Complete texts of the opinions, with citations of applicable rules and cases, may be accessed on the ISBA web site, www.isba.org.
ISBA advisory ethics opinions are prepared as an educational service to members, and they express interpretations of the Illinois Rules of Professional Conduct and other relevant materials in response to specific hypothesized fact situations.
The ethics opinions do not have the weight of law and should not be relied on as substitutes for individual legal advice. For more information, call the ISBA Legal Department at (800) 252-8908.
Court upholds ban on cutting judicial compensation
By Stephen Anderson
The state solicitor general said March 17, during arguments on the appeal brought by the Illinois Judges Association, that the Illinois Supreme Court cannot compel the state comptroller to pay cost-of-living increases to members of the judiciary.
Oh yes, it can, the court responded May 20 with its unanimous ruling in Hon. Ann B. Jorgensen, et al. v. Hon. Rod Blagojevich, et al. (Nos. 97624 and 97656, consolidated).
In effect, the Supreme Court ordered the comptroller "to issue warrants drawn on the treasury of the State of Illinois to pay the judges, and the class of judges they represent, the judicial COLAs due and owing for FY2003 and FY2004."
The opinion concluded, "Any matters that arise in connection with execution of this judgment shall be presented directly to our court. Because both parties have requested an expedited hearing and ruling in this matter, the mandate shall issue immediately."
Delivered by Justice Philip J. Rarick, the 25-page opinion traced the evolution of the principle in federal and state constitutions that the compensation of judges may not be diminished during their terms in office.
It then noted that the governor had not denied "that cost-of-living adjustments can be a component of salary subject to the prohibition against salary reductions." It further cited the 1980 holding in U.S. v. Will that the compensation clause "bars Congress from repealing or postponing judicial COLAs which have already vested."
Subsequently in 1991, the state Compensation Review Board's request for judicial pay increases was reduced by Illinois Senate Joint Resolution 192 - except for cost-of-living adjustments, which were expressly approved.
The Illinois General Assembly in 2002 suspended payment of a 3.8 percent COLA for fiscal year 2003 in Public Act 92-607, prohibiting state officials from receiving the stipulated adjustments.
In early 2003, however, the legislature determined that P.A. 92-607 had violated the constitutional provision against diminishing salaries, and both chambers passed the remedial SB 100 that made the COLAs payable.
Funds for a 2.8 percent COLA were included in the fiscal 2004 appropriations bill, but the governor both vetoed SB 100 and signed a reduction veto of HB 2700 that prevented implementation of the adjustment.
The Supreme Court opinion found that since P.A. 92-607 was unconstitutional in its entirety, it had no force or effect. "It is void ab initio," Rarick wrote. "It is as if the law had never been passed." Therefore, the governor's "repeal of a non-existent law has no legal consequences."
The court found no basis for the governor's claim of entitlement to legislative immunity for exercising his veto power in HB 2700.
"Distilled to its essence, the governor's position is that the constitutionality of his official actions is simply not subject to judicial oversight," the opinion noted. "No Illinois court has ever so held."
Since the reduction veto was unconstitutional, "it had no force or effect. That being the case, it did not operate to reduce the funding for judicial salaries provided by HB 2700."
In ordering payment of the COLAs, Rarick acknowledged the seriousness of the state's financial situation and expressed sensitivity "to the difficulties faced by our coordinate branches of government" and "the need for austerity and restraint in our spending."
The court pledged "to economize whenever and however we can," but added that it could not ignore the Illinois Constitution. "Now that those salaries have been implemented, the constitution commands that they be paid."
On May 24, the Supreme Court put in place a briefing schedule for attorneys representing the state and the judges association to submit their positions on payment of fees and inclusion of prejudgment interest.
LEARN assists teaching public ABCs of law
Members of the bench and bar should volunteer to speak to community groups and schools about the legal system, and to develop educational materials for use in curriculums.
Those two proposals, agreed on by more than 90 percent of participants in the ISBA Future of the Courts Conference two years ago, got a boost last month from a law-related charitable organization.
The board of the Illinois Law-Related Education and Resource Network (LEARN) voted April 21 to award a $5,000 grant to the Constitutional Rights Foundation Chicago as a step toward achieving "Learning About our Courts" goals that were adopted during the conference. They are:
* Bar associations should communicate with community representatives and teachers about the availability of judges to attend community meetings and school functions as speakers (96 percent agreed).
* ISBA should charge a committee of judges, lawyers and educators with the task of developing court-related education materials for the middle and high school student (91 percent agreed).
Another 87 percent of conferees thought the ISBA should work with the Illinois Judges Association and Constitutional Rights Foundation to provide training for civics and history teachers about the court system.
For more information, call CRFC executive director Carolyn Pereira at (312) 663-9057, or contact Donna Schechter, assistant to the ISBA general counsel, by e-mail at dschecht@isba.org.
The Internal Revenue Services has invited attorneys who have federal taxation practices to participate in focus group discussions that will be conducted in the St. Louis area during the next few weeks.
In each group, six or seven taxation professionals will meet for about two hours to provide input on IRS services that can meet the needs of clients.
To volunteer, contact Catherine Murphy in Fairview Heights by facsimile to (618) 632-5357 or by e-mail to Catherine.Murphy@irs.gov.
Professors recall Freedom Summer after four decades
By Jeff Cappel
Writing in the production notes for his 1988 film, "Mississippi Burning," director Alan Parker spoke of the final resting place of activist James Chaney.
Chaney, Andrew Goodman and Mickey Schwerner were murdered in Mississippi during "Freedom Summer" in June 1964. As Parker phrased his tribute:
"James Chaney is buried in Meridian and his grave has also been desecrated; his headstone, and his memory, smashed by ignorance and cowardice. The broken stones were dumped in a nearby ditch, and his grave is still there in a forgotten corner of a hard-to-find East Mississippi cemetery. Still unmarked."
Parker added that he had written "1964, not forgotten" on the headstone seen in the movie for the civil rights worker who was killed at the film' s beginning.
On the 40th anniversary of Freedom Summer, the civil rights movement was remembered and discussed April 21 in panel format at The John Marshall Law School.
The four John Marshall professors who composed the panel all participated in the movement four decades ago, and each shared memories of that turbulent era.
Securing right to vote
"This topic is really ancient history for most of students," said Prof. Michael Seng. "So it was kind of shocking when we started to put this program together."
Because blacks were denied the right to vote in Mississippi and Alabama, thousands of civil rights activists mainly Northern white college students went to these states to help register them and create a parallel political party, the Freedom Democratic Party.
Journalist David Halberstam wrote that the goal was to hold a shadow election. "By doing so," Halberstam recalled, "they would show that there were hundreds of thousands of blacks denied the franchise in Mississippi alone." What followed was violence and terror against the activists and blacks.
Prof. Craig A. Peterson, who participated in Freedom Summer as a law student, said various civil rights groups had been in those areas since about 1961. With the upcoming 1964 presidential election, however, efforts were intensified to register black voters.
"There was sense that if African-American registrants could register to vote, then there would be political change and pressure for better schools and more equality," Peterson said.
He added that 30 so-called Freedom Schools were established to provide books, increase self-esteem and improve educational quality. About 3,000 children participated. The need for lawyers and law students wasn't lost on the organizers, since threats and violence were expected.
Arrests, beatings common
"Volunteer lawyers, professors and practitioners, came down for a few weeks," Peterson said. "They came from across the country and some were from Mississippi. Additionally, roughly 30 law students, myself included, were selected to come down. This group was called The Law Students Civil Rights Research Council.
"There were more than 1,000 arrests of African-Americans and volunteers throughout the summer, and more than 80 beatings and fire-bombings of the Freedom Schools as well as the homes where the volunteers lived."
Peterson said arrests on charges of "parading without a license" were common. This is what volunteers were charged with as they went house to house to register people. Habeas corpus petitions were filed immediately in the federal system for jailed workers, but judges tended to deny them.
Another activity Peterson participated in was chronicling what was happening to African-Americans, namely beatings and intimidation. "All in all, it was a pretty heady experience for someone who was 22 years old 40 years ago," he said.
Marching toward Selma
Prof. William Carroll assisted civil rights workers who attempted the march from Selma to Montgomery, Ala., in March 1965.
"Martin Luther King and the Southern Christian Leadership Conference (SCLC) were attempting to form a march that would begin in Selma, cross over the Alabama River and than proceed 50 miles to Montgomery." he recalled.
The march was to protest the killing of protestor Jimmie Lee Jackson and the denial of the rights of African-Americans to vote. What followed was Bloody Sunday: March 7, 1965. Approximately 700 protestors were met with force by the Alabama State Police on the Edmund Pettus Bridge.
"I was upset with what happened," said Carroll, who was teaching in Pittsburgh at the time, "so I flew down to Selma to see what I could contribute."
A second march was organized. Carroll said many members of the SCLC wanted to become a little more aggressive, since it appeared the marchers would never cross the bridge.
"So the thought was to leapfrog over the state troopers and go directly to Montgomery," Carroll explained. "I flew back to Pennsylvania to help organize some SCLC members. We organized a bus caravan and drove straight down to Birmingham. We than organized a march into Montgomery."
But Carroll's group was met with force, and they retreated back into the black communities where they thought they would be safe. "I was concerned be cause I felt responsible for all of the students I brought down there," he said.
Federal judge intercedes
Fortunately, all of this chaos was broadcast. In the wake of national outrage, a federal judge ruled that Alabama had to allow the march to proceed. "With police protection," Carroll added.
Seng had just finished his second year of law school when he left for Mississippi in the summer of 1966, encouraged by a law professor who was there during the previous summer. Seng worked on school desegregation and public welfare issues for the NAACP Legal Defense Fund.
"Myself and three other law students were charged with finding out why some of the schools were still segregated 12 years after the Brown decision," Seng said. "It was arranged for us to call our Jacksonville office every hour to let them know we were all right."
Seng was amazed that so many black families would talk to them. "But a squad car followed us," he said. "I don't think it was there for our protection."
While some schools offered freedom of choice, meaning blacks could attend black or white schools, but because of threats and violence, most of them attended the black schools.
"I remember talking to one black family whose daughter was brilliant," Seng said. "She wanted to attend the white school, but her family questioned whether they dared exercise that freedom of choice. What do you tell a person in a situation like that?"
Seng attended a rally where activist Stokely Carmichael asserted that he would not be arrested any more. "Every one of his sentences ended with 'We want black power.'"
Seeing frightened faces throughout the day and then hearing such a rallying cry at day's end "shattered" Seng's world because he "wasn't quite sure where they were at and didn't have good feelings as to were the United States was headed."
Navajo healthcare sought
Professor Diane Kaplan spent time on a Navajo Indian reservation working on health issues, and practicing in a public interest law firm in Washington. She noted that law firms and other institutions were putting pro bono programs in place to litigate law reform issues.
"Public interest law firms were byproducts of the civil rights movement," Kaplan said. "Fifteen years before, there were no institutions which dealt regularly with civil rights issues."
When Kaplan began her work in the early 1970s, many of the civil rights initiatives had become institutionalized, so she was able to benefit from the efforts of others who went before her.
She found helping to bring more health care facilities to the reservation very interesting. "There was a need for immediate medical care in case of a car accident or a seizure, for instance," Kaplan said. Roads on the reservation were few, and even fewer residents had vehicles in which to transport the sick or injured.
"What I came away with from this experience was how powerful our judicial system could be as an engineer of social change," she said. "I never felt very powerful, but I could appreciate the collective effort of so many who felt that they were their brothers' keepers."
Nina Appel takes new Loyola role
Nina S. Appel, dean of the Loyola University School of Law since 1983, was named its first dean emerita on May 10. She has relinquished management of the law school for a new challenge in alumni relations and development.
Appel was Loyola's ninth law dean and one of only six women to head a major law school at the time. She had joined the faculty in 1973 and served as associate dean for seven years.
A past chair of the American Bar Association Section on Legal Education and Admission to the Bar, Appel received its Robert J. Kutak Award in 2003 for outstanding contributions to legal education. She also received a Distinguished Teaching Award from her alma mater, the Columbia University Law School.