen fit to allow expungement of a judgment of conviction where a sentence of probation is imposed. We accordingly hold that, absent appropriate legislation, a court is without jurisdiction to expunge a record revealing a judgment of Conviction." — Cynthia Peters

Township assessor cannot also serve on DuPage County Board

A PERSON cannot simultaneously serve as township assessor and county board member in DuPage County. The Illinois Supreme Court ruled that holding both offices creates a conflict of interest — at least in DuPage County, which the justices said was the only issue before them. In the March 23 ruling, the court refused to consider whether or not the two offices constituted conflict of interest in counties other than DuPage.

The case of People v. Swailes began in 1972 when Lester R. Swailes, already elected in 1960 as York Township assessor in DuPage County, was also elected to the DuPage County Board. At that time, Atty. Gen. William J. Scott issued an opinion saying there was no apparent conflict of interest in Swailes holding both offices. Since 1972, Swailes has simultaneously been elected to both offices.

But in 1981, the General Assembly passed a law that no person could simultaneously hold the offices of township assessor and county board member. In 1982, the law was amended to say that this practice is illegal only in counties with populations over 300,000, DuPage being one of those counties. When Swailes refused to resign, the DuPage County state's attorney filed suit in the circuit court, asking that Swailes be ousted. Swailes filed a countersuit, saying there was no conflict of interest and that the law passed by the General Assembly is unconstitutional because it improperly restricts qualifications for office beyond those already listed in the state Constitution. The trial court agreed and ruled that Swailes could hold both offices. The county appealed directly to the state Supreme Court which reversed the trial court's ruling.

Speaking for the high court, Justice William G. Clark said that in DuPage County, where the supervisor of assessments is elected by the county board, there is a possible conflict of interest. As county board member, Swailes would be able to participate in determining the appointment, salary and budget of the supervisor of assessments who, in turn, would have authority over Swailes in his job as township assessor.

— Cynthia Peters

Look-alike drug law passes constitutional test

THE STATE'S look-alike drug law (Section 404(b) of the Illinois Controlled Substances Act) does not violate due process nor is it unconstitutionally vague, the Illinois Supreme Court ruled March 23. The high court refused, however, to rule on a constitutional challenge to the law's sentencing provision because the defendant had not yet been found innocent or guilty and so no sentence had been imposed.

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Reversing the circuit court's ruling in the case, People v. Matkovick, the high court said the law meets the test established in People v. Bradley and People v. Calcaterra that a look-alike drug law is "reasonably designed" and "reasonably related" to the public safety and welfare. "We hold, therefore, that the statute is not void on the due process ground that it is not a proper exercise of the police power," wrote Justice Joseph H. Goldenhersh, speaking for the court. Goldenhersh also dismissed the argument that the law is unconstitutionally vague. He said: "The statute prohibits the distribution of a 'look-alike substance,' and the definition of a look-alike substance includes substances that are represented to be a controlled substance or are distributed under circumstances which would lead a reasonable person to believe that the substance is a controlled substance." This would clearly include the situation alleged in the police reports, Goldenhersh said. — Steven L. Ray, Margaret S. Knoepfle

Cumulative voting rights for stockholders

STOCKHOLDERS in businesses incorporated prior to July 1971 may waive their rights to vote cumulatively for corporate directors, if all stockholders agree to do so, the Illinois Supreme Court ruled March 23 in a 6-1 decision. The case, Roanoke Agency, Inc. v. Jim Edgar, Secretary of State, stemmed from changes in stockholders' voting rights made in the 1970 Constitution.

Under the 1870 Constitution, shareholders had cumulative voting rights like those Illinois voters enjoyed in general legislative elections until 1982. The rights could not be waived because they were seen to protect the public interest by enabling minority shareholders to gain representation on corporate boards in proportion to their numbers. By 1970, however, many businesses were incorporating outside of Illinois, apparently to avoid the cumulative voting requirements. Opponents said the constitutional guarantee was too rigid for corporations operating in large intercontinental and transcontinental markets and using modern methods of financing. It was, for instance, unconstitutional for a business incorporated in Illinois to raise capital by selling nonvoting shares of stock. In order to raise capital, the corporation had to reduce the control of its current stockholders by issuing a greater number of voting shares.

The 1970 Constitution eliminated the cumulative voting guarantee for new businesses incorporated after July 1971, but retained it for old businesses in section 8 of the Constitution's Transition Schedule. In 1981, the General Assembly amended corporate statutes to make cumulative voting rights optional in business incorporated after December 31, 1981, and to allow businesses incorporated before January 1, 1982, to limit or eliminate cumulative voting by a unanimous vote of their shareholders.

Shareholders in the Roanoke Agency, incorporated in 1963, had cumulative voting rights under the Transition Schedule. Under the 1981 law they unanimously approved Roanoke's plan to issue two classes of shares. Class A shares were to be nonvoting and Class B shares carried voting privileges, including cumulative voting for directors. All existing shares were to be exchanged for Class B shares so all existing shareholders would retain their rights. Secy. of State Jim Edgar objected, arguing that the statute violated Section 8 of the Transition Schedule.

Speaking for the majority, Justice Robert C. Underwood agreed with Roanoke that cumulative voting rights are subject to waiver under the 1981 statute because the 1970 Constitution and the 1981 statute dramatically changed state policy regarding such voting. He emphasized, however, that the Transition Schedule guarantees cumulative voting to all shareholders of corporations in existence prior to the adoption of the Constitution — regardless of when they purchased their shares — and that the waiver of this right must be by unanimous vote of the shareholders.

Underwood also noted that recent legislation (P.A. 83-1025, effective July 1) rewrites the law governing corporations to allow the limitation or elimination of cumulative voting by amendment to any existing corporation's articles of incorporation. "Such an amendment would not require unanimous approval if these provisions are valid," Underwood said. The validity of P.A. 83-1025 and of another recent law authorizing directors to fill vacancies on corporate boards was not an issue in the current case, according to Underwood.

Dissenting from the majority, Justice Seymour Simon said that the Constitution reflects no change in public policy with respect to corporations organized before July 1, 1970, and that the right to vote cumulatively for directors in those corporations remains "unwaivable."

— Margaret S. Knoepfle

High court affirms death penalty for Caballero

THE ILLINOIS Supreme Court affirmed in a March 23 ruling the murder convictions and the sentence of death of Juan Caballero, instructing execution by lethal injection to be carried out September 26. In the case, People v. Caballero, the defendant, along with fellow gang member Luis Ruiz, was convicted in a Cook County Circuit Court for the 1979 stabbing murders of three youths in Chicago. Ruiz was given the death penalty on the basis of accountability, and his sentence was upheld in the high court in December 1982. Caballero had admitted to killing one of the victims but argued that the trial court should have suppressed oral and written confessions he had made after the arrest because the confessions were involuntary and therefore inadmissable.

Citing People v. Braden, Caballero's attorney argued that when considering whether the trial court's verdict should be reversed, the court of review is limited to considering only the evidence introduced at the trial prior to the admission of the allegedly illegally obtained confession. The high court disagreed. Speaking for the majority, Chief Justice Howard C. Ryan said the rule in Braden is procedural and does not override an earlier decision in People v. La Bostrie, which holds that the reviewing court may consider trial evidence in determining whether a motion to supress evidence was correct. Even without the trial evidence, Ryan said, the testimony in the pretrial hearing was enough to deny the motion because the defendant's testimony that he was beaten was contradicted by other witnesses.

The defendant also argued that improper instructions were given to the jury by the trial judge concerning his accountability in killing the other two victims. But the high court held that Caballero was not prejudiced by the instructions. "The evidence all clearly shows that the defendant was an active, willing participant in all three of the murders," Ryan said.

The court also rejected arguments that excluding jurors who would not impose the death penalty violated Caballero's constitutional rights.

Before examining the arguments in the case, Ryan noted that the defendant had not filed a post-trial motion specifying the grounds upon which he was filing for reversal, a practice which Ryan said has been occurring in other criminal cases. This, he said, denies the trial court a chance to grant a new trial and allows the appellate counsel to "comb the record for every semblance of error," causing a burden for the courts of review. Ryan warned that failure to file a written motion specifying the grounds for a new trial within 30 days following the return of the verdict "constitutes a waiver of that issue and it cannot be urged as a grounds for reversal on review." In cases involving the death penalty where review by the Supreme Court is mandatory, the trial counsel still has an obligation to file a post trial motion, Ryan said.

Justice Seymour Simon dissented in this case, as he has done in other capital cases, on the grounds the death penalty is unconstitutional. He also disagreed with the majority that the defense counsel in a capital case is obligated to file a post-trial motion in the trial court. Such a procedure would reduce the chances that an erroneous death penalty decision will be reversed, Simon said. — Margaret S. Knoepfle, Steven L. Ray

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