'Hybrid' judgeships unconstitutional: when 'and' means 'or'

In the last session the General Assembly created a circuit judgeship that has been termed "hybrid." It required that candidates for a new judgeship in the sixth Judicial District live in Champaign County but run at large in the six-county district. On September 22 the Illinois Supreme Court said that this is unconstitutional. The decision was based on the interpretation of one word — "and."

Article VI, section 7(a) of the Illinois Constitution provides that "The General Assembly by law may provide for the division of a circuit for the purpose of selection of Circuit Judges and for the selection of Circuit Judges from the circuit at large" (emphasis added). The high court sustained the trial court's holding that this means that judges can be elected in two ways: in the division for the division, and in the circuit for the circuit at large. The high court explained, "While it is unusual for this court to construe the use of the conjunctive 'and' as the disjunctive 'or,' there are times when it is necessary to effectuate the intent of the drafters."

The trial court cited deliberations of the Constitutional Convention that said, ". . . it is not intended . . . that those persons who are required to be selected from a county or from a division of the circuit shall be required to run at large in the circuit." Judicial elections are also controlled by Article VI, section 11, which says that a candidate for a judgeship must be "a resident of the unit which selects him," a statement termed "arguably ambiguous and uncertain."

Justice Howard C. Ryan wrote the opinion in Thies v. State Board of Elections (Docket No. 66389); Justices Ben Miller and John J. Stamos did not participate.

Withholding child support constitutional

Illinois laws require that court-ordered child support be withheld from income when payments are delinquent. In a decision of September 22 the Illinois Supreme Court overturned a ruling by a circuit court judge in Cook County that these provisions are unconstitutional.

Federal laws and regulations require withholding from wages of a noncustodial parent whenever child support has been ordered, even without such provision in the support order. Noncomplying states risk loss of federal funds for Aid to Dependent Children.

The Illinois Parentage Act (see Ill. Rev. Stat. 1987, ch. 40, sec. 2520; amended by Public Act 85-1156, effective January 1, 1989) provides for three stages of notice to the noncustodial parent: at determination of paternity; at award of support (both pre- and post-hearing appeals may be made); at initiation of action for withholding. The court held that this adequately protects the due process rights of the noncustodial parent to be heard at a meaningful time in a meaningful manner.

The court held that an employer-payor's rights are not jeopardized since a payor is not a party to the action but "merely stakeholder or custodian of the funds sought to be reached." Since the statute defines "income" broadly, the withholding order is directed to "any payor." The court held that this does not constitute judicial legislation that would violate separation of powers. It also held that assignment of procedural tasks to nonjudicial personnel does not violate separation of powers since all decisions of fact remain with the court.

The decision was unanimous in People ex rel Sheppard v. Money (Docket No. 65710). Justice John J. Stamos wrote the opinion.

State can ask for substitute judge

In a criminal case the state has the same right to an impartial judge as does the defendant. This was the effect of a ruling by the Illinois Supreme Court on September 22 upholding a relatively new provision of the Code of Criminal Procedure (see Ill Rev. Stat. 1987, ch. 38, sec. 114-5(c)).

A circuit judge in Cook County had ruled that the statute interferes with the power of the judicial branch to assign judges, in violation of the separation of powers. He also felt that the state could use the process to intimidate judges and to shop for a sympathetic judge, which would violate the defendant's due process rights.

The court had already ruled on a similar pro vision (sec. 114-5(a)) allowing a defendant to petition for an automatic substitution of judges in People v. Walker ((1989), 119 Ill. 2d 465). For both prosecution and defense, petition can be made only after the case has been assigned to a judge. This was interpreted as only peripherally affecting the judicial power to assign judges and thus not breaching the separation of powers.

Since "the state is not seeking a particular judge, only an impartial one," there is no violation of due process, which only requires "a fair trial in a fair tribunal."

The decision was unanimous in People v. Williams (Docket No. 65895), with the opinion written by Justice Howard C. Ryan.

More on DUI

Another chapter was written in the unfolding saga of application of the statutes governing Driving Under the Influence (DUI) by a decision of the Ilinois Supreme Court filed September 29. The court ruled that the driver who requests a hearing to rescind the summary suspension of a license bears the burden of proving that he or she was not under the influence. This was the court's first decision on statutory language that it termed "ambiguous."

The court cited its ruling in People v. Gerke ((1988), 123 Ill. 2d 85) that summary suspension is a civil matter, the statutory provision that such hearings to rescind summary suspension "shall proceed. . . in the same manner as in other civil proceedings" (see Ill. Rev. Stat. 1985, ch. 95 1/2, sec. 2-118. l(b)) and the fact that in the usual civil proceeding, the party requesting judicial relief bears the burden of proof.

The court concluded that this does not violate due process protections of the federal and state constitutions, primarily because of the state's overwhelming interest in preserving the safety of the public highways and the increased fiscal and administrative burdens that the state would face if it bore the burden of proof.

The court ruled that the state could introduce evidence of breathalyzer tests on the basis of the record of the arresting officer. It said, however, that if the motorist makes a prima facie case casting doubt on the accuracy of the tests, the state would have to make a proper foundation for their accuracy. Evidence casting doubt on the test's accuracy could include, but not be limited to, "credible testimony by the motorist that he was not in fact under the influence of alcohol."

Justice William G. Clark wrote the opinion in People v. Orth (Docket No. 64931); Justice John J. Stamos did not participate.

F. Mark Siebert

November 1988 | Illinois Issues | 26