Judicial Rulings

Governor's race is over: Supreme Court rules against recount

ON January 7, the gubernatorial election was finally over. The Supreme Court had said no to Adlai E. Stevenson III and his request for a recount of votes cast in the November 2 election, which he lost to Gov. James R. Thompson.

In a majority opinion issued three weeks after the high court heard arguments in the case, Chief Justice Howard Ryan said that Stevenson's petition did not show enough cause for a statewide recount of the ballots. Concurring with Ryan, a Republican, were Justices Robert Underwood and Thomas Moran, also Republicans, and Seymour Simon, a Democrat.

The three dissenting justices, all Democrats, Daniel Ward, William Clark and Joseph Goldenhersh, argued that while a recount may not have changed the results, "it will always be uncertain what was the will of the people in the gubernatorial election of 1982."

The high court also ruled that part of the 1977 statute which covers election contest procedures is unconstitutional because it establishes a three-judge panel. Citing a 1975 Illinois case, Rice v. Cunningham, Ryan said, "The General Assembly did not have the authority to provide that a case be heard by a three-judge panel. . . .The court also held that the 1970 Constitution confers no authority in the legislature to create new courts."

Thompson defeated Stevenson by only 5,074 votes out of 3.6 million cast. The Illinois State Board of Elections certified him the winner on November 22. Disputing the results, Stevenson conducted a discovery recount of some 500,000 ballots in 70 counties in an attempt to prove that a total recount was warranted.

Stevenson filed a petition requesting a total recount with the high court on December 8; Thompson filed a motion to dismiss Stevenson's petition December 10; and the court agreed to hear oral arguments December 21. In its January 7 opinion, the high court was actually ruling on Thompson's motion to dismiss Stevenson's petition, to which Stevenson had filed an objection.

The majority of justices determined that Stevenson's recount showed a net decrease in Thompson's votes of 2,651, which would not be enough to overcome Thompson's plurality of 5,074 votes.

The majority also agreed that a statewide recount would be "time consuming," "disruptive" and "expensive." "The State of Illinois should not be forced to endure these consequences on the mere suspicion of defeated candidates or on their belief or hope that an election contest would change the results," Ryan said.

In their dissent, Ward, Clark and Goldenhersh contended that Stevenson was not given an opportunity to argue the question of the unconstitutionality of the statute. They also held that Stevenson's petition met the requirements of the statute, but because the majority declared it unconstitutional, "the petitioners are in rather incredible and certainly unenviable position of having the majority critically dissect their petition and declare it void without the petitioners having any opportunity to show that the majority is in error."

In disputing the majority opinion, the three justices said, "It appears that Mr. Stevenson and Ms. Stern [his running mate] have no means under the Constitution to contest the results of the election. This would result in a blatant denial of due process."

— Nora Newman Jurgens

Murder conviction and death sentence overturned

THE STATE'S high court has overturned a murder conviction and a death sentence on the grounds that the defense attorney may have been ineffective. Justices had upheld the conviction and sentence in April, but in October they had disbarred the defense attorney. They said evidence in the attorney's disciplinary case, over misconduct in a civil matter, forced them to rehear the defendant's appeal of the conviction and murder.

The Illinois Supreme Court ordered a new trial "in the interests of justice" when it handed down its decision November 18 after rehearing People v. Dennis Williams. Justice Robert C. Underwood said Williams was tried under "unique circumstances and sequence of events. . .which will rarely, if ever, be duplicated." Williams was one of four defendants in three cases heard by two juries in one trial; all the cases stemmed from the same crimes. Williams' attorney, Archie Weston, also defended two of the other three defendants in both of the other two cases. The double jury trial occurred at the same time attorney Weston was under investigation for misconduct in the civil matter.

It is unclear what effect, if any, the high court's reversal in Williams will have on the other cases, People v. Willie Rainge and Kenneth Adams, and People v. Gray, since

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Weston was also Rainge's and Gray's attorney. Williams, however, was the only defendant to receive the death sentence and he appealed directly to the high court. Rainge, Adams and Gray received long prison sentences and their appeals were upheld in the lower courts, although a petition by Rainge and Adams to rehear their appeal is still pending in the First District Appellate Court.

The three cases stemmed from the kidnapping and murder of Larry Lionberg and his fiancee, Carol Schmal, and the rape of Schmal, in the Spring of 1978 in suburban Cook County.       —DianeRoss

Sovereign immunity doctrine 'anachronistic'

ONLY the legislature can correct the inequity of remedy "inherent" in the doctrine of sovereign immunity, which allows the state to sue private firms, but does not allow private firms to sue the state, except in the state's own Court of Claims.

Thus spoke the Illinois Supreme Court in its November 18 decision in S.J. Groves & Sons Company v. The State of Illinois. The case stemmed from a contract for highway construction work, which Groves charged the Illinois Department of Transportation had broken. The Peoria County Circuit Court dismissed the case; the Third District Appellate Court accepted the case; the high court dismissed the case.

The high court obviously agreed with Groves that the remedies inherent in the doctrine of sovereign immunity are inequitable. Justice William G. Clark repeatedly praised Groves' attorneys for what he called "persuasive" arguments. "We agree. . . that a State government should be required to observe the same rules of conduct that it requires of its citizens," Clark said. "[W]e acknowledge that there is no longer a King and agree that all of us, including the State, who enter into contracts, should have an independent forum stand in judgment of contractual obligations. . . ."

But the high court was forced to decide against Groves: "If the inequities inherent in the doctrine of sovereign immunity are to be remedied, it is for the legislature and not this court to act," Clark said.

The justices noted that Article 13, Section 4 of the Constitution abolished sovereign immunity in Illinois, which Clark called "an anachronistic doctrine." But justices reminded Groves that the Constitution still gave the legislature the power to set the policy for settling disputes between the state and private firms. That policy, embodied in the 1972 Court of Claims Act (P.A. 77-1776) allows the state to sue private firms in circuit court, but does not allow private firms to sue the state in circuit court; private firms must take their cases against the state to the Court of Claims.

Groves had argued that the state, in letting contracts, implies its consent to be sued. Groves said courts in 15 other states, including Michigan, Indiana, Missouri and Iowa in the Midwest, have held that states cannot be immune from suits alleging breach of contract. The high court held that while contract law requires a mutual obligation for contracts to be binding, it does not require a mutual remedy for alleged breaches. The high court said there is no implied consent when state law, as in Illinois, expressly forbids suit in circuit court. There is no such law in the other 15 states.

"Whether the State is liable on a particular contract is a different question from whether the State is immune from being sued by an aggrieved party on that contract," Clark said. "The contractual obligation remains; it is the remedy for any recovery on a claim that is limited."

— Diane Ross

Two crimes; one act

REITERATING its earlier holding in People v. Donaldson, the Illinois Supreme Court decided November 18 in People v. Simmons that: State law does not require separate convictions and sentences for armed violence and its underlying felony when the two crimes stem from the same act.       —DianeRoss

Debt service tax excluded from aggregate levy limit

IN A DECISION which will affect hundreds of taxing bodies, including school districts, the Illinois Supreme Court ruled October 22 that the term "aggregate levy," as used in the state's Truth in Taxation Act does not include taxes levied for debt service. Under the act, if the aggregate tax levy exceeds 105 percent of the preceeding year's levy, public notice and hearings are required.

In the case, The Board of Education of Township High School District No. 211, Cook County v. Stanley T. Kusper, Jr., County Clerk, the school board argued that the intent of the act was to require taxing districts to publicly disclose the amount and purpose of all property taxes, including debt service, whenever they increase 5 percent over the preceeding year.

The high court upheld the circuit court's ruling against the school board. "Debt-service

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levies constitute a procedure separate and distinct from the annual levy. . . . Also, the inclusion of debt-service levies in the computation would not present to the taxpayers an accurate picture of whether expenditures are being excessively increased," said Chief Justice Howard C. Ryan in delivering the opinion. Justices Robert C. Underwood and Seymour Simon, who had previously dissented, concurred in the ruling after Public Act 82-760 amended the Truth in Taxation Act in a manner indicating that the debt-service levy was not to be included in computing the 105 percent tax limitation.

— Margaret S. Knoepfle

Mobil loses protest; use tax upheld on 'refinery fuels'

IN A DECISION which then-Atty. Gen. Ty Fahner called "an ongoing victory for the taxpayers of Illinois," the Supreme Court ruled October 22 that Mobile Oil Corporation must pay a use tax on "refinery fuels" produced as by-products during the process of refining crude oil and used by Mobil for heating purposes. However, in a partial dissent to the majority opinion, Justice Seymour Simon said the tax, as presently computed, "encourages waste" by taxing at excessive rates the use of low-grade, byproducts as fuel.

In the case, Mobil Oil Corporation v. J. Thomas Johnson, Director of Revenue, et al., Mobil sought the return of approximately $8 million in use taxes paid under protest after the Department of Revenue made the assessment. Overturning a circuit court decision, the high court held that the refinery fuels "were purchased in the statutory sense when the crude oil was bought" and that their taxability depends on whether they were intentionally used by Mobil. The court also held that the Department of Revenue's application of the state's Use Tax Act and the Retailers' Occupation Tax Act was not "unconstitutionally vague" but simply reflected the tax auditors' lack of understanding of the oil refining process. "This lack of knowledge cannot be attributed to Mobil, which was certainly aware it was using or consuming a portion of its crude oil purchases," said Justice Underwood, delivering the majority opinion.

Justice Simon agreed that Mobil's use of its refinery fuels is subject to the use tax but disagreed with the majority's formula for computing the tax (based on volume and the selling price of crude oil). He was joined in partial concurrence and partial dissent by Chief Justice Ryan.

— Margaret S. Knoepfle

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