Judicial Rulings

Board of Elections sent back to legislature and governor's removal powers restricted

IN A TRAIL-BLAZING case, the Illinois Supreme Court placed limitations on the governor's power to remove members of independent boards. The case involved the chairman of the State Board of Elections, and on the same day, in another case, the court held that the election board was unconstitutionally appointed and its statu- tory tie-breaking procedure was invalid.

In the first case, Lunding v. Walker, Board Chairman Franklin J. Lunding had been removed by Gov. Dan Walker for failure to file the financial disclosure statement required by Executive Order 4— 73 setting up the governor's board of ethics. This occurred in May 1975, and the Circuit Court of Cook County restrained the governor from implementing Lunding's removal. On September 26, 1975, the court held that Lunding could be removed (see Illinois Issues, Dec. 1975, p. 380) but the court later (November 21, 1975) granted a rehearing.

Follow federal decisions
As a result of the decision following the rehearing, the question of Lunding's remov- al can be reviewed by the courts. In reaching this conclusion, the Illinois court departs from a precedent in 1878, Wilcox v. People ex rel. Lipe and follows a line of recent federal decisions that restrict the removal powers of the president of the United States. "To subject a neutral, bipartisan, and independent board to the unbridled whim of the Governor under the Wilcox rule would destroy its purpose and its efficacy," the court said. Whether Lunding's removal for failure to file a financial disclosure statement "is sufficient 'neglect of duty' to justify the Governor's exercise of his removal power is a question which is properly reviewable by the courts." But that finding, the opinion indicated, must initially be made by the lower courts — in this case, by the Cook County Circuit Court which stopped Lund- ing's removal. Justices Underwood and Schaefer dissented in the case.

The court's decision in the second case, Walker v. State Board of Elections, upheld the Sangamon County Circuit Court's decision (see Illinois Issues, Dec. 1975, p. 380); however, to permit the board to function until the legislature can create a valid board, the effect of the court's judgment was stayed until March 15, 1977.

Two names for the board are submitted to the governor by each of the four legislative leaders; the governor must pick one of each pair. The court said that this constituted executive appointment by the legislature, which is forbidden by Article V, section 9(a) of the state Constitution. The court rejected the argument that the board was not an executive branch agency.

Tie-breaker invalid
When a tie vote of the four members of the board occurs, the name of one member is to be drawn by lot, and he is excluded from voting on the action that resulted in the tie. The court said this procedure caused decisions to be arrived at in an arbitrary manner, which would violate due process of law. In addition, the Constitution provides that no political party shall have a majority of the board (Article III, section 5), but the tie-breaking procedure gives a majority to one party and thus violates the state Constitution. Justice Underwood dissented as to the invalidity of the tie-breaking procedure, and Justice Schaefer took no part in the decision.


Other court rulings

Young mothers eligible for ADC
Judge Thomas R. McMillen of the Federal District Court in Chicago ruled on November 12 that the Illinois Department of Public Aid must grant full welfare benefits to needy mothers under 21. Under existing rules, such mothers who live with their parents are often not eligible for Aid to Dependent Children (ADC). The department said it would appeal the ruling, which reportedly would affect at least 10,000 welfare mothers and cost the state millions of dollars.

Legislator must repay salary advance
Former state Sen. Esther Saperstein (D., Chicago), who left the Senate in April 1975 to run for Chicago alderman (she was elected) after drawing a full year's salary in January, was ordered November 3 by Cook County Circuit Judge Arthur L. Dunne to return $11,897 to the state. This represents unearned salary for nine months of the year.


Illinois Supreme Court

Attorney general's role
A controversy involving representation of both the Department of General Services and the Illinois Commerce Commission by the attorney general was apparently resolved by the Supreme Court in an opinion November 15 by Justice Crebs, Scott v. Cadigan—Scon v. Friedman. The court permitted the attorney general to withdraw as counsel for the commission and to continue to represent, or appoint representatives, for the department in judicial proceedings involving a review of a commission order granting rate increases sought by Illinois Bell Telephone Company.

Curfew law upheld
The state law imposing a curfew on minors was upheld by the Supreme Court in an opinion by Justice Schaefer, People v. Chambers, decided November 15. The court reversed an earlier ruling by the Appellate Court for the Second District that the curfew law unconstitutionally restricted the rights of minors to move about and exercise their First Amendment rights. "The statute proceeds upon the basic assumption that when child is at home during the late night and early morning hours, it is protected from physical as well as moral dangers," the court said.

Equalization law valid
The transition period provided in Public Act 79- 703 to move toward a 33 1/3 per cent assessment equalization level among counties was upheld by the Supreme Court on November 15. "The three- year transition period ... is not, in our judgment, so patently unreasonable that it must be struck down," wrote Justice Underwood in Hamer v. Kirk.

Transporting untaxed cigarettes
The Supreme Court set new guidelines for the Department of Revenue to use in discouraging the movement of untaxed cigarettes into Illinois. The court set aside an injunction by lower courts forbidding enforcement of a "transporter" provision of the Cigarette Tax Act against individuals bringing untaxed cigarettes into the state for their own use and not for sale. The court said the legislature intended the term "tranporter" to have a general application rather than being limited to tobacco retailers or distributors. But the court suggested the department was remiss in not making transporter permit application forms readily available to individuals. Justice Underwood wrote the opinion on this case O'Leary v. Altphin, decided November 15.

Cook County board procedure
The Supreme Court upheld the validity of action by the Cook County Board of Commissisioners in adopting by majority vote a resolution setting aside a two-thirds vote requirement for appropriations in excess of $2,500 in an opinion by Justice Goldenhersh. The combined cases, Alien v. County of Cook—Hansen v. County of Cook, decided November 15, involved a disagreement between the ten board members from Chicago and the six members from county suburban areas. ˛


28 / January 1977 / Illinois Issues

|Home| |Back to Periodicals Available| |Table of Contents| |Back to Illinois Issues 1977| |Search IPO|