Friday, March 30, 2007


Bunch of do-gooders in Springfield have proposed campaign contribution limits saying that Illinois is "one of only four states" which don't cap campaign contributions. Well, good. That means Illinois is one of the only states that continues to believe in free speech.

Don't mistake transparency for amount. I think any significant contribution should be reported and available to the public. I think with modern drill-down technology there's really no reason that anonymous political committees can't be more transparent. But, when you talk about limiting how a citizen chooses to apply his wealth, or his time or his car or his shoe leather to get involved in politics, we part company. There is not material difference between how an individual giving his or her time and giving his or her money. Usually, our money is a product of our time and talents. Who's to say that we can give away our time and talent to support a candidate, but we can't give away the result of that time and talent? If one is unconstitutional or at least repressive, then so's the other.

Wanna talk about lowering the disclosure amount? You've got my attention. Wanna talk about excluding corporations from the process (Such as the Parking Deck that gives my republican friends so much heartburn)? We can talk? Care to make candidates file a more detailed disclosure of their possible conflicts of interest? Go for it. Most of the time my heart is with the do-gooders (Hell, even as we speak, I'm punching around on the calculator, trying to figure out my carbon footprint. I think it's 11W). But, when a human being in Illinois wants to give away after-tax money to promote a candidate he or she believes in, that is behavior to be encouraged, not banned. We want people to take an interest in government but we want to limit their ability to do that with something they earned and own? How does that promote citizen participation? How does that improve anything? It sounds like class warfare to me. Cheesy tactic by either side.

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Thursday, March 29, 2007


Usually I grieve when a legal career is ruined by some kind of deviant behavior. I believe we are all frail and fallible. I make an exception in this guy's case for two reasons. First, his conduct involved a minor child. No excuses. Moreover, this fellow was a self-righteous, self proclaimed reviewer of the conduct of other attorneys. I shed no tears for him that the microscope was turned in the other direction.

Whether he knew her exact age or not, ya think it might be a bad idea for an officer of the court to take nude pictures of his wife's little sister for blackmail purposes? Is that something you'd want your Mother to find out you did? Perhaps he might have had some difficulty relating on an egalitarian basis with women. Just a guess.

Kind of funny. Just yesterday, I attended a luncheon meeting about helping lawyers with the job pressures and difficulties that crop up in our lives. There's a lot of help out there for folks who want to get better. I don't think there's a 12 step program for a bankruptcy frauder/pornographer who thinks he's doing just swell.

Rodney is right. You just can't make this stuff up.

See ya in about three decades, counselor


This is from today's Post-Dispatch. The defendant's conduct is so strange it deserves to be set out in full. Throw in the Sniper and the Cobra and you have a real knee-slapper.

Link and comments in a minute.

By Nicholas J.C. Pistor
Gary Peel EAST ST. LOUIS — After a federal judge told Gary Peel that he must report to jail by noon on Friday, his wife erupted — first with a flow of tears, then with a fury of words. "I hope that every day your son is going to hear that his grandfather is a child pornographer," Deborah Pontious, Peel's second wife, yelled at his daughter after a detention hearing Wednesday involving her husband's child pornography conviction last week.But Pontious, a former teacher, was not done lashing out at the people she holds responsible for her husband's downfall. She then fired a question at the man who successfully prosecuted her husband, Assistant U.S. Attorney Kevin Burke."Thank you, Mr. Burke. Would you please try to find the person who tried to kill me?" she said.

Burke did not respond.Pontious said afterward that someone tried to kill her in early 2004 shortly after she married Peel. The first time, she says, a sniper tried to shoot her. A few months later, she says, someone planted a black cobra in her bedroom. She also produced a police report involving an incident where her pickup's windows were shattered while traveling along Interstate 57 near Effingham. She speculated that the events had something to do with her marriage to Gary Peel. Burke was not immediately available on Wednesday for comment.Peel was found guilty on charges of bankruptcy fraud, obstruction of justice and child pornography, by a jury last week in U.S. District Court in East St. Louis. The trial quickly became a family feud, with Peel's ex-wife, also named Deborah, and his son testifying against him. In early 2006, an indictment states that Gary Peel called his ex-wife and told her that he had an affair with her teenage sister more than three decades earlier — and that he took nude pictures of the sister, which he would send to their elderly parents unless the ex-wife agreed to a settlement involving their divorce. Authorities say the girl in the photos was 16 years old at the time. Peel continues to deny knowing her age. Because the charges involved child pornography, federal prosecutors sought to jail Peel immediately after the verdict. A judge reserved ruling. On Wednesday, U.S. District Judge William Stiehl sided with the prosecution, ordering Peel to surrender to federal authorities on Friday. A judge will sentence him in June. He could receive up to 40 years in prison. Peel rose to a level of prominence as a litigator among lawyers in the Metro East area. When he was indicted last year, he was working for the powerful Lakin Law Firm. The firm's founder, Tom Lakin, is being sued in a civil court over allegations of sex and drug abuse. Federal authorities have declined to say whether they are conducting a criminal investigation.But in October, an FBI agent testified in a hearing that investigators had questioned Peel about potential corruption involving judges or lawyers, including Lakin, in Madison or St. Clair counties.



I had to laugh when the GRT traveling salvation show came to town to "explain" to business how great the GRT would be for, well......., just EVERYBODY.

As dog and pony shows go, the dog was dead and the pony only knew one trick.

Now we get to see this thing play through the legislative process. It's like watching a train wreck in slo-mo. Partisanship is playing almost no role, the layers are being peeled back like on a ripe tangerine. Interesting that the first public bolts are Democrat hispanics. I guess that's because that community has always had an entrepenurial side.

Anyway, it makes one wonder what the exit strategy is. I'm guessing just say "I tried" and retreat to the bunker.

Ya think maybe this country has too many chief executives in bunkers and bubbles right now. These guys need a designated naysayer who will tell the emperor he's got on no clothes. I guess I won't hold my breath. How'd that work out for Colin Powell?


Saturday, March 24, 2007


Happened to be in KCMO in a public place as Jayhawks got eliminated. Never seen such joy! Thought I was the only Self/KU roundball anti-fan. Wow, did I have hundreds of new friends, or what?


Thursday, March 22, 2007


For some reason the idea of this sports giant, the most desirable cell phone number in sports, the multiculturalist, the animal protectionist, passed out drooling on the steering wheel of his Escalade, just makes me really sad.

We all make mistakes but this is a tough one to swallow. And, hell, I'm a Cub Fan.


I know a little bit about cancer. This suspension will become a termination. At a time when our country is becoming less literate and lazier, these two high achievers now face dark struggle together.

Stuff like this happens, it reminds us of how trivial it might be whether Limbaugh and Schwartenneger are in or out of love with one another and whether Karl Rove is or is not exercising presidential appointment powers.

Health and family. We have that, we can figure the rest out. GodSpeed to the Edwards family.

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Wednesday, March 21, 2007


I must confess I have, all my adult life, had a fascination with "Risk-it all" leaders. Mao, Abe Lincoln and Malcolm Little a/k/a "Malcolm X" are among my favorite case studies. Little had about four different incarnations and his Junior High School Life is about as fascinating as his prison time. On top of that, I know four people well who intersected planes with him at various stages of his life and death. Think what you will about him, there are endless layers to peel back.

Delancey Place brings us this one, as Malcolm was already starting to outgrow the Nation. He might not even have realized it yet. He accessed the legal system and laid the groundwork for police reform that he would never see.

In today's excerpt--the Los Angeles police kill and wound several black members of the Nation of Islam in a highly controversial 1962 incident. For the trial that follows, these members need legal representation, but find it very difficult to secure given the controversy. Malcolm X, little known but already with a feared reputation, spearheads the effort to secure a lawyer by approaching Earl Broady, a former police officer and perhaps the only black lawyer with the expertise and connections to adequately handle the case:

"For Earl Broady, the Malcolm X who appeared unannounced at his office seemed quite different from the daredevil Black Muslim in the news. He spoke with evenhanded precision to reconstruct the chaos and asked for Broady's representation in the criminal trials he felt were sure to come, calculating that the state must prosecute the Muslims in order to ward off civil damage suits. Broady turned Malcolm away more than once, saying he was too busy and too close to Chief Parker. As a policeman himself from 1929 to 1946 before entering the law, Broady saw Parker as a reform autocrat in the style of J. Edgar Hoover and gave him credit for modest improvements over the frontier corruptions of the old Raymond Chandler-era LAPD.

Broady's wife, a devout Methodist, objected vehemently to the case on the grounds that the Muslims were openly anti-Christian, unlike the worst of his ordinary criminal clients, and Broady himself resented the Nation of Islam, drawn largely from stereotypical lowlifes, as an embarrassment to the hard-earned respectability of middle-class Negroes. The Broadys recently had acquired an imposing white colonnade home in Beverly Hills, where Malcolm X visited when he could not find Broady at the office--calling day after day, always alone with a briefcase, playing on Broady's personal knowledge of the harsh, segregated inner world of the LAPD precincts. His patient appeals, plus the largest retainer offer in Broady's career, finally induced the lawyer to take the case. ...

"[This] case marked a turning point in the hidden odyssey that surfaced Malcolm X as an enduring phenomenon of race. He saw the shootings as a fundamental crisis in several respects--first as a test of Muhammad's teachings on manhood and truth. Ever since the Montgomery bus boycotts of 1955-56, Malcolm had criticized Martin Luther King as a 'traitor to the Negro people,' disparaging his non-violence as 'this little passive resistance or wait-until-you-change-your-mind-and-then-let-me-up philosophy,' and he did not hesitate to ridicule a national movement built on sit-ins and Freedom Rides. 'Anybody can sit,' said Malcolm. 'An old woman can sit. A coward can sit. ... It takes a man to stand.'

Always there was an element of swagger in Malcolm's appeal, and at times a bristling, military posture: 'You might see these Negroes who believe in nonviolence and mistake us for one of them and put your hands on us thinking that we're going to turn the other cheek--and we'll put you to death just like that.'

Taylor Branch, Pillar of Fire, Simon and Schuster, 1998, pp. 10-13.

Taylor Branch can flat-out write but, in fairness to Malcolm's journey: The quotes were from the 50's and, by the time he approached Broady, he was already moving to the realization that the One God he knew as Allah was an inclusive entity.

Who among us cannot identify with someone who got smarter and perhaps more truly spiritual as he aged? Of course, with associates like he picked up, he didn't have long to age.


Tuesday, March 20, 2007


Rove will not testify under oath. The Senate Can have the Oaf without the Oath. Be Still my heart! I'm so shocked the Rovie doesn't want to do the oath thing. No more Scooters to take the bullet.



In-freaking-credible! Pat FitzGerald may not be my all time favorite prosecutor but it is a little hard to argue that he has not been diligent and effective in representing the government's, as opposed to the Bushies', interests.

So when a political loyalty policeman rates him as "not distinguished" it adds another level of aroma to the idea that a review on the merits was done and US Attys were fired because of poor evaluations. It's time to as the musical question "Who evaluates the evaluators?"

In an otherwise sub-standard performance on "Larry King Live" Senator Obama said Gonzo has abandoned the position of "People's Lawyer" to become a "Presidential Enabler". That's the net effect, even if the "Loyalty Police" were Gonzo's true believer staff and not his Gonzo-ness hisownself.

Next president of either party is going to have to go in there with a wide and deep dung shovel.


Monday, March 19, 2007


Valerie Plame has lost her career. She is an extraordinarily sympathetic figure. In the meantime the Bushies are still casting about in search of a workable spin, finding none. (In the meantime, they are on about their seventh version of the US Attorney thing but that's for another day). There has been a conviction. On cue, these Repubs have stupidly talked openly about a pardon.

From the perspective of showing this administration for what it is, things couldn't be going much better. Still, there is an "X" factor that could screw it for all of us who want to see the next spin continue to spiral them toward where they deserve to go: Joe Wilson's chops.

Joe, you're in the lead. Everybody loves your wife and feels badly she was outed to bust your chops. But, Ambassador, I have news: you're about as lovable as a laboratory rat in an AIDS testing facility. You're smug. You're gabby. You look like a child of the leisure class. Whether you really are or not, you look like your eastern educated. Even liberal people out here in flyover country are suspicious of that. Everytime you open your mouth, you lose some public opinion. Hide out. Don't even be seen. Let your lawyers fight out your civil case. Quit speculating publicly about who did what to whom.

Your wife should talk and look sad a lot. You should imitate a deaf mute polar bear eating marshmallows in a snowstorm.

When your opponent wants to commit slow-mo hari-kari, it's best not to stand in his way. Please, take heed.


Friday, March 16, 2007


Commissioner Bowie Kuhn died yesterday and, implausible as it may seem, probably someone actually loved him and is grieving. I'm sorry for that. I also try to find something good to say about a person who passes on. Unfortunately, in the case of Bowie's public life, it was impossible.

He presided over the first substantial work stoppage in modern MLB. In the words of Furman Bisher "This wouldn't have happened if Bowie Kuhn were alive today" (Bowie was, of course, alive and Commissioner at the the time.)

He moved the World Series games to late prime time instead of day time, thus cutting out viewing opportunities for more than two thirds of the USA's children. Is it any wonder that's about the time soccer took hold as a summer sport?

Finally, he arranged for the fans to "vote" on the All- Star team, that is, to vote as many times in as many ways as is humanly possible, without restriction, leading to ballot box stuffing that makes Cook County look like Ding-Dong School.

I'm sure he probably used the right fork at supper and wouldn't be surprised if he brushed and flossed regularly but his heritage is 1) weak or no leadership during labor tensions; 2) taking the Fall Classic away from the children of America; and 3) a chaotic, uncontrolled election for participation in what was then a treasured event.

Rest in peace, which is pretty much what you did as Commissioner.

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Thursday, March 15, 2007


For those of you who have been reading the various iterations of this blog for a few Springs, you know that I annually enter a certain underground bracket contest. I do so with one goal: beat the champion emeritus.

She knows who she is. Nipped her at the wire last year. Not feeling too good about this year. Went by her office the other day and she had an what looked suspiciously like an RPI/Sagarin Spreadsheet up on her screen. It was the green eyeshade, though, that was the dead giveaway. I am so toast!

Well, last year was nice.


Wednesday, March 14, 2007


We hear candidates for president promising "open and honest" government, like the words are fused together.

I contend it is possible to have a president conduct an honest administration.

It is, however, no longer possible to have open government at the leader-of-the-free-world level. POTUS' security people keep him away from interactive situations. POTUS' advisors do their best to keep him away from contrary messages (this is not necessarily sinister, just how it is.) The prez, despite his or her best intentions, is gonna be in "the bubble" and shielded from RW experiences. Nixon liked it. Clinton fought it, but basically lost. It is necessary for shrubbie's governance. He could not stand interactive exposure, given his level of stubbornness and the influences he must satisfy.

I'll give you honest as a possiblity. Open has been off the table since Kennedy was shot, maybe before.


Tuesday, March 13, 2007


While I'm thrilled the Illini and the Piggies got in, K-State, Syracuse, Drexel and Missouri State made some compelling cases. More distressing is that only six mid-majors got in. Mid-majors are who makes the whole thing fun.

Let's do the easy part first. TV will be happy to pay for expansion, so cost is not an issue.

The first, easy move is to take the basic 64 with a play down (65) to sixty-four with four play downs (68). That would have addressed three of the the above non-invitees.

There are problems. Any number other than 128 results in play downs. That wasn't a problem when the tourney went from 32 to 48 back in the 80's. By analogy, they could take 64 to 96 and have 16 playdown games. Great Television, super revenue and still enough teams to stage an NIT (not that it matters). The decision to go to 128 can deferred until there is at least a five year laboratory for 96. Gut hunch tells me 96 will be enough.

Why does this matter now. First, undeniably, Roundball is a revenue sport. College is getting more expensive. Anything that can help pay for the experience should be enhanced. Second, the information age has made for better coaching and a more uniform second tier of elite players (There's only one or two 'melos or Garnett's or LB's a year--I'm talking about the guys just a tick down.). There's enough individual talent to justify it. Third, and this is the big difference, there is a battle going on in recruiting styles that is new and compelling. The mid-majors recruit by saying, you'll be here four years. Teams that stay together do better in the tourney. Come with me and you have a chance to dance, Go to Carolina and you'll sit, while your stars are "one and done." It's a contrast of philopsophiest that can only be proven out one way or another if the Drexel's get to bracket up with the Kansases and OSU's.

Go to simple 68 next year. That requires no talent. Plan on 96 the next year. It's a win-win-win.

Of course, so me, that'll just be wider brackets to be a greasefire.


Sunday, March 11, 2007


This is terminally stupid. A global tax only works when it's global. Doesn't work when people can move to another state, one which isn't afraid to tax net income instead of arbitrarily taxing grossing in non-comparable industries.

I know a guy who manufactures a tiny little product, which becomes a part on another product. His markup, and he's a very thorough cost calculator, is .5%. Fortunately for him, his business is in another state. He creates about 160 jobs in a poverty stricken, rural area. He doesn't need to work or to run a business. If his state started up such a foolish assessment, he'd just close or sell out to an overseas interest which would move the jobs to the Far East. How many of him are there in Illinois? Plenty, I'd guess.

The premise for this whole exercise is false. There is no choice between "The big corporations and the people". When a corporation is assessed a tax or fee, it passes it on to customers. Whether it's lawn mowers or medical equipment, the folks who pay for it are......drum roll......PEOPLE!

Do we need to change our entire approach to taxation in Illinois, from top to bottom. Of course. Is a Gross Receipts Tax any kind of answer? Hell, no.

Even the GOP knee jerk response is right once in awhile. This is one of those times.


Saturday, March 10, 2007


(Was doing research on something else and ran across this 1968 case. It's not an easy read but it gives us a clue what a reviewing court thinks about generalized "GRT's" as regards services. Our court hasn't moved any to the left since this one was authored.)

Page 698
236 N.E.2d 698
39 Ill.2d 531
Phyllis FIORITO et al., Appellees,v.Theodore A. JONES, Director of Revenue et al., Appellants.
No. 41099.
Supreme Court of Illinois.
March 28, 1968.Rehearing Denied May 28, 1968.

[39 Ill.2d 532]

Page 700
William G. Clark, Atty. Gen., Springfield (John J. O'Toole, Asst. Atty. Gen., of counsel), for appellants.
Edward A. Berman, David P. Schippers, and James Renzino, Chicago, for appellees.
Defrees, Fiske, Thomson & Simmons, Chicago, for amicus curiae.
This is an appeal from a decree of the circuit court of Cook County holding unconstitutional the 1967 amendments to the Service Occupation Tax Act (Ill.Rev.Stat.1967, chap. 120, par. 439.101 et seq.), the Service Use Tax Act (Ill.Rev.Stat.1967, chap. 120, par. 439.31 et seq.), and the Municipal and County Service Occupation Tax Acts (Ill.Rev.Stat.1967, chap. 24, par. 8--11--5 and chap. 34, par. 409.2), as well as articles I, II, and III of the Department of Revenue's Rules and Regulations (which implemented these amendatory Acts).
The complaint was filed by Phyllis Fiorito, doing business as JayLee Studios in Chicago, as a citizen and taxpayer, on behalf of herself and 'all others similarly situated' against the defendants, specifically naming them. Shortly thereafter, the trial court entered an injunction ordering that the taxes collected under these Acts be temporarily impounded and withheld by the Treasurer of the State of Illinois from the General Revenue Fund. Subsequently, four other individual and corporate plaintiffs sought and obtained leave to intervene and each adopted the Fiorito complaint. The defendants filed a motion to dissolve the temporary injunction and to strike and dismiss the complaint. There being no contested issues of fact, the cause was submitted to the trial court on the complaint [39 Ill.2d 533] and the motion to dismiss. On December 6, 1967, the trial court entered the decree finalizing the injunction and holding the above Acts violative of section 1 of article IX (uniformity of taxation), section 2 of article II (due process) and section 22 of article IV (special legislation) of the Illinois constitution, S.H.A. and the fourteenth amendment (due process, equal protection) to the Federal constitution. State revenue being directly involved, the jurisdiction of this court is properly invoked.
Before the enactment of the 1967 amendments, the Service Occupation Tax Act imposed a tax upon 'all persons engaged in the business of making sales of service (hereinafter referred to as servicemen) at the rate of 3% Of the cost price of all tangible personal property transferred by said servicemen either in the form of tangible personal property or in the form of real estate as an incident to a 'sale of service' * * * and at the rate of 3 1/2% Where the sale of service occurs on or after December 1, 1961, * * *.' (Ill.Rev.Stat.1965, chap. 120, par. 439.103.) The complementary Service Use Tax Act likewise imposed a tax upon 'the privilege of using in this State real or tangible personal property acquired as an incident to the purchase of a service from a serviceman.' (Par. 439.33.) 'Sale of Service' was defined as 'any transaction except a retail sale of tangible personal property taxable under the Retailers' Occupation Tax Act * * * or under the Use Tax Act', with certain exceptions that are not relevant here. (Pars. 439.32, 439.102.) Thus, prior to the amendments of 1967, every 'serviceman' with a few specific exceptions (e.g. sales of service by a charitable organization, sale of newsprint and ink sold for the primary purpose of conveying news) who transferred tangible personal property as an incident to performing his service was taxed under this Act, the base of the tax being the cost price to him of the materials transferred.

Page 701
The 1967 amendments substantially altered the taxing [39 Ill.2d 534] scheme under both the Service Occupation and the Service Use Tax Acts. The principal changes were: (1) the base of the tax was expanded to the gross receipts of the sale of service (Ill.Rev.Stat.1967, chap. 120, pars. 439.32, 439.102) and (2) the application of the service occupational taxes was limited to 'sales of service' by four enumerated categories of servicemen, to-wit:
'a. Selling specially made machines, tools, dies, jigs, patterns, gauges, or other specially made tools or equipment, or
b. graphic arts or related occupations not presently taxable under the 'Retailers' Occupation Tax Act' or the 'Use Tax Act', or
c. repairing, renovating or reconditioning tangible personal property, or
d. Selling drugs or medicines as a registered pharmacist or druggist on the prescription of a licensed physician or other person qualified to issue prescriptions.' (Pars. 439.102, 439.32.)
In the same sections the following types of sales were then specifically exempted from the definition of 'sale of service', viz., any such sale: '(1) for or by any governmental body, (2) for or by any corporation, society, association, foundation or institution organized and operated exclusively for charitable, religious or educational purposes or (3) for the primary purpose of conveying news (with or without other information), or (4) in connection with the sale, purchase, transfer, employment or use of pollution control facilities or services related thereto, or (5) for someone else in producing tangible personal property which will be transferred by the purchaser to another person, without a specific valuable consideration, for ultimate use or consumption by such other person.'
In addition to these principal changes, the amendments raised the tax from 3 1/2% To 4 1/4% (pars. 439.33, 439.103), placed a duty on the servicemen to collect and remit the [39 Ill.2d 535] tax monies due under both Acts, and provided that municipalities and counties could levy in combination up to 3/4 of 1% On these 'sales of service', making a possible tax of 5%. (Chap. 24, par. 8--11--5, chap. 34, par. 409.2.) These amendments took effect on August 1, 1967. Also effective on that date, the Department of Revenue of the State of Illinois passed certain Rules and Regulations designed to clarify and regulate the administration of the amended tax Acts. See arts. I, II, and III, Department's Rules and Regulations, bulletin issued August 1, 1967.
On appeal, defendants raise two points. They argue (1) that plaintiffs' suit is not a proper case for a class action, viz., that they are entitled to sue only for reimbursement of the tax monies paid by them or to enjoin the collection of those monies owing by them and not by all other 'servicemen' in the State and (2) that, in any event, the amendatory Acts are constitutional.
Irrespective of our holding concerning the propriety of plaintiffs' right to bring a class action, we must determine the constitutional issues raised since plaintiffs' standing to raise these issues is not challenged, and, in fact, is admitted by defendants. We therefore proceed to a consideration of the constitutionality of the legislation under attack.
It is well established that the legislature has broad powers to establish reasonable classifications in defining subjects of taxation. (Klein v. Hulman, 34 Ill.2d 343, 346, 215 N.E.2d 268; People ex rel. Holland Coal Co. v. Isaacs, 22 Ill.2d 477, 176 N.E.2d 889; Ohio Oil Co. v. Wright, 386 Ill. 206, 53 N.E.2d 966.) It is equally well settled that the legislature may define a general class which is subject to an occupation tax and then specifically remove a subclass (Bode v. Barrett, 412 Ill. 204, 106 N.E.2d 521; Modern Dairy Co. v. Department of Revenue, 413 Ill. 55, 108 N.E.2d 8), or it may merely define a subclass without naming the general class. (People v. Deep Rock Oil Corp., 343 Ill. 388, 175 N.E. 572.) But regardless

Page 702
of the manner in which the classes to be taxed have been defined, the classifications must be based upon real and substantial [39 Ill.2d 536] differences between persons taxed and those not taxed (City of Chicago v. Ames, 365 Ill. 529, 7 N.E.2d 294, 109 A.L.R. 1509), and they must bear some reasonable relationship to the object of the legislation (Modern Dairy Co. v. Department of Revenue), or to public policy (Reif v. Barrett, 355 Ill. 104, 188 N.E. 889).
Applying these principles to the instant case, it is apparent that the basic question determinative of all constitutional objections advanced here is whether a reasonable difference exists between the four subclasses specifically subjected to taxation by the amended Service Occupation and Service Use Tax Acts and those subclasses impliedly or expressly exempted from taxation. In our judgment, this question must be answered in the negative.
As previously noted, prior to the 1967 amendments, the Service Occupation Tax Act purported to tax all servicemen who transferred tangible personal property as an incident to performing their service, the base of the tax being the cost price to the serviceman of the materials transferred. We think it clear that the intent of this Act was to place servicemen, as nearly as possible, on a tax parity with retailers to the extent that they perform the same economic function as retailers, viz., to the extent they transfer tangible personal property to the ultimate consumer. The object was to tax the incidental transfer of property which, due to the accompanying and primary service function, fell outside the scope of the Retailers' Occupation Tax Act. (Ill.Rev.Stat. 1965, chap. 120, par. 440 et seq.) While the measure or base of the tax, the cost price to the serviceman of the materials transferred, did not coincide with the resale price of these materials (the measure under the Retailers' Occupation Tax Act), it was the most nearly equivalent measure of tax practicable under the circumstances since in the ordinary case it would be difficult to determine what percentage of a serviceman's total receipts was attributable to the mere transfer of property as opposed to the rendition of the service. Thus, this tax base eliminated the service as [39 Ill.2d 537] such from the onus of the tax, taxing the serviceman only in relation to the extent that, in the manner of a retailer, he was a seller of property to the ultimate user.
While the Service Occupation Tax Act as amended still purports to tax all servicemen who transfer tangible personal property as an incident to performing their service, the base of the tax has been expanded to the total or gross receipts of the 'sale of service' with the servicemen subject to the tax limited to the four subclasses previously designated. The effect of this latter change, as impliedly acknowledged by the Department of Revenue (see Dept. of Revenue's Rules relating to Service Occupation Tax Act, art. I, sec. 8, issued August 1, 1967), is to exclude certain types or classes of servicemen from taxation under the amendatory Act who were subject to tax under the previous Act. Specific examples of such classes are: (1) laundries, drycleaners and dyeing establishments that purchase coat hangers, suit bags, string, dyes and other such materials, (2) wrapping services that purchase paper, string, bags and other packaging products, (3) business-operated hospitals that dispense drugs, medicines, and other tangible personal property to patients, (4) chiropodists, chiropractors and others who furnish arch supports, trusses and similar devices; and (5) embalmers who purchase embalming fluid. (Ill. Dept. of Rev. Bulletin of July 1, 1965, pages 446--49.) These servicemen are illustrative of the narrowed application of the tax imposed by the amendatory Act but do by no means circumscribe the number of servicemen now excluded from taxation. Thus, even if the constitutionality of the amendatory Act were to be adjudged exclusive of any consideration of the change in the base of the tax, serious doubts as to its

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constitutionality would arise since we cannot readily discern any reasonable difference between the four subclasses of servicemen specifically subjected to the tax and those impliedly excluded. (See People ex rel. Holland Coal Co. v. Isaacs, 22 Ill.2d [39 Ill.2d 538] 477, 176 N.E.2d 889.) Certainly, the majority of servicemen excluded from taxation under the Act appear to possess the same relevant attributes (e.g. (1) they render a service, (2) involving an incidental transfer of property) as the businesses on which the tax was levied, while, conversely, they do not appear to possess any characteristics which are not possessed in equal measure by the businesses taxed. Nor is it contended or does it appear that public policy considerations compel different tax treatment between these classes of businesses. As such, the amendatory Act and the other related Acts, to the extent that they incorporate these classifications, are vulnerable to constitutional attack for lack of uniformity and for denial of the due-process and equal-protection guarantees of the Illinois and Federal constitutions.
However, we believe that a more dramatic and conclusive case against holding the amendatory Act constitutional is presented when the reasonableness of the classifications made by that Act are considered, as they must be, in light of the new gross receipts tax base set forth in the Act. Because of this new base, it is difficult to determine the legislature's intent regarding the purpose or object of the amended Service Occupation Tax Act from a reading of the Act itself and therefore, without the aid of any legislative history or committee comments, the precise purpose of the Act cannot be stated with certainty. However, it is certain that the purpose of the amendatory Act must be either, like the former Act, to impose a tax on the incidental transfer of personal property by a serviceman or to impose the tax on the performance of service itself. Given either construction, the amendatory Act cannot be reconciled with relevant constitutional guidelines already set forth in this opinion. If the tax is deemed to be levied on the performance of service, it is unreasonable to exclude transactions in which no personal property is transferred. But, if the tax is deemed to be levied on the incidental transfer of [39 Ill.2d 539] personal property by a serviceman, it is unreasonable to measure such tax by the gross receipts of the entire transaction (rather than, as in the former Act, the cost price to the serviceman of the materials transferred). In other words, if the tax is aimed at the service performed (such as repairing a car) then a tax based on Gross receipts would be reasonable, but excluding individuals (such as doctors and lawyers) from the scope of the tax merely because no incidental transfer of personalty was involved would be unreasonable. Or, on the other hand, if the tax is aimed at the transfer of the personalty itself, then excluding those individuals who did not transfer any significant amount of property while performing their service (doctors, etc.) would be reasonable, but basing the tax on anything not directly related to the value of the personalty transferred, e.g. basing it upon Gross receipts, would be unreasonable.
Perhaps an example best serves to illustrate the logic underlying the above conclusions. An auto repairman repairs a customer's car. His charge for labor is $50, but the only new part installed is a $1 sparkplug. Under a service occupational tax based on Gross receipts the repairman is taxed on the entire $51 rather than the $1. This tax can only be justified if the tax is aimed at the service and not at the incidental transfer of personalty (the sparkplug). But if the tax is aimed at the service, then there is no reasonable basis for excluding persons who perform services which do not involve an incidental transfer of personalty.
We believe the foregoing analysis of the consequences of expanding the base of the tax to the gross receipts of the 'sale of service' sufficiently disposes of the defendants' assertion that a real difference exists between the subclasses specifically subjected

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to taxation and those impliedly excluded because the former involve 'manual skills which would in most instances involve a passage of significant tangible personal property' while the latter classes are of [39 Ill.2d 540] a professional nature 'where the tangible personal property to be transferred is inconsequential and insignificant.' Even accepting the truth of this distinction between classes (although we have previously noted that 'the majority of servicemen excluded from taxation under the Act appear to possess the same relevant attributes * * * as the businesses on which the tax was levied'), it is manifest that this distinction does not constitute a real and reasonable difference For purposes of a gross receipts tax between those subjected to taxation and those excluded. Nor do we find any other real or reasonable difference between the classes subject to taxation and those excluded sufficient to satisfy constitutional demands of uniformity, due process and equal protection of law. We therefore hold the classifications made by the amendatory Service Occupation Tax Act, and as incorporated in the other acts challenged here, unconstitutional.
The question remains, however, whether by reason of this holding, the remaining provisions of the amendments are also invalid, notwithstanding the severability clauses set forth in the Acts. (Ill.Rev.Stat. 1967, chap. 120, pars. 439.51, 439.121.) The settled and governing test of severability is whether the valid and invalid provisions of the Act are 'so mutually 'connected with and dependent on each other, as conditions, considerations or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect the legislature would not pass the residue independently * * *'.' (Winter v. Barrett, 352 Ill. 441 at page 475, 186 N.E. 113 at page 128, 89 A.L.R. 1398.) The provisions are not severable if 'they are essentially and inseparably connected in substance.' People ex rel. Dougherty v. City of Rock Island, 271 Ill. 412 at page 422, 111 N.E. 291 at page 296; see also, Ohio Oil Co. v. Wright, 386 Ill. 206, 53 N.E.2d 966; Springfield Gas and Electric Co. v. City of Springfield, 292 Ill. 236, 126 N.E. 739, 18 A.L.R. 929.
The classifications established by the 1967 amendments [39 Ill.2d 541] constitute the very heart of the new service occupation and service use taxes inasmuch as they determine the paramount consideration of who bears the burden of the tax. The remaining provisions of the amendments for the most part deal merely with the mechanics of administering the tax statute. While the new gross receipts base would not be subject to this characterization, it seems plain that the legislature enacted this expanded base only because it had contracted the class taxable under the Act. Clearly, then, the remaining provisions, including the new tax base, are so inextricably bound up with the invalid classifications that they cannot be kept in force without doing violence to legislative intent. Simply stated, the amendatory acts exclusive of the voided classifications would not be the Acts that the General Assembly passed or intended to pass; therefore, the amendments are void in their entirety.
While the 1967 amendments purport to specifically repeal the prior service occupation and service use tax provisions, our past decisions are clear--and the Attorney General has so conceded--that invalidity of the 1967 amendments in their entirety renders the repealing sections void also. As was held in People v. Fox, 294 Ill. 263 at page 269, 128 N.E. 505 at page 507, 'where it is seen that the repeal is intended to clear the way for the operation of the act containing the repealing clause and to displace the old law with the new, then, if the new law be unconstitutional, the repealing clause becomes dependent and inoperative, and falls with the main purpose of the act containing it.' (And see County of Cook v. Healy, 222 Ill. 310, 78 N.E. 623.) It is clear that the repealing sections of the 1967 amendments are inoperative, leaving

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the Service Occupation Tax Act and related acts in full force and effect as they existed prior to the adoption of the amendments. People ex rel. Barrett v. Sbarbaro, 386 Ill. 581, 590, 54 N.E.2d 559.
Finally, we turn to a consideration of whether the plaintiffs are properly here as representatives of a class or solely representing themselves. Each of the plaintiffs is either a [39 Ill.2d 542] serviceman within the categories deemed taxable by the 1967 amendments or a purchaser from such serviceman. They are all directly affected and burdened by the discriminatory classifications of the amendments and therefore, as previously noted, the status of each plaintiff to bring this suit on his own behalf is not challenged. However, defendants do challenge the right of plaintiffs to maintain a class action, relying upon the decision in Peoples Store of Roseland v. McKibbin, 379 Ill. 148, 39 N.E.2d 995. Therein, certain retailers brought an action against the Director of Finance and other State officials to enjoin the collection of taxes under the Retailers' Occupation Tax Act on certain sales of food supplies by themselves and others similarly situated. Also included in their prayer for relief was a request for an issuance of credit memoranda for taxes paid, and an order enjoining other retailers similarly situated from bringing a like action. Plaintiffs' claims for refund were predicated on and controlled by the statutory right to recovery provided by section 6 of the Retailers' Occupation Tax Act. (Ill.Rev.Stat.1939, chap. 120, par. 445.) In rejecting the use of he class suit, the court observed that while all retailers in the State, engaged in selling food supplies of the kind sold by plaintiffs, had an interest in having their sales exempted, nevertheless, a decision declaring the sales exempt would not create a fund from which reimbursement could be made, nor establish the existence of a right to recovery in every vendor, each of whom must make his own proof as required by section 6. The court stated that class litigation may be sustained where all members of the class are found to have a common interest in the questions involved and in the results obtained.
In cases decided subsequent to Roseland, courts, uniformly applying this basic criterion of a community of interest in the subject matter of the suit and the remedy requested, have upheld the use of a class action in a variety [39 Ill.2d 543] of situations (Newberry Library v. Board of Education, 387 Ill. 85, 55 N.E.2d 147; Winger v. Chicago City Bank and Trust Co., 394 Ill. 94, 67 N.E.2d 265; Smyth v. Kasper American State Bank, 9 Ill.2d 27, 136 N.E.2d 796), including taxpayer suits to restrain the enforcement of allegedly invalid taxing acts or to recover payments made thereunder. Johnson v. Halpin, 413 Ill. 257, 108 N.E.2d 429; Harrison Sheet Steel Co. v. Lyons, 15 Ill.2d 532, 155 N.E.2d 595; Crane Construction Co. v. Symons Clamp & Manufacturing Co., 25 Ill.2d 521, 185 N.E.2d 139.
In Harrison Sheet Steel Co. v. Lyons, a retailing company sued to enjoin further collection of retailers' occupation tax on certain sales and for reimbursement of taxes previously paid. Thereafter, a customer of the retailer brought suit against it and the appropriate State officials, alleging that he and other customers similarly similarly situated really bore the burden of tax thereby making any reimbursement of the retailer unjust enrichment. A decree was entered in the retailer's case finding the transactions in question did not measure a tax and ultimately the court ordered a cash refund of approximately $42,000.00. On the retailer's motion the customer's suit was dismissed and on appeal the cases were consolidated. The court held that the retailer couldn't resist suit by customers for restitution since the policy expressed in section 6 of the Retailers' Occupation Tax Act, that the individual who actually bore the burden of the tax was entitled to refund, was applicable whether the proceeding was an administrative one terminating in credit memoranda or judicial, terminating in cash refund. To determine the propriety of the customer's use of the class action, the court analysed the facts in the case in light of the

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basic criterion for class actions. It stated: 'The subject matter in this case is the refund to be received by the company under the decree of the trial court. The requested remedy is the declaration of a constructive trust so that the amount refunded can be distributed to the company's customers who bore the burden of the tax.
[39 Ill.2d 544] 'The company contends that because the fund was created as a result of unrelated transactions, a class suit is inappropriate, citing Peoples Store of Roseland v. McKibbin, 379 Ill. 148, 39 N.E.2d 995. In that case, however, there was no common fund and the rights of the members of the alleged class depended upon different factual circumstances, to which different legal principles might be applicable. Here there is a common fund, and common factual and legal issues.' 15 Ill.2d at 537, 538, 155 N.E.2d at 598.
Here, as in Harrison, there is a common fund, and common factual and legal issues, the most important being the constitutionality of the 1967 amendments. So also, in view of this dominant issue, the differences which defendants contend exist between members of the class with respect to their right and amount of recovery from the fund are not sufficient to bar the instant action. We therefore hold that the maintenance of the class action here was proper.
With regard to determining which members of the class are entitled to cash refunds, it is our opinion that the relevant policy expressed in the governing statutes, the Service Occupation and Use Tax Acts, must be followed. Paragraphs 439.117 and 439.47 of those Acts provide, similar to section 6 of the Retailers' Occupation Tax Act, that 'no credit may be allowed for any amount paid by any such serviceman unless it shall appear that he bore the burden of such amount and did not shift the burden thereof to anyone else, or unless it appears that he or his legal representative has unconditionally repaid such amount to his vendee (1) who bore the burden thereof and has not shifted such burden directly or indirectly in any manner whatsoever; (2) who, if he has shifted such burden, has repaid unconditionally such amount to his own vendee, and (3) who is not entitled to receive any reimburement therefor from any other source than from his vendor, nor to be relieved of such burden in any other manner whatsoever.' Ill.Rev.Stat. 1967, chap. 120, pars. 439.117, 439.47.
[39 Ill.2d 545] For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed and the cause remanded for proceedings consistent with the views expressed herein. Affirmed and remanded with directions.

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Friday, March 09, 2007


Lot of hot, local issues being discussed on some blogs in the basin. God Bless and go to it!

A great many of the comments lately seem to be somewhere between or beyond "Dumbass!" "Everybody who works for the government is a vile and lazy ass" and "You Suck!".

I had kinda hoped the the internet would elevate public discourse a little higher than this. Sometimes somebody earns the odd "Dumbass!" (there was a guy not too long ago who thought John Edwards married the Heinz Ketchup money--there "Dumbass" was just a pronoun.) but for the most part, I see some room for improvement in the basin blogosphere.

When the heiroglyphs on the Mayan walls were read, it led to very positive thoughts about their society and learning. The blogosphere are our cave and temple walls. Are we going to leave for future sociologists and anthropologists "You Suck, Dumbass!" Geez, I hope not!


Wednesday, March 07, 2007


These phenomena are the same thing, wrapped differently. The State of Missouri used outsourced illegals to keep the statehouse clean.

The White House outsourced Scooter to keep anybody from learning more about the cleanup job that's needed in the administration.

It's just the natural harmony of the political universe.

Now if we could just get Joe Wilson over his fear of cameras and microphones, everything would be swell, give or take a foreign occupation and a possible pandemic.

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Tuesday, March 06, 2007


Maybe it's because yesterday was nice weather. Maybe it's because Spring Training is up and running but I was thinking how much easier ball terminology is now.

Today, the little one is a "hardball" or a "baseball" and the one at the park leagues is a "softball".

When and where I grew up, a "softball" was the 16 inch "Clincher" variety (no gloves), what is now called a softball was a "12" and a hardball was a "league" (I guess short for "Major League") Occasionally, we would play a game resembling baseball with a rubber ball called a "'deen", short for "Spaldeen". The type of ball was important because the bike ride two each field was about two and a half miles from school and the ball dictated which field we played on. Didn't want to waste energy riding to the wrong field.

The conversations would go like this. "Play at three." "League or 12?" "Church (Street Field) is still wet. Can't play league. 12" (Meaning we had to play at another park, too small for hardball but OK for the middle sized softball). "OK, I'll bring a couple of 'deens in case it rains and and we have to go to Stinson (an elementary school with a hard surfaced playground)".

Thinking about how complicated the ball and georgraphy terminology was reminds me how simple the life was. None of us even owned a bike lock. No bike, bat, ball or clothing item was ever stolen. We would be completely unsupervised on bikes from two in the afternoon till supper time and I never once remember parents coming by the field to check on us. Heck, most of the time, the parents didn't know which of three fields we would occupy. No one was abducted. No one was not selected to play or mocked. There were maybe three inconsequential fist fights in the three or four years we all did that. One of the fields we played on was completely private property belonging to a construction company and the owners actually encouraged us to play there, rather than running us off for liability reasons.

The balls were complicated. The play was simple. No microfiber uniforms, no umpires. We just played.

I think you have to go to Cuba to find that now. Even the Dominican Republic has all the baseball down to organized boxes.

It might not have been "better". I had no perspective, being a kid. All I knew was, the "leagues," the "12's", the "softballs" and the "'deens" and the mobility of my bike sure added a lot of pleasure to my young life.


Sunday, March 04, 2007


I still remember exactly where I was when I first saw the photos of "Bloody Sunday"

It was probably the single biggest screwup by those desperate to hold onto Jim Crow. It was a Ghandian masterstroke by the sponsors. The discipline it took by the group leaders to prevent retaliatory violence was as good as in any military organization. It is difficult to argue that it wasn't a very important day in U.S. History.

I heard the Obama and Clinton speeches yesterday. They were both excellent but I'm not here to handicap them. Bloody Sunday was carried out by people looking to help a larger group. I'm just not sure a Bloody Sunday commemorative service is a place for politickin'.

Yeah, Yeah, you can say these were just dignitary sermons. Both dignitaries just happen to have a claim on the black vote in the Southern primaries. I also know both congregations gladly embraced their speakers. Still, I think I'd have found it more appropriate if maybe Cornell West and Cheryl Mills had come down, or Magic Johnson or Norm Early. Or Maybe Ernie Ladd could have come by (of course he knows too much--would have been declared an enemy combatant.)

Anyway, That's just the creepy feeling I got about the whole thing.


Friday, March 02, 2007


With Chicago competing for the olympic games, I looked around for a Chicago-related precedent. With the help of our friends from Delancey Place, I located the following:

...... competing against the likes of New York, Washington and St. Louis, Chicago wins from congress the right to hold the World's Columbian Exposition, commemorating the four hundredth anniversary of Columbus's discovery of America.

Chicago, newly affluent and anxious to impress, but still the foul-smelling slaughterhouse of the Midwest, is America's great hope for trying to best the success of the Paris World's Fair of 1889:"It lasted just six months, yet during that time its gatekeepers recorded 27.5 million visits, this when the country's total population was 65 million. On its best day the fair drew more than 700,000 visitors..Visitors wore their best clothes and most somber expressions, as if entering a great cathedral. Some wept at its beauty. They tasted a new snack called Cracker Jack and a new breakfast called Shredded Wheat. Whole villages had been imported from Egypt, Algeria, Dahomey, and other far-flung locales, along with their inhabitants. The Street in Cairo exhibit alone employed nearly two hundred Egyptians and contained twenty-five distinct buildings, including a fifteen-hundred-seat theater that introduced America to a new and scandalous form of entertainment (belly-dancing).

"Within the fair's buildings, visitors encountered devices and concepts new to them and to the world. They heard live music played by an orchestra in New York and transmitted to the fair by long- distance telephone. They saw the first moving pictures on Edison's Kinetoscope, and they watched, stunned, as lightning chattered from Nikola Tesla's body. They even saw more ungodly things--the first zipper; the first-ever all-electric kitchen, which included an automatic dishwasher; and a box purporting to contain everything a cook would need to make pancakes, under the brand name Aunt Jemima's. They sampled a new, oddly flavored gum called Juicy Fruit, and...a new beer did well, winning the exposition's top beer award. Forever after, its brewer called it Pabst Blue Ribbon...

"One of the most compelling, and chilling, exhibits was the Krupp Pavilion, where Fritz Krupp's 'pet monster' (soon to bring unprecedented death and destruction during World War I) stood at the center of an array of heavy guns."

From: Erik Larson, The Devil in the White City, Crown, 2003, pp. 4-5, 247-8

Who knew? Aunt Jemima's, PBR and the beginnings of outrageous Ameren/CIPS bills, all with roots in 1893!


Thursday, March 01, 2007


This gentleman had a few drinkies and a little weed, got a little frisky with how he drove the golf cart and whacked his wife when she was hurled out of the golf cart onto some pavement. Depending upon how the life insurance company handled it and how his love life has been since, it was probably considered a bad day at the golf course. Wonder what he shot.,1,1271597.story?coll=chi-newslocal-hed

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