* Associated Press account of today’s Illinois Supreme Court hearing on the SAFE-T Act…

[Jim Rowe, the state’s attorney for Kankakee County] faced several questions about whether prosecutors and sheriffs have legal standing to bring the case.

* Please pardon all transcription errors, but here’s an excerpt of SA Rowe’s opening arguments…

Rowe: I’m the state’s attorney for Kankakee County and my oath in the interest of public safety compel me to contest the defendants’ Act in this regard.

Chief Justice Mary Jane Theis quickly interrupted to point out that a party only has standing to challenge the constitutionality of a statute “only insofar as it adversely impacts his or her own rights.” So, she asked, where’s your standing?…

Rowe: Your honor, with regard to standing, plaintiffs - sheriffs, state’s attorneys - are absolutely proper parties to this litigation. Each of us - your honors, the sheriffs as well - we have all raised our right hand and we have sworn a duty to uphold and defend the constitution of the state of Illinois.

Justice Theis then reminded Rowe about the actual oath that they both took…

I do solemnly swear (affirm) that I will support the Constitution of the United States, and the Constitution of the State of Illinois…

Emphasis added, and this explains why…

Theis: Wasn’t the language prescribed in the statute that we support the Constitution of the United States and the Constitution of the State of Illinois? And isn’t that the same oath that every lawyer, every person who comes to be admitted into the bar of Illinois under the Attorneys Act takes the same oath? So are you saying that everyone, every lawyer in the state of Illinois has standing to challenge a statute they don’t like?

Rowe: I’m not arguing that, your honor. I’m saying that state’s attorneys and sheriffs stand in a very unique position. For instance, state’s attorneys are the only ones that can go into a courtroom and file a petition under the Defendants Act to deny bail to someone.

Theis: Isn’t that true now?

Rowe: That is true, your honor. Except in this instance, we would be asked to enforce a rule that plaintiffs believe is unconstitutional. I think under Lujan, this court found that if we are regulated by the Act, we are a proper party to that litigation. And plaintiff state’s attorneys and sheriffs are certainly regulated under that Act.

Theis: There’s an adverse impact on your rights, is that it?

Rowe: There absolutely is. As the circuit court found, state’s attorneys, prosecutors have an inherent interest in ensuring that we can move cases through the court system, that we can secure a defendant’s appearance at trial, the sheriff has an inherent interest to…

Theis: Why don’t you continue to have that right? A constitutional right, I’m not sure what. You say you have a right to ensure that defendants appear or to continue to appear. Doesn’t that continue under this Act?

Rowe: Well, the Act abolishes the opportunity for a state’s attorney to even request a monetary bail as a sufficient surety. And for the sheriff, the sheriff has to ensure effectively the safety of every law enforcement officer under his charge. This Act requires them to serve, for instance, notice to appear and then a warrant and two occasions, we’ve now doubled the number of instances where law enforcement is going to come into contact with perhaps a fugitive or a very dangerous individual. So plaintiffs squarely believe that prosecutors and sheriffs have standing to pursue these matters. And we further believe that the Act is unconstitutional.

It goes on, but you get the drift.

* OK, back to the AP…

Other justices questioned how the SAFE-T Act changes to cash bail differ from lawmakers’ ability to set minimum criminal sentences or a list of factors that judges should consider when determining bail.

Alan Spellberg, a state’s attorney representing Will County, argued that the elimination of cash bail differs from those examples. In the case of cash bail, he argued that lawmakers have “mandated the outcome.”

“We know from history, monetary components are an important incentive for ensuring that a defendant appears for trial,” Spellberg said.

Chief Justice Theis quoted from a statute that has been around for many years, “In determining the amount of monetary bail or conditions of release, the court shall take into account” and noted that it then goes on to list 36 different factors that the court must consider…

Theis: Isn’t that statute unconstitutional, because it interferes with the court’s inherent authority to determine sufficient surety?

Spellberg: No, your honor, it’s not, because while the legislature has listed a series of factors to be considered…

Theis: Shall be considered. [Cross talk] Dictated. The court must take, shall take into consideration these factors. Isn’t that the legislature working with, or maybe interfering with the court’s…

Spellberg: Your honor, I respectfully disagree. And the reason why is because even though the legislature has mandated that certain factors should be considered, absolutely, it has not mandated the outcome, has not mandated the determination that should be made after the consideration of those factors.

In summary, the state’s lawyer, Deputy Solicitor General Alex Hemmer, said he believed Chief Justice Theis’ question was “exactly right”…

Plaintiffs’ argument, if accepted, would bring down not only the pretrial release provisions enacted by the SAFE-T Act, but also the entire scaffolding of legislative regulation of pretrial release in Illinois that’s existed for 60 years before the SAFE-T Act’s enactment. Plaintiffs have no effective response to that.

* One other point. Justice Lisa Holder White pointed out that in a “facial challenge,” the plaintiffs must “demonstrate that there is no set of circumstances that this would be constitutional.” She then asked if they’d done that. Spellberg’s answer was no yes, but then went on to say that the court had never before applied that demand to a separation of powers case.

Hemmer, the state’s lawyer, argued that “plaintiffs have not come anywhere close to meeting their burden”…

They admit that none of those cases establishes the exception that they are seeking. And in most of these cases, the issue simply wasn’t raised. And so there’s no reason to read these cases’ silence as kind of a precedent that establishes a separation of powers exception to the ordinary rule.

Discuss.

…Adding… Capitol News Illinois…

But opponents argued the constitution’s mentions of “bail” essentially serve as a requirement that the state maintains a system of monetary bail.

In particular, the prosecutors argued that the Crime Victims’ Bill of Rights was brought to voters as a constitutional amendment in 2014, which was the proper avenue for such a change.

Kankakee County State’s Attorney James Rowe argued that lawmakers put amendments to the voters in the 1980s when looking to expand the list of nonbailable offenses in the constitution. He contrasted that effort with the January 2021 passage of the SAFE-T Act which moved quickly through the legislature and came for a vote in the middle of the night.

Hemmer countered that the constitution has multiple references to institutions that no longer exist.

“The bail clause itself refers to capital offenses, but there are no more capital offenses in Illinois,” he said. “No one would argue, I think, that the bail clause requires the state to maintain capital offenses simply by referring to it and the same is true here.”