Illinois Appellate Lawyer Blog

Oral arguments in the Illinois Supreme Court will be posted on the web. The court announced in a press release on 12/7/07 that video and audio recordings of arguments will be available beginning in January 2008.

Posting arguments made in the court will slice some stealth from a primary branch of Illinois government. Most people only vaguely understand what happens in the Supreme Court. They never see a Supreme Court argument, never hear an oral argument, and never see an opinion written by the Supreme Court. People never see how their Illinois Supreme Court Justices, who are elected officials, conduct court or themselves.

Making oral arguments available to the public will direct some sunshine on a fundamental branch of government that ordinarily conducts business behind closed doors.

For more details, the court’s press release is available by clicking here.

In this Track 6, the final installment of my interview with Illinois Constitutional scholar Prof. Lousin, Ann wraps up her discussion of the Cutback Amendment. She also talks about the prospects for another Constitutional Convention in Illinois. (The question of whether to have a Con Con will be on the 2008 election ballot in Illinois.) And finally, Prof. Lousin tells us why, in an era of overwhelming federal control, state constitutions are important.

This track is 16 minutes 28 seconds. If you want to listen to the interview now, just click on the triangle on the left side of the bar right below. To download to your desktop, laptop, or iPod for later listening, click on the MP3 link directly below the bar.

The first five segments of this interview are available directly below.

I am planning to broadcast more interviews of notable people who will be of interest to lawyers. The subject matter I want to cover will concern appellate practice and Illinois constitutional matters. Drop me an email and let me know if you like or dislike this format, or if you have suggestions about subjects or individuals you’d like to hear. (And don’t worry, I’ll get better at asking the questions.)

Interview with Prof. Ann Lousin re Illinois Constitution and Constittutional Convention


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In this fifth, and next to last, track of an exclusive interview, Professor Lousin discusses the contours of the Lock Step Doctrine, particularly how the Illinois Supreme Court has applied it to the right of privacy written into the 1970 Illinois Constitution. Professor Lousin also discusses the limited right Illinois citizens have to amend the Illinois Constitution by initiative and referendum, and the Cutback Amendment, the only amendment proposed by initiative that has passed a court challenge. The Cutback Amendment dramatically changed electoral politics in Illinois.

Track 5 is just over 12 minutes. If you want to listen to the interview now, just click on the triangle on the left side of the bar right below. To download to your desktop, laptop, or iPod for later listening, click on the MP3 link directly below the bar.

The first four segments of this interview are available directly below.

I am flattered to tell you that Mazyar Hedayat, who writes the excellent Practice Management Blog, has placed an RSS feed of these podcasts on his blog. Now it’s simple as pie — just a couple of clicks — to listen to the podcast and read the Practice Management Blog. Look for the podcast link on the lower right of the Mazy’s blog.

Prof. Lousin interview re Illinois Constitution and the Illinois Constitutional Convention


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We continue our first podcast interview with Professor Lousin. This track contains Professor Lousin’s thoughts on the Illinois Constitution’s clauses on the Amendatory Veto, ratification of federal constitutional amendments, and the right to bear arms. There also is discussion of how the courts have interpreted Article I of the Illinois Constitution concerning discrimination and the Illinois Equal Rights Amendment.

Track 4 is a touch over 9 minutes. If you want to listen to the interview now, just click on the triangle on the left side of the bar right below. To download to your desktop, laptop, or iPod for later listening, click on the MP3 link directly below the bar.

The first three segments of this interview are available directly below.

Interview with Prof. Ann Lousin re Illinois Constitutional Convention and Illinois Constitution


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On Track 3, Prof. Ann Lousin answers questions about the Illinois Constitution and the 1968 Illinois Constitutional Convention. This portion of the interview focuses on: the ideology of the 1970 Constitution; education in the Constitution; and questions concerning voting by convicted felons, gubernatorial pardons, and the amendatory veto.

Track 3 is 7 minutes 18 seconds. If you want to listen to the interview now, just click on the triangle on the left side of the bar right below. To download to your desktop, laptop, or iPod for later listening, click on the MP3 link directly below the bar.

The first two segments of this podcast are directly below, the entries dated July 19 and 21, 2007.

Interview with Prof. Ann Lousin re Illinois Constitution and Constitutional Convention.


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In this second of six segments of an exclusive interview, Professor Ann Lousin talks about the characters who were involved in the 1968 Illinois Constitutional Convention. Who were the delegates? Who were the movers and shakers? And what role did the independent Democrats from Chicago play?

This track is 7 minutes 55 seconds. If you want to listen to the interview now, just click on the triangle on the left side of the bar right below. To download to your desktop, laptop, or iPod for later listening, click on the MP3 link directly below the bar.

The first segment of this interview was posted on July 19, 2007, and is available directly below.

Interview with Prof. Ann Lousin Track 2 re Illinois Constitution and 1968 Constitutional Convention


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Professor Ann Lousin is among the finest people I have known. Lucky for us she also is among the true experts on the Illinois Constitution. Soon after her academic studies, she was a researcher at the 1968 Illinois Constitutional Convention. In this first audio podcast on illinoisappellatelawyerblog.com, Ann talks about the '68 Convention and the surrounding politics, the Illinois Constitution and how it has been interpreted, and the prospects for another constitutional convention. (The question of whether to have a constitutional convention will be on the 2008 general election ballot in Illinois.)

This interview is broken into six segments. This Track 1 is 7 minutes 30 seconds, and focuses on the social and political climate in Illinois that gave rise to the '68 Convention.

I am planning to broadcast a new segment of this interview every other day or so for the next 10 days.

Quick housekeeping note. If you want to listen to the interview now, just click on the triangle on the left side of the bar right below. To download to your laptop or iPod for later listening, click on the MP3 link directly below the bar.

Interview with Prof. Ann Lousin Track 1 re Illinois Constiutional and Constitutional Convention

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A referendum was held to determine whether the voters wanted liquor to be sold at retail in their precincts. The ballots were printed in English, Spanish, and Chinese. These consolidated lawsuits considered whether the translation of “sale at retail” to Chinese was substantial compliance with the statutory requirements of the Illinois Election Code.

The supreme court applied different standards of review to different parts of the question. “We again note that different standards of review apply to the factual and legal components of this issue. While the ultimate legal question of whether the use of the character xiao shou was in substantial compliance with the Act is reviewed de novo, the underlying factual matters will be reviewed under a manifest weight of the evidence standard.”

This method of analysis makes more sense than — as I suspect other courts would have done — using the “mixed question of law and fact” standard of review. That standard, which looks more and more to represent a failure to face the more difficult analysis posed by the dual standards of review the court used here, asks whether the trial court’s decision was “clearly erroneous.”

In the end, the Illinois Supreme Court allowed the referendum results to stand. You can read the whole opinion in Samour, Inc. v. Board of Election Commissioners of the City of Chicago, Nos. 101902, 102227 (1/19/07), by clicking here.

In twin cases, former aldermen Virgil Jones and Ambrosio Medrano, both convicted of federal felonies for misconduct in office, filed nomination papers to run for alderman again. Challenges were made to their nomination papers on the basis that the Illinois Municipal Code prohibited convicted felons from serving in an “elective municipal office.”

In both cases, the Chicago Election Board’s hearing examiner concluded that Jones and Medrano were ineligible to serve, and recommended that they not appear on the election ballot. Appeals were made to the Chicago Election Board. In both cases, the Board rejected the challenges because, it said, the statute prohibiting convicted felons from serving in an elective municipal office was unconstitutional. The challengers sought review in the Circuit Court of Cook County, Illinois. In both cases, the circuit court affirmed the ruling of the Board.

The challengers sought direct review in the Illinois Supreme Court. The Supreme Court dismissed the appeals, stating that the cases were more appropriately handled by supervisory orders than by direct appeal.

The supreme court ruled that the Chicago Board of Elections did not have authority to consider the constitutionality of the Illinois statute. The orders by the Board rejecting the challenges to Jones and Medrano therefore were void.

The Illinois Supreme Court then ruled that the circuit court improperly affirmed the Board. The supreme court stated that the circuit court should have vacated the Board’s ruling and sent the case back the Board to rule in conformance with the statute that prohibits convicted felons from holding office. “Had the done that here, it [circuit court] would have had no need to address the merits of the Election Board’s constitutional analysis. Without a ruling of the constitutionality of the statute, there would in turn, have been no basis for seeking direct review by our court under Rule 302(a).”

For good measure, the Illinois Supreme Court found two more reasons that the circuit court’s “resolution of this case is fatally infirm.”

• First, the circuit court did not comply with Supreme Court Rule 18, which requires “that the circuit court state in writing that the finding of unconstitutionality is necessary to the decision or judgment rendered and that such decision or judgment cannot rest upon an alternate ground.” The supreme court stated that the non-constitutional flaw was not mentioned in the circuit court’s ruling.

• The Supreme Court was miffed that the Circuit Court of Cook County ignored controlling precedent from the Fifth District Court of Appeals. Using colorful language, the supreme court made it clear that the circuit court was not at liberty to ignore the Fifth District. “Although Hofer was decided by a panel of the appellate from the Fifth District, not the First District, where the Circuit Court of Cook County is located, that is of no consequence . . . The notion that the circuit courts are bound only by the appellate court decisions from their own district is a relic of the pre-1964 Illinois Constitution of 1870 and has been expressly disavowed by our court . . . Until this court says otherwise, an appellate court’s decision must therefore be followed regardless of the appellate court’s district.”

The Illinois Supreme Court chose to rule by supervisory order rather than issue an opinion through the normal course. Although supervisory orders are disfavored, it was appropriate in this case because “the manner in which this case was handled presents important issues regarding the administration of justice, and direct and immediate action is necessary to insure that the Election Board adheres to the law and that any challenge to its decision in the circuit court comports with controlling principles of judicial review.”

Both of these cases were decided by four justices. Justices Thomas, Freeman, and Burke took no part in the consideration or decision of the cases. You can have the full opinions in each case by clicking on the case citation links: Bryant v. Board of Election Commissioners of the City of Chicago, No. 104105 (2/23/07); Delgado v. Board of Election Commissioners of the City of Chicago, No. 104112 (2/23/07).

A bill that would establish public funding for campaigns for Illinois appellate and supreme courts stalled at the end of the General Assembly Spring session. I've reported occasionally about the status of SB 0222. The bill would give primary winners for the appellate and supreme court seats public money for their campaigns, and also would also set contribution limits for all judicial campaigns. The bill made no provision for funding for independent or third party candidates.

When the General Assembly session ended on May 31, 2007, the bill was re-referred to the Senate Rules Committee. A 60 percent supermajority vote will be required to pass the bill this year. However, the bill can be filed next year, when passage again will require a simple majority vote. We're safe − for now.

The full text of the bill is right here.

Earlier this month, SB 0222, the bill to regulate judicial campaigns by institutionalizing public funding for appellate and supreme court seats and limiting contributions to all candidates passed in the Illinois Senate. The vote was 46 to 12. Click here to see the vote.

The bill is pending in the House Executive Committee and has an action deadline of May 31, 2007. The House bill has a 22 sponsors .

The bill would provide funding for candidates of major parties who are running for the Illinois Appellate Court ($250,000) and the Illinois Supreme Court ($750,000). The bill also allots money to primary candidates who meet certain baseline support criteria. It also caps contributions by individuals to a judicial candidate (circuit court included) to $2,000 per election period.

The public funding component of the bill provides money in general elections only to winners of primaries. There is no allowance of funds for independent or third-party candidates, making this bill a clear attempt to assure that judicial power remains in the hands of the two existing major parties. Click here to see the bill.

In Illinois, judges are elected officials. They campaign for office, just like every other politician. Once elected, their actions are subject to political analysis and opinion, including conjecture and speculation, just like every other politician. No politician likes that, but two governing principles allow it: the First Amendment to the United States Constitution and the common law rule of tough. If you’re stepping in the ring, you better be able to take a shot to the kazoo.

In 2003, the Kane County Chronicle, a smallish newspaper with a circulation then of about 12-13,000, ran a series of opinion pieces that suggested Supreme Court Justice Robert Thomas traded his vote in an attorney disciplinary matter for political favor.

This grew out of the Anne Gorecki fiasco. Gorecki, formerly the Kane County State’s Attorney, reportedly put the arm on a job-seeker for a political contribution. She was brought before the Illinois Attorney Registration and Disciplinary Commission for her faux pas. The matter eventually worked its way to the Illinois Supreme Court, which inspired the Chronicle’s series.

Justice Thomas was unhappy about the statement of vote trading, so he sued the author and the newspaper for libel. A jury returned a verdict in favor of Justice Thomas − $1 million for personal embarrassment, mental suffering, and humiliation; $1 million for future economic loss; $5 million for damage to reputation. That’s a lot of humiliation and reputation considering the diminutive circulation of the Chronicle.

On April 11, 2007, the Chicago Daily Law Bulletin reported that a defense motion for judgment notwithstanding the verdict for future loss of income was granted. The trial court found future damages to be too speculative. The Law Bulletin also reported that a $2 million remittitur was entered on the verdict for damage to reputation because $5 million shocked the judicial conscience. (The Kane County Chronicle reported that Justice Thomas would not appeal.)

Justice Thomas certainly had the legal right to sue if he had sufficient evidence of libel, which the jury told us he did. He’s a citizen who sought redress and compensation for being wronged.

The more important question, the public issue, is whether he should have sued. Was it the right thing to do? Should a chief justice of the state supreme court use the system over which he presides as a vehicle to vindicate a charge of political wrongdoing? Should a chief justice use the courts to seek compensation for a libel by a newspaper columnist who wrote about a political situation?

Justice Thomas should have looked the other way. Our court system is weaker for this lawsuit. Our courts differentiate us from other societies in which the people do not have a true institution to redress wrongs and resolve disputes. For the courts to function and fulfill their role in a relatively free society, citizens must hold a modicum of respect for the courthouse. The people have to believe that the courthouse is open to everyone, and that what takes place inside does not depend on political power. If citizens do not accept the court as legitimate, if they view it skeptically and cynically, then the institution fails in its role as a place to resolve citizens’ disputes.

The public perception of the court as a bedrock institution is diminished when the judge in charge of the highest and most prestigious court uses the system for his personal advantage. There were no physical personal injuries, no damage to real or personal property, resulting in the kind of losses that might justify a lawsuit by the Chief Justice. The kind of damage in Justice Thomas’s case arose out of his position as a politician. That’s better left to be resolved by the court of public opinion, not the court to which the people elected him and that he now administers.

I’m not criticizing the verdict. More often than not, juries get it right when they’re given true and sufficient evidence. So let’s assume Justice Thomas had a legitimate beef. He still should have taken a pass on the lawsuit. He should have looked past the “embarrassment and humiliation” he says he suffered and treated the newspaper columns the same as any negative political criticism from a writer in a small-circulation newspaper. The public would have been better served, and our court system would have avoided the perception of erosion.

You could argue that Justice Thomas’s lawsuit has a positive effect on the public’s perception of the courts. That is, by exposing the political columns as lies, the public is assured that the office of Chief Justice is clean.

But this lawsuit didn’t accomplish that. As a matter of law, all the lawsuit did was show that the Chronicle’s articles were published with malice − that the paper and the columnist knew or should have known the statement accusing Justice Thomas of trading his vote for a political favor was untrue. There has been no groundswell of support for the verdict or of condemnation of the newspaper.

The problem is that the verdict is a product of the system over which the Chief Justice rules. It leaves the same feeling you would have if the governor won the lottery. Rather than vindicate the office, the lawsuit and the verdict give the Illinois public, already fatigued and cynical from incessant charges of political wrongdoing, something else to sneer about.

This is a lawsuit that never should have happened.

Illinois Senate Bill 0222, which would give public money to primary winners for their campaigns for appellate and supreme court seats, advanced out of committee to the full Senate today. The Chicago Daily Law Bulletin reports (subscription required) that the bill was unanimously passed by the Senate Local Government Committee. The General Assembly web site shows the bill will receive a second reading tomorrow.

Since I reported on the bill on February 22, the bill has picked up five additional sponsers: Sen. John Cullerton (D-6th), Sen. David Koehler (D-46th), Sen. Dan Kotowski (D-33rd), Sen. Martin Sandoval (D-12th), and Sen. Pamela Althoff (R-32nd). There now are 11 sponsors.

For my earlier reports on this bill, see my February 7, 14, and 22 entries listed under Politics? The bill would give each primary winner $750,000 of public money to run for a supreme court seat, and $250,000 for an appellate court seat contest. The bill does not make a provision for independent or third (minor) party candidates.

Since I last reported on SB 0222 on February 14, the bill has picked up three additional sponsors: Sen. Jacqueline Collins (D-16th), a Chief Co-Sponsor; Sen. Susan Garrett (D-29th), a Chief Co-Sponsor; and Sen. William Delgado (D-2nd).

Yesterday the bill was referred to the Senate Local Government Committee, which has scheduled a hearing on the bill on February 28, 2007 at 1:00 p.m. at the Capitol Building in Springfield, Illinois.

See my explanation of the bill, and how it ignores and thus makes election of independent and minor party candidates much harder, at the February 14, 2007 entry just below.

I first wrote about the pending Illinois Senate bill to provide public financing for appellate and supreme court judicial candidates a few days ago. It’s SB0222, filed by Sen. Kwame Raoul (D-13th) (Chicago), on February 7, 2007. The bill has bi-partisan sponsorship; a chief co-sponsor is Sen. Kirk Dillard (R-24th) (Minority Whip from DuPage County). Another chief co-sponsor is Sen. Don Harmon (D-39th) (Oak Park).

The bill sets up a process by which major party candidates can obtain public financing for their campaigns for appellate and supreme court seats. Under SB0222, candidates do not have to accept public money, but if they do there are strict limits on fundraising and expenditures. If a candidate accepts the public money — $250,000 for appellate court candidates for the general election; $750,000 for supreme court candidates — then private donations to the campaign are limited to $100 per contributor. A candidate may not put more than $10,000 of his or her own money, including money from his or her immediate family, into the campaign, and may not make a loan to the campaign.

The bill contains a detailed regime for fundraising and for institutionalizing the “Illinois Judicial Election Democracy Trust.” The Trust, which would operate under the governance of the State Board of Elections, will dole out the campaign money.

To qualify for public money for the general election, a candidate must win the party primary. Because the bill will provide money only for primary winners, it excludes independent candidates and candidates from third (minor) parties, neither of which are mentioned in the bill. That smacks of unfairness, if not unconstitutionality. So maybe instead of the “Democracy Trust,” it ought to be called the “Trust To Ensure Power Remains With The Two Major Parties.”

The bill also would create a new section to the Illinois Election Code entitled “Judicial Campaign Contribution Limits.” This section includes candidates for the circuit courts. Among other things, the new section would cap contributions by any one person to a judicial candidate at $2,000 per election period.

This cap acts as a double-whammy against independent and third party candidates for appellate and supreme court seats. In the first instance, they are ineligible for public financing. Then they are burdened with these contribution caps. That means an independent candidate must find 375 contributors to give the maximum of $2,000 to meet the $750,000 in public money available to a major party candidate for supreme court. An independent candidate for appellate court must get maximum contributions from 125 people just to get even.

This bill would force taxpayers to subsidize the campaigns of the major party candidates. And it will cost extra if you want to support an independent candidate.

The bill had a first reading and was sent to the Rules Committee. I’ll keep track of it and give you updates. You can read the General Assembly’s status by clicking here. Follow the link on the Status page for the full test, or click right here.

A bill pending in the Illinois General Assembly would change financing and spending for candidates for the Illinois Supreme Court and Courts of Appeal. STLtoday.com today reports on a plan to allot $750,000 to supreme court candidates and $250,000 to appellate court candidates from a public trust fund. More details are available on the bill by clicking