Highlights of the Gay Marriage Opinion

This is the gist of the Majority's reasoning: 

"The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

*** 

The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter."

Roberts' Dissent:

"Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.

 ***

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it."

Scalia's Dissent:

"If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: 'The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,' I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie."

Thomas and Alito's dissents are predictable and reasonable, but not as quotable as the others.

I am incredibly happy with the on-the-ground result of this decision. Denying marriage to same-sex couples is wrong. But legally speaking, I agree with Roberts' dissent. I worry about what might happen when an issue comes up in which my personal policy preferences are inconsistent with those of 5 justices on the Supreme Court. 

 

 

Don't they have snapchat?

I'm currently filling out an application for my 10-year passport renewal and realizing how amazing it is that, in the year 2015, the State Department's preferred method of obtaining a clear image of my face is to have me print off a 2x2 piece of paper and mail it to a processing center, where some poor sap will simply remove it from the envelope and scan it into a computer.

 

Coming from Illinois's Top Law-Enforcement Official

I understand the sentiment here. Being the victim of sexual assault would be bad enough, but having people dismiss your story as a lie would be all the more traumatizing. I really do get that.

But it's a little unsettling to see Attorney General Lisa Madigan, Illinois's top law-enforcement official, making the statement she did on a matter of criminal law. For every victim of sexual assault, there's also an alleged perpetrator. To make the blanket statement that we should "believe" the victim's account (although that account is usually true, no doubt), is virtually the same as saying we should "believe" that the accused is guilty of the offense. 

But if we want people to abide by the standing policy of de facto believing the accuser, what should we expect when those people are called for jury duty?

The state's highest law-enforcement official should not make public comments that essentially encourage people to reverse the presumption of innocence when sexual assault is at issue. If someone were to read Madigan's comments and take them to heart, we should expect that person to carry those views into the jury box. 

It would be one thing if these statements came from some private activist, but Lisa Madigan is the top government lawyer in Illinois. She is in the business of criminal law, and her public statements on an issue such as sexual assault should be viewed in that context. Those words carry significant weight. In my humble view, Madigan's statements were (perhaps inadvertently) an affront to the presumption of innocence, one of the most sacred tenets of our legal system. 

The importance of lending trust to sexual assault victims is a message that should be promoted. But when the Attorney General decides to promote that message in her official capacity, she should do so without essentially asking her audience to disregard the presumption of innocence. 

 

What areas of Champaign-Urbana are within 1,000 feet of a park, school, or church?

Yesterday's drug bust near the U of I campus not only ruined a lot of people's plans for this weekend, it also illustrated the stupidity of Illinois' controlled-substances law (one of my favorite topics). At least one of the suspects is being charged with enhanced felonies because the apartment from which he sold ecstasy and LSD was within 1,000 feet of a public park (namely, Scott Park, which has seen more bicycles thefts than picnics in its lifetime). This blog post could be about the 879,321 legal things that are more dangerous to do near a public park than selling drugs, but it's not. It's about geography and really cool maps that I made all by myself. 

Section 407 of the Illinois Controlled Substances Act (720 ILCS 570/407) increases the punishment for selling a controlled substance when the sale occurs within 1,000 feet of (1) any "public park," (2) "the real property comprising any school," or (3) "the real property of any church, synagogue, or other building, structure, or place used primarily for religious worship."

I decided to make maps of Champaign-Urbana showing the areas that are within 1,000 feet of parks, schools, and places of worship.  These are conservative maps. I erred on the side of not classifying something as a park, school, or church if there was any reasonable basis to argue that the location did not qualify (for example, I didn't count the U of I quad as a public park, and I didn't count nurseries or preschools as schools).  

Here are the results:

Parks:

Areas within 1,000 feet of public parks

Schools:

Areas within 1,000 feet of the real property comprising any school

Yes, the University of Illinois is a school within the meaning of the Act. See People v. Young, 2011 IL 111886, ¶ 13, 960 N.E.2d 559 (the term "school" under the Controlled Substances Act means "any public or private elementary or secondary school, community college, college or university.") When you drawn a 1,000 foot perimeter around all of the U of I's property, it basically takes up the whole town. 

Places of worship:

Areas within 1,000 feet of the real property of any church, synagogue, or other building, structure, or place used primarily for religious worship.

So most of the drug sales in this town occur near campus or on the north side.  Almost every part of campus is within 1,000 feet of some U of I property, and the north side of town seems to have more churches than fire hydrants.

I primarily relied upon Google to find the churches in town. I'm sure that there are many more churches, especially on the north side, but they don't have much of a web presence.

Here it is all together.  Take a moment to familiarize yourself with the special areas of town where we need to provide extra protection against drug dealers.

The Legal Value of Your Dog

Beautiful son of a female dog.

Beautiful son of a female dog.

If someone negligently kills your dog, you can sue them for damages. (If you haven't already killed them and their entire family.) But how are damages computed? For a workable rule, the damages would equal the market value of your dog. But in most cases, that would be a negative figure because in the market for living dogs, the supply far outweighs the demand. So clearly we can't rely upon market forces to put an accurate monetary value on the absolute very best most-awesome incredible dog in the whole wide world: [insert name of your dog]. 

Accordingly, Illinois courts have recognized that pets sometimes have "no market value," as if they were family heirlooms or artifacts. But then doesn't that make the question of damages impossible?  

Although it's beyond dispute is that my dog, Fritz, is the most valuable dog in the world, I still couldn't fix him with a price. (Although if any eccentric billionaires want to make me an offer, get in touch.)

Here's the law on the matter:

"In the eyes of the law, a dog is an item of personal property. The ordinary measure of damages for personal property is the fair market value at the time of the loss. The courts have recognized, however, that there are a number of items of personal property that have no market value. Included in this group are such items as heirlooms, photographs, trophies and pets. In Long v. Arthur Rubloff & Co. (1975), 27 Ill.App.3d 1013, 1025, 327 N.E.2d 346, 355, the court stated that where property is not the ordinary subject of commerce or is otherwise unique, damages are not restricted to nominal damages; rather, damages must be ascertained in some rational way from such elements as are attainable. The court there espoused the rule that the proper basis for assessing compensatory damages in such a case is to determine the item's 'actual value to [the] plaintiff' and stated that the plaintiff is 'entitled to demonstrate its value to him by such proof as the circumstances admit.' " Jankoski v. Preiser Animal Hosp., Ltd., 157 Ill. App. 3d 818, 820, 510 N.E.2d 1084, 1086 (1987).

If you were called upon to demonstrate the actual value of your dog to you, what evidence would you produce?  *Cue uncontrollable sobbing from the witness stand.*

So-Called "Finley Motions"

This is the most recent installment of my "Better Practice" column in he Chicago Daily Law Bulletin.  (See below for the TL;DR (Too Long; Didn't Read) version.)

TL;DR - For years, Illinois Appellate Courts have been citing the U.S. Supreme Court's decision in Pennsylvania v. Finley, 481 U.S. 551 (1987), for the opposite of what it stands for.

Chicago's "L" or "El" train?

This passage is from the Illinois Supreme Court's recent opinion in People v. Stevens, 2014 IL 116300:

"R.G. stated that on that day, she left work about 9 p.m. and was on the “L” train platform when a man approached her from behind, pointed something hard and sharp in her back and told her to go with him."

It seems obvious to me that the proper nickname for the "elevated train" should be the "el train." Apparently I'm wrong.

Come to find out, this controversy is worthy of its own Wikipedia section.  The Chicago Tribune Stylebook has officially adopted "L" as the formal informal designation of the elevated train. This terminology dates back more than 120 years, according to the CTA. The Stylebook explicitly disapproves using "el" train.

Maybe there are good reasons for this. If "el" train were used in a Spanish-language newspaper, it would come out as "the The train."

But, on the other hand, those who remember the restaurant scene in A Christmas Story know that "L" train would come out as " 'R' train" in Mandarin-language newspapers.

 

Darnell Docket is currently tweeting his way through jury duty

Arizona Cardinals defensive end, Darnell Docket (the same guy who recently reposted an Instagram photo of 16-year-old Malia Obama's booty), is currently tweeting his way through jury duty.  (No rhyme intended.)

Although I sternly shake my head and furrow my brow at this behavior, I can't help but be impressed at this guy's complete disregard for authority. He brags about (1) double-parking in a handicap spot, (2) trying to get kicked out through tweeting, and (3) being able to whoop the court security officer's ass. He even ordered a pizza. 

He should get held in contempt (if the judge is anything but a complete pushover), but I think guys like this are willing to do a little jail time to keep up their image. 

Here are just some of his tweets: 

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Spot the White Person

See if you can determine which of these people is legally classified as "white" (and only white) under Illinois law:

(5) Native Hawaiian or Other Pacific Islander (a person having origins in any of the original peoples of Hawaii, Guam, Samoa, or other Pacific Islands).

(5) Native Hawaiian or Other Pacific Islander (a person having origins in any of the original peoples of Hawaii, Guam, Samoa, or other Pacific Islands).

Yemeni = white. (6) White (a person having origins in any of the original peoples of Europe, the Middle East or North Africa).

Yemeni = white.

(6) White (a person having origins in any of the original peoples of Europe, the Middle East or North Africa).

(4) Hispanic or Latino (a person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin, regardless of race).

(4) Hispanic or Latino (a person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin, regardless of race).

(3) Black or African American (a person having origins in any of the black racial groups of Africa). Terms such as 'Haitian' or 'Negro' can be used in addition to 'Black or African American'.

(3) Black or African American (a person having origins in any of the black racial groups of Africa). Terms such as 'Haitian' or 'Negro' can be used in addition to 'Black or African American'.

The Increasing Absurdity of Illinois' DUI-Cannabis Statute

Yesterday, voters in Oregon, Washington D.C., and Alaska voted to legalize the recreational use of cannabis.  Consumption of cannabis will now be lawful in Washington, Colorado, Oregon, Washington D.C., and Alaska. Polls show that most Americans favor legalization of marijuana, which indicates that the number of states to legalize the drug will continue to grow. This creates problems for Illinois' DUI-Cannabis statute, which stands out among many attorneys (including myself) as perhaps the most backwards, heavy-handed, and arbitrary criminal provision in Illinois.

This is a section 11-501(b) problem. 

This is a section 11-501(b) problem. 

Section 11-501(a)(6) of the Illinois Vehicle Code (625 ILCS 5/11-501(a)(6)) provides as follows:

"(a) A person shall not drive or be in actual physical control of any vehicle within this State while: ***

(6) there is any amount of a drug, substance, or compound in the person's breath, blood, or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act[.]"

Notice that the statute uses the word "unlawful." Under the plain language of the statute, one can be convicted under the statute only if the State proves that the drug, substance, or compound in the person's blood, breath, or urine resulted from the unlawful consumption of cannabis. In other words, if someone in Illinois drives with any amount of a drug, substance, or compound in their breath, blood, or urine resulting from the use or consumption of cannabis in a place where it is legal (such as Washington or Colorado), that person has not violated this statute. As more and more states make consumption legal, the State should have a more difficult time making its case under this statute.

Note also that the federal code does not provide a basis to prove unlawful use or consumption either. It is not a federal crime to use or consume cannabis. The federal code only makes it a crime to "manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." 21 U.S.C.A. § 841

Also, the State can find no refuge in section 11-501(b) of the Vehicle Code (625 ILCS 5/11-501(b)), which provides as follows:

"The fact that any person charged with violating this Section is or has been legally entitled to use alcohol, cannabis under the Compassionate Use of Medical Cannabis Pilot Program Act, other drug or drugs, or intoxicating compound or compounds, or any combination thereof, shall not constitute a defense against any charge of violating this Section."

Section 11-501(b) does not apply to the use or consumption of cannabis in a jurisdiction where it is legal. More specifically, the section must be read for the following proposition: even if someone uses a substance lawfully, the lawfulness of that use does not provide a defense for unsafe driving. This is a reasonable provision, but it does not apply to section 11-501(a)(6), which has nothing to do with unsafe driving. 

"Cannabis" under section 11-501(b) is specifically tied to the use of cannabis under the Compassionate Use of Medical Cannabis Pilot Program Act (an Illinois statute). The section's reference to "other drug or drugs, or intoxicating compound or compounds, or any combination thereof" must be read as a distinct category separate and apart from cannabis and alcohol. After all, section 11-501(a) separates cannabis and alcohol from the "others." Of course, it would still be illegal to drive in Illinois even after legally consuming cannabis if it rendered the person incapable of safe driving. But section 11-501(a)(6) does not set forth an "unsafe driving" standard; it merely prohibits driving at all after the unlawful use or consumption of cannabis. Nothing more, nothing less.

Unfortunately, if we're looking at legislative intent, we can presume that the legislature intended to punish the immoral act of cannabis consumption through this draconian statute. Applying the rule of lenity, however, I just don't see how it can be illegal for someone to drive in this state (assuming they're capable of driving safely) after consuming cannabis in a jurisdiction where it is legal. As the number of states legalizing the consumption of cannabis grows, the State should have more difficulty proving in each case that the cannabis in a defendant's system resulted from unlawful use or consumption. Defense attorneys should demand that the State meet this burden of proof in each case. 

Excessive Sentence

The following is a single, 838-word sentence from section 6-15 of the Illinois Liquor Control Act of 1934:

"Alcoholic liquors may be delivered to and sold at any airport belonging to or under the control of a municipality of more than 25,000 inhabitants, or in any building or on any golf course owned by a park district organized under the Park District Code, subject to the approval of the governing board of the district, or in any building or on any golf course owned by a forest preserve district organized under the Downstate Forest Preserve District Act, subject to the approval of the governing board of the district, or on the grounds within 500 feet of any building owned by a forest preserve district organized under the Downstate Forest Preserve District Act during times when food is dispensed for consumption within 500 feet of the building from which the food is dispensed, subject to the approval of the governing board of the district, or in a building owned by a Local Mass Transit District organized under the Local Mass Transit District Act, subject to the approval of the governing Board of the District, or in Bicentennial Park, or on the premises of the City of Mendota Lake Park located adjacent to Route 51 in Mendota, Illinois, or on the premises of Camden Park in Milan, Illinois, or in the community center owned by the City of Loves Park that is located at 1000 River Park Drive in Loves Park, Illinois, or, in connection with the operation of an established food serving facility during times when food is dispensed for consumption on the premises, and at the following aquarium and museums located in public parks: Art Institute of Chicago, Chicago Academy of Sciences, Chicago Historical Society, Field Museum of Natural History, Museum of Science and Industry, DuSable Museum of African American History, John G. Shedd Aquarium and Adler Planetarium, or at Lakeview Museum of Arts and Sciences in Peoria, or in connection with the operation of the facilities of the Chicago Zoological Society or the Chicago Horticultural Society on land owned by the Forest Preserve District of Cook County, or on any land used for a golf course or for recreational purposes owned by the Forest Preserve District of Cook County, subject to the control of the Forest Preserve District Board of Commissioners and applicable local law, provided that dram shop liability insurance is provided at maximum coverage limits so as to hold the District harmless from all financial loss, damage, and harm, or in any building located on land owned by the Chicago Park District if approved by the Park District Commissioners, or on any land used for a golf course or for recreational purposes and owned by the Illinois International Port District if approved by the District's governing board, or at any airport, golf course, faculty center, or facility in which conference and convention type activities take place belonging to or under control of any State university or public community college district, provided that with respect to a facility for conference and convention type activities alcoholic liquors shall be limited to the use of the convention or conference participants or participants in cultural, political or educational activities held in such facilities, and provided further that the faculty or staff of the State university or a public community college district, or members of an organization of students, alumni, faculty or staff of the State university or a public community college district are active participants in the conference or convention, or in Memorial Stadium on the campus of the University of Illinois at Urbana-Champaign during games in which the Chicago Bears professional football team is playing in that stadium during the renovation of Soldier Field, not more than one and a half hours before the start of the game and not after the end of the third quarter of the game, or in the Pavilion Facility on the campus of the University of Illinois at Chicago during games in which the Chicago Storm professional soccer team is playing in that facility, not more than one and a half hours before the start of the game and not after the end of the third quarter of the game, or in the Pavilion Facility on the campus of the University of Illinois at Chicago during games in which the WNBA professional women's basketball team is playing in that facility, not more than one and a half hours before the start of the game and not after the 10-minute mark of the second half of the game, or by a catering establishment which has rented facilities from a board of trustees of a public community college district, or in a restaurant that is operated by a commercial tenant in the North Campus Parking Deck building that (1) is located at 1201 West University Avenue, Urbana, Illinois and (2) is owned by the Board of Trustees of the University of Illinois, or, if approved by the District board, on land owned by the Metropolitan Sanitary District of Greater Chicago and leased to others for a term of at least 20 years."  (235 ILCS 5/6-15 (West 2014)).

Catch all that? 

Note the specific exemption allowing liquor to be sold in "Memorial Stadium on the campus of the University of Illinois at Urbana-Champaign during games in which the Chicago Bears professional football team is playing in that stadium during the renovation of Soldier Field." The Bears returned to the renovated Soldier Field in September 2003. 

Also note the exemption for liquor sales "in a restaurant that is operated by a commercial tenant in the North Campus Parking Deck building *** at 1201 West University Avenue, Urbana, Illinois." That parking deck has been virtually vacant since it was completed in around 2003. 

Judge Gives Attorneys a Piece of His Mind at Oral Arguments

I just came across an interesting moment from the August 19, 2014, oral arguments in the Illinois First District Appellate Court case of Harris v. Adame, which I listened to while doing yard work.  

I know nothing about the case, but from what I can glean from the oral argument, one party is attempting to set aside a real estate conveyance because the conveying party was under some disability at the time (the attorney said it was "mental retardation"), and the guardian failed to obtain the required court approval before entering into the conveyance on the disabled party's behalf. The trial court granted summary judgment, finding the conveyance void. 

Justice Pierce (I think it was Pierce, but it could have been Simon) was very active in his questioning. He seemed very concerned about the impact of the Appellate Court's decision on the parties. At the conclusion of arguments (audio at 39:58), the Justice said the following:

"The court will take this matter under advisement. The court is adjourned.

I would like to encourage both sides, and the title company, that--[this] case is still alive, obviously, but legal fees, time, and best interest of everybody--in the judgment of this one justice requires consultation amongst the parties to resolve this so that the equities on all sides can be addressed. Further litigation of this is *** not productive. Thank you."

Disclaimer: Everything I know about this case comes from the oral argument audio. I might not even be correct in my guess of which of the four judges on the First District, Second Division, were speaking. 

Here's a Good Laugh

The first sentence of the Illinois Executive Inspector General's report about illegal hiring at the Illinois Department of Transportation:

"The First Amendment to the United States Constitution prohibits government agencies from hiring people based on political affiliation."

Someone should tell everyone. 

Regular Column in the Chicago Daily Law Bulletin

To my tens of readers throughout the vast offices of downtown Urbana, I've recently been picked up as a regular columnist for the Chicago Daily Law Bulletin.  I will be writing the Better Practice column, which identifies areas of Illinois practice and/or procedure that I think can and should be improved. 

Of course, if you don't have a subscription to the Law Bulletin, you'll have to just come here. All I need are 499,987 more regular visitors and I can get a sidebar advertisement for weight-loss pills. 

Are Some Champaign County Same-Sex Marriages Void?

*This is reprinted from the ISBA Human Rights Newsletter

To the delight of many, the past few years have marked an upheaval in equal-protection jurisprudence regarding same-sex marriage.  In state after state, judges and legislators have knocked down the old legal barriers that prevented gay couples from marrying.  But despite the strong political momentum behind this opening-up of marriage, the law must still be respected.  And by respected, I mean followed. 

Regardless of how much applause a government actor's decision might receive from same-sex couples, his or her failure to operate within the confines of the law could end up harming the very same-sex couples for whom he or she advocates.  An example of this potential back-firing may came from Champaign County, where Republican County Clerk, Gordy Hulten, began issuing marriage licenses to same-sex couples on February 26, 2014, more than three months before Illinois' ban on same-sex marriages was set to expire.  Before going into the details of the Champaign County situation, a little background.

On November 21, 2013, Governor Quinn signed into law the Religious Freedom and Marriage Fairness Act, which explicitly allows for same-sex marriage in Illinois.  However, by its own terms, the bill will not go into effect until June 1, 2014.  Until that time, as far as the Illinois Compiled Statutes is concerned, the existing ban on same-sex marriage still stands.

On November 25, 2013, U.S. District Court Judge Thomas Durkin granted a preliminary injunction against Cook County Clerk David Orr, requiring Orr to immediately issue marriage licenses to the plaintiffs, a terminally ill woman and her same-sex partner.  

On February 21, 2014, U.S. District Court Judge Sharon Johnson Coleman granted summary judgment in favor of plaintiffs against Orr, finding that Illinois' existing ban on same-sex marriage violated the equal protection clause of the Fourteenth Amendment.  Lee v. Orr, 13-CV-8719, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014).  The court framed the lawsuit, as follows:

"There is no dispute here that the ban on same-sex marriage violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and infringes on the plaintiffs' fundamental right to marry.  Indeed, the defendant [Cook County Clerk David Orr] and intervenor [Attorney General Lisa Madigan] have joined in plaintiffs' motion, with the caveat the defendant David Orr is bound to follow the law in Illinois.  Since the parties agree that marriage is a fundamental right available to all individuals and should not be denied, the focus in this case shifts from the 'we can't wait' for terminally ill individuals to 'why should we wait' for all gay and lesbian couples that want to marry.  To paraphrase Dr. Martin Luther King, Jr.: the time is always ripe to do right."  Lee v. Orr, 13-CV-8719, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014)

However, the court included an important caveat in its order: "Although this Court finds that the marriage ban for same-sex couples violates the Fourteenth Amendment's Equal Protection Clause on its face, this finding can only apply to Cook County based upon the posture of the lawsuit."  In other words, the ban on same-sex marriage still stands in every Illinois county other than Cook until June 1, 2014.  It's also important to note that no government party in Lee v. Orr argued that the ban was constitutional, and the court's finding that there is "no dispute" that the ban is unconstitutional was based upon concessions.

Coming back to Champaign County, County Clerk Hulten's decision to issue marriage licenses to same-sex couples was based upon the Federal District Court's decision in Lee v. Orr, which by its express terms applied only to Cook County.  Hulten consulted with the Champaign County State's Attorney before concluding that the rationale of Orr applied equally to all Illinois counties.  Lake County Clerk Willard Helander recognized the limitation of Orr, and concluded that he simply did not have the authority to issue marriage licenses to same-sex couples.

Here's the problem with Hulten's decision: It might be wrong.  Not wrong in terms of policy, but wrong in terms of the law.  Hulten's decision to issue marriage license to same-sex couples before June 1, 2014, is basically a gamble that the decision of Lee v. Orr is correct.  And that kind of gamble is a problem because people rely on marriage licenses.  They buy homes together, open bank accounts, and adopt children.  On the day of Hulten's announcement, three same-sex couples applied for marriage licenses in Champaign County.  If one of those couples has a falling out in years to come, what's to prevent one of them from arguing that the marriage is void?  After all, no binding legal authority was in place to justify the issuance of their marriage license.  On the contrary, the only binding law in place at the time expressly banned the marriage.

For those same-sex couples who got married in Champaign County before June 1, 2014, were the extra few months of marriage really worth the risk that the marriage might be a legal nullity?  Sure, it's possible—perhaps even likely—that a court in a future case would declare the Illinois marriage ban retrospectively unconstitutional as to all counties, thus securing the legitimacy of the same-sex marriage licenses issued outside of Cook County while the ban was in place.  But until that happens, I hope that the Champaign County couples who got married between February 26 and June 1, 2014, are aware that the legal foundation of their marriage is built on the non-binding constitutional interpretation of the County Clerk.  As such, the marriage's legal validity is much more uncertain than that of same-sex marriages occurring after June 1, 2014.  Because this possible invalidity could have real legal consequences down the road, Hulten's well-meaning gesture of giving same-sex couples an extra few months of marriage might end up doing more harm than good.        

 

 

Combating Frivolous Filings from Prisoners

Each year in Illinois, the bench and bar expend copious taxpayer resources to process and dispose of frivolous claims filed by state prisoners.  When confronted with prisoner-initiated litigation, the courts must strike a delicate balance between combating frivolous claims, on the one hand, and preserving the prisoner's right of access to the courts on the other.  Unless dealt with appropriately, a frivolous claim can spend years snaking through the trial and appellate courts like a parasite, consuming precious legal resources and wasting taxpayer dollars along the way.  Worse yet, when the courts fail to respond appropriately to a prisoner's first frivolous claim, the prisoner may take up an interest in what the appellate court has deemed "litigation for sport."

It's not always immediately clear whether a particular filing—such as a postconviction petition or a petition for relief from judgment under section 2-1401 of the Code of Civil Procedure—has any factual or legal merit.  But once it becomes clear that a prisoner is simply wasting the court's time with his bogus claim, the court should not simply dismiss the filing, kick the case up to the appellate court, and appoint the office of the State Appellate Defender (OSAD) as counsel on appeal.  That common course of action simply allows the frivolous claim to continue consuming judicial time and resources.  By following a few under-utilized statutes, Illinois courts can do more to combat frivolous prisoner litigation, while simultaneously respecting the fundamental right to access the courts.

At the trial court level, section 22-105 of the Code of Civil Procedure allows the court to collect costs from a prisoner who files a frivolous claim.  That statute provides that when a prisoner files a "pleading, motion, or other filing which purports to be a legal document" in certain civil proceedings, and the court "makes a specific finding that the [filing] is frivolous, the prisoner is responsible for the full payment of filing fees and actual court costs."  735 ILCS 5/22-105.  Such costs are collected directly from the prisoner's Department of Corrections trust account or individual account. 

Section 22-105 applies whenever a postconviction petition is summarily dismissed as frivolous or patently without merit at the first stage of postconviction proceedings.  People v. Alcozer, 241 Ill. 2d 248, 258, 948 N.E.2d 70, 77 (2011).  The statute also applies to habeas petitions under Article X of the Code of Civil Procedure, second or subsequent petitions under section 2-1401 of the Code of Civil Procedure, and claims brought under the Court of Claims Act.  The statute, which sets a fairly liberal standard for the court to collect costs from a prisoner, should be used more often than it is.  At the very least, after a prisoner's first frivolous filing, the court should admonish the prisoner that it will collect costs under section 22-105 if the prisoner files a subsequent frivolous filing.  Knowing that his bank account may take a hit, the prisoner will likely think twice before placing his next filing in the prison mail.  

In terms of safeguarding judicial resources, the trial court's most important decision comes after it dismisses a prisoner's frivolous claim, when it must decide whether to appoint OSAD as counsel on appeal.  The State Appellate Defender Act provides simply that OSAD "shall represent indigent persons on appeal in criminal and delinquent minor proceedings, when appointed to do so by a court[.]"  725 ILCS 105/10.  The supreme court has held that OSAD "may be appointed to represent indigents on appeal only as the Act provides." (Emphasis in original.)  Kirwan v. Karns, 119 Ill. 2d 431, 434, 519 N.E.2d 465, 466 (1988). 

Under the Kirwan court's interpretation of the State Appellate Defender Act, the trial court may not appoint OSAD as counsel on appeal from civil proceedings, such as proceedings under section 2-1401 of the Code of Civil Procedure.  The ubiquitous contrary practice, in which trial courts appoint OSAD in almost every case, should come to an end.  After dismissing a section 2-1401 petition, the trial court should not appoint OSAD—or any attorney—as counsel on appeal.  See People v. Kane, 2013 IL App (2d) 110594 ("There is no statutory basis for the appointment of counsel in a section 2–1401 proceeding.")  Instead, the court should admonish the prisoner that he has a right to appeal, and leave the rest up to him. 

Finally, when the appellate court disposes of a frivolous appeal from a prisoner, it should proceed with the following three steps: warn, punish, prevent.  First, the appellate court should determine whether the prisoner has shown a history of frivolous litigation and, if so, warn him in its order that subsequent frivolous appeals will result in sanctions under Illinois Supreme Court Rule 375(b).  Next, if the prisoner is bold enough to bring a subsequent frivolous appeal, the appellate court should direct the prisoner to show cause why the threatened sanctions should not be imposed.  Finally, as part of that order, the appellate court should direct its clerk to disregard subsequent appeals from the prisoner until the rule to show cause has been answered and/or the sanctions have been paid.  (For an example of this type of order, see the Fourth District Appellate Court's decision in Williams v. Commissary Department of Illinois Department of Corrections, 407 Ill. App. 3d 1135, 948 N.E.2d 1061 (2011).)

It's difficult to imagine the amount of man hours and taxpayer dollars that have been spent disposing of prisoners' frivolous legal claims when neither the law nor common sense dictated that such expenditures were necessary.  By utilizing the handful of statutes mentioned above, trial and appellate courts can significantly reduce the costs of frivolous claims, while maintaining prisoners' rights to access the courts.  But old habits die hard, and the State and OSAD should step up to remind the courts that frivolous claims from prisoners need not consume any more resources than the law requires.