Gas tax constitutional

The Illinois Supreme Court rejected claims of unconstitutionality against the "Chicago Vehicle Fuel Tax" adopted by the Chicago City Council in February 1986. Separate suits brought by groups representing gasoline dealers were consolidated by the courts.

The court overruled the claim that the role of the city comptroller was an unconstitutional delegation of powers in determining the amounts of the tax and using it to provide an abatement of real estate taxes. The ordinance gives the comptroller no discretion to determine who should be taxed or receive abatements, nor to determine the amount or rate of taxation.

The court further found no merit in the argument that the tax is really one placed on an occupation and, therefore, an unconstitutional abuse of home-rule powers. The limitation on taxation of occupations applies to services rather than tangible objects, and debate at the constitutional convention specifically mentioned a fuel tax as an example of a permissible one.

Plaintiffs also claimed that the ordinance creates an impermissible double tax and one that falls upon a single subclass of purchasers. The court did not agree. It found "no constitutional restraint against more than one. . . excise tax where the total does not exceed reasonable taxation for the privilege enjoyed." It found that the plaintiffs had not made the necessary demonstration that the tax is an arbitrary classification.

The decision in Illinois Gasoline Dealers Association v. City of Chicago (119 Ill. 2d 391) was unanimous (Justice Seymour Simon not participating). Justice Howard C. Ryan wrote the opinion handed down January 25.

Church-run day care exempt from state licensing

The Illinois Supreme Court found constitutional the statute exempting from regulation certain day care centers run by religious institutions. Action had been brought against the Department of Child and Family Services (DCFS) by the Pre-School Owners Association of Illinois and others.

Under the Child Care Act of 1969 (see Ill. Rev. Stat. 1985. ch. 23. sees. 2211-2230) DCFS licenses child care facilities and issues rules regulating them. The act exempts nine classes of operation, among them day care centers run by religious institutions, but only if the latter meet six conditions.

The court rejected the claim that the act violated equal protection clauses of the federal and state constitutions because "the act does not simply exempt sectarian programs while regulating other similar ones. Rather, school-affiliated programs of a variety of descriptions enjoy the particular exemption." Similarly the act was found not to violate constitutional provisions prohibiting granting preferences to one group over another since "the sectarian day care centers. . . are not the sole or exclusive beneficiaries of the provision."

The plaintiffs also challenged 18 departmental regulations as being vague. The group regulating personnel criteria was found to be permissively broad since it paralleled standards for licensing in other fields. For the rest the court simply disagreed with the plaintiff's opinion, saying, "Most persons who have bought a child a toy or. . . supervised children in their games and other activities would. . . find sufficient guidance in the challenged regulations." The court pointed out that one regulation provides for help from DCFS in interpreting any regulations.

Justice Ben Miller wrote the opinion, handed down January 19, in Pre-School Owners Association of Illinois et al v. The Department of Child and Family Services (119 Ill. 2d 268). Justice Joseph F. Cunningham did not participate.

Questioning experts on their 'careers' as court experts

Reversing its position on three cases in the first decade of this century, the Illinois Supreme Court ruled that expert witnesses may be questioned about the frequency with which they give testimony and the income derived.

At issue was a medical malpractice case. The defendant's questions elicited the information that 80 percent of the witness' activity was in acting as an expert in lawsuits, largely for plaintiffs. He was also asked about his income for the preceding two years. He revealed that he is a member of a for-profit organization that specializes in such work obtained through attorneys.

The jury found for the defendant. The plaintiff's appeal claimed that such questioning was impermissible.

The high court pointed out that the increasing latitude given expert witnesses has made cross-examination more difficult. There are services "which. . . can help the litigants of either side of most any case find an expert who will help advocate the desired position." These are "not only experts in their field but also experts in the art of being a persuasive witness and in the art of handling cross-examination."

Since some specialize in testimony for plaintiffs and others for defendants, the court took the position that attorneys must now have "the opportunity to probe bias, partisanship or financial interest."

Justice Joseph F. Cunningham's opinion was handed down January 19. Justice Howard C. Ryan took no part. Trower v. Jones (Docket No. 64721).

Custody of child does not grant right to leave state

When a parent has sole custody of a child but the other parent has visitation rights, the custodial parent must show adequate reasons to move the child out of state, according to Illinois Supreme Court. The Marriage an Dissolution of Marriage Act says, "The burden of proving that such removal is in the best interests of such child or children is on the party seeking the removal." (See Ill. Rev. Stat. ch. 40. sec. 609). The language was added to the act in 1982 to clarify a situation that had been treated unevenly in case law.

While the child's welfare is paramount, interests of both parents and other siblings must be weighed. The court described seven factors to be considered by circuit courts in deciding on a case-by-case basis. Justice Howard Ryan's opinion in In re Marriage of Eckert (119 Ill. 2d 316) was handed down January 19. Justice Seymour Simon did not participate.

Only one refiling

In its first ruling on the matter the Illinois Supreme Court has said that plaintiffs in civil suits may not use multiple dismissals and refilings. The decision is in line with others by appellate courts, federal courts and courts in other states.

Under the Code of Civil Procedure suits dismissed voluntarily or for lack of prosecution can be refiled within a year even if the original statute of limitations has expired (see Ill. Rev. Stat. 1983. ch. 110. sec. 13-217). The process cannot be repeated, according to the present decision. Justice Joseph F. Cunningham's opinion said that "the provision was intended to serve as an aid to the diligent, not a refuge for the negligent." The decision in the consolidated cases Gendek v. Jehangir and Sylvester v. Steinberg (119 Ill. 2d 338) was handed down January 19.

F. Mark Siebert

April 1988 | Illinois Issues | 28