Standing Committee on Government Lawyers
October 2001 Vol. 3, No. 1
Statements or expressions of opinion or comments appearing herein are those of the editors or contributors, and not necessarily those of the association or section.
(Notice to librarians: The following issues were published in Volume 2 of this newsletter during the fiscal year ending June 30, 2001: November, No. 1; March, No. 2.)
Contents
| * | From the chair |
| * | Recent developments in Illinois death penalty law and practice |
* Someone you should know: Jim Grogan
* Attorney general issues opinions
* In-sites
| * | Hot off the presses |
| * | Committee on Government Lawyers co-sponsors Law Ed Seriesprogram |
| * | Upcoming CLE programs |
By Raquel G. Martinez, Chicago
Welcome to the newsletter devoted to the unsung heroes who serve government clients. Our numbers are significant and our unmet needs are great. This information-packed issue is one of the methods in which the ISBA is attempting to assist a previously undeserved population of government attorneys.
Two of the primary goals for the Standing Committee on Government Lawyers this year will be to increase networking opportunities and to remove barriers which inhibit government lawyer participation in professional activities. Since we are continuously expected to do more with less, a simple phone call or a personal contact often helps us to get the results we need. The Standing Committee on Government Lawyers will be hosting a reception, enabling us to meet and greet one another in a congenial social setting. Details will follow in various ISBA publications and in separate mailings but you may wish to mark, Thursday, December 13, 4:30 p.m. to 7:00 p.m. on your calendar now.
Additionally, the Standing Committee on Government Lawyers will be drafting and promoting a resolution supporting government lawyer participation in the Illinois State Bar Association. There are a number of impediments to participation, which have been identified by other associations. They include, but are not limited to: misconceptions regarding government attorneys as second-class lawyers; management opposition; a lack of understanding of the need for continuing education, professional growth and career advancement. The Standing Committee intends for the resolution to be in a simple format that easily can be shared with those who are less than supportive of our professional activities. Watch this newsletter and your mailboxes for further reports on our progress.
Finally, this newsletter is a venue for highlighting our successes and it provides us with a wonderful opportunity to share our wisdom. Whether it be a new case, proposed law, helpful Web site, time-saving technique, practice shortcut, or one of our peers who is deserving recognition, we welcome contributions to this newsletter. I solicit your suggestions on how our committee can serve your needs, in whatever form is most convenient for you: e-mail (rmartinez@ isac.org); e-fax 801-459-9164; phone 312/814-4454 or mail R. Martinez, Illinois Student Assistance Commission, 100 West Randolph, Suite 3-200, Chicago, IL 60601. In the meantime, keep putting up a good fight in the trenches and don't try to make sense out of nonsense.
Recent developments in Illinois death penalty law and practice
By Stephen L. Richards, Chicago
When, many years ago, I first began a career in the field of state-funded indigent criminal defense, friends, relatives, and strangers would stereotypically react by wondering how on earth I, or anyone, could defend "those people." But now, after taking the position of Deputy Defender in the newly created Death Penalty Trial Assistance Division of the Office of the State Appellate Defender, in the era of the moratorium, I get a much different reaction. Friends, relatives, and strangers alike wonder how on earth I get away with being paid to do ... nothing.
This common misperception conceals the real drama of the Illinois death penalty. In fact, the entire system is in turmoil. The moratorium is, of course, a moratorium only on executions. Convictions and death sentences together with the ensuing direct appeals and collateral attacks--all the cogs in the death penalty engine grind forward, and almost every month see at least one new death sentence imposed. At the same time, however, our courts and legislatures have begun to "tinker with the machinery of death."
On March 1, 2001, the Illinois Supreme Court promulgated a revolution in death penalty law and procedure. (See, 195 Ill. 2d R. 416, 417, 701 and 714.) Under the new rules, the state must now give notice to the defense of its intent to seek the death penalty and of any aggravating factors making the defendant eligible for death. The discovery rules now apply to the death penalty hearing. Either side is allowed, on good cause shown, to depose the other side's witnesses, whether called at trial or sentencing. A capital defendant is entitled to two attorneys. The state must specify Brady material--crucial exculpatory evidence--that it has tendered. A case management conference must be held. Judges are required to receive continuing training in death penalty law and procedure. In a state which has never known a continuing legal education requirement or certification to a specialized bar, death penalty attorneys must--by March 1, 2002--attend 12 hours of certified death penalty training. To serve as lead or co-counsel they must meet minimum requirements including years of practice, numbers of jury trials, and proficiency in scientific evidence.
These rules have been overlaid upon the earlier legislative reform that created the Capital Litigation Trust Fund. While the rules will make attorneys on both sides work harder and do more--depositions, case management conferences, sentencing discovery--the Fund, potentially, gives them the resources to do it with. Capital litigation, like all litigation, is legal warfare, and "the sinews of war are unlimited money." From this point onward, every capital case that is not settled quickly will begin to resemble the kind of complex civil litigation depicted in A Civil Action. Hopefully, the very cost and complexity of the litigation will induce both sides to reach some agreement short of death.
In the Death Penalty Trial Assistance Division we are doing our part to provide the defense with the very latest weapons in legal warfare--experts, focus groups, demonstrative aids, mitigation specialists, and sophisticated investigators. In many cases, our staff attorneys--John Hanlon, Thomas Cosgrove, Mark Lyon, and Todd Berg-- have helped defense lawyers persuade the state not to seek death, sometimes after only a few weeks of work. In the long run, the very size and power of the weapons newly available to the defense may induce the prosecution to devote its own resources to those few cases that are so unusual as to justify a reasonable person in believing that death is appropriate, thereby saving the public from the exorbitant costs of death penalty trials, appeals, and pre-execution confinements.
In any event, and like anything worth doing, it is a lot of work.
(Editor's note: An article appearing in the July 24, 2001, issue of the Chicago Daily Law Bulletin indicates that approximately 200 Cook County attorneys have requested applications for the new Capital Litigation Trial Bar mandated by the Illinois Supreme Court. During this same period, the article notes that fewer than 50 lawyers from the remainder of the state had requested applications.)
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Stephen L. Richards is the Deputy Defender, Death Penalty Trial Assistance Division, Office of the State Appellate Defender. Mr. Richards received his B.A. from the University of Chicago and his J.D. from Brooklyn Law School in 1983. He has worked as an instructor of legal writing and research at IIT/Chicago-Kent College of Law, as a judicial clerk for the late William G. Clark, Justice of the Illinois Supreme Court, and as an assistant public defender in the Law Office of the Cook County Public Defender. As a public defender, he worked in the appeals, felony trials, and homicide task force divisions.
Someone you should know: Jim Grogan
By Jim's friends as compiled by Rosalyn Kaplan, Chicago
Do you have a question about legal ethics? Or maybe a question about judicial ethics? If not, perhaps you want to know something about Chicago architecture, or neighborhoods, or theater, or journalism? Would you like a detailed explanation of the various stages of construction taking place at the site of Millennium Park? Or do you need a review of a popular (or not-so-popular) musical performance, a local night club, restaurant, or political figure? Are you wondering about "The Who" (the subject of our profile was once, rumor has it, the president of the group's national fan club) or about the Brooks Catsup Water Tower in Collinsville? Maybe you have a medical question (his wife is a registered nurse) or a question about the stock market. If you are among the seemingly endless list of his friends or acquaintances, you would pick up the phone and call Jim Grogan. He's Chief Counsel to the Administrator of the Attorney Registration and Disciplinary Commission, a 21st-century Renaissance man, and, if you somehow haven't already encountered him, he's someone you should know.
"Grogan," as he is generally known in the office, is a native Chicagoan who grew up near Belmont and Milwaukee Avenues. He has a bachelor of arts degree in history and rhetoric from Lewis University (where the world of theater lost a promising thespian, we are told, because he can't dance) and attended law school at Loyola University. He is married to Lynn, and has two children: Katie, who is sometimes seen in the office waiting for dad to escort her to ballet class; and Conor, an eighth grader who plays the oboe. Although he's a suburbanite now, Grogan is still a city dweller at heart, very familiar with the areas around the loop (where he can be seen running during his lunch hours,) who talks about moving back to the city when Katie and Conor finish school.
Jim came to work as a law clerk at the ARDC in 1979, almost by accident. John O'Malley (who became the second Administrator of the ARDC and who was, at the time, a staff counsel,) recalls that Carl Rolewick, the first Administrator, had asked him to interview a candidate for a law clerk position. John did the interview, was impressed by the candidate and recommended that Carl hire him, and Carl agreed. Unfortunately, when they called the promising interviewee, he had accepted another position, but he had a friend who was looking for a job, and that friend was Grogan. Jim got the law clerk job, and he never left, moving, after he passed the bar, to the position of counsel, then to senior counsel and finally to chief counsel.
In his latest capacity, Grogan supervises a group of six attorneys in the "Litigation East" division of the office (so named for its geographical location on the 15th floor of the old Prudential Building) and advises the current administrator, along with virtually every member of the legal staff who joins the crowd waiting outside his door for a chance to talk to him between two of the dozens of daily phone calls he gets from the media and the legal community.
He is the official media contact for the agency, and he delivers dozens of speeches and presentations every year to law firms, government agencies, schools and bar groups throughout the state. He edits complaints to be filed in disciplinary prosecutions, advises on pre-hearing and hearing strategies, and reviews initial grievances to help staff lawyers decide whether a matter is worth further investigation. He has taught legal ethics at DePaul's law school and continues to do so at Loyola, where his evening classes seem to pick up steam as the hour grows later. He coordinates the Current Development project for the National Organization of Bar Counsel, attending their national meeting twice a year to deliver his insights--and anecdotes--on recent disciplinary case law to packed seminar rooms. Long-time NOBC member Gene Shipp, from the District of Columbia, comments that Jim's national leadership "has caused more than one bar counsel to go the extra mile," in a reference to Grogan's ability to challenge his colleagues from other states both intellectually and physically (Grogan leads morning races at the national meetings, and he recently added several miles to a "fun-run" through Atlanta by missing a turn on the intended route.) Gene added that the still-panting followers are looking forward to more traditional leadership through Jim's recent election to the officer track of the NOBC; he became the group's secretary in August 2001, and he will ascend to the presidency in August 2004.
On any given day at the ARDC, staff members know whether Grogan is in the office or on the road, just according to the decibel level--if it's "too quiet," that means Jim is out delivering one of his speeches. Otherwise, he has a presence that will not be ignored, whether he's chortling at some item from the Tribune, the Sun-Times or even the Belleville News Democrat (he reads everything,) looking for one of the attorneys who gave up waiting outside his door, or marching up the hallway yelling for "Vicki Jean" or "Cress," two of the secretaries for whom he might have a project. His spacious--and compulsively neat--office is liberally decorated with all sorts of memorabilia, mostly reflecting his interest in architecture and prominently featuring a guest chair purchased at an auction of furniture from the vacated premises of a Greylord jurist. He loves impersonations and has successfully convinced a hapless staff attorney that the phone call he received was from a witness with a German accent; he'll frequently break into a Mayor Daley impression when he explains the ins and outs of a city project. Staff members can attest to his colorful vocabulary, augmented by foreign language phrases that seem to be more of the same--he'll translate cheerfully, if you really want to know.
Jim explains that the steady stream of coffee and Pepsi that he drinks helps him "to calm down," although "calm" is a word that surely has never been applied to him. He is, however, endlessly patient with the new lawyers assigned to his own group and always available to discuss a point with any of the other staff members, who are invariably informed that their questions are "very interesting," as a prelude to some very specific help. He has a seemingly photographic memory, and, in answer to a query about some obscure point of professional responsibility law, he'll frequently turn to a packed filing cabinet and pull out a photocopy of a case that's right on point. If Jim can't provide a final resolution of the issue (a rare occurrence,) he always offers a suggestion of someone else to call. Says Northwestern University Law School Professor Steve Lubet, "Every now and then I get a call from a reporter or lawyer that begins 'Jim Grogan gave me your name.' Then I know my work is cut out for me, because it's going to be a very tough question."
Jerry Larkin, the ARDC's Deputy Administrator, began to work for the agency the year before Grogan was hired. Observing that during Jim's 22 years at ARDC he has become adept as a trial lawyer and as a judge of the merits of a disciplinary case, Jerry explains that: "When it comes time to bring a case, Jim makes use of his intuitive sense of the human interest aspects of the case and his knack for weaving those nuances into a compelling story at trial. For Jim, cases are the stories of individuals. In 1990, Jim began to travel the state discussing the impact of the new Rules of Professional Conduct. Eleven years later, Jim is still in demand, and for good reason--he willingly shares a wealth of wisdom with Illinois lawyers."
Jim's boss, Mary Robinson, has been the administrator of the ARDC since 1992, and she sums up his role like this: "Grogan is our ambassador to the world, and he probably does more than the rest of us combined to build goodwill toward the ARDC. He is compulsively helpful and good-natured, and he has faultless instincts for selecting which of his countless bits of information and wisdom will persuade or inform or entertain. He loves getting in the way of everyone's natural inclination to dislike the ARDC. For that matter, he likes getting in the way of anyone having a bad day, and that trait alone makes him indispensable."
Attorney general issues opinions
By Lynn Patton, Springfield
Under section 4 of the Attorney General Act (15 ILCS 205/4 (West 2000)), the Attorney General is authorized, upon request, to give written legal opinions to state officers and state's attorneys on matters relating to their official duties. The following is a summary official opinions 01-001 through 01-006 and informal opinions I-01-001 through I-01-025 that may be of interest to the government bar.
Copies of an opinion may be requested by contacting the Opinions Bureau in the Attorney General's Springfield Office at (217) 782-9070. Copies official opinions may also be found on the Internet at www.ag.state.il.us/opinions/opinions.html.
Opinion No. 01-001, issued February 2, 2001: police powers of investigators of the Department of Revenue. Department of Revenue investigators who have been appointed pursuant to section 39b15.1 of the Civil Administrative Code for the purpose of enforcing taxing measures administered by the Department do not have the authority to exercise their police powers to enforce the provisions of penal statutes generally. 20 ILCS 2505/39b15.1 (West 1998.)
Opinion No. 01-003, issued March 13, 2001: salary to be paid to temporarily appointed department directors. (1) Article V, section 21 of the Illinois Constitution of 1970 prohibits a change in salary for officers of the executive branch of state government during their terms office. Department directors of administrative agencies under the jurisdiction of the Governor are subject to the provisions of Article V, section 21 of the Constitution. (2) Although an incumbent department director is authorized to holdover at the conclusion of his or her fixed term office until a successor is appointed and qualified, for constitutional, public policy and public interest reasons, it must be concluded that a vacancy exists in the new term to which the Governor may make an appointment. (3) Incumbent department directors, who are reappointed to office at the end of their fixed term with the designation temporary appointee, are entitled to the increase in compensation established by the Governor prior to their temporary appointment. Ill. Const. 1970, art. V, §§ 9(b) and 21; 20 ILCS 5/5-605, 5-610 (West 1999 Supp.)
Opinion No. 01-005, issued June 14, 2001: application of the Property Tax Extension Limitation Law to combined school districts. (1) A new school district, which was created by the passage of a referendum combining two existing school districts, is subject to the provisions of the Property Tax Extension Limitation Law to the same extent as other non-home-rule taxing districts in the county. Therefore, the new school district's tax levy, beginning with its first levy year, must be extended in compliance therewith. (2) A combined school district would be considered a "consolidated taxing district," which is subject to the provisions of section 18-215 of the Property Tax Extension Limitation Law. (3) As a consolidated taxing district, the new school district's aggregate extension would be established by combining the last preceding aggregate extensions for the two school districts which formed the consolidated taxing district. 35 ILCS 200/18-195 (West 1998,) as amended by P.A. 91-859, effective June 22, 2000; 35 ILCS 200/18-215 (West 1998.)
Informal Opinion No. I-01-001, issued January 12, 2001: "catastrophic injury" under the Public Safety Employee Benefits Act. As used in the Public Safety Employee Benefits Act, the phrase "catastrophic injury" may properly be construed to mean a permanent injury incurred by a law enforcement officer, correctional officer, correctional probation officer or a firefighter in the line of duty, the magnitude of which renders the employee unable to perform the duties of his or her employment as such. 820 ILCS 320/10 (West 1998.)
Informal Opinion No. I-01-003, issued January 12, 2001: closed meeting to establish cap on construction bids. A county board cannot, consistent with the provisions of the Open Meetings Act, hold a closed meeting for the purpose of setting a confidential cap on the total amount that the county will pay for construction of a new building prior to the solicitation of bids for its construction. Neither subsection 2(c)(5) of the Open Meetings Act, regarding the purchase or lease of real property, nor subsection 2(c)(2) of the Open Meetings Act, regarding certain labor contract matters, can be read broadly enough to encompass such a discussion. 5 ILCS 120/2 (West 1998.)
Informal Opinion No. I-01-004, issued January 17, 2001: filing of statements of economic interest by veterans' assistance commission commissioners and superintendents. The Illinois Governmental Ethics Act requires the filing of statements of economic interest by all persons appointed to the governing board of a unit of local government and by employees who exercise authority similar to that of the head of a unit of local government. A veterans' assistance commission is a unit of local government that exercises limited governmental powers with respect to limited governmental subjects. The commissioners of a veterans' assistance commission set the policies for and establish the procedures and regulations within which the commission must operate. Therefore, the commissioners are appointed to the governing board of a unit of local government for purposes of the Act. The superintendent of a veterans' assistance commission exercises powers similar to that of the head of a unit of local government. Therefore, the commissioners and superintendent of a veterans' assistance commission are required to file statements of economic interest. 5 ILCS 420/4A-101 (West 1999 Supp.)
Informal Opinion No. I-01-006, issued February 1, 2001: renewal of teaching certificatesauthority to conduct hearings to determine delinquency in child support payments. Under subsection 10-65(c) of the Illinois Administrative Procedure Act, "agencies" authorized to issue professional or occupational licenses have