After The Supreme Court’s Mandate In 2018

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The Illinois Supreme Court has appointed Judge Cynthia Y. Cobb to the Cook County Circuit Court countywide vacancy created by the retirement of Judge Barbara A. McDonald. At the time of this new appointment, Judge Cobb was serving by appointment to the countywide Simmons, Jr. vacancy. In appointing Judge Cobb to the McDonald vacancy, the Illinois Supreme Court terminated Cobb’s appointment to the Simmons, Jr. vacancy. Before her first appointment to the bench in 2011, Judge Cobb served as Director of the Administrative Office of the Illinois Courts. Judge Cobbs has a Master of Social Work degree from the University of Maryland. She worked for several years in Maryland in a clinical setting helping abused and neglected children before turning to the law. Cobbs started her legal career in 1989 as a law clerk, and later chief law clerk, to Supreme Court Justice Charles E. Freeman. She joined the AOIC in 1997, becoming Chief Legal Counsel for the Administrative Office within two years.

The timeline provided by the Courts Commission Order serves as the basis for the summary that follows. Santiago, a career Assistant Public Defender before being slated for the bench, bought a house in 2005 on Spaulding Avenue. But then Santiago was slated to run in the 6th Subcircuit. She could not continue to live in her own home and run for judge in the 6th Subcircuit. Goodman v. Ward, 241 Ill.2d 398, 412, 948 N.E.2d 580 (2011). So, she said, sometime in August or September 2011, she moved back to her parents’ home. Several other candidates coveted the vacancy for which Santiago was slated. Two challenges were filed to her candidacy, at least one of these asserting that Santiago lived in the house that she owned and not, as she claimed, back with the folks. The Courts Commission quotes from the hearing officer’s opinion in one of those challenges in its August 18 Order, at p. The Cook County Electoral Board adopted the hearing officer’s findings and recommendation and Santiago was permitted to remain on the ballot.

And, of course, she won. But she still had the house on Spaulding. So, in June 2013, after taking judicial office, Santiago decided to refinance her mortgage on that property. She submitted a loan application to American Equity Mortgage (AEM). In the loan app and accompanying documents, Santiago made the following representations (Order, p. Section IV, that she owned the Spaulding property as her primary residence. The Court Commission’s August 18 Order notes (pp. WGN pieces aired, Judge Santiago took corrective action. First, she repaid the homeowner’s exemption on her taxes (she’d improperly claimed that, too) and, second, she notified her lender that she was not living at the property after all. The lender did not even require Judge Santiago to refinance; although the lender acknowledged in writing that it had been notified that Santiago was not using the Spaulding home as her primary residence, the mortgage would be left as is. Since then, Santiago has sold the house on Spaulding and bought another one safely within the confines of the Sixth Judicial Subcircuit.

The tainted mortgage is gone. Judge Santiago testified at her hearing before the Courts Commission (p. Santiago told the Commission that her entire legal career has been spent in the area of criminal law; she “knows little about real estate law” (p. The Commission stressed that most of the evidence in this case was stipulated to and most of the facts in the case undisputed. Because Santiago did not really contest the Judicial Inquiry Board’s allegations of violations, the Commission saw its task as merely determining what sanction to impose. The Commission noted (p. On the other hand, the Commission noted (p. The key passage in the Order may be this one, at p. 7:At a minimum, respondent knew or should have known of her residency problems when she faced a challenge to her candidacy for circuit judge of the Sixth Judicial Subcircuit in the 2012 election. Subsequent to that, however, the record shows that in her disclosures, in order to secure an FHA loan, she designated the Spaulding property residence as “primary.” Respondent argued that her actions could be characterized as careless.

Given, however, the highlighting of her residence problems in the electoral challenge to her candidacy, one could reasonably characterize her activities as reckless. In effect, respondent got trapped. Her response to her situation only made her situation worse. She could be charged with reasonable notice of her problem due to the electoral challenge; however, the documents that she executed and the representations she made to AEM aggravated rather than corrected the situation. Respondent argued that ultimately no harm was done to AEM as all obligations were paid in full as the house was sold for more than the original obligation. We note, however, that her actions, taken in order to qualify for an FHA loan as opposed to a regular residential loan and the subsequent financing resulted in financial benefit to her. We also note the corrective actions were taken only subsequent to exposure of her residency problems by the media.

On the surface, jurisdiction and immunity doctrines are deadly dull. However, over the past 14 years the extent to which non-consenting states can be subjected to bankruptcy court jurisdiction has been hotly debated based on a number of Supreme Court decisions which did not involve bankruptcy. For most of that time, states seemed to hold the upper hand. Now, a pair of recent Supreme Court decisions have apparently stripped states of most of their immunity and left them in much the same position as other litigants. Governmental entities generally enjoy sovereign immunity, which is the right of government not to be sued without its consent. Under the Supremacy Clause, Congress arguably has the right to waive sovereign immunity through legislation. However, states enjoy a second immunity doctrine under the Eleventh Amendment. On the surface, the Eleventh Amendment states that a state cannot be sued by a resident of another state in federal court.

However, for over one hundred years, the Supreme Court has said that the Eleventh Amendment means more than it says. Idaho v. Couer D’Alene Tribe of Idaho, 521 U.S. 261 (1997); Hans v. Louisiana, 134 U.S. 1 (1890). Instead, the Eleventh Amendment reflects a larger immunity doctrine which is part of the very fabric of federalism. As a result, the contours of the Eleventh Amendment must be fleshed out through constant litigation. Prior to 1994, the law was clear that sovereign immunity prevented a non-consenting governmental body from being sued for a money judgment in bankruptcy court. United States v. Nordic Village, Inc., 503 U.S. 30 (1992); Hoffman v. Connecticut Department of Income Maintenance, 492 U.S. 96 (1989). However, in 1994, Congress revised 11 U.S.C. §106(a) to expressly “abrogate” the sovereign immunity of governmental units with regard to a number of specific sections of the Bankruptcy Code. Because the listed sections included the avoidance provisions of the Code, it became theoretically possible to sue a state to recover a preference or a fraudulent conveyance. The efficacy of the immunity abrogation was abruptly questioned when the Supreme Court decided Seminole Tribe of Florida v. Florida, 517 U.S.

44 (1996). In that case, the Supreme Court held that Congress could not abrogate the Eleventh Amendment immunity of a state under the Indian Commerce Clause. Essentially, the Supreme Court held that the Indian Commerce Clause, being adopted prior to the Eleventh Amendment, could not provide authority for Congress to abrogate the immunity enjoyed by the states. Because the Indian Commerce Clause is located at art. I, §8, cl. 3 and the Bankruptcy Clause is found at art. I, §8, cl. 4, it appeared likely that Congress’s abrogation under 11 U.S.C. §106(a) would be invalid as well. The Seminole decision prompted a lot of speculation as to the degree to which states would continue to be subject to bankruptcy laws. Were states subject to federal bankruptcy law at all? Could bankruptcy law be enforced indirectly through injunctive relief against state officials? To what extent did the bankruptcy court’s in rem jurisdiction apply against states? Could bankruptcy law be enforced in a non-federal forum?

During the period from Seminole in 1996 to University of Alabama v. Garrett, 531 U.S. 356 (2001), the answer appeared to be that states were subject to bankruptcy law but that enforcement against a state was problematic. As with Seminole, Coueur D’Alene was not a bankruptcy case, but appeared to have bankruptcy implications. It suggested that state officials were not still subject to federal laws, such as bankruptcy. Thus, a state official could be prospectively enjoined from violating the automatic stay. However, this remedy was cumbersome and largely symbolic. If a state official seized a debtor’s business in violation of the automatic stay, an injunction not to violate the stay in the future would be little help to the specific debtor whose property was seized. Additionally, unless the state had a policy of never recognizing the automatic stay, a violation in one case would not form the basis for relief in another case.

Alden v. Maine, 527 U.S. 706 (1999) also appeared to close another avenue for relief. Because the Eleventh Amendment foreclosed relief against non-consenting states in federal court, it was theoretically possible to enforce federal law in state court. Forcing a state to obey federal law in its own courts could be construed as less offensive to a state’s sovereignty. However, this door was shut as well. In Alden, the Supreme Court held that it would violate the sovereignty of a state to be subjected to a private suit to enforce federal rights even if the suit was brought in the state courts. This posed a real quandary. If a state could not be sued under federal law in either federal court or state court, to what extent was the state actually bound to obey federal law? The bankruptcy implication from Alden was that a trustee could not file an action to recover a preferential transfer from a state in either state court or federal court. During the five years from Seminole to Garrett, bankruptcy lawyers watched as bankruptcy jurisdiction was apparently chipped away in non-bankruptcy cases.

However, that was to change once the Supreme Court began to consider cases under Title 11. In Tennessee Student Assistance Corporation v. Hood, 544 U.S. 124 S. Ct. 1905; 158 L. Ed. 2d 764; 2004 U.S. The Supreme Court ruled in favor of the debtor based upon the in rem jurisdiction of the federal courts. At first glance, there is nothing wrong with this rationale. Bankruptcy courts possess exclusive jurisdiction over the property of the estate and federal courts had previously recognized their in rem jurisdiction. However, this case did not involve property. Instead, it involved a declaration of the state’s right to enforce a debt against a debtor. The Supreme Court blatantly disregarded the difference between in rem relief (which would apply to specific property) and declaratory relief (which would apply to the parties). While declaratory relief does not impose a financial burden against the state, it clearly limits the ability of the state to seek in personam relief against the debtor. Here, the Supreme Court relied on a legal fiction to overrule the non-textual interpretation of the Eleventh Amendment which had prevailed for the prior 100 years.

The Supreme Court’s most recent decision on Eleventh Amendment immunity is nothing less than surprising. After multiple decisions invalidating claims for monetary relief against states, the Court allowed a claim to avoid a preference against a non-consenting state. The Supreme Court relied in part upon Hood to suggest that recovering a preference was nothing more than exercising in rem jurisdiction over the payment. In doing so, it implicitly overruled its decision in Begier v. United States, 496 U.S. 53 (1990) which held that dollars were fungible and not subject to in rem relief. However, it also held that the power to establish uniform bankruptcy laws included the power to subject non-consenting states to avoidance actions. This was not a clear repudiation of the cases precluding money judgments. However, even the remedy of avoiding a transfer without necessarily recovering it was a dramatic break from the past. In dissent, Justice Thomas suggested that the Court at least have the decency to admit that they were overruling Seminole. Katz represents a clear break with prior Eleventh Amendment jurisprudence. Unlike its predecessors, it does not hold that states are independent sovereigns who may ignore federal law with impunity.

A three judge panel of the 9th Circuit Court of Appeals reversed the District Court in the case of Sylvester et al v. Harris. The decision released today found that the 10-day waiting period for California holders of a license to carry, holders of a California Certificate of Eligibility, or have firearms registered with the State of California was presumptively constitutional under intermediate scrutiny. This reversed the decision by Judge Anthony W. Ishii of the US District Court for the Eastern District of California who had found in 2014 that this waiting period contravened the Second Amendment. The 9th Circuit’s opinion written by Judge Mary Schroeder, a Carter appointee, has some real gems in it. The district court dismissed the State’s argument. The court thereby essentially discounted the dangers inherent in the proliferation of guns, including guns suitable only for use to injure others, such as Saturday night specials or large capacity guns that have been used in mass shootings.

Not only did Judge Schroeder use a term that has racist origins – Saturday night specials – but she asserts that firearms with “large capacity” are only suitable for killing or injuring others. No bias there, is there? Judge Schroeder then continues later in her opinion to assert that firearms buyers in the 18th and 19th centuries had to wait a long period of time to receive their firearms. Thus, when examined in that context, a waiting period of (hopefully only) 10 days was no big deal. There is, moreover, nothing new in having to wait for the delivery of a weapon. Before the age of superstores and superhighways, most folks could not expect to take possession of a firearm immediately upon deciding to purchase one. As a purely practical matter, delivery took time. Our 18th and 19th century forebears knew nothing about electronic transmissions. Delays of a week or more were not the product of governmental regulations, but such delays had to be routinely accepted as part of doing business.

It therefore cannot be said that the regulation places a substantial burden on a Second Amendment right. Intermediate scrutiny is appropriate. As the announcer in the infomercial says, “But wait! There’s More”. The district court reasoned that a cooling-off period would not have any deterrent effect on crimes committed by subsequent purchasers, because if they wanted to commit an impulsive act of violence, they already had the means to do so. This assumes that all subsequent purchasers who wish to purchase a weapon for criminal purposes already have an operable weapon suitable to do the job. The district court’s assumption is not warranted. An individual who already owns a hunting rifle, for example, may want to purchase a larger capacity weapon that will do more damage when fired into a crowd. A 10-day cooling-off period would serve to discourage such conduct and would impose no serious burden on the core Second Amendment right of defense of the home identified in Heller.