Prediction: Bail provisions of the Safe -T Act will be found to be unconstitutional

On Nov. 9, 2022, a suit for declaratory and injunctive relief was filed by the states’ attorneys from 66 of 102 Illinois counties. Their petition for summary judgment alleged that Public Act 101-652, and how it was enacted, were in flagrant violation of the Illinois Constitution, and the act should be stricken as void in its entirety.

In December 2022, a judge in Kankakee County declared certain portions of the “so-called” Illinois Safe-T Act unconstitutional. The ruling dealt with portions of the Act limiting the power of judges to impose “cash bail” on those arrested for various criminal offenses.

The state then appealed to the Illinois Supreme Court. The court issued a stay of the lower court ruling, and heard arguments from the opposing sides in March 2022.

The 62 prosecutors put forth six arguments. I will address only two; they should be dispositive.

First: Because the act is not limited in scope to the “criminal law” even under a generous reading, it violates the single-subject clause set forth in Article IV, Section 8(d) of the Illinois Constitution, and is void in its entirety.

The argument is that “reforming bail” is “criminal in nature.”

A state law pertaining to “whistleblowing,” applicable to 7,000 units of Illinois local government, isn’t “criminal in nature.” Nor is a law expanding the “Treatment Act” to other first responders. Nor is an act specifying how penitentiary prisoners must be counted for the purpose of determining representative districts. Nor is granting the attorney general increased powers to pursue civil actions, etc. for the court of claims.

The gist of the argument is this: “The “plain language of the act addresses multitudes of subjects with no natural or logical connection to criminal law. “

On this argument alone, the 62 prosecutors should win. Otherwise, the single-subject clause of the Illinois Constitution is a nullity. If they prevail on this argument, the court would not need consider the remaining arguments, because the Illinois Supreme Court has held that when the law violates the single subject clause, the entire law is struck down.

Second: By eliminating monetary bail and by creating a myriad of rules and strictures that severely restrict the exercise of judicial discretion to consider and assign appropriate weight to the most germane facts, the General Assembly encroached upon the inherent functions of the judiciary and violated the separation of powers clause of the Illinois Constitution in Article II, Section 1.

Article II, Section 1 of the Illinois Constitution provides: “The legislative, executive, and judicial branches are separate. No branch shall exercise powers properly belonging to another.” The Illinois Supreme Court has held that if “power is judicial in character, the legislature is expressly prohibited from exercising it. Judicial power is that which adjudicates upon the rights of citizens and to that end construes and applies the law.”

Legislative enactments undermining the “traditional and inherent” powers of the judicial branch, particularly, those restricting judicial discretion, violate the Separation of Powers Clause.

The Supreme Court has also recognized that “matters concerning court administration” fall within the inherent power of the judiciary, and the legislature is “without power to specify how the judicial power shall be exercised under a given circumstance.”

The Illinois Supreme Court has specifically held that bail is “administrative” in nature, and that the court has independent, inherent authority to deny or revoke bail to “preserve the orderly process of criminal procedure.”

The Supreme Court has held that the trial court had inherent discretion to hold the defendant in custody even though he was eligible for bail under the Illinois Constitution.

In Elrod, the Supreme Court expressly recognized that the court has the ultimate authority in determining the appropriateness of bail. The defendant in Elrod was charged with non-capital murder and held without bail, even though the Illinois Constitution at the time imparted a right to bail to “all persons ... except for capital offenses.” The court began its analysis by stating:

“In our opinion, the constitutional right to bail must be qualified by the authority of the courts, as an incident of their power to manage the conduct of the proceedings before them, to deny or revoke bail when such action is appropriate to preserve the orderly process of criminal procedure.”

Although Public Act 101-652 does grant very limited authority to the court to enforce its pretrial release orders through sanctions, this does not cure the legislative overreach into the inherent powers of the judiciary. 725 ILCS 5/110–6. The legislature is “without power to specify how the judicial power shall be exercised under a given circumstance.”

The Illinois Supreme Court held that even though the Juvenile Court Act made no provision for the bail of an allegedly delinquent minor, the court had inherent power to set bail.

Since its beginnings, (in medieval England) the concept of bail has always involved money – whether cash, collateral, credit, or the conditional promise of payment by a surety. Requiring a “bond with sufficient sureties is premised on the assumption that economic loss to the accused, his family or friends, will assure his appearance for trial.”

Acting as a surety must involve some threat of loss and, accordingly, bail bonds secured by cash deposit or stocks and bonds equal in value to the bail are constitutional. Determining appropriate surety to compel the appearance of a defendant is a judicial, not a legislative function.

Argument two standing alone should also be dispositive of the case. I can’t imagine any judiciary ceding its constitutional authority and discretion to control bail to any legislature.


My prediction is that the trial judge will be affirmed.

First Published in the Moline Dispatch and Rock Island Argus on May 30, 2023. 

Copyright 2023, John Donald O'Shea

Many owe Trump — and others damaged — a full, fair and very public apology.

“In short, the freedom and liberty of every American rests upon nothing more than a fragile understanding,” written on a 15-page scrap of paper” (the U.S. Constitution) John Donald O’Shea, Moline Dispatch, Dec. 1, 2014.

On May 12, 2023, John H. Durham, Special Council for the United States Department of Justice, submitted his report on matters related to intelligence activities and investigations arising out of the 2016 presidential campaigns to Attorney General Merrick B. Garland.

The 306-page report is a damning indictment of the conduct of the “top men” in our FBI and our intelligence agencies.

But will most Americans even consider reading its 13-page “Executive Summary?” Or is this a case of, “Don’t bother me with the facts; I already have made up my mind.”


In his Executive Summary, Durham writes:

“Based on the evidence gathered in multiple exhaustive and costly Federal investigations on the matter (including those of the U.S. House, the Inspector General, and Special Counsel Mueller), neither U.S. law enforcement nor the Intelligence Community appear to have possessed any actual evidence of collusion in their holdings at the commencement of Crossfire Hurricane investigation." 

 

“Our investigation also revealed that senior FBI personnel displayed a serious lack of analytical rigor towards the information that they received, especially information received from politically affiliated persons and entities. This information in part triggered and sustained Crossfire Hurricane and contributed to the subsequent need for Special Counsel Mueller's investigation. In particular, there was significant reliance on investigative leads provided or funded (directly or indirectly) by Trump's political opponents. The Department did not adequately examine or question these materials and the motivations of those providing them, even when, at about the same time, the Director of the FBI and others learned of significant and potentially contrary intelligence.”

The bottom line is this: the “Trump Collusion Claim” was a hoax, an attempt to frame President Trump, and a fraud upon the American people, which was begun with no basis in evidentiary facts, fueled by perjury and slovenly practice in pleadings before the FISA court, and funded, directly or indirectly, by operatives of the Hilary Clinton campaign, based on a dossier, with no basis in truth, that it paid for.

As a result of the fraud, the lives of innocent Americans — George Papadopoulos, Carter Page, and Gen. Flynn — were financially wrecked and their reputations destroyed, as they were indicted, publicly arrested, jailed, convicted on false testimony while exculpatory evidence was purposefully withheld.

President Trump was falsely labeled a “traitor,” and his administration was enmeshed in a web of lies and two impeachments over the course of four years. And the campaign of lies probably cost him the 2020 election.

And as all this was going on, a Democratic Congress, ABC, NBC, CBS, CNN, MSNBC, the New York Times, the Washington Post and major newspapers throughout the nation, political spokesmen like Adm. Kirby, Twitter and Facebook all eschewed their independence and integrity. And most continued to “peddle the hoax” even after the Mueller Report found their was ‘no Russian collusion.”

For me, the last sentence of Durham’s “Executive Summary” seems to “say it all.”

“The promulgation of additional rules and regulations (to govern the FBI handling of such investigations) to be learned in yet more training sessions would likely prove to be a fruitless exercise if the FBI’s guiding principles of “fidelity, bravery and integrity” are not engrained in the hearts and minds of those sworn to meet the FBI mission of “Protecting the American people and upholding the Constitution of the United States.”

(Note the similarity of my 2014 quote, above).

So, what’s my suggestion to put an end to this monumental hoax and fraud upon the American people? How are the reputations of Donald Trump, et al to be restored? How do the likes of the NY Times, NBC, CNN, et al, ever regain their integrity, self-respect and public respect?

They publicly and unequivocally must confess their errors. Next, they must fully and unequivocally apologize to the American people, the victims of the baseless prosecutions, and to now private-citizen Donald J. Trump. If newspapers, they do so, with banner headlines, perhaps for a week straight. If TV or cable media, they do so, so openly and repeatedly — perhaps for a solid week — so that none of the regular viewers could miss their apologies,

There is a passage in the Act of the Apostles where Paul and Silas are deprived of their rights as Roman citizens, beaten, jailed and put in chains by the magistrates of Philippi. Then when the magistrates were apprised of their error, they personally went to the jail, and publicly made their apologies. No less should happen here.

Nor should this ever happen again in America. 

Any bets?

First Published in the Moline Dispatch and Rock Island Argus on May 21, 2023. 

Copyright 2023, John Donald O'Shea

If policy differences basis for termination, let voters know

On April 22, 2023, the Dispatch-Argus ran Olivia Allen’s article, “A ‘mutual’ separation for board, Lawrence,” on the paper’s front page. Perhaps, because I do not live within the Rock Island-Milan School District, I did not read the article.

I did not give the article a second-thought until a friend of mine at the golf course asked, “Why the school board got rid of the superintendent? And why did they agree to pay him $350,000?”

After having had to admit, that “I didn’t know,” and that “I hadn’t read the article,” I went back and read it.

In reading the article, I learned that Dr. Lawrence was the board’s superintendent, pursuant to a contract with the school board. Lawrence had served four years under his contract, and that his contract was not up for renewal until 2025.

I also learned that Dr. Lawrence’s performance as Superintendent had recently been evaluated, and that the Board discussed that with him at a closed meeting of the Board on March 21st. (A closed hearing for that purpose would be proper).

I further learned that Dr. Lawrence had not been “fired.” Rather, his contract had been terminated pursuant to the mutual agreement of Dr. Lawrence and the school board, with the board paying him $350,000 for Lawrence agreeing to the early termination. (I saw no problem with that, either).

In the words of Board President Terrell Williams, “The circumstances leading up to the contract termination were a “personnel matter, that the Board … will not comment on. …. (The goal was) always to do so amicably.”

But that was followed by the rather inexplicable comment by outgoing Board member, Tiffany Stoner-Harris: “(She) could see Lawrence being a great superintendent somewhere.”

So, why do you get rid of a superintendent who could be a “great superintendent somewhere?”

And why do you pay him $350,000 to go somewhere else, quickly?

Personally, I have no interest in whether Dr. Lawrence remains superintendent or not. I have never met the man, nor followed his handling of board’s affairs.

But the voters in the Rock Island-Milan School District do.

As an old Moline Corporation Council, before writing this, I spent four or five hours examining Illinois’ Open Meetings Law, in which the underlying “policy” is clearly stated:

“Policy. It is the public policy of this state that public bodies exist to aid in the conduct of the people’s business, and that the people have a right to be informed as to the conduct of their business.

“In order that the people shall be informed, the General Assembly finds and declares that it is the intent of this Act to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly.

“The General Assembly further declares it to be the public policy of this state that its citizens shall be given advance notice of and the right to attend all meetings at which any business of a public body is discussed or acted upon in any way.

“Exceptions to the public’s right to attend exist only in those limited circumstances where the General Assembly has specifically determined that the public interest would be clearly endangered or the personal privacy or guaranteed rights of individuals would be clearly in danger of invasion.

“To implement this policy, the General Assembly declares:

    (1) it is the intent of this act to protect the citizen’s right to know; and

    (2) the provision for exceptions to the open meetings requirements shall be strictly construed against closed meetings.”

The Board here appears to have properly closed the meeting under what is commonly called the “personnel exception:”

(a) Openness required. All meetings of public bodies shall be open to the public unless excepted in subsection (c) ….

(b) Construction of exceptions. The exceptions contained in subsection (c) are in derogation of the requirement that public bodies meet in the open, and therefore, the exceptions are to be strictly construed, extending only to subjects within their scope. The exceptions authorize but do not require the holding of a closed meeting to discuss a subject included within an enumerated exception.

(c) Exceptions: A public body may hold closed meetings to consider the following subjects: The appointment, employment, compensation, discipline, performance, or dismissal of specific employees ….

Here the meeting appears to have been properly closed to discuss “employment, compensation, … performance, and dismissal of a specific employee” — the superintendent.

Nobody, however, involved seemingly is making any claim that Dr. Lawrence’s “performance” was deficient in any substantial way that would justify his termination for cause. Rather as the board president indicated, it was a mutually agreed amicable termination. Indeed, Ms. Stoner-Harris states that she “Could see Lawrence being a great superintendent somewhere.”

Ms. Stoner-Harris' statement gives credence to Dr. Taylor’s comment that the termination came about because Dr. Lawrence did not see “eye to eye” with a majority of the Board members.

I think that my friend, and the school district's voters are entitled to know wherein the board and Dr. Lawrence did not see eye to eye. That is a matter of policy, and not within any exception to the Open Meetings Act. The voters are entitled to know where the board members stand on “policies” affecting the students of the district.

If issues of policy were in fact involved, it is difficult to see how, if a straight-forward joint statement was made setting out the differences between the Board Majority and Dr. Lawrence, “the public interest would be clearly endangered or the personal privacy or guaranteed fights of individuals would be clearly in danger of invasion.”

First Published in the Moline Dispatch and Rock Island Argus on May 7, 2023. 

Copyright 2023, John Donald O'Shea