Publications

Articles on Constitutional Law

Continuing to not extend mutual property rights to unmarried cohabitants does not violate due process or equal protection

November
2016
Illinois Law Update
Page 18
Citing the State's unquestionable interest in the creation, regulation, and dissolution of marriage, the Illinois Supreme Court reaffirmed its 1979 Hewitt v. Hewitt holding that Illinois public policy precludes unmarried cohabitants from bringing claims against one another to enforce mutual property rights rooted in a marriage-like relationship.

Arrest but no prosecution in Fourth of July flag burning

By Matthew Hector
September
2016
LawPulse
Page 12
The Champaign County State's Attorney explains her decision not to charge an Urbana man arrested for violating Illinois' unconstitutional but still on the books flag-desecration law.

Stalking and cyberstalking statutes held unconstitutional for lack of mens rea requirement

September
2016
Illinois Law Update
Page 18
On June 24, 2016, the First District of the Illinois Appellate Court vacated a defendant's conviction and sentence for stalking and cyberstalking, finding that both crimes are unconstitutional as they lack a mens rea requirement.

DNA Evidence and the Confrontation Clause after People v. Barner

By Julia Kaye Wykoff
August
2016
Article
Page 36
Supposed the prosecution's expert testifies about a lab report conducted by a scientist the state didn't call. Is the defendant's right to confront adverse witnesses violated? Not if the report was done for reasons other than proving the defendant's guilt.

Police’s unauthorized entry of home after auto accident violates the Fourth Amendment

August
2016
Illinois Law Update
Page 18
On May 9, 2016, the Appellate Court of Illinois upheld a trial court's ruling to suppress evidence obtained by a warrantless entry into defendant's home.

When Is Identity Evidence Unsuppressible in a Criminal Case?

By Charles P. Burns and Michael Conte
February
2016
Article
Page 40
Does a stop's illegality taint the evidence obtained from it? A Fourth Amendment debate in the federal courts could spill over into Illinois criminal cases.

A court-ordered Facebook post

January
2016
Article
Page 32
A concurring appellate justice opines that a trial judge's contempt order forcing a litigant to post a retraction on Facebook violates the First Amendment.

Where probable cause for traffic stop exists, use of narcotics dog does not violate Fourth Amendment if stop is not unreasonably prolonged

November
2015
Illinois Law Update
Page 20
On August 26, 2015, the Third District Appellate Court reversed the circuit court's grant of defendants' motions to suppress evidence of heroin obtained during a traffic stop.

Groundbreaking Supreme Court opinion dooms panhandling law

By Matthew Hector
October
2015
LawPulse
Page 12
After the U.S. Supreme Court's expansion of the First Amendment, the seventh circuit invalidates Springfield's panhandling prohibition.

For Traffic Stops, Ignorance of the Law Can Be an Excuse

By Rob Shumaker
September
2015
Article
Page 38
Recent cases from the United States and Illinois Supreme Courts hold that an officer's objectively reasonable mistake of law can justify a traffic stop.

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

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

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