Executive Report

5-year mental health plan
THE DEPARTMENT of Mental Health and Developmental Disabilities in June began distribution of the second draft of its five-year plan for mental health services, required by legislation enacted in 1974 (Ill. Rev. Stat., ch. 91 1/2, secs. 100-48 through 100-52). The plan covers the target population for the department's services, staffing needs, proposed capital development, and financial needs and projected expenditures. In addition to regional meetings, statewide meetings are to be held September 11 in Springfield, and September 17 in Chicago.

Governor's 'action offices' closed
FOLLOWING the failure of the legislature to fund the Governor's Action Office, Gov. Dan Walker on July 3 announced the closing of GAO community, offices in Alton, Chicago, Decatur, East St. Louis, Fairfield, Jacksonville, Marion, Quincy, Peoria, Rockford, Rock Island, and Sparta. The governor said these offices had handled approximately 70,000 inquiries on unemployment grants, public aid, tax returns, etc.

H.B. 2985, as originally introduced, would have appropriated $2,186,600 for the agency. Committee amendments reduced this by $432,955, but when the bill was called for passage June 4, it failed to receive sufficient votes. Legislative critics charged employees of the offices engaged in political activity. The offices had a staff of 102 according to the governor, plus 100 volunteers.

Natural gas shortage seen
FARMERS who expect to dry grain were warned on June 13 to have an alternate source of fuel by Robert J. Williams, state director of agriculture. Next year is going to be worse than this year as far as a shortage of natural gas goes, according to the gas companies, he said. He recommended installation of conversion units to propane or other fuels.

Lake shoreland
THE ILLINOIS Department of Transportation has received a $384,000 federal grant to develop a coastal management program for Lake Michigan's 59 miles of shoreland in this state.

 

Attorney General's Opinions

Meetings must be open
S-917 to Paul C. Komada, state's attorney,
Coles County, 6/30/75

Specifically, the attorney general said the Eastern Illinois University Intercollegiate Athletic Board is subject to the open meetings act (Ill. Rev. Stat. 1973, ch. 102) and a meeting to consider dropping three intercollegiate sports must be open to the public, and secret voting is prohibited.

Generally, the attorney general said all advisory committees and subcommittees of governmental bodies, supported in whole or part by tax revenue, are subject to the open meetings act, which prohibits closed meetings, except for certain purposes, and prohibits all secret ballots.

Board of Education terms
S-913 to Jack Witkowsky, chairman, State Board of Education, 6/17/75

Terms of members of the State Board of Education began on January 13, 1975, the date when that board assumed the powers of the Office of the Superintendent of Public Instruction. The beginning of a term is not computed from either the date of their appointment by the governor or from the date of their Senate confirmation.

No revolving fund
S-918 to Robert G. Cronson, auditor general, 6/20/75

The Illinois Building Authority is not authorized to maintain an imprest fund which is generally called a "revolving fund."

Contesting an election
S-919 to A. Randolph Comba, state's attorney, Bureau County, 6/20/75

A state's attorney may not represent the parties to a contested election nor can the county reimburse the challenged individuals for their legal expenses.

Duties of state's attorney
S-921 to Gerry L. Dondanville, state's attorney, Kane County, 6/20/75

"A state's attorney has three statutory clients: the people, the county board and the county officers." The state's attorney, believing a resolution he was requested to draft by the county board might lead to a lawsuit, refused to draft the resolution. The attorney general concurred that the state's attorney was not required to draft it. The attorney general noted "the appointment of a special state's attorney is in the discretion of the court."

California ballots
NP-895A to Jack Hoogasian, state's attorney, Lake County, 6/11/75

The California ballot form may not be used on a paper ballot, but the vertical listing form of the California ballot coincides with the Election Code (Ill. Rev. Stat. 1973, ch. 46, par. 24A-6) for ballots used in the electronic voting system.

Milk container size
S-923 to Robert J. Williams, director, Department of Agriculture, 6/20/75

The Illinois Department of Agriculture may not permit the sale of milk at retail in three-quart containers.

Purchase of stamps, license plates
S-930 to John J. Bowman, state's attorney, DuPage County, 6/24/75

The ordinary procedure whereby the county receives goods or services before it authorizes payment should be followed if at all possible. Only in those situations where it is necessary to simultaneously exchange county funds for goods and services, such as postage stamps and license plates, may the county board authorize the payment of county funds without first receiving a claim (Ill. Rev. Stat. 1973, ch. 34, par. 605). The DuPage County Board may set up a budgetary item for postage stamps and an item for license plates, and requests for county funds for these items must be submitted to the county auditor.

'Temporary employment agencies'
S-912 to Donald A. Johnson, director, Department of Labor, 6/11/75

The "division of private employment agencies of the Department of Labor has jurisdiction over so-called 'temporary employment agencies' for the purpose" of licensing employment agencies under the statutes (Ill. Rev. Slat. 1973, ch. 48, par. 197a et seq).

Strip-mining control by counties
S-914 to Russell T. Dawe, director, Department of Mines and Minerals, 6/19/75

The Department of Mines and Minerals may issue a permit to allow strip-mining without regard to local zoning ordinances, since the statutory requirements for the permit basically are that the company have a reclamation plan where it plans to stripmine. But, the permit may not necessarily enable the holder to engage in surface mining operations in disregard of a valid local zoning ordinance.

Superintendent not on board
S-915 to James M. Furman, executive director, Board of Higher Education, 6/20/75

The Illinois Board of Education, which has taken the place of the elected superintendent of public instruction, does not have the statutory authority to appoint the state superintendent of education to serve on the Board of Higher Education. The attorney general makes this conclusion by analyzing the construction of the statutes, some enacted prior to the new Constitution, which

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September 1975 / Illinois Issues / 283


Attorney General
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eliminated the elective office of superintendent and established a board of education to assume the duties of the superintendent.

In a related opinion (S-916 to Jack Witkowsky, chairman, State Board of Education, 6/20/75), the attorney general said, "I am of the opinion that the State Board of Education has not been granted the statutory power to succeed the Superintendent of Public Instruction as a member of the following boards, committees, commissions and councils, nor may the State Board of Education appoint a representative to these various governmental agencies."

The list includes: Commission on Children, Technical Advisory Committee on Aging, Dangerous Drugs Commission, Board of Trustees of the Teachers' Retirement System, Interagency Council on the Bikeways Program, Education Commission of the States, Illinois Educational Council, Illinois Community College Board, Adult and Continuing Educational Council, Advisory Board to the Division of Conservation Education, School Study and Survey Commission, Illinois Telecommunications Commission, Illinois Educational Development Board, Capitol City Planning Commission, Civil Defense Advisory Council, Board of Trustees of the University of Illinois, Board of Higher Education, Board of Regents, Board of Trustees of Southern Illinois University, Board of Governors of State Colleges and Universities.

The attorney general noted pending legislation that would name the state superintendent of education (who is appointed as the chief administrator for the Office of Education) as a member of the School Study and Survey Commission (H.B. 1107) and Board of Higher Education (H.B. 1554). 

 

Judicial Rulings

U.S. Supreme Court

Rights of confined mental patients
O'Connor v. Donaldson,
decided June 26, 1975

IN A UNANIMOUS opinion by Justice Stewart, the court held that it is unconstitutional for a state to confine, for the sake of confinement, "a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends." The decision prompted a statement by Dr. LeRoy P. Levitt, Illinois director of mental health and developmental disabilities, that the opinion would be "carefully studied," but that on the basis of preliminary reports, it appeared that the Illinois mental health department had been observing the spirit of the decision for at least three years.

The case involved Kenneth Donaldson, civilly committed to a Florida state hospital and kept in custody for 15 years. "The evidence at the trial showed that the hospital staff had the power to release a patient, not dangerous to himself or others, even if he remained mentally ill and had been lawfully committed. Despite many requests, [Dr. J. B.] O'Connor [the hospital superintendent] refused to allow that power to be exercised in Donaldson's case. At the trial, O'Connor indicated that he had believed that Donaldson would have been unable to make a 'successful adjustment outside the in stitution,' but could not recall the basis for that conclusion. O'Connor retired as superintendent shortly before this suit was filed [in federal district court]. A few months thereafter, and before the trial, Donaldson secured his release and a judicial restoration of competency, with the support of the hospital staff."

The jury returned a verdict for Donaldson against O'Connor and a codefendant and awarded damages of $38,500, including $10,000 in punitive damages. However, because the jury had not received an instruction having to do with whether O'Connor "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights" of Donaldson, the case was returned to the Court of Appeals for reconsideration of O'Connor's possible immunity as a state official. "For purposes of this question, an official has, of course, no duty to anticipate unforeseeable constitutional developments," the Supreme Court said.

The trial court had allowed an instruction to the jury that "a person who is involuntarily civilly committed to a mental institution does have a constitutional right to receive such treatment as will give him a realistic opportunity to be cured" and the Court of Appeals approved this, but the Supreme Court found there was no reason to decide whether this was the law. In addition, Chief Justice Burger, in a concurring opinion, said he saw no basis for "the theory that a State may lawfully confine an individual thought to need treatment and justify that deprivation of liberty solely by providing some treatment. Our concepts of due process would not tolerate such a 'tradeoff.' "

Approximately 2,600 patients have been involuntarily committed to the Illinois mental health agency, Dr. Levitt said. "All receive appropriate treatment and care and are reviewed periodically. To our knowledge, there are no patients being held against their will that are considered non-dangerous or able to care for themselves.

Price fixing by bar association
Goldfarb v. Virginia State Bar, decided June . 16, 1975

A MINIMUM fee schedule applicable to legal services and established by the state bar association violates the antitrust laws, the court held in an opinion by Chief Justice Burger. The service involved was a title examination. In so holding, the court set aside the finding of the Court of Appeals that the practice of law is a profession and not subject to the Sherman Act. "In the modern world it cannot be denied that the activities of lawyers play an important part in commercial intercourse, and that anticompetitive activities by lawyers may exert a restraint on commerce," the Supreme Court said.

In Illinois, the State Bar Association withdrew a minimum fee schedule in March 1973 and advised all local bar associations to do so, an ISBA spokesman said. He added that the former schedule was never mandatory.


Illinois Supreme Court

Effective date of pay raise bill
People ex rel. v. Walker,
decided June 30, 1975

THE COURT underscored a statutory provision on the effective date of legislation in ruling on a bill raising the pay of certain state employees (primarily, those under the governor). The legislature in 1974 had provided for a pay raise of $100 per month for these employees (H.B. 2851), to be effective September 1, 1974. But, the governor did not act on the bill until September 5 when he used his amendatory veto to reduce the increase to $50 per month. Not until December 4 did the legislature reject the governor's recommendations and override the veto, so that the bill became law (P.A. 78-1254).

The employees affected had received the $50 increase from September 1 through December 31 and then the $100 increase beginning January 1. Suit was brought for the added $50 per month for the last three months of 1974. The court allowed it only for the period from December 4 to December 31, holding that P.A. 78-1254 did not become effective until December 4 when the override was complete. The court cited the statutory provision as to effective dates of laws: "if the effective date provided in the terms of the bill is prior to the date the bill becomes a law then the date the bill becomes a law shall be the effective date" (Ill. Rev. Stat., ch. 131, sec. 22). The court intimated that it might have been possible for the legislature to make a pay increase bill retroactive, but it could not find evidence of legislative intent to do so.

The opinion let stand without comment the $50 per month increases prior to the effective date, December 4. In effect a" amendatory veto—eventually overturned by the legislature—was given the effect of during this interim period. ˛

284 / Illinois Issues / September 1975


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