Referenda not laws: Can change election method but not number on county boards

Referenda may be used to change the "method of electing" members of a county board, but they may not be used to change the number of members, according to a decision handed down by the Illinois Supreme Court on December 30. In the case, League of Women Voters of Peoria et al. v. The County of Peoria et al. (Docket No. 65525), this "method" involved a change from three-member to single-member districts.

In 1981 the Peoria County Board adopted a resolution dividing the county into nine districts, each of which elected three members to the board. In 1986 the League of Women Voters of Peoria (LWVP) filed a petition for a referendum to change to single-member districts and to reduce the membership of the county board to nine. Voters approved the measure by nearly three to one. When the county failed to take the necessary steps to make the change LWVP moved to obtain a writ of mandamus, which the circuit court dismissed.

Since the defendants conceded that Article VII of the Illinois Constitution permits the use of a referendum to change from three-member to single-member districts, the decision centered on the reduction in board size via referendum.

Section 3(a) of Article VII says, "The number of members of the county board shall be fixed by ordinance in each county within limitations provided by law." The high court interpreted this to mean that "the number of county board members is determined by the county board and not by referendum," and that "law" as used in the Constitution means "within limits fixed by the General Assembly" and does not include referendum. It held, further, that the number of members "is independent of the method of election," and supported this view by citing debates at the constitutional convention.

The permissible change to one-member districts was invalidated because it "is impossible to determine whether the paramount concern of the voters was the size of the board or its method of election," according to the opinion written by Justice Thomas J. Moran.

Justice Seymour Simon wrote a dissenting opinion in which Chief Justice William G. Clark joined. He disagreed with the majority on the question, not previously addressed in Illinois, whether a referendum may be considered a "law," citing the phrase in section 6(f) of Article VII that speaks of matters "approved by referendum or. . . otherwise authorized by law," and said that "the word 'otherwise' indicates that a referendum is one of the ways of authorizing some action by law."

Simon also said that the explanation of Article VII presented to the voters at the time of ratification of the Constitution clearly included the possibility of changing the number of board members. It spoke of changing the "form" of county government, which, according to Simon, is a broad concept including a possible change in number. He pointed out previous positions of the court that the intent of the ratifying voters takes precedence over selective citation from debates at the constitutional convention.

Changing the law in middle of case

Retroactive application of "curative" legislation was approved by a decision of the Illinois Supreme Court handed down December 21 in a case involving termination of parental rights, In re Pronger (118 Ill. 2d 512).

After a protracted series of hearings between April 1983 and May 1985 in Champaign County circuit court the state petitioned to terminate a mother's parental rights. Up till then the infant had been represented by a court-appointed guardian ad litem but had not been personally served with summons as required by provisions of the Juvenile Court Act then in effect (see Ill. Rev. Stat. 1983, ch. 37, sec. 704-3). Summons was served for the termination hearing. The appellate court reversed the circuit court's termination, sustaining the mother's allegation, first made in her appeal, that the failure to serve the child earlier meant that the circuit court lacked jurisdiction.

The high court sustained the circuit court partly because of subsequent legislative modification of section 704-3, effective January 1987, requiring service on a child's legal guardian or custodian. Justice Howard C. Ryan's opinion said that "the amendment to section 704-3 should be considered in the nature of curative legislation, validating the service of process on a minor where the service of process conformed to the provisions of the amendment. . . ."

In a special concurrence Justice Seymour Simon found a different basis for the court's decision, but expressed concern over it's reasoning: "We are venturing into uncharted areas by deciding that the legislature is authorized, in the name of curative legislation, to affect the outcome of a judicial action pending prior to the enactment by approving procedures followed prior to the enactment."

The cases of 13- or 14- year olds charged with multiple murders

Juveniles aged 13 or 14 and charged will multiple murders may be tried as adults but only under carefully controlled circumstances, according to a decision by the Illinois Supren Court handed down December 30. The court overturned the conviction of a 14-year-old defendant.

Under the Juvenile Court Act (see Ill. Rev Stat. 1983, ch. 37, sec. 701-1 et seq.) children under 12 accused of multiple murder are tried in juvenile court, while those over 15 are automatically tried as adults in criminal court. For 13- and 14-year-olds section 2-73(3) of the act provides for transfer to criminal court at the discretion of the juvenile court judge, who must conduct a careful hearing balancing "the best interest of the minor and the security of the public." In juvenile court, those convicted of the offense can remain under jurisdiction of juvenile authorities until age 21; in the latter case conviction automatically carries a sentence of imprisonment for duration of natural life.

In this case the high court found in the statute six factors that the the judge must consider and said, further, that "there must be sufficient evidence on the record as to each statutory factor to support the transfer order."

In general the court found the transfer hearing deficient on all six factors and especially lax in failing to observe that trial as an adult would carry the mandatory life sentence. Justice Ben Miller concurred on the latter point but disagreed with the findings on the other points as a matter of interpretation of fact. Justice Thomas J. Moran wrote the opinion in People v. Clark (119 Ill. 2d 1); Justice Joseph E Cunningham did not participate.

Child abduction by parent

A parent who does not have custody of children and moves them to another state is still subject to prosecution in Illinois under the state's statutes covering child abduction (see Ill. Rev. Stat., 1984 Supp. ch. 38, sec. 10-5(b)(l)] The Illinois Supreme Court issued its decision December 21 in the case of a father who had kept his children in Ohio in defiance of an Illinois circuit court order granting sole custody to the mother. According to the statute, abduction occurs when a parent "intentionally violates any terms of a valid court order granting sole or joint custody to another by concealing or detaining the child or removing the child from the jurisdiction of the court." People v. Caruso (Docket No. 65048).

F. Mark Siebert

March 1988 | Illinois Issues | 30