Judicial Rulings

Illinois Supreme Court

Attorney general vindicated

THE ATTORNEY GENERAL is the only state officer authorized by the Illinois Constitution to institute and prosecute cases before the Pollution Control Board, the Illinois Supreme Court decided in People ex rel. Scott v. Briceland, handed down Decembers. The opinion, written by Justice Ryan, affirmed a judgment of the Sangamon County Circuit Court, and held unconstitutional a section of the Environmental Protection Act authorizing the Environmental Protection Agency (EPA) to prosecute actions before the board.

The question was one which was explored earlier in Illinois Issues (Rubin G. Cohn, "Attorney General and Governor fight over control of lawyers employed by executive agencies," Jan. 1975, p. 9ff) and the opinion .cited the article by Cohn, who is professor of law at the University of Illinois. The court relied heavily on Constitutional Convention debates in deciding that there was no intent to change the interpretation of the attorney general's broad powers as "the only officer empowered to represent the State in any suit or proceeding in which the State is the real party in interest."

The attorney general, who had instituted the case against EPA, had also sought to hold Richard H. Briceland, EPA director, and Jeffrey R. Diver, deputy director, "personally liable for all litigation costs and expenses expended by the EPA for the prosecution of enforcement cases before the Board." This the court refused. "It is well established that a public officer is immune from individual liability for the performance of discretionary duties undertaken in good faith .... The defendants cannot be held liable for such an exercise of discretion which was made in their official capacities." The court also said the EPA and its officers were entitled to counsel other than the attorney general in this case testing EPA's legal representation authority.

The attorney general also figured in another case, Fuchs v. Bid-will, decided on Decembers. Fuchs and Businessmen for the Public Interest had sought to recover from legislators profits which they allegedly made from the purchase and resale of race track stock made available to them in return for influencing passage of legislation favorable to racing. The court, in an opinion by Justice Goldenhersh, held that only the attorney general had authority to bring a suit of this kind and "the public interest will not be served in permitting persons, without limitation, to institute actions of this nature against public officials when the Attorney General has declined to act." In dismissing the case, the court affirmed the original holding of the Sangamon County Circuit Court and reversed the Appellate Court.

Justice Schaefer was joined by two other justices, Kluczynski and Crebs, in dissenting, saying "in our opinion the public interest clearly requires that the merits of this claim be decided. Instead, the majority avoids that important decision by giving the Attorney General the exclusive right to bring this action — a right which he has not claimed and does not want." The case involved sale of stock by Marjorie Lindheimer Everett, who was also involved in the distribution of stock to the late Gov. Otto Kerner in a case in which Kerner was convicted. The stock was sold at $1 per share to the legislators, it was charged, and repurchased at prices ranging from $3 to $7 per share. The suit alleged that their profits ranged from $6,000 to $294,000.

The influence is 'evil'
The conviction of a DuPage County board member of violation of the Corrupt Practices Act was upheld by the Supreme Court in an opinion by Justice Kluczynski handed down December 3 on the case, People v. Savaiano. Patrick Savaiano, in his ex officio capacity as a forest preserve commissioner, served as chairman of the finance committee of the forest preserve commissioners. During that time, his committee recommended purchase of two tracts of land of which Savaiano was a secret part-owner. But, Savaiano disposed of his interest before the commissioners authorized the purchase of the tracts which were subsequently subject to a condemnation proceeding during which Savaiano's interest was discovered.

The Corrupt Practices Act makes it a class 4 felony for certain public officials, including county board members, to be directly or indirectly interested "in any contract or the performance of any work in the making or letting of which such officer may be called upon to act or vote." Savaiano argued that he did not own the property at the time the contract was let. The court said this was too narrow an interpretation of the act. "It not only forbids an official from having a private interest in situations in which a binding


February 1977 / Illinois Issues / 27



contract exists but also from allowing himself to be placed in a situation where he may be called upon to act or vote in the making of a contract in which he has an interest. The evil exists because the official is able to influence the process of forming a contract."

Inheritance fee invalid
A four per cent fee which the inheritance tax law says counties may retain for collecting the tax was held unconstitutional by the Supreme Court on December 3 in Goldstein v. Rosewell, written by Justice Ryan. The act violates Article VII, section 9 (a) of the 1970 Constitution which provides, "Fees shall not be based upon funds disbursed or collected, nor upon the levy of extension of taxes."

The decision affirmed an opinion by the attorney general which he gave in 1971 after the new Constitution became effective. All but eight counties (Clinton, Cook, Hancock, Jersey, Lake, Madison, McLean and St. Clair) have followed the legal opinion. Now these eight will have to turn over to the state almost $10 million they have been holding back, ranging from $19 from Jersey County to more than $8,000,000 from Cook.

Chicago penalty must be paid
Public schools which do not operate 176 days per year are penalized, under state law, 1 /176th of their state aid allowances for each day under 176 that they do not operate. When this penalty was applied to the Chicago schools for operating only 162 days in 1975-76, the state applied the penalty, but the Chicago board of education went to court and sought to have the penalty provision invalidated. This the Supreme Court refused to do in Cronin v. Lindberg, decided December 3, reversing a decision by the Cook County Circuit Court. The high court's opinion by Justice Underwood, said this was not actually a penalty but "simply the recovery of State aid which was paid in advance but which the Chicago Board was not entitled to as a result of its failure to comply with the requirements for eligibility as set forth in the School Code."

The court also upheld the action of Joseph M. Cronin, state education superintendent, in spreading the recovery over a three-year period by withholding portions of subsequent state grants.

Initiative restricted
The court's reasoning for its action on August 31 which kept the three so-called "political honesty" proposed constitutional amendments off the November ballot was given in an opinion filed December 3 in the case of Coalition for Political Honesty v. State Board of Elections — Gertz v. State Board of Elections.

The Coalition had filed initiative petitions seeking to submit to the voters three amendments to the legislative article. Proposal 1 would forbid legislators from accepting compensation from any other governmental entity during term of office; Proposal 2 would preclude legislators from voting on a bill in which the member has a conflict of interest, and Proposal 3 would forbid advance salary payments to legislators. A group of former Constitutional Convention delegates and a convention staff member contended the amendments were outside of the scope of Article XIV, section 3 of the Constitution which permits initiative amendments to the legislative article only if they are "limited to structural and procedural subjects." They sought to have the proposals barred from the ballot. The Coalition, on the other hand, sought to compel the State Board of Elections to submit the amendments to the voters.

The court's decision held that the constitutional language required amendments under this provision to be concerned with both structural and procedural matters and held that none of them met this test. The opinion quoted at length from the convention proceedings and maintained that the delegates were thinking primarily of amendments which might do away with cumulative voting for representatives or a bicameral legislature.

Justice Schaefer dissented. He argued that, as used in the Constitution, the work "and" is intended to indicate alternatives. The majority opinion wa.s per curiam -- by the court, not by an individual justice. ž


Supreme Court in brief

Content of appropriations bills
Because the Constitution says that "Appropriation bills shall be limited to the subject of appropriations," (Art. IV, sec. 8(d)) a provision in Public Act 79—1267, making an appropriation to the Department of Labor, is invalid in providing that an unemployment insurance service office may not be located within 500 feet of a school in Chicago. Benjamin v. Devon Bank, decided December 3 (Justice Kluczynski).

Department of Corrections procedures
The juvenile division of the circuit court "cannot under the guise of an injunction attempt to establish procedures and guidelines for the Department of Corrections for which it [the court] has no authority under the Juvenile Court Act." In re Willie Washington, decided December 3 (Justice Kluczynski).

Disposition of traffic fines
Where traffic violators were arrested within a city and charged by city police who appeared in court when required, the city — not the county-- is entitled to the fines, even though the state's attorney may appear in court. City of Decatur v. Curry, decided December 3 (Justice Goldenhersh).

Sale of submerged land
The state is trustee for the people in the case of submerged lands in Lake Michigan. A 1963 act providing for conveyance of 194.6 acres of submerged land to the United States Steel Corporation for $19,460 to construct an addition to its South Works serves a private instead of a public purpose and is not valid under the public trust doctrine. People ex rel. Scott v. Chicago Park District (United States Steel Corporation), decided December 3 (Chief Justice Ward). Dissent by Justice Underwood, joined by Ryan and Crebs, arguing that the question had already been settled in an earlier case, Droste v. Kerner, and should not be reopened.

Capital stock tax
A variation in the formula to assess capital stock taxes on insurance companies which alters the treatment of exempt assets (U.S. bonds and national bank stock) does not conform to the provisions of the Revenue Act and is invalid. The variation was developed by the Department of Local Government Affairs for the apparent purpose of increasing the assessments. Federal Life Insurance Company v. Department of Local Government Affairs, decided Dec. 3 (Chief Justice Ward). ž



U.S. Supreme Court

Legislators without privilege

STATE LEGISLATIVE DEBATE lost its privileged status in federal criminal cases when the United States Supreme Court on December 6 let stand a ruling of the federal Court of Appeals, 7th Circuit (Chicago), in a case involving Illinois legislators.

The case, U.S. v. Craig et al. 537 Fed 2nd 95, decided in July 1976, held that federal rules of evidence did not afford any grounds for privilege despite a provision 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). This means that the votes and speeches of legislators can be used as evidence against them. The historical basis of the privilege was the need to protect members of the British parliament against harrassment by the sovereign.

The federal district court had originally upheld the privilege. This was reversed by the Court of Appeals in two separate opinions. In the first, a defendant was held to have lost his privilege by testifying before a grand jury on his actions as a legislator. In the second, the ruling was broadened to rule out the privilege.

The defendants were former Reps. Robert Craig (D., Danville); Louis A. Markert(D., Mount Sterling) and Rep. Thomas J. Hanahan (D., McHenry). They were charged with political corruption in seeking to block passage of legislation. Craig served in the 79th General Assembly but was unseated after conviction in another federal case (see "Cement Bribery Trial," Dec. 1976, p. 6ff). ž


28 / February 1977 / Illinois Issues


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