Illinois Bar Journal

 

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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 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.