Timothy P. O'Neill
Chicago Daily Law Bulletin
Copyright 2003 Law Bulletin Publishing Company
June 13, 2003
Totally Self-imposed, Completely Unnecessary
By this time you have undoubtedly heard about the Illinois Supreme Court's landmark search and seizure opinion issued two months ago in People v. Timothy Killen, No. 91694 (April 19). A unanimous Supreme Court announced that henceforth the search and seizure provision of the Illinois Constitution (Article 1, section 6) would be interpreted in the same manner as the South Dakota Supreme Court interprets the analogous search and seizure provision of that state's Constitution.
The Illinois court explained its rationale thusly: "First, the language of Article 1, section 6 of the Illinois Constitution is very similar to Article 1, section 9 of the South Dakota Constitution. Second, we are impressed with the quality of judicial work performed by our brothers and sisters on the South Dakota Supreme Court. Third, it is important that the Midwest has a uniform law on search and seizure; what is proper for Rapid City is no less proper for Granite City. Thus, and henceforth, any decision the South Dakota Supreme Court issues on search and seizure under Article 1, section 9 of the South Dakota Constitution will also be considered binding precedent in interpreting Article 1, section 6 of the Illinois Constitution." Killen, at 6-7.
What, you haven't read the Killen decision?
OK, I'll admit it. I made it up. There is no Killen decision. After all, why would the Illinois Supreme Court cede its power to decide search and seizure cases to a bunch of judges in Pierre? They'd have to be crazy, right?
But let me ask you this: Did you ever read People v Tisler, 103 Ill.2d 226 (1984)? In that case the Illinois Supreme Court essentially announced that it was ceding its power to decide search and seizure cases to a bunch of judges in Washington, D.C.
Tisler announced that whatever the U.S. Supreme Court says about the Fourth Amendment to the U.S. Constitution also would be considered a binding interpretation of Article 1, section 6 of the Illinois Constitution.
In other words, the only search and seizure rights an Illinois citizen possesses are provided by the U.S. Constitution.
In other words, Article 1, section 6 has no independent vitality.
In other words, Tisler effectively repealed Article 1, section 6 of the Illinois Constitution.
And no, I am not making this up. Tisler is a real case.
I was reminded of Tisler's stunning abdication of judicial responsibility in the Illinois Supreme Court's recent decision in People v Jason Henry, No. 93602 (April 17).
In Henry the trial judge at the close of evidence granted a motion for a directed verdict on a charge of aggravated battery.
After the prosecutor asked for the opportunity to find case law showing that the judge's view of the law of aggravated battery was incorrect, the trial judge agreed to reserve ruling on the issue. Later that day, the prosecutor presented the judge with a case that convinced the judge that his original decision was wrong.
The judge reversed himself and denied the motion for a directed verdict. The jury then convicted Jason Henry on the aggravated battery charge.
A unanimous Illinois Supreme Court held that the jury's verdict violated double jeopardy. The court found that the trial judge's original oral decision granting the directed verdict was an acquittal; double jeopardy thus barred the trial judge from reconsidering his decision.
So far so good. But Justice Charles E. Freeman wrote a thoughtful special concurrence pointing out that the court's decision might indeed conflict with decisions from federal courts around the country. True, Freeman concedes, federal decisions coming to a contrary result are "of no moment in most cases."
But double jeopardy is different because, as Freeman points out, the Illinois Supreme Court has repeatedly insisted that the Illinois Constitution's double jeopardy clause is to be interpreted identically to the double jeopardy clause of the Fifth Amendment to the U.S. Constitution. See, e.g., In re P.S., 175 Ill.2d 79, 91 (1997).
Therefore, Freeman said, in the future the Illinois Supreme Court should seriously consider whether Illinois cases are improperly diverging from federal cases.
Talk about getting federalism backward! Anyone for a chorus of "P.S., I Hate You"?
The whole point of federalism is that states should be free to go beyond the minimal restrictions the U.S. Constitution places on government.
In the words of Justice Louis D. Brandeis, the federal system envisions an individual state as a "laboratory" in which a state may experiment by granting its citizens more rights than the federal Constitution mandates. New State Ice Co. v Liebmann, 285 U.S. 262, 311 (Brandeis, J., dissenting).
Yet in the areas of double jeopardy and search and seizure, the Illinois Supreme Court has simply abdicated its responsibility to determine whether the state Constitution provides more protection to Illinoisans than does the U.S. Constitution.
To paraphrase Judge Alex Kozinski, the Illinois Supreme Court envisions federalism as 50 state laboratories that have been amalgamated into a single research park run by the U.S. Supreme Court. See Kremen v Cohen, 314 F.3d 1127 (9th Cir. 2003) (Kozinski, J., dissenting).
Understand, there is nothing wrong with the Illinois Supreme Court's deciding on a case-by-case basis that it agrees with every holding the U.S. Supreme Court makes in the areas of double jeopardy and search and seizure.
But it is unfathomable why a state Supreme Court would knit itself a constitutional straitjacket by promising -- in advance -- to follow every U.S. Supreme Court decision in these two areas of the law.
Assume, hypothetically, an American Nazi is elected president and appoints nine American Nazi justices to the U.S. Supreme Court. Why would the Illinois Supreme Court want to have promised in advance to follow all of their search and seizure decisions when the Illinois Constitution could conceivably provide more protection to Illinois citizens?
The constitutional bind that Freeman so cogently points out in his Henry concurrence is totally self-imposed and completely unnecessary. It is the result of the Illinois Supreme Court's woeful misunderstanding of the most basic principle of federalism. Tisler and P.S. are judicial embarrassments in our American scheme of federalism.
The Illinois Supreme Court needs to recall that before the Warren Court's selective incorporation decisions in the 1960s a state court deciding a criminal case never even had to look at the federal Bill of Rights. Remember that the federal Bill of Rights is "a charter of negative liberties; it tells the state to let people alone." Bowers v DeVito, 686 F.2d 616, 618 (7th Cir. 1982). Under selective incorporation, the federal Bill of Rights only comes into play when a state court in a criminal case wishes (1) to hold for the government and (2) to make sure that its decision does not include fewer restraints on government than those provisions demand.
But when a state court wishes to hold on behalf of a criminal defendant, there is no reason to ever consider the federal Bill of Rights. Our federal system always allows a state to hold for a defendant without federal second-guessing, as long as the state relies on its own state law.
The sooner the Illinois Supreme Court overrules Tisler and P.S., the better. |
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