| Judicial Rulings | CLICK FOR Book Review - BY CHARLES . MINERT |
U.S. Court of Appeals, 7th Circuit
United States v. Robert Craig, Thomas J.
Hanahan, and Louis A. Markert, decided
January 5, 1976 STATE LEGISLATORS "are entitled to a
federal common law speech or debate
privilege applicable in federal criminal
prosecutions," the court held in an opinion
by Judge Walter J. Cummings, but if a
legislator appears before a grand jury and
chooses to testify, he waives the privilege.
Judge Philip W. Tone in a separate issue
disagreed with the ruling that state legislators possess the privilege. Craig, Hanahan and Markert in December 1974 were indicted on two charges of
political corruption. Count one alleged they
extorted $ 1,500 from members of the Illinois
Car and Truck Renting and Leasing Association, inducing payments "under color of
official right" in violation of the federal
Hobbs Act. Count two charged they engaged in a scheme to defraud the citizens of
Illinois of their "loyal, faithful and honest
services in their official positions" and "of
their right to have the legislative business of
the State of Illinois conducted honestly" by
accepting $1,500 to block passage of a
certain bill in violation of the federal Mail
Fraud Statute. During the investigation, Markert consented to interviews with postal inspectors
and an assistant U.S. attorney, and he also
testified under subpoena before a grand jury; he declined to invoke his privilege against
self-incrimination. But subsequently he
sought to avail himself of a state legislator's
privilege not having to testify. The district
court granted his motion to suppress
portions of his grand jury testimony and
parts of the interviews with federal officials; the court held that he was accorded a
privilege that he could not waive by the
speech and debate clause of the Illinois
Constitution ("A member of the [General
Assembly] shall not be held to answer before
any other tribunal for any speech or debate,
written or oral, in either house" Art. IV,
sec.12). The appeals court opinion that there is
such a privilege was based on the Federal Rules of Evidence references to the "principles of the common law as they may be interpreted by the courts of the United States
in the light of reason and experience." The
opinion traced the history of the speech and
debate clause from its British origins.
"Deterring a legislator from advancing a
point of view, or influencing how he votes by
requiring him to explain his motives before a
grand jury is precisely the evil the speech or
debate privilege intends to prevent." The court also said, "Admittedly, legislators may abuse their freedom of debate
and discussion. But the common law history
of the privilege in England and the United
States teaches emphatically that it is better
to tolerate the potential abuses than to risk
the harm to our system of government that
would result from inhibiting a legislator's
discharge of the responsibility conferred
upon him by the electorate." But in Markert's case, he did testify.
"When he appeared before the grand jury, he
gave potentially damaging testimony rather
than relying on his privilege against self-incrimination, of which he had been informed," the court said. "Because he made a conscious choice to testify, he waived the
instant privilege. Although subpoenaed
before the grand jury, Markert was not
compelled to testify in violation of any of his
rights.... Because he was a state legislator,
knowledgeable in the workings of the
Government and represented by competent
counsel, his election to testify waived his
Speech and Debate clause privilege." The opinion was reached by a three-judge
panel, with Judge Robert L. Kunzig of the
U. S. Court of Claims concurring with
Cummings. Judge Tone concurred as to the
result the admission of Markert's evidence, but held that a "state legislator's
official immunity does not extend to liability
under federal criminal statutes, and that he
therefore has no commensurate official
privilege against disclosure." Markert is a former legislator from
Mount Sterling; Craig of Danville and
Hanahan of McHenry continue to serve in
the Illinois House. The case now returns to
the district court for trial.
By CHARLES L. MINERT
A research associate for the Illinois
Legislative Council, Springfield, he holds
degrees in political science bachelor's
from Park College, Kansas City, Missouri,
and master's from the University of Illinois,
Chicago Circle Campus.
Cook County's many special districts
Donald Foster Stetzer, Special Districts in Cook County: Toward a Geography of Local Government. Chicago, Illinois: University of Chicago, Department of Geography Research Paper No. 169, 1975, pp. 163. $5.00 ILLINOIS is well known for its crowded
governmental landscape. In 1972, it was
estimated that Illinois contained approximately 6,278 governmental units. Included
in this total were 102 counties, 1,267
municipalities, 1,432 townships, 1,177
school districts and about 2,300 special
districts. It is small wonder that anyone
wishing to understand Illinois local government can become overwhelmed by the sheer
bulk of it. With this fact in mind, Donald; Stetzer decided to examine a small piece of
the landscape the 196 special districts in
Cook County. Designated by statute to perform a single
function, these governmental units beg for
further analysis. However, if one is seeking a
political expose in the style of Royko's Boss
or Rakove's Don't Make No Waves Don't
Back No Losers, it will not be found here,
Instead, Stetzer, a geography professor at
the University of Wisconsin, Stevens Point,
provides us with a road map through the
maze of special districts in Cook County.
Stetzer develops his geographical theme
by categorizing the special districts according to the territory they serve. "Area-wide
districts" (Forest Preserve District of Cook
County, Metropolitan Sanitary District of
Greater Chicago) serve several townships,
while "municipal districts" (park, library,
mass transit) serve one or more adjoining
municipalities. "Urban fringe districts" (fire
protection, sanitation collection) serve those
areas where the demands for municipal type
services exceed the ability of municipalities
or townships to provide them. Not content with geographical placement,
Stetzer also examines the historical factors
and the financial, constitutional and political constraints which led to the proliferation
of special districts in Cook County. The
result of his efforts is a very useful resource
book which the League of Women Voters,
community action groups, taxpayer organizations and other interested citizens can use to orient themselves on the Cook County governmental landscape. 28 / March 1976 / Illinois Issues