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:



Can the State Criminalize Self-Produced Child Pornography?

This tough hypothetical struck me today: John and Mary, both 16 years old, agree to video-record themselves having sex. Years later, when John and Mary are both in their 20s and married to one another, they agree to post their video on the internet. Assuming the State's child pornography law is typical (meaning that it prohibits producing, possessing, or distributing any visual depiction of persons under the age of 18 engaging in a sexual act), and it has been in force forever, can the State constitutionally prosecute John and Mary for producing, possessing, or distributing child pornography?

In New York v. Ferber, 458 U.S. 747 (1982), the United States Supreme Court held that the First Amendment permits the government to prohibit child pornography for the following five reasons: (1) the State's interest in safeguarding the physical and psychological wellbeing of minors is compelling; (2) the distribution of child pornography is intrinsically related to the sexual exploitation of children; (3) the advertising and selling of child pornography provides an economic motive for the production of child pornography; (4) the First Amendment value of child pornography is modest, if not de minimus; and (5) recognizing child pornography as falling outside the protections of the First Amendment is not inconsistent with the Court's First Amendment precedent. 

Most importantly for the hypothetical John and Mary, the Court in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 253 (2002), explicitly rejected the government's argument that a ban on virtual child pornography (media intended to mimic child pornography but without involving any actual children) could not be constitutionally justified by the government's interest in eradicating pornography that "whets the appetite of pedophiles and encourages them to to engage in illegal conduct."  

Under the Court's existing First Amendment jurisprudence, can John and Mary constitutionally be prosecuted for producing, possessing, or distributing their sex tape? What if John and Mary never posted their video on the internet, but instead kept the tape in a shoebox in their closet? What if they destroyed the tape immediately after making it?

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. 

We Should Specifically Criminalize a Child Molestor's Attempts to Keep the Victim Quiet

In many cases involving criminal sexual abuse of children, the conviction results from one or a few individual instances of criminal conduct occurring within the course of a much larger, ongoing sexually abusive relationship.

The cases usually follow the same pattern:

  1. Man encounters child
  2. Man molests child
  3. Man motivates child to remain silent
  4. Molestation continues
  5. Molestation eventually comes to light
  6. Child must be convinced that it's okay to talk about the molestation

It's the third step that's the key. Getting the child to keep the molestation a secret is usually accomplished through a threat or, less often, a promise. This is the glue that holds the sexually abusive relationship together. It's also one of the most psychologically-damaging components of molestation because it (1) prolongs the abuse, (2) allows the offender the opportunity to engage in more frequent abuse, (3) instills a sense of fear in the child, and (4) allows the passage of time to erode the evidence of abuse by preventing ready detection.

In case after case, evidence comes in showing that the adult threatened the child (successfully) into keeping the abuse a secret from parents, teachers, friends, and everyone else. See, e.g., People v. Rushing, 192 Ill. App. 3d 444, 447, 548 N.E.2d 788, 790 (1989) (defendant threatened to kill victim's parents if she told about abuse); People v. Stechly, 225 Ill. 2d 246, 257, 870 N.E.2d 333, 342 (2007) (defendant told victim that her mother would be mad at her if she learned of sexual conduct); People v. Holloway, 177 Ill. 2d 1, 5, 682 N.E.2d 59, 61 (1997) (defendant threatened to hurt victim if she told anyone); People v. Kitch, 392 Ill. App. 3d 108, 112, 915 N.E.2d 29, 33 (2009) (defendant threatened to kill victim if she told anyone); People v. Stewart, 303 Ill. App. 3d 844, 847, 708 N.E.2d 1241, 1244 (1999) (step-father defendant told victim that he would go to prison if she told anyone); People v. Greenwood, 2012 IL App (1st) 100566, 971 N.E.2d 1116, 1119 (defendant threatened to hurt victim's mother if she told anyone); People v. Monroe, 366 Ill. App. 3d 1080, 1084, 852 N.E.2d 888, 894 (2006) (defendant threatened to beat victim if she told); People v. Pitts, 299 Ill. App. 3d 469, 472, 701 N.E.2d 198, 201 (1998) (defendant threatened to kill victim if she told anyone); People v. Moss, 275 Ill. App. 3d 748, 751, 656 N.E.2d 193, 196 (1995) (defendant threatened to kill victim if she told anyone).

The Criminal Code should specifically prohibit making threats or promises to a child intended to conceal sexual abuse.

I propose the following amendment to the Criminal Code:

720 ILCS 5/11-10 Concealment of Sexual Abuse

(a) A person violates this section when he or she communicates to a child under 13 years of age, directly or indirectly by any means, a threat, promise, or other statement intended to influence the child from disclosing a violation or attempted violation of Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 11-6, or 11-6.6 of this Code committed by a person 17 years of age or older.

(b) A violation of this section is a Class 2 felony.

This section goes beyond the offense of Intimidation (720 ILCS 5/12-6) because it applies to "promises" or "other statements" instead of simply "threats." This is important because perpetrators of sexual abuse upon children don't always rely upon "threats" to influence their victims to keep quiet. See, e.g., In re Rolandis G., 232 Ill. 2d 13, 19, 902 N.E.2d 600, 604 (2008) (defendant had victim "pinky swear" not to tell anyone).

This proposed offense also catches harmful conduct that otherwise goes unpunished. For example, assume the defendant sexually abuses his five-year-old stepdaughter. Assume he also makes his seven-year-old stepson promise not to tell anyone of the abuse, which then continues for a year until the children's mother finally discovers it through some other means. The defendant's conduct toward the stepson is independently harmful, and should be independently punished, because (1) it allows the abuse to go on over a longer period of time, likely resulting in instances of abuse that go uncharged, and (2) it will likely psychologically damage the stepson by making him feel guilty for enabling the abuse of his sister to continue. As far as I can tell, the current Criminal Code provides no means for punishing the defendant's conduct with regard to the stepson.

This proposed offense would also cover the conduct of those who did not necessarily commit the underlying abuse. On occasion, a family member will persuade the victim to remain quiet in an effort to protect the abuser. This too can have the effect of prolonging the abuse. If the family member who stood idly by while the abuse occurred can be charged with this offense, it could provide an important bargaining chip for the prosecution to obtain that person's cooperation as a witness.

I've also included an exception when the perpetrator is himself a child (under 17 years of age). I thought this exception was appropriate to address situations where a parent is faced with conduct by one child against the other. I don't think that a parent should be made a felon if, during that difficult situation, he or she makes statements to one of the children that could be interpreted as intended to influence the child from disclosing the conduct. In such a situation, the parent is in a sense a victim as well, and it seems like too much of an intrusion into the family unit to apply the proposed law in that context.

I should mention that I am usually not inclined to support more and more criminal laws targeting child sex-offenses. I generally see no shortage of ways to bring child molesters to justice. I acknowledge that because no legislator in his right mind would vote against any increase in penalties for child sex crimes, bad laws can get passed without careful scrutiny. However, I think that this proposed addition to the Criminal Code is appropriate and limited.

*One last note: I understand that the language "influence the child from disclosing" might seem kind of awkward. It is. But based on the many statutes that I've read, I've found that awkwardness is often times preferable to vagueness. I think that anyone reading the statute would understand the meaning of "influence the child from disclosing," even though that particular arrangement of words is novel and unfamiliar. To me, it broadly conveys the idea of pressuring the child not to disclose.

1-29-2014 UPDATE:

I just came across this in an article from today's News Gazette about a man charged with molesting a girl over the course of six months:

Sullivan said the encounters between Dorsey and the girl happened at two different homes at times when he and the girl were alone in the same room.

"Each time he threatened that if she told, he'd beat her," Sullivan said.

Invoking Plain Error: Forfeiting Forfeiture

Here's a weird 'how the hell did we get here?' legal rule relating to forfeiture and plain error in criminal appeals. Ladies, try to keep your pants on.

In Illinois, to preserve a claim of error for appeal, one must object to the error at trial and include the issue in a post-trial motion. Failure to take these steps will result in forfeiture of that claim of error. Forfeiture means that the appellate court will refuse to consider the error on appeal. Basically, even if there was a mistake in the trial court, you're screwed and won't get any remedy from the appellate court if you failed to "preserve" the claim of error by objecting and including the issue in a post-trial motion. This is pretty basic stuff.

However, in criminal cases, under the "plain error" doctrine, the appellate court may reach a forfeited issue on appeal when certain circumstances exist (e.g., the error was so serious that it affected the fairness of a defendant's trial and challenged the integrity of the judicial process).

Here's where it gets weird.

The defendant must invoke plain error for the forfeiture to be disregarded, but the State must point out the forfeiture for the forfeiture to be honored. In other words, the State can forfeit the benefit of the defendant's forfeiture. Even more weird (I'm choosing not to use the word "dumb"), unlike any other issue in an appeal, the defendant may invoke plain error for the first time in his reply brief. People v. Williams, 193 Ill. 2d 306, 347-48, 739 N.E.2d 455, 477 (2000).

So, on appeal, if a criminal defendant argues forfeited claims of error, he must assert the plain error doctrine. However, if he doesn't invoke plain error, the State must point out that he didn't. If they don't, the appellate court will simply reach the error, even if it was in fact forfeited. But because the defendant may invoke plain error for the first time in his reply brief, the State always acts in vain when it points out the forfeiture (unless the defendant is really stupid and fails to read the State's brief). The State is really doing nothing more than reminding the defendant to invoke plain error in his reply brief.

This process has become a ceremonial ritual without any nexus to the practical concerns of appellate litigation.

Here's how it goes down step-by-step:

  1. Defendant forfeits claim.
  2. Defendant fails to invoke plain error on appeal.
  3. State points out that claim is forfeited and defendant doesn't invoke plain error.
  4. Defendant invokes plain error in reply brief.
  5. Appellate court undertakes plain error analysis. First step in plain error analysis: determine whether any error occurred. People v. Thompson, 238 Ill. 2d 598, 613, 939 N.E.2d 403, 413 (2010). How's that for efficient use of judicial resources?
  6. Concept of forfeiture rendered meaningless.
  7. People of the State of Illinois pay lawyers from the office of the State Appellate Defender, lawyers from the office of the State's Attorney Appellate Prosecutor, law clerks, and Judges for their hours of time working on the defendant's appeal.
  8. Repeat.

I hope the Illinois Supreme Court will revisit its decision in Williams and hold defendants to their forfeiture when they fail to invoke and argue plain error in their opening briefs.

Update on License Plate Post

On August 2, I posted about the restrictions on vanity license plates.

One of the examples that I used as a license plate that could potentially create a "connotation that is offense to good taste and decency" was one involving the word "ATHEIST."  

After that post, a story broke from the state of New Jersey involving the government's rejection of a license plate reading "ATHE1ST."  According to the activist applicant, the state originally rejected the license plate as "objectionable," but reversed course shortly thereafter.

Story here and follow-up here

Amend This Rule!

Illinois Supreme Court Rule 604(d)  governs appeals by defendants upon the entry of a guilty plea. A provision of that rule requires the defendant's attorney to accompany his post-trial motions with a certificate stating 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, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings." 

The rule requires the attorney to consult with the defendant about either  the guilty plea or  the sentence. Then it inexplicably requires the attorney to examine only the transcript of the guilty plea hearing.  So, under this rule, if the defendant tells his attorney that he has no problems with the guilty plea but he's upset about the length of his sentence, the attorney has complied with the rule if he files a certificate stating only that he (1) consulted with the defendant about the sentence and (2) reviewed the transcript of the guilty plea.   

But it actually gets weirder. In People v. Neal, 403 Ill. App. 3d 757 (2010), the defendant's attorney filed motion to reconsider sentence and a certificate stating that he had reviewed the transcript of the sentencing hearing. He said nothing about the guilty plea hearing because the defendant had no contentions of error as to his guilty plea. The court remanded to allow the defendant to file a new post-trial motion because his attorney did not certify that he reviewed the transcript of the guilty plea hearing. Based on the text of the rule, the court reached the correct result. 

"However, in this context, it is clear that 'or' means 'and.'"

The Second Circuit's holding in People v. Dryden , 2012 IL App (2d) 110646, ¶ 9, 980 N.E.2d 203, points out the strangeness of the rule:

"The State points out that the rule's consultation requirement is phrased in the disjunctive: counsel must certify that he sought 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). However, in this context, it is clear that 'or' means 'and.' See People v. Prather, 379 Ill.App.3d 763, 768, 887 N.E.2d 44. It would be absurd to suggest that where, as here, counsel moves both to withdraw the plea and to reconsider the sentence, counsel may arbitrarily choose to consult with the defendant about only one type of error."

The compliance requirements of this rule are currently before the supreme court in People v. Tousignant , No. 115329. At oral argument in that case, the defendant's attorney argued that the supreme court should amend the rule. I agree. 

The Supreme Court should amend the rule to 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 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."

Simple as that.  

 

Constitutional Criminal Law Questions in Current SCOTUS Term

The following constitutional criminal cases are before the United States Supreme Court in the October 2013 term.  I've pulled the "questions presented" directly from the certiorari petitions or the petitioners' briefs.

Fourth Amendment

Fernandez v. California , No. 12-7822Once a co-tenant has expressly told police officers that they may not enter his home, does the Fourth Amendment allow the officers to obtain valid consent to do so by removing the objecting tenant from the scene against his will and then seeking permission from the other tenant shortly thereafter?

Navarette v. California , No. 12-9490: Does the Fourth Amendment require and officer who receives an anonymous tip regarding a drunken or reckless driver to corroborate dangerous driving before stopping the vehicle?

Fifth Amendment 

Kansas v. Cheever , No. 12-609When a criminal defendant affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant’s methamphetamine use, does the State violate the defendant’s Fifth Amendment privilege against self-incrimination by rebutting the defendant’s mental state defense with evidence from a court-ordered mental evaluation of the defendant? 

Fifth and Sixth Amendments 

Kaley v. United States , No. 12-464: When a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, do the Fifth and Sixth Amendments require a pretrial, adversarial hearing at which a defendant may challenge the evidentiary support and legal theory of the underlying charges?

 

 

Cameras in Illinois Courtrooms and the Right to Gather Information

 In January 2012, the Illinois Supreme Court entered an order that “authorized on an experimental, circuit by circuit basis” the use of “extended media coverage” in Illinois trial courtrooms. A seven-page policy statement attached to the order provides the blueprint for implementation of audio-visual recording and broadcast of trial court proceedings. As of September 2013, the judges of 35 Illinois counties have approved the use of extended media coverage. 

Appropriately, the official policy vests the trial judge with “broad discretion” over nearly every aspect of extended media coverage, from whether to prohibit coverage outright, to whether to permit media personnel to install increased-wattage light bulbs into existing courtroom fixtures (as one of many “technical” guidelines intended to limit distractions, the policy prohibits the use of any artificial lighting not already existing in the courtroom). 

Although the trial judge enjoys broad discretion over most matters, the supreme court’s policy specifically prohibits “the rights of extended media coverage” to anyone other than “established news gathering and reporting agencies and their representatives whose function is to inform the public.” The supreme court’s practical reasons for adopting this rule are understandable. The inconvenience of allowing people to operate audio and visual recording devices in a proceeding is lessened by entrusting that task to a professional entity that knows what it’s doing. The rule also provides the most bang for the buck by ensuring that the entity providing coverage will use its established channels of communication to broadcast the footage to a wide audience, so as not to render the hassle of cameras all for naught. 

However, the question must be asked: why did the supreme court see fit to expressly limit the right of extended coverage to “established news gathering and reporting agencies”? With the trial judge vested with broad discretion to control the means of coverage and/or deny coverage outright (a decision that “is not appealable”), what is the supreme court worried about happening if those not “established” in the news media are allowed to make audio and video recordings during proceedings? Does the supreme court not trust trial judges to determine for themselves whether an applicant will cause problems if allowed to provide coverage? 

I’ll use myself as an example. I am an attorney licensed to practice law in the State of Illinois and I operate a legal blog. Since April of this year, I have been electronically publishing writings about things happening in Illinois courtrooms. I also own a digital camcorder, a 64 gigabyte SD card, and a tripod. If I were to apply to provide extended media coverage, the trial judge (hopefully) would trust that I could do so without causing a disturbance in the courtroom. (For the record, I would have no desire to spend my afternoons doing this.) So why then has the supreme court specifically limited trial judges to allowing coverage only by established news agencies?

I suspect the limitation on those who may provide extended media coverage, like most of the provisions of the supreme court’s policy, is rooted in practical administrative concerns. But it creates the appearance of viewpoint discrimination when the policy allows only the established media to make courtroom recordings, which then provide the basis for publication and editorial commentary—the sine qua non of freedom of the press and freedom of speech. By limiting the right to gather information to the established media, the supreme court may also be limiting the first amendment right to publish documentation of, and comment upon, the happenings within Illinois courtrooms (because the policy does nothing to limit the applicability of copyright law, the news agency making the recording presumably has the exclusive right to broadcast the recording).

Although I see it as unlikely, the supreme court’s policy just might find itself challenged in a federal civil rights action by a well-resourced blogger who wants to broadcast and comment upon footage of courtroom proceedings, perhaps one for which the “established” media has been permitted access. There would be many hurdles to bringing such an action (e.g. standing), but stranger things have happened.

As a final piece of food for thought, consider Richmond Newspapers, Inc. v. Virginia448 U.S. 555, 578 (1980), in which a plurality of the United State Supreme Court observed that “a trial courtroom is a public place where the people generally—and representatives of the media—have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place.”

* This blog post is a reprint of my article in the October 2013 newsletter of the Illinois State Bar Association Human Rights Section Council.