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.    

Would a State Execute NFL Star Aaron Hernandez?

Let's make two assumptions.

First, the State of Massachusetts' allegations are correct, and Aaron Hernandez, former New England Patriots tight end, has committed three first degree murders in the past two years.

Second, assume that Massachusetts has in place a typical death penalty statute. (It doesn't) The precise details of the statute don't matter; just assume that Hernandez's crimes would be death-penalty eligible as a matter of law. 

Here are the allegations:

In his 2012 double murder, Hernandez got into a spat with two men at a nightclub, pursued them in his SUV after they left the club, pulled along side their car, and then unloaded a .38-caliber revolver into the passenger side of their car, killing two and wounding a third.

Hernandez then signed a 5 year, $40 million deal with New England before committing his third murder. The June 2013 killing of Odin Lloyd was particularly cold and premeditated.

Assuming the State obtained convictions on all three first-degree-murder counts against Hernandez, how would the general public feel about executing him? 

The point I'm getting at is this: Hernandez is universally recognized as a special person. First Team All American. Voted best tight end in the nation during his junior season at Florida. Youngest player since 1960 to have 100 yards receiving in a game. His athletic talent is incredible and undeniable.

Sure, a better tight end will come along (one probably even plays for Hernandez's former team now), but it's weird to think about destroying someone who is universally recognized as so good at something. So good that people are willing to pay him millions of dollars to do it, and tens of millions of people are willing to spend hours watching him do it. And he's in his prime. I'm not aware of any death row inmate in history about whom that could be said.

Given Hernandez's specialness, and assuming capital punishment was in play, would Hernandez's incredible athletic talent somehow militate against executing him? I don't expect to ever see him play again, even if he's acquitted of the charges and completely absolved of suspicion. If the allegations against him are true, he's a monster. But he's a monster with something to offer.

Say Hernandez played for the Dallas Cowboys in the late 1990s, during a time when Texas was going lethal injection crazy. Could we do it? Could we extinguish a know, once-in-a-generation talent?

I've made no secret about my opposition to capital punishment. I think it's a vice. It's primary purpose is to satisfy the hatred of those affected by the crime, and understandably so. But as much as the families and communities deserve some measure of revenge, I can't accept state-sanctioned killing of the defenseless and subdued as the 21st century way of obtaining it. But assuming Hernandez's crimes would normally warrant the ultimate punishment, isn't there something more messed up about putting down someone who has such a high commercial and cultural value?

What if Hernandez, instead of offering unique athletic skill, was a leading thinker in some important field, such as medicine or physics? Would our society execute a cold-blooded killer who might still be worth something to everyone? What about a prolific painter or writer? Would we be okay with forever depriving ourselves of those uniquely talented people (and all that they offer us), even if their crimes were heinous? Even if they were heinous? 

It's only food for thought because Hernandez is at no risk of execution in Massachusetts. Instead, something a little like this will probably happen:



The Most Important Line of the Michigan Affirmative Action Case

Yesterday, the Supreme Court decided Schuette v. Bamn, which upheld Michigan's state constitutional amendment that broadly prohibited any state or local government entity within Michigan from discriminating or granting preferential treatment to any individual based upon race, sex, color, ethnicity, or national origin.  The plurality opinion, authored by Justice Kennedy and joined by Roberts and Alito, includes the following pronouncement:

"[I]f it were deemed necessary to probe how some races define their own interest in political matters, still another beginning point would be to define individuals according to race. But in a society in which those lines are becoming more blurred, the attempt to define race based categories also raises serious questions of its own. Government action that classifies individuals on the basis of race is inherently suspect and carries the danger of perpetuating the very racial divisions the polity seeks to transcend."

Hopefully this pronouncement will carry some weight. I'm reminded of the form that I was required to fill out for my employment with the State of Illinois. It seems like giving an individual only six possible options for identifying his own race is a blatant disregard for the reality that "those lines are becoming more blurred."  

License Plate Post: Part III

On July 2, 2013, I blogged about the Illinois law that allows the Secretary of State to reject vanity license plates containing a combination of letters or numbers that "creates a connotation that is offensive to good taste and decency."  One example I posited was whether the Secretary could reject ATHEIST or NO GOD, or whether he could reject JESUS or NO JESUS.

On November 22, 2013, I provided an updated post in which I mentioned a New Jersey man whose request for "ATHE1ST" was rejected. The MVC (New Jersey's DMV) quickly reversed themselves and allowed the vanity license plate when the man appealed. 

However, another New Jersey resident has had her requested license plate rejected. The requested plate was "8THEIST". No one from the MVC responded to the woman's attempts to contest the rejection. 

On April 17, 2014, she filed a federal lawsuit against the director of the MVC of New Jersey.

The complaint states that although the MVC apparently concludes that "8THEIST" carries "connotations offensive to good taste and decency"  (the same standard as the Illinois law), the MVC has permitted a vanity plate reading "BAPTIST".  

I enjoy the rare occasion when one of my spontaneous ramblings on this blog actually proves pertinent in the real world. 

First District Raises Its Eyebrow at Chicago's Ordinance Enforcement Machine

*This is reprinted from my recent submission to the ISBA Standing Committee on Government Lawyer's May 2014 Newsletter.

Chicago's Department of Administrative Hearings (DOAH) Central Hearing Location at 400 West Superior Street

Chicago's Department of Administrative Hearings (DOAH) Central Hearing Location at 400 West Superior Street

In the recent First District case of Stone Street Partners, LLC, v. The City of Chicago Department of Administrative Hearings, 2014 IL App (1st) 123654, Justice Mathias Delort, a former "super lawyer" in the area of cities and municipalities law, explores the "deficiencies in the manner in which the City of Chicago handles in-house adjudication of ordinance violations."  ¶ 1.  The opinion is important for several reasons. 

First, the opinion sheds light on the growth of Chicago's Department of Administrative Hearings (DOAH), the agency responsible for enforcing Chicago's municipal code.  A series of legislative enactments over the past 20 years raised the enforceability of DOAH's administrative judgments to a level equal to that of judicial judgments.  Public Act 90-516 (eff. Jan. 1, 1998), sponsored by then-state senator Barack Obama, gave the administrative adjudication process some "teeth"—as Obama put it during General Assembly proceedings—by giving administrative decisions the same enforceability as a judgment entered by a court of competent jurisdiction.  See 65 ILCS 5/1-2.1-8(b).  This allowed DOAH to issue garnishment process and attach a debtor's assets to collect its administrative judgments.  However, the enhanced enforceability of administrative judgments was not accompanied by enhanced due process procedures, such as strict adherence to the rules of evidence.  The city quickly realized that this created the best of both worlds, and today DOAH's large central hearing facility at 400 West Superior Street "rivals Illinois county courthouses in its size and case volume."  ¶ 10.

Second, in a point of law that state and municipal attorneys should bear in mind, the First District's opinion held that nonattorneys are not entitled to represent corporations at administrative hearings.  ¶ 16.  Citing a May 2010 ISBA Board of Governor's advisory opinion, the court held that "representation of corporations at administrative hearings—particularly those which involve testimony of sworn witnesses, interpretation of laws and ordinances, and can result in the imposition of punitive fines—must be made by a licensed attorney at law."  ¶ 16. (DOAH has taken note of this holding.)  Given this holding, attorneys representing state or municipal entities at administrative hearings should, as a matter of course, make a record of whether the party representing a corporation is or is not a licensed attorney.  If it is revealed that the representative is not a licensed attorney, that representative's appearance is a nullity.  Accordingly, the state or municipal party should move for a finding that the corporate party failed to appear and, if appropriate under the circumstances, seek a default judgment.

Finally, the First District's opinion reminds state and municipal attorneys that strict adherence to local rules and procedures may nonetheless result in reversal.  The city argued before the First District that its rules and regulations specifically allow nonattorneys to represent corporations in administrative hearings.  However, the court rejected that argument because although "this grant of authority may be efficacious," it "clearly usurps the authority of our supreme court to administer the practice of law."  ¶ 18.  As Stone Street Partners illustrates, state and municipal attorneys should protect judgments awarded in their favor by ensuring that those judgments are obtained in accordance with all applicable rules.  This means routinely questioning the validity of local procedural rules in light of constitutional requirements, state statutes, and the supreme court rules.  When in doubt, state or municipal attorneys should err on the side of caution and voluntarily provide whatever additional procedures might be necessary to allow a reviewing court to confidently determine that the opposing party's interests were adequately protected.

The Stone Street Partners case pulls back the curtain and strongly questions the due-process adequacy of Chicago's ordinance enforcement machine.  Whether the city responds in any way is yet to be determined.  Regardless, the opinion provides a useful read for any attorney involved in administrative litigation, especially attorneys who find themselves in an administrative hearing at 400 West Superior Street.

Illinois' Hazing Statute Challenged as Unconstitutional

Attorney Richard Kayne of Naperville (who has a 5-star Yelp review from a booty) has challenged Illinois' hazing statute on vagueness grounds.  

From the Daily Chronicle: "Defense attorneys for the five former Pi Kappa Alpha members accused in the November 2012 death of a Northern Illinois University freshman are claiming that their felony hazing charges are unconstitutional. *** Bogenberger died at the fraternity house with a blood-alcohol level of 0.351 percent after a non sanctioned party in which fraternity members and other guests ordered the pledges to drink vodka, authorities said."

These guys know how to haze.

These guys know how to haze.

The Hazing Statute provides (720 ILCS 5/12C-50) as follows:

§ 12C-50. Hazing.

(a) A person commits hazing when he or she knowingly requires the performance of any act by a student or other person in a school, college, university, or other educational institution of this State, for the purpose of induction or admission into any group, organization, or society associated or connected with that institution, if:

(1) the act is not sanctioned or authorized by that educational institution; and

(2) the act results in bodily harm to any person.

(b) Sentence. Hazing is a Class A misdemeanor, except that hazing that results in death or great bodily harm is a Class 4 felony.

"A statute violates due process on the basis of vagueness only if its terms are so ill-defined that the ultimate decision as to its meaning rests on the opinions and whims of the trier of fact rather than any objective criteria or facts." (Internal quotation marks omitted.)  People v. Einoder, 209 Ill. 2d 443, 451, 808 N.E.2d 517, 522 (2004).

I find the following problems with the statute:

(1) It uses the term "requires." Does this mean that the defendant must have made the victim's performance of the act a necessary condition for acceptance into the group? Or is it okay if the defendant strongly encouraged the victim to perform the act prior to being accepted into the group? If a frat guy manning the keg at a rush party points to a freshman and yells, "CHUG!", could that satisfy the first clause of the statute?

(2) The statute includes amorphous (and unnecessary) requirements that the victim be a student of some kind, and that the group or organization be "associated or connected" with that student's school. So if a freshman from the local community college wants to join a fraternity associated or connected with the state university (which happens all the time), apparently this law does not apply when that student suffers bodily harm or death as part of the initiation. Or does it?

(3) Finally, the statute has a serious causation problem. By requiring that the act "results" in bodily harm or death, the statute leaves itself vulnerable to all types of interpretations. Are we talking proximate cause, "but for" cause, or something else? If a freshman is made to drink lots of booze as part of frat initiation, and he then drives home drunk and crashes, where do we stand? If the sorority requires three slaps of the paddle as part of initiation, does that "result" in bodily harm? What about an annual fraternity-sorority dodgeball game on the quad that results in a bloody nose?

The first and third problems I've identified are the most problematic from a vagueness standpoint. For college students, a very grey area exists between being "required" to do something and choosing to do something under social pressures. And when alcohol is involved (which it usually will be in prosecutions under this statute), can we ever confidently determine what a drunk college student's bodily injury "resulted" from? And does the over-intoxication itself constitute a bodily injury?    

While I think that this statute has some serious problems, and it could be much clearer in its terms, I doubt it's unconstitutionally vague. 

Even the Illinois Supreme Court Misses Obvious Typos

As a law clerk, I'm amazed at how difficult it is to ensure that a filed opinion is free from typos. You'd think that between multiple law clerks, multiple judges, the research director, and the reporter of opinions, every possible typo in an opinion would be detected. I'm convinced that it's impossible.

This is from the Illinois supreme court's recent opinion in People v. Fernandez, 2014 IL 115527, ¶ 5:

"Defendant also stated that he was not going to a hospital because he did want to get the police involved."

Unless Mr. Fernandez is a very illogical person, I believe that sentence was supposed to read, "Defendant also stated that he was not going to a hospital because he did not want to get the police involved."

I can't blame Justice Thomas or his clerks for this error. We are wired to read what we think a sentence means, not what it actually says. It's just impossible to catch everything. 

UPDATE (6/23/14): I notified the Reporter of Decisions about the typo in Fernandez about two months ago. No update at this time. I will continue to update on whether there are any updates. If no updates are required, I will so inform. Until then, do not expect any more updates on this matter. 

The Supreme Court Makes it Official: "the word 'or' is considered to mean 'and' "

On October 16, 2013, I blogged about Rule 604(d) and called upon the Illinois Supreme Court to "Amend This Rule!" Three days ago, the supreme court issued a split decision in People v. Tousignant

JUSTICES FREEMAN, Garman, & Burke held:

In sum, we reject the State’s argument that here the word “or” must be given a literal, disjunctive reading. In our view, such a reading is at variance with the intent of Rule 604(d), and we therefore apply the principle set forth in John P. Moriarty, County of Du Page, and other decisions of this court that the word “and” is sometimes considered to mean “or,” and vice versa, in the interpretation of statutes. We hold that in order to effectuate the intent of Rule 604(d), specifically the language requiring counsel to certify that he has consulted with the defendant “to ascertain defendant’s contentions of error in the sentence or the entry of the plea of guilty,” the word “or” is considered to mean “and.” Under this reading, counsel is required to certify that he has consulted with the defendant “to ascertain defendant’s contentions of error in the sentence and the entry of the plea of guilty.” 

JUSTICE THOMAS specially concurred to express his believe that "the rule should be amended to more accurately reflect this court's intent."

JUSTICES KARMEIER, Kilbride, & Theis dissented:

Because I believe that counsel did strictly comply with the requirements of Rule 604(d), I respectfully dissent. The rule requires counsel to certify that he or she “has consulted with the defendant *** to ascertain defendant’s contentions of error in the sentence or the entry of the plea of guilty” (emphasis added). Ill. S. Ct. R. 604(d) (eff. July 1, 2006). “The word ‘or’ is disjunctive,” which means that it “connotes two different alternatives.” Elementary School District 159 v. Schiller, 221 Ill. 2d 130, 145 (2006). “In other words, ‘or’ means ‘or.’ ” Id. The majority’s reading of Rule 604(d), which construes “or” to mean “and,” cannot be squared with the plain language of the rule. 

* * *

What the majority is actually saying is that the rule should be read as follows: 

“The defendant’s attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain defendant’s contentions of error, and to discuss any other errors, in both the sentence and the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty and sentencing, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings.”

I am not opposed to changing Rule 604(d) ***.

COMPARE THAT to my suggested amended version from October 2013:

The defendant’s attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain defendant’s contentions of error in the sentence and the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty and the sentencing, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings.

 

 

 

 

HB4794: Legislative Sloppiness At Its Best

As a member of the Illinois State Bar Association's Standing Committee on Government Lawyers, I'm occasionally asked to review proposed legislation and give my opinion in support or opposition. 

A few days ago, I was asked to review HB4794, an amendment to the Illinois Open Meetings Act (OMA). This bill is an ode to sloppy legislation and a potentially wonderful means by which to invite even more litigation over OMA. It adds a 32nd exception to OMA, as follows:

"(c) Exceptions. A public body may hold closed meetings to consider the following subjects: *** (32) Negotiations of a public body when the discussion involves entering into contracts with a vendor."

Notably, the bill provides no definition for "negotiations," "involves," or "vendor." So, apparently, the public body can close its meeting and discuss whatever it wants, so long as someone, at some point, mentions something about entering into a contract with a vendor. The public body need not even be a party to the contract. Basically, the meeting would be exempt from the Act if someone says, at some point in the discussion, "My neighbor was thinking about ordering Jimmy Johns last night, but he didn't." 

By using the term "involves," the bill allows just a drop of the topic, "entering into contracts with a vendor," to render the entire discussion exempt from OMA. 

Assuming it would be a good idea to exempt a public body's contract negotiations with a vendor from OMA (a highly questionable proposition in and of itself), the better way to word the bill would be as follows:

"(c) Exceptions. A public body may hold closed meetings to consider the following subjects: *** (32) The public body's contract negotiations with a vendor*."

*The bill would also need to define "vendor," because Merriam-Webster defines "vendor" as "one who vends;" it defines "vends" as "to dispose of something by sale." So, without a statutory definition, a "vendor" would essentially be any person or business that delivers any good or service. 

Needless to say, I oppose this bill.