taxation. In February 1998, they, alongrnwith board member David Strommer,rnMike O’Brien, and Chronicles’ legal-affairsrneditor Stephen Presser joined Dr.rnFleming and Representative Manzullornon the same stage, pledging never to givernup the fight against judieial taxation.rnIn December 1998, the board membersrntook their strongest stand ever by refusingrnto approve a tort-tax levy. Instead,rnthey placed on the April 1999 ballot a referendumrnwhich would have replacedrnhalf of the tort tax—about $12 million —rnwith a tax increase in the school district’srngeneral fund. The rest of the moneyrnwould be made up through budget cutsrnin non-court-ordered programs. Boardrnmembers could not offer any guaranteernthat, if the voters passed the referendum,rnthe board wouldn’t also levy a tort t a x -rnperhaps under orders from the federalrnjudge. Not surprisingly, the referendumrnwas defeated two to one, at which pointrnBiondo, fearing bankruptcy for thernschool district, switched sides, asking thernfederal magistrate to lift the Illinois deadlinernon tax levies so that he could switchrnhis vote on the tort fund. (It was later revealedrnthat, even before the referendumrnwas defeated, the school board had privatelyrninstructed its lawyers to ask thernmagistrate to order the use of the tortrnfund should the referendum fail.)rnIn December 1999, Patti Delugasrnjoined Ted Biondo in voting for the torttaxrnlevy. Both claimed publicly that theyrnhad no other option and denied that theyrnhad ever believed that the use of the tortrnfund was illegal. They also argued thatrnthe magistrate had never actually imposedrnjudieial taxation, since the boardrnmembers had always voted for the tort taxrn(even if they had done so under protest),rnand the magistrate had never invokedrnMissouri v. ]enkins, the 1990 U.S. SupremernCourt ruling which has becomernthe basis for federal judicial taxation, particularlyrnin desegregation eases.rnThe prevarications of Biondo and Delugasrnconfirmed another observation thatrnMike O’Brien had made at the HeritagernFoundation in 1996;rn[B]ecause judicial taxes almost inevitablyrnco-opt the local governmentrnand neutralize its adversarialrnresolve, they also tend to obscurernprecisely who is responsible for therntaxes. Has the court ordered therntaxes, or has the legislative bodyrnvoluntarily voted for them becausernof concern for what the judgernmight do if the vote went the otherrnway? . . . This judicial sleight ofrnhand has been a major theme inrnRockford .. . The sinrple truth isrnthat local officials do not, indeedrncannot, govern in the face of judicialrntaxation; They become morerndependents of the federal court’srnlargess than the democratic representativesrnof their constituency.rnThe defections of Biondo and Delugasrnmeant that, for the first time in five years,rnthe board had a pro-tort majorit)’. Thernonly hope for ending judicial taxation layrnwith the Illinois Supreme Court. Wlienrnthe dust had settled, Justice Michael Bilandic,rna former Democratic mayor ofrnChicago, wrote the opinion for the majority,rnwhich upheld Mike O’Brien’s objectionsrnto the tort-tax levy.rnThe decision was a model of judicialrnrestraint and strict construction. Thernplain language of the Tort Immunity Actrnmust be followed. Justice Bilandic argued;rn”compensatory damages” means arn”monetary award paid to a person asrncompensation for loss or injur’.” MagistraternMahoney’s orders in People WhornCare:rnclearly involve mairdator)’ injuirctivernrelief aird not compensator}’rndamages. . . Consequentiy, thernTort ImmuniU’ Act does not authorizernthe levying of taxes to fund desegregationrnremedies and to payrnthe debt service on general obligationrnbonds.rnLongtime readers oi Chronicles knowrnthat we have devoted more than a littlernink to the Rockford school desegregationrnease these past four years. We may neverrnhave fully explained, however, why wernbelieve it to be so important to the 99 percentrnof our readers who live somewherernelse. Rockford, a demographic microcosmrnof the country at large, has longrnbeen viewed as an ideal test market forrnboth big business and big government.rnOn October 26, 2000, the nation dodgedrna bullet, yet the Illinois Supreme Courtrndecision didn’t even make national news.rnBut what nright have happened if therncourt had gone the other wa?rnLook at the list of those who filed amicusrncuriae briefs supporting a broad use ofrnthe tort fund: the Illinois Association ofrnSchool Boards, the Illinois Associationrnof School Administrators, the ChicagornBoard of Education, the Chicago Lawyers’rnCommittee for Civil Rights UnderrnLaw, Inc., the Mexican American LegalrnDefense and Educational Fund, andrnthe American Civil Liberties Union ofrnIllinois. If the Illinois Supreme Courtrnhad ruled in favor of these “friends ofrnthe court,” local governmental bodiesrnthroughout Illinois —and before long,rnthroughout the country —would havernbeen deluged with lawsuits. As MikernO’Brien wrote in 1996:rn[I]f the tax lev)’ provision of ourrnstate Tort Immunit}’ Act is interpretedrnexpansively to mean that. ..rnit can be used to fund . .. ongoingrnprograms of court ordered spendingrnin excess of state tax levy limits,rnthen private litigants can circumventrnthe democratic process andrntransfer basic fiscal power and controlrnaway from our elected representativesrnand into our courts. . .rnSome governmental bodies, facing arnbudget crunch, might even have invitedrnlitigation and then pled guilty so that theyrncould open the floodgates of judicial taxation.rnDespite the Illinois Supreme Court’srnruling, the federal desegregation suit continues,rnand the magistrate has made itrnclear that he won’t even consider returningrnthe district to local control until atrnleast 2006. Meanwhile, the specter ofrnfull-fledged federal judicial taxationrnlooms on the horizon. If the schoolrnboard can’t present the federal court withrna plan to fiind the CRO, Magistrate Mahoneyrnmay issue a Missouri v. Jenkinsrnorder, raising our property taxes back uprnto where they were before the IllinoisrnSupreme Court’s ruling. He may be reluctantrnto do so, because the schoolrnboard could appeal the case all the wayrnup to the U.S. Supreme Court, which nornlonger appears to have a majorit)’ that favorsrneither judicial taxation or racial quotasrnin desegregation. But if the magistraterncan convince the board to ask him to issuernthe Jenkins order, then some legal expertsrnbelieve that the school district couldrnnot appeal—and Michael O’Brien mightrnnot be able to, either. Already, Ted Biondornand Patti Delugas have indicated thatrnthey might vote for a Jenkins order, arguingrnthat “We need to keep our optionsrnopen” (read: “We need to keep the moneyrnflowing”).rnThe fat lady may have sung in October,rnbut the 800-pound gorilla is standingrnin the wings, waiting for his encore. crn36/CHRONICLESrnrnrn