Publications

Illinois Bar Journal
Articles on Constitutional Law

Making Constitutional Challenges to the Illinois Tax on Trust Income By Robert J. Kolasa November 2013 Article, Page 584 Under Illinois law, income from a trust created by an Illinois resident is taxable even if the trust is not otherwise connected to Illinois. But is the state tax constitutionally infirm?
A Guide to the Confrontation Clause By Geoffrey Burkhart June 2013 Article, Page 304 When does the Sixth Amendment require prosecutors to produce a live witness rather than an out-of-court statement against a defendant? Here's a look at the latest developments.
SCOTUS rules warrantless dog-sniff search of home unconstitutional By Adam W. Lasker May 2013 Lawpulse, Page 222 Unlike an earlier decision this term that allowed dog-sniff evidence from a traffic stop, Jardines holds that the dog-sniff search of a front porch requires a warrant.
Admissibility of Dog-Sniff Evidence: Evaluating Probable Cause after Florida v. Harris By David J. Robinson April 2013 Article, Page 194 In Harris, the U.S. Supreme Court held that dog-sniff evidence can be admissible even if prosecutors do not lay a detailed foundation that the dog is well trained.
Despite 7CA ruling, Illinois judges not dismissing concealed-carry cases By Adam W. Lasker March 2013 Lawpulse, Page 118 According to a lawyer monitoring such cases, local judges are unlikely to stop enforcing the ban until this summer, the state's deadline for enacting a law that passes Second Amendment muster.
Crime victims’ rights amendment won’t appear on November ballot By Adam W. Lasker June 2012 Lawpulse, Page 286 A proposed constitutional amendment that would have made crime victims party to the defendant’s trial undermined the constitutional presumption of innocence, the ISBA and other opponents, including prosecutors, argued.
Is the Illinois Eavesdropping Act unconstitutional? The saga continues… By Helen W. Gunnarsson December 2011 Lawpulse, Page 604 Defendants being prosecuted under the Illinois Eavesdropping Act for recording police and other public officials are fighting back, thus far with mixed success.
Miranda: Youth a factor in determining whether interrogation is “custodial” By Helen W. Gunnarsson August 2011 Lawpulse, Page 382 The U.S. Supreme Court holds that a subject's youth matters when determining whether a Miranda warning is required - a conclusion the Illinois Supreme Court came to years ago.
Who Posted That? Anonymous Online Speech and the First Amendment By Sarah A. Smith April 2011 Article, Page 194 There's a trend in defamation litigation to use pre-suit discovery procedures to uncover the identities of anonymous online commenters. The author considers the implications.
The Right of Publicity in Illinois By John M. Touhy and Lauren R. Noll March 2011 Article, Page 148 Illinois's right of publicity lets people limit the appropriation of their likeness, a power restricted by the First Amendment. Where to draw the line? Here's what courts are doing.
Judicial Selection in Illinois: A Third Way By Gino L. DiVito December 2010 Article, Page 624 Judicial elections? Merit selection? While the decades-old debate continues, a former judge proposes a constitutional amendment that represents a third way.
A First Amendment right to audiorecord police? By Helen W. Gunnarsson October 2010 Lawpulse, Page 502 The ACLU says so, arguing that the Illinois Eavesdropping Act's prohibition is unconstitutional. Does freedom of speech include the freedom to record?
Employment Termination When a Church is the Employer By Hon. William J. Borah July 2010 Article, Page 370 Courts are reluctant to interfere, but they will step in when they can decide based on neutral principles.
Illinois Supreme Court: statutory med-mal caps are unconstitutional By Helen W. Gunnarsson March 2010 Lawpulse, Page 122 By overriding juries' findings and judicial oversight over them, the caps law violated the separation of powers, the court ruled.
Red Light Cameras: Innocent But Guilty By Professor Jeffrey A. Parness March 2010 Column, Page 158 Learn about the losing battle to challenge automated traffic enforcement.
Involuntary commitment provision of Mental Health Code overturned By Helen W. Gunnarsson January 2010 Lawpulse, Page 10 The Illinois Appellate Court rules that a code provision allowing involuntary commitment for "dangerous conduct" is unconstitutionally vague.
Trial court overturns vehicle forfeiture statute By Helen W. Gunnarsson January 2010 Lawpulse, Page 10 Among other constitutional infirmities, the law does not require a prompt post-seizure judicial review, a DuPage County judge opines.
A Freer Hand for Police at Illinois Traffic Stops By Rob Shumaker December 2009 Article, Page 624 In response to the U.S. Supreme Court, the Illinois Supreme Court issued decisions that give police more freedom to search and question vehicle occupants at traffic stops.
Strip-search of student violates Fourth Amendment By Helen W. Gunnarsson October 2009 Lawpulse, Page 490 Education lawyers say the U.S. Supreme Court’s Safford ruling confirms their longstanding advice to school officials: don’t strip-search kids.
U.S. Supreme Court: Confrontation Clause requires lab analysts to testify By Helen W. Gunnarsson October 2009 Lawpulse, Page 490 Prosecutors can’t rely on lab reports alone, the Court rules. But ISBA lawyers disagree about how much impact the ruling will have in Illinois.
When Recusal Leads to DEADLOCK: A Constitutional Cure By J. Timothy Eaton and Lynn A. Ellenberger October 2009 Article, Page 510 The authors propose a constitutional amendment allowing replacement of Illinois Supreme Court justices when recusal makes rendering a decision impossible.
Mandatory retirement age for judges ruled unconstitutional By Helen W. Gunnarsson September 2009 Lawpulse, Page 438 The Illinois Supreme Court rules that the statute requiring judges to retire at age 75 is unconstitutional and says mandating retirement for judges might require constitutional amendment.
Juveniles can be required to register as sex offenders By Helen W. Gunnarsson July 2009 Lawpulse, Page 330 The supreme court held that registration is not punishment and that juveniles can be required to register even though they aren’t entitled to a jury trial on the charges.
The Power Behind the Robe: A Primer on Contempt Law By Timothy L. Bertschy and Nathaniel E. Strickler May 2009 Article, Page 246 The power of contempt is a confusing mix of civil and criminal law concepts overlaid with constitutional implications. Here's a review.
Dismissal for double jeopardy was improper January 2009 Illinois Law Update, Page 16 On October 24, 2008, the Illinois Appellate Court, Third District, reversed the judgment of the Circuit Court of Kankakee County granting the defendant's motion to dismiss on grounds of double jeopardy. 
Last Term’s United States Supreme Court Labor and Employment Decisions By Michael Robert Lied and Joseph F. Tansino December 2008 Article, Page 626 A survey of the United States Supreme Court's labor and employment rulings from the 2007-08 term.
The Crawford Confrontation-Clause Bar: Governmental Involvement Is Key to “Testimonial” Hearsay By Hon. Daniel B. Shanes November 2008 Article, Page 574 The author argues that statements are rarely "testimonial" - and thus barred - if the government did not produce them.
Two traffic stops, no Fourth Amendment “seizures,” the court rules By Helen W. Gunnarsson November 2008 Lawpulse, Page 548 The Illinois Supreme court rules for the state in two cases where defendants were asked for consent to search after a traffic stop.
Correspondence from Our Readers October 2008 Column, Page 490 The Second and Fourteenth Amendments
The Illinois Constitution: A Primer By James W. Hilliard October 2008 Column, Page 494 Background on the Illinois Constitution and the Con-Con.