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*** UPDATED x4 - Supremes step in - Chaos - Notice of appeal filed *** Kankakee judge rules legislature overstepped bounds when repealing cash bail, but doesn’t issue injunction

Thursday, Dec 29, 2022 - Posted by Rich Miller

[Comments are now open on this post.]

* Tribune

A Kankakee County judge has found that a key provision of Illinois’ sweeping criminal justice law violates the state constitution, potentially rolling back a controversial measure that would eliminate cash bail as of New Year’s Day, according to a copy of the judge’s ruling.

The judge’s ruling affects only the pretrial release provisions of the law, leaving all other measures of what is known as the SAFE-T Act intact.

The ruling is here.

* Most of the plaintiffs’ case was tossed out, including the alleged violations of the “single subject rule” and the three readings requirement, vagueness, etc. The dispute over the meaning of “sufficient sureties” was key and that’s what will be appealed

The court finds under the Act, that “persons are no longer bailable with sufficient sureties” pursuant to the pretrial release provisions of the Act because ‘sufficient sureties’ does involve monetary bail as one of the conditions of bail which is abolished with the Act. See Article I, Sec. 9 of the Illinois Constitution. The court also finds with regard to the Separation of Powers challenge, that the passage of the Act also violates the separation of powers clause of the Illinois Constitution found at Article II, Sec. 1. Summary judgment is entered in favor of plaintiffs and against defendants as to Counts III and V only as they relate to the pretrial provisions of the Act.

As I’ve told you several times before, the Illinois Supreme Court’s Commission on Pretrial Practices defined bail this way in its final report

Bail: The process of releasing a defendant from custody with conditions set to reasonably assure public safety and court appearance. […]

“Bail” is often used to refer to the amount of cash that a defendant must post as a condition of release. “Bond” is sometimes treated as a synonym of “bail.” Understood properly, “bail” – which literally means, “release” – is a process of releasing a defendant from custody on conditions designed to assure both public safety and the person’s appearance in court. A “bond” occurs whenever a defendant enters an agreement with the court. The agreement may, but need not necessarily, include a financial condition, but can also or instead include a variety of other conditions such as electronic monitoring, curfews, supervised visits or appointments, etc.

* And this is causing some confusion

In Count VIII, Plaintiffs are seeking a preliminary injunction against defendants to prevent the enforcement of the bail provisions in Public Act, 101–652 and Public Act 102-1104 until all of the plaintiffs’ claims in this case can be fully litigated. […]

The court finds that a preliminary injunction is not appropriate at this juncture of the case. A preliminary injunction is a provisional remedy granted to preserve the status quo until the case can be decided on the merits.” Hensley Construction, LLC., The Pulte Home Corporation v. Del Webb Communications Of Illinois, Inc.. 399 Ill. App., 3d 184, 190. We are well past the beginning stage of this suit where a preliminary injunction might be warranted. The case is being decided on the merits, by way of cross motions for summary judgment. This will result in a final appealable decision by the trial court. Therefore, the Court grants summary judgment in favor of defendants and against plaintiffs on Count VIII.


The state will appeal the decision to the state Supreme Court, according to a statement late Wednesday from Illinois Attorney General Kwame Raoul. His office noted that the ruling only applies to jurisdictions that fall under the 64 lawsuits against Raoul, Gov. J.B. Pritzker and other state officials. The ruling does not apply to Cook County.

But this is from WEEK TV

Peoria County State’s Attorney Jodi Hoos says though her office did not participate in the ruling, they are required to follow it.

In a release, she said that when a statute is unconstitutional, the statute becomes invalid and has no force or effect on anyone.

“As a result, and until the Illinois Supreme Court provides further clarification, we will abide by this ruling and not implement the new bail reform,” she said. “This office remains committed to following the law and is hopeful the Supreme Court will bring finality to this topic in the near future.”

Last night, Kankakee County State’s Attorney Jim Roe said in a release that the pre-trial provisions and bail reform will not go into effect in the 65 counties that were party to the lawsuit.

Clear as mud.

* On to react. AG Raoul…

Attorney General Kwame Raoul today issued the following statement in response to Kankakee County Circuit Court Judge Thomas W. Cunnington’s opinion that the pretrial release portions of the Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act violate Illinois’ Constitution. The court’s opinion does not disturb other portions of the SAFE-T Act that have been in effect for more than a year.

“Although the court’s decision is binding in the 64 cases that were consolidated in Kankakee County, it is important to note that it is not binding in any other case, including those involving criminal defendants in any of the state’s 102 counties. To definitively resolve this challenge to the pretrial release portions of the SAFE-T Act, Governor Pritzker, the legislative leaders named in the consolidated cases and I intend to appeal the circuit court’s decision directly to the Illinois Supreme Court, where we will ask the court to reverse the circuit court’s decision.

“Most of the SAFE-T Act’s provisions have been in effect for more than a year, and regardless of today’s circuit court decision, all parts of the SAFE-T Act, including the pretrial release portions addressed in the court’s decision, will go into effect Jan 1. For instance, the right of individuals awaiting criminal trials – people who have not been convicted of a crime and are presumed innocent – to seek release from jail without having to pay cash bail will go into effect in a few short days, despite the court’s ruling against those provisions. Illinois residents in all counties should be aware that the circuit court’s decision has no effect on their ability to exercise their rights that are protected by the SAFE-T Act and the Illinois Constitution.”

* Gov. Pritzker…

Following Kankakee County Circuit Court Judge Thomas W. Cunnington’s ruling that the pretrial release provisions of the SAFE-T Act are unconstitutional, Governor JB Pritzker released the following statement.

“Today’s ruling is a setback for the principles we fought to protect through the passage of the SAFE-T Act. The General Assembly and advocates worked to replace an antiquated criminal justice system with a system rooted in equity and fairness. We cannot and should not defend a system that fails to keep people safe by allowing those who are a threat to their community the ability to simply buy their way out of jail. I thank the Attorney General for his work on this case and look forward to the Illinois Supreme Court taking up the appeal as soon as possible.”

* Illinois Network for Pretrial Justice…

The following is a statement from the Illinois Network for Pretrial Justice on the SAFE-T Act lawsuit ruling:

“Today, a Kankakee County judge sided with the 58 State’s Attorneys and sheriffs suing Illinois over the SAFE-T Act. This disappointing ruling is as political as the frivolous lawsuits that spurred it. The decision from Judge Thomas W. Cunnington could delay justice in counties across the state but will not deny it. The court did not issue an injunction and the Pretrial Fairness Act will still be the law in Illinois on January 1st. We anticipate that this poorly reasoned decision will be swiftly corrected by the Illinois Supreme Court.

“In the nearly two years since the Pretrial Fairness Act was passed into law as part of the SAFE-T Act, some members of law enforcement have been trying to undermine it. Their efforts have not been about justice or public safety; they are simply about preserving the power to jail people because they’re poor.

“Delaying the implementation of the Pretrial Fairness Act harms marginalized communities and survivors of violence. The current money bond system prioritizes access to wealth over public safety. Every year, thousands of people lose their jobs, housing, and custody of their children—not because a judge believes they’re dangerous, but only because they don’t have the money to buy their freedom. By protecting the status quo, the State’s Attorneys and sheriffs behind this lawsuit are making our communities less safe.

“Not all members of law enforcement have participated in these efforts to deny justice and undermine historic racial justice reforms. Some members of law enforcement have worked diligently to prepare for successful implementation on January 1st either in their own counties or as part of working groups led by the Administrative Office of Illinois Courts. Others participated in negotiations throughout the summer and fall to develop clarifying amendments to the law, which were passed earlier this month. Notably, the State’s Attorneys representing two of Illinois’ largest counties and a combined 47% of the population of the state, Cook and Lake, have championed the reforms included in the Pretrial Fairness Act long before they even became law. State’s Attorneys representing the second and fifth largest counties, DuPage and Kane respectively, were active participants in legislative negotiations and the Champaign County State’s Attorney testified in favor of the amendments made just weeks ago.

“While many counties have diligently worked to prepare for the end of money bond, the State’s Attorneys behind these lawsuits have been working to preserve one of the greatest racial and economic injustices in our legal system.

“The Illinois Network for Pretrial Justice stands by the Pretrial Fairness Act and is ready to work with the stakeholders in all counties to ensure that the law is successfully implemented after the Supreme Court responds to today’s ruling.”

The Champaign SA was neutral on the bill.

* Leader Durkin…

After today’s court ruling declaring the SAFE-T Act’s provision ending cash bail as unconstitutional, Illinois House Republican Leader Jim Durkin (R-Western Springs) issued the following statement.

“Today’s ruling is a victory for the often neglected victims of crime and the men and women of law enforcement who wear the badge every day. Legislation of this magnitude must not only be judged on substance, but also on process. In that regard, the Illinois Democrats failed Illinoisans.

“In order to fix this one-sided, anti-law enforcement, and anti-victim act, it is imperative to have a transparent and substantive negotiation with all interested parties, not just a few stakeholders and political insiders. The people of the State of Illinois deserve nothing less.”

Not sure what that process argument is about.

* Leader-elect McCombie…

State Representative and House Republican Leader-elect Tony McCombie issued the following statement tonight following a Kankakee County Circuit Court ruling declaring the cashless bail provisions unconstitutional:

“Today’s ruling by Circuit Judge Thomas Cunnington was the correct one,” said House Republican Leader-Elect Tony McCombie. “Republicans have loudly and consistently voiced the many concerns with the SAFE-T Act since its passage during the lame-duck session nearly two years ago. Many provisions within the act put victims, law enforcement and communities throughout Illinois at-risk for disastrous outcomes. I am grateful the courts have ruled on the side of common-sense and am hopeful that any appeal will be upheld to protect Illinois families and the most vulnerable throughout the state.”


This morning, Illinois Republican Party Chairman Don Tracy issued the following statement celebrating the court decision striking down the cashless bail provision in the [Un] SAFE-T Act:

“Cashless bail was slated to go into effect across Illinois this Sunday. This law would have severely limited the ability of judges and prosecutors to keep dangerous criminals off of the streets thereby exporting the epidemic of lawlessness we’ve seen in certain parts of Chicago throughout the rest of our state. The Circuit Court ruling which rightly declared it unconstitutional is a win for public safety, and the businesses and residents of Illinois, if upheld by the Illinois Supreme Court. For now, it should serve as a message to Governor Pritzker and Democrat legislators that they can’t subvert our constitutional process by ramming their unpopular and dangerous soft-on-crime policies through the legislature in the dark of night.”

* Leader McConchie…

Following the December 28 ruling by a Kankakee County Circuit Judge, who declared the pretrial release portion of the SAFE-T Act unconstitutional, Senate Republican Leader Dan McConchie (R-Hawthorn Woods) released the below statement:

“The creation of the SAFE-T Act has been a colossal failure from the beginning. The sloppy, rushed, poorly drafted law not only disregarded the opinions of citizens, law enforcement, prosecutors, and judges, but more dangerously has threated public safety here in Illinois. And on top of this, the central component has now been ruled unconstitutional. This ruling is just another example of the failure of this law.

“While the ‘no cash bail’ provision will continue to work its way through the court system, I will continue to advocate for a system that is fair, puts victims ahead of criminals, and gives judges the discretion they need to ensure violent offenders are not let back out on the streets.”

* Speaker Welch…

Speaker Welch’s Statement on SAFE-T Act Lawsuit

“While I am disappointed in the decision by the plaintiffs’ preferred trial court, I remain confident we will ultimately prevail on appeal.”

* Senate President Harmon…

Senate President Don Harmon issued the following statement in response to a Kankakee County circuit court judge’s ruling on the pretrial release portions of the SAFE-T Act:

“We knew this legal fight was inevitable and look forward to the Illinois Supreme Court’s review and more statewide perspective.”

*** UPDATE 1 *** Click here for the notice of appeal. I’m told that the AG’s office plans to request an expedited appeal schedule early next week.


*** UPDATE 2 *** AG Raoul…

– Attorney General Kwame Raoul today issued the following statement in response to improperly entered temporary restraining orders sought today by some state’s attorneys who, after more than a year of inaction, are now seeking to prevent enforcement of the SAFE-T Act.

“Beginning this morning, the Attorney General’s office received new complaints and motions for temporary restraining orders (TROs) from state’s attorneys and sheriffs throughout Illinois who are seeking to prevent the SAFE-T Act from going into effect. To be clear, these motions were filed on the last business day before Jan. 1, when the SAFE-T Act will go into effect.

“In some of these TRO motions, plaintiffs are asking that the Attorney General’s office be enjoined from enforcing any provision of the SAFE-T Act, not just the pretrial release provisions. Many of these provisions have been in effect for more than a year; however, my office received less than one hour’s notice of hearings in some counties and no notice at all in others. Throughout the day, we continued to learn of plaintiffs having obtained TROs without giving our office notice or providing copies of the complaints or TRO motions. To say that this is an abuse of the judicial process is an understatement. The SAFE-T Act has been the law in Illinois since January 2021, giving these plaintiffs nearly two years to raise challenges. In fact, the plaintiffs have had since October to join the lawsuits consolidated in Kankakee County. It is outrageous that the plaintiffs instead chose to sit on their hands until the last business day before the SAFE-T Act is to go into effect, and then seek to enjoin it from going into effect.

“It goes without saying that there is an appropriate way to challenge a new law. In fact, as their colleagues were engaging in 11th hour theatrics, the state’s attorneys of DuPage and Kane counties filed an emergency motion with the Illinois Supreme Court in which they ask the court to provide some clarity regarding the SAFE-T Act, so that there will be consistent pretrial proceedings throughout Illinois beginning Jan. 1. And because my office has already appealed Judge Cunnington’s order, the appropriate process for seeking a ruling that will apply to all 102 counties is now underway.”

*** UPDATE 3 *** This will stop the chaos for now…

…Adding… 19th Circuit…

On Saturday, December 31, 2022, hours before Lake County was to begin following the SAFE-T Act, eliminating cash bail, the Illinois Supreme Court issued a stay statewide in a Motion for Supervisory Order Kankakee County Circuit Court 22CH16.

As a result, the Nineteenth Judicial Circuit Court will act in accordance with the Illinois Supreme Court and any amendments or orders entered by or associated with the Pretrial Fairness Act that would become effective on January 1, 2023, are hereby stayed until further order of the Illinois Supreme Court.

* Illinois Network for Pretrial Justice…

“Today, the Illinois Supreme Court issued an order directing counties across our state to delay implementation of the Pretrial Fairness Act until the court has had a chance to review the Kankakee County decision finding the law unconstitutional. While we are disappointed that the Pretrial Fairness Act will not be taking effect as scheduled on January 1, 2023, we are thankful that the Supreme Court has stepped in to provide guidance to courts and communities across the state. We remain confident that the Court will swiftly correct the poorly reasoned decision made by Judge Cunnington.

“The frivolous lawsuit challenging the constitutionality of the Pretrial Fairness Act is just the latest of many attempts by conservatives to prevent progress and preserve wealth-based jailing in Illinois. They know their actions were taken on weak legal grounds, at the last minute despite the law passing 23 months ago, and were simply intended to delay the inevitable implementation of the Pretrial Fairness Act. With every passing day that money bond remains in place, Illinois will continue to punish people for being poor. It is essential that the Supreme Court moves quickly to ensure the law’s full implementation and prevent any more Illinoisans from being forced to pay a ransom to free their loved ones from jail while they await trial.

“It is a common refrain that the darkest hour comes before dawn. If you look closely towards the horizon, you’ll see a new day is quickly approaching in Illinois. While those looking to preserve the racist system of wealth-based jailing may delay progress, they will not prevent it.”

* Cook County Public Defender…

The Illinois Supreme Court today issued an order suspending implementation of the Pretrial Fairness Act while it reviews a lower court opinion that found the law unconstitutional.

The Cook County Public Defender’s Office is disappointed that this historic and transformative law will not take effect as planned tomorrow, Jan. 1.

We are confident that the Supreme Court will swiftly reverse the lower court finding and confirm the constitutionality of the Pretrial Fairness Act. In the meantime, we are grateful that the court is providing uniform guidance to courts across the state.

Money bond is a deplorable practice, and it is high time that Illinois abolish a system that punishes people – most of them Black and Brown – for being poor. We decry the frivolous lawsuit that was brought against the Pretrial Fairness Act almost two years after it was signed into law.

We continue to look forward to a day in the near future when Illinois will move forward as a beacon for our nation, reforming our inequitable pretrial legal system.

* Tribune

Lake County State’s Attorney Eric Rinehart, who supports the elimination of cash bail, said he was disappointed in Cunnington’s decision but said he understands why the Supreme Court ruled that uniformity in Illinois must exist. He’s argued that while the bail system can keep poor, nonviolent defendants locked up because they can’t afford to make bail, the system allows dangerous criminals to be released pending trial if they have the financial means.

“Lake County was ready to start arguing (Sunday) that violent offenders shouldn’t be able to use cash to buy their way out,” he said in a text message to the Tribune. “A few days ago, one of our defendants charged with possessing dozens of weapons and resisting law enforcement posted $75,000.

*** UPDATE 4 *** AG Raoul with what could very well be the last Illinois government press release of 2022…

Attorney General Kwame Raoul today issued the following statement in response to an Illinois Supreme Court stay of the SAFE-T Act’s Jan. 1, 2023 effective date.

“As we have stated previously, my office filed an appeal with the Illinois Supreme Court because in this matter, only the Supreme Court’s final decision on the merits will be binding on all Illinois courts. It is important to note that the order issued today by the court is not a decision on the merits of the constitutionality of the SAFE-T Act, and I appreciate the court’s interest in expediting the appeal. We look forward to mounting a robust defense of the constitutionality of the law and ensuring that it goes into effect across the state.”

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