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The Public Servant
The newsletter of the ISBA’s Standing Committee on Government Lawyers

February 2003, vol. 4, no. 4

Legislative update

The following is the fourth article in a series of articles summarizing pieces of legislation acted upon by the 92nd General Assembly that may be of general interest to government attorneys. (See "Legislative Update" ISBA Standing Committee on Government Lawyers newsletter, April 2002, Vol. 3, No. 3, for a summary of Public Acts 92-178 through 92-521; "Legislative Update" ISBA Standing Committee on Government Lawyers newsletter, August 2002, Vol. 4, No. 1, for a summary of Public Acts 92-522 through 92-583; and "Legislative Update" ISBA Standing Committee on Government Lawyers newsletter, December 2002, Vol. 4, No. 3, for a summary of Public Acts 92-584 through 92-853).

Public Act 92-854 (HB 2058)--Among other things, amends the Solicitation for Charity Act and the Charitable Trust Act to provide for the forfeiture to the State of Illinois of charitable assets used directly or indirectly to further terrorist acts. Amends the Criminal Code of 1961 to provide for the imposition of the death penalty if a murder was committed as a result of or in connection with the offense of terrorism. Permits the State's Attorney, until January 1, 2005, to approve eavesdropping by law enforcement officers who are parties to conversations involving investigations of certain terrorism offenses. Amends the Code of Criminal Procedure of 1963 to permit a court, until January 1, 2005, to issue a search warrant upon sworn oral statements made by telephone or fax if the criminal act relates to terrorism. Provides that DNA specimens shall be taken of persons convicted of the terrorism offenses. Amends the Counties Code to permit Public Defenders to act as attorneys for indigent persons, without fee and appointment by the court, who are in custody during the persons' interrogation regarding first-degree murder for which the death penalty may be imposed and the person has requested advice of counsel. Amends the Criminal Code of 1961 to permit the court to reject a jury's determination that a person convicted of first-degree murder be sentenced to death and to sentence that defendant to life imprisonment. Permits the defendant during the sentencing hearing for first-degree murder to be given the opportunity, personally or through counsel, to make a statement that is not subject to cross-examination. Provides that the death penalty may not be imposed solely on the basis of the testimony of one eyewitness, one accomplice, or one incarcerated informant. Amends the Code of Criminal Procedure of 1963. Permits a defendant to file a motion to compare DNA evidence at trial with the DNA database maintained by the Department of State Police. Provides for post-conviction relief in a capital case when there is newly discovered evidence not available to the person at the time of the proceeding that resulted in his or her conviction and that evidence establishes the person's innocence. Amends the Unified Code of Corrections to establish a procedure to determine whether a person charged with capital murder is mentally retarded and because of that retardation is not fit to be executed. Effective December 12, 2002.

Public Act 92-860 (HB 4074)--Amends the Code of Criminal Procedure of 1963 to define "electronic criminal surveillance officer" to include a retired law enforcement officer who is certified by the Department of State Police to intercept private oral communications. Provides that the Electronic Criminal Surveillance Article of the Code does not authorize a retired law enforcement officer to display or use a firearm at any time. Provides that a retired law enforcement officer may be certified by the Illinois State Police only to: (i) prepare petitions for the authority to intercept private oral communications in accordance with the provisions of the Code of Criminal Procedure of 1963; (ii) intercept and supervise the interception of private oral communications; (iii) handle, safeguard, and use evidence derived from the private oral communications; and (iv) operate and maintain equipment used to intercept private oral communications. Effective January 03, 2003.

Public Act 92-866 (HB 4938)--Among other things, amends the State Records Act to add a legislative policy. Includes "digitized electronic material" and "databases" in the definition of "record." Exempts "blank forms" from the definition of "record." Provides that records created or received by or coming under the authority of or coming into the custody, control, or possession of public officials are public property and may not be destroyed except as provided by law and must be available for public inspection. Deletes the provision that the person in charge of records may require a 24-hour notice before inspection. Deletes the provision allowing access through an affidavit to information that is not defined as "public records" but that is open to the public. Provides requirements for storing electronic records. Provides that the State Archives Board shall also serve as the Illinois State Historical Records Advisory Board and provides requirements for the Board. Repeals sections concerning the confidentiality of foster placement records, arrests, penalties, and agency procedures for record destruction. Allows the State Historian to authorize a representative to serve on the State Records Commission. Effective January 03, 2003.

Public Act 92-872 (SB 1657)--Among other things, amends the Illinois Vehicle Code to provide that a vehicle operated by a voluntary member of a rescue squad or a member of a voluntary ambulance unit may be equipped with flashing white headlights and blue grill lights. Further amends the Illinois Vehicle Code to provide that a driver charged with failing to follow the required procedures when approaching an authorized emergency vehicle with its lights activated must appear in court to answer the charges. Provides that, upon entering a construction or maintenance zone when workers are present, a person shall make a lane change if it is safe to do so or shall reduce speed and proceed with caution if changing lanes would be impossible or unsafe. Provides that a person who violates the provision commits a business offense punishable by a fine of not more than $10,000. Provides that a person charged with the offense must appear in court to answer the charges. Provides that it is a factor in aggravation if the person committed the offense while under the influence of alcohol, drugs, or intoxicating compounds. Provides that the person's driving privileges shall be suspended for 90 days to one year if the violation results in damage to the property of another person, for 180 days to 2 years if the violation results in injury to another person, and for 2 years if the violation results in the death of another person. Provides that the penalties imposed for failing to stop when signaled to do so by a flagger shall be in addition to any penalties imposed for failure to observe proper procedures on entering the construction or maintenance zone. Provides that the provisions of the amendatory Act are severable. Effective January 03, 2003.

Public Act 92-873 (SB 1701)--Among other things, creates the Elevator Safety and Regulation Act to be administered by the Office of the State Fire Marshal and the Elevator Safety Review Board. Requires licensure of elevator contractors, elevator mechanics, and elevator inspectors and registration of existing elevators, platform lifts, escalators, moving walks, and other conveyances. Requires compliance with State fire prevention and building code laws. Requires permits for erection, construction, installation, or alteration of conveyances. Authorizes municipalities and counties to inspect, license or otherwise regulate elevators and described devices consistent with the Act. Provides that fees and fines collected pursuant to the Act shall be used for the duties and administration of the Act. Effective January 03, 2003.

Public Act 92-879 (HB 2277)--Among other things, amends the Local Government Debt Reform Act to provide that required notices are sufficient if they appear above the name or title of the person required to give the notices. Further provides that notice to governing bodies or the news media may be given by fax or e-mail. Allows a governmental unit to transfer interest earned on moneys not designated for certain purposes to the governmental unit's fund that is most in need of the interest. Provides that a governmental unit must, in addition to other amounts, collect enough revenue to pay 1.10 (was, 1.25) times debt service if the revenue source is a governmental revenue source. Defines "governmental revenue source." In the provisions concerning the form of a proposition for school district bonds, provides that the proposition may include additional language if the school district expects to receive a school construction grant from the State of Illinois (now, has received a grant entitlement from the Illinois State Board of Education). Effective January 13, 2003.

Public Act 92-885 (SB 2023)--Amends the State Finance Act to provide that the State Treasurer is authorized to make transfers among line item appropriations from the Capital Litigation Trust Fund, with respect to costs incurred in fiscal years 2002 and 2003 only, when the balance remaining in one or more such line item appropriations is insufficient for the purpose for which the appropriation was made, provided that no such transfer may be made unless the amount transferred is no longer required for the purpose for which that appropriation was made. Provides that, with respect to costs incurred in fiscal years 2002 and 2003 only, payments may be made by the State Treasurer from appropriations from the Capital Litigation Trust Fund without regard to any fiscal year limitations. Effective January 13, 2003.

SB 1756--Amended the Open Meetings Act to require that if a public body has a Web site, and the staff of the public body maintains that Web site, then the public body must post meeting notices, agendas, and minutes on that website 48 hours before the meeting. Governor Ryan vetoed this bill on August 2, 2002. In his veto message, Governor Ryan indicated that numerous local officials and units of local government had expressed concerns regarding the legislation. One concern expressed was that the proposed legislation would cause an undue financial burden on public bodies because they would have to invest considerable time and additional resources to meet the mandate. Another concern was that some of the provisions were vague. Believing that units of local government should provide the information on their own volition but not be mandated by the State to do it, the Governor vetoed the bill. On November 20, 2002, the Senate voted to override the veto by a vote of 37-9. On December 4, 2002, the House voted on the override; the motion to override the veto was defeated by a vote of 18-97. The bill is dead for purposes of the 92nd General Assembly.