Vincent G. Rinn Law Library

"Regulation.gov" Improves Reviewing & Commenting On Proposed Federal Regs

Rulemaking is the policy-making process for Executive and Independent agencies of the Federal government. Agencies use this process to develop and issue new regulations.

The recently redesigned " regulations.gov " website has made changes that facilitate the ability of any member of the public to comment on  federal government regulations proposed by executive agencies. These changes are in furtherance of  the mandates contained in  presidential executive orders .

Executive Order 12866, "Regulatory Planning and Review," issued by President Clinton on September 30, 1993,  instructs   "...each agency should afford the public a meaningful opportunity to comment on any proposed regulation, which in most cases should include a comment period of not less than 60 days.  "

Executive Order 13563,"Improving Regulation and Regulatory Review" , issued on January 18, 2011 by  President Obama,  directs agencies   "To promote that open exchange, each agency, consistent with Executive Order 12866 and other applicable legal requirements, shall endeavor to provide the public with an opportunity to participate in the regulatory process. To the extent feasible and permitted by law, each agency shall afford the public a meaningful opportunity to comment through the Internet on any proposed regulation, with a comment period that should generally be at least 60 days. "

To further these requirements the new site attempts to :

• Enhance the ability of the public to submit and review comments on all supporting scientific and technical documents of the rulemaking docket

 • Increase public participation in the regulatory process with easier navigation, improved search and social media links to share regulatory information with others

It  includes features to help users understand the regulatory process, under the "Learn Tab". Easy access to searching by keyword and finding regulations with comments due soon and newly posted regulations are provided under the "Search Tab" . This tab also has  Improved layout of search results, filters and  a document spotlight.  The New "Browse Tab", features regulations grouped in 10 industry-related Categories and also provides for Browsing by hundreds of topics.

Integrated social media tools like "Regulations.gov Facebook" and a  revitalized Twitter page will help educate users and  allow the public to offer input on Regulations.gov features.

The site provides the text of the proposed regulations as they appear in the Federal Register :

Clicking on  "Submit a Comment ", provides the online form for entering your comment and some identification information  :

 

As the site mentions, comments can be a few sentences long, submitted by an individual, or can consist of detailed and lengthy submissions by interested organizations.  You can actually have the satisfaction of seeing your comment on the Regulations.gov site !

 

However, given that certain regulations may receive thousands of comments, a Federal agency may need several weeks to process and review them before they are posted to Regulations.gov.

The process is really very straight forward. You may want to give it a try, on an issue you care about.

Student Law School Suits Affecting Moody's Ratings

Recent  law suits filed by graduates from several law schools, have not only garnered much publicity but are having an impact on the credit ratings of the schools involved.  This may not have been on the minds of the student plaintiffs. But one suspects that administrators at the schools have probably considered the possible impact.

Moody's maintains credit ratings for eight of the fifteen schools sued, including: Southwestern Law School; California Western School of Law; Brooklyn Law School; New York Law School; Golden Gate University; DePaul University; Hofstra University; and the University of San Francisco.

A Thomson Reuter news posting states, "Class-action lawsuits recently filed against fifteen law schools for fraud are "credit negative" because they could cause reputational damage and a decline in tuition revenue, according to a report released this week by the ratings agency Moody's Investors Service."

Local graduate court cases, allege violations of Illinois Consumer Fraud and Deceptive Business Practices Act  claiming fraud and negligent misrepresentation. They are seeking restitution, damages and independent audits of employment and salary data. 

In the cases involving the first three law schools that were sued, Thomas M. Cooley Law School in Michigan, New York Law School and Thomas Jefferson School of Law, the schools have moved to dismiss the lawsuits, arguing that they were strictly following the  American Bar Association rules on job-placement data.

In January, Moody's revised its outlook on New York Law School from "stable" to "negative,". A summary of the Moody's report found online, provides a look at what factors the rating service is considering in evaluating the law schools.

The summary indicates that the downgrade for New York Law School, is due to conditions   "...reflecting recent enrollment volatility and uncertainty surrounding the outcome of a recent lawsuit and its potential impact on the school's market position and longer-term student demand..." The progress of the suits  will  continue to be monitored for  the potential impact on the School's market position. Addressing what could make the ratings go down, the report states  that, " An adverse outcome of the lawsuit which could lead to financial distress or reputational risk,"

While some of the emerging difficulties for law schools stem from structural changes in the legal marketplace , (See "Practicing Theory: Legal Education for  the Twenty-First Century").  The law school graduate law suits, focus on the internal practices at the schools. Practices that may have forestalled the impact of these structural changes on law schools, but that must now be re-examined.

 

Illinois Supreme Court Case Rules Physically-Coerced Confessions Are Never "Harmless Error"

Last September, the criminal case of  Illnois v. Wrice went to the Illinois Supreme Court. It was one of many cases in which defendants have claimed that they were tortured to confess by police Cmdr. Jon Burge and his subordinates. A decision in this case was considered very important by both  by the State and the defendants and their attorneys. So important that over 60 signers, including several former state and federal judges and prosecutors, and dozens of  lawyers, legislators and legal scholars, submitted a friend-of-the-court brief. There were four DePaul law professors among these signers.

At stake was the question of whether physically coerced confessions could be treated as "harmless error" when used as substantive evidence in a criminal trial. Previous cases in Illinois had followed the principle enunciated in  People v. Wilson, 116 Ill. 2d 29  (1987) that a new trial was required because “[t]he use of a defendant’s coerced confession as substantive evidence of his guilt is never harmless error.”

This case was the third attempt by Mr. Wrice to obtain a post-conviction review of his claim of such treatment at the hands of Cmdr. Burge's officers. He argued that in his previous attempts the information from the Report of the Special State’s Attorney, Edward J. Egan on the activities of the Burge unit, was not available to help substantiate his claims.

The Appellate Court had agreed that he had demonstrated adequate "cause and prejudice", to get a hearing on his claims. However, the State was asserting that since there was other evidence presented at trial, the coerced confession constituted only "harmless error" which should not justify the hearing or possibly a new trial.

In opposition to the precedent of previous Illinois decisions that followed People v. Wilson, the State was citing  the decision in a US Supreme Court in the case Arizona v. Fulminante, 499 U.S. 279 (1991),. In which five members of the Court, determined that coerced confessions are subject to harmless-error analysis. However,  the Illinois Court describes this decision as :  "In a fractured opinion the Supreme Court decided three issues, each issue commanding a different five-justice majority." 

Not only was that decision "fractured" but it involved a confession that was gotten through deception and not through physical coercion or much less torture. The Illinois Supreme Court concluded "... that Fulminante does not mandate that we abandon the rule in its entirety. Rather, we may recast the rule ( from Wilson) as follows: use of a defendant’s physically coerced confession as substantive evidence of his guilt is never harmless error."

"In sum, without additional guidance from the Supreme Court, we will not assume that the five justices in Fulminante who determined that the harmless-error rule applies to coerced confessions intended the rule to apply in cases such as the one now before us, involving alleged police brutality and torture."

"On this basis the Court affirms the Appellate Court in allowing Mr. Wrice to file another postconviction petition and sends the case back to the trial court  for appointment of post conviction counsel and second-stage postconviction proceedings." 

This was one of the important results that the  amicus brief hoped for. The Court did not address the suggestion in the brief that they go beyond this and  ".. exercise its supervisory authority to require a full inquiry into the case of each still-incarcerated Burge victim who has yet to receive a hearing on credible claims that his confession was coerced through torture."

Going beyond the Wrice case into this un-chartered judicial territiory, was probably more than the court expected to do. However, the ruling helps ensure that others defendants will  have a chance to get trials without confessions based on torture. Wrice's case could have far-reaching impact on how Illinois deals with such cases in the future and help insure the underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system.

 

Differing Views On Cameras In Illinois Trial Courtrooms

While the Illinois Supreme Court pilot project opens the door to still and  television camera coverage in the trial courtroom, the extent of implementation may be slow and not uniform. Since each chief judge of each circuit has  to apply to the high court for permission to allow cameras in the courtrooms. Some may apply now, later or not at all.

Among judges, opinions vary regarding the use of cameras in the courtroom.  Chief Judge Timothy Evans has long been a supporter of allowing their use citing that it will help the public better understand what actually goes on at court. It could help correct the  incorrect impressions created by television programs.

However, McHenry County Chief Judge Michael J. Sullivan  points out that significant logistical adjustments will need to be made to implement the use of cameras. He points out that it  will require collaboration among circuit judges, clerks, staff and the sheriff's department, among others.

The greatest reservations seem to come from prosecutors and public defenders. They point out that the presence of cameras may change the behavior of witnesses. Some may "play to the camera" rather than providing straight-forward testimony. Some persons may even hesitate being witnesses at all , if they fear that their own personal business will wind up in the public media, on the news and not just in a  written public court record.

The rules enunciated by the Supreme Court do provide for input from witnesses on the decision to have cameras present. And many types of personally sensitive cases are excluded from such coverage. But prosecutors still worry about not making an already stressful experience for witnesses, even more so.

State's Attorney Anita Alvarez's office indicates that they still have issues that they want to explore and discuss. Perhaps the  advisory committee of judges, lawyers and members of the media, planned by Chief Judge  Evans, will serve as a useful forum for all the stakeholders to make their views known and help each circuit decide how they will respond to this new option for their trial courts.

Sources :

Chief Justice Thomas L. Kilbride Announces Pilot Project For  Cameras In Courtroom

Justice system debates merits of cameras in courtrooms

 

Cameras In Illinois Trial Courtrooms - A Long Time Coming

Chief Justice Thomas L. Kilbride announced on Jan. 24 that the Supreme Court has approved a policy for a pilot project to allow news cameras and electronic news recording in Illinois trial courtrooms for the first time.

Since 1983 Illinois had allowed news cameras in the Supreme Court and the Illinois Appellate Court . But until now, Illinois has been one of only 14 states where cameras in trial courtrooms were either disallowed or allowed on such a restrictive basis that they were hardly utilized.

This issue has a long history in the U.S. and  Illinois, as  an old 1981 article, "Cameras in the courtroom: Will Illinois be next?"  by  Mike Strand a legislative correspondent, describes.

He points out several sensational court cases that lead to  generally recognized reluctance to have broadcast media present in the trial court room. The trial of Bruno Hauptmann in 1935 for abduction and murder of the Charles Lindberghs' infant child, lead to a "circus like courtroom atmosphere creteatd by media".

Nearly 40 years later, a case involving media coverage of  a trial for a multiple murder which had attracted widespread news coverage, cited the Huptmann case in its opinion :

"The excesses of press and radio and lack of responsibility of those in authority in the Hauptmann case and others of that era led to efforts to develop voluntary guidelines for courts, lawyers, press, and broadcasters. See generally J. Lofton, Justice and the Press 117-130 (1966). 3 The effort was renewed in 1965 when the American Bar Association embarked on a project to develop standards for all aspects of criminal justice, including guidelines to accommodate the right to a fair trial and the rights of a free press. See Powell, The Right to a Fair Trial, 51 A.B.A.J. 534 (1965). The resulting standards, approved by the Association in 1968, received support from most of the legal profession..."

[ NEBRASKA PRESS ASSOCIATION et al., Petitioners, v. Hugh STUART, Judge, District Court of Lincoln County, Nebraska, et al. Argued: April 19, 1976.       Decided: June 30, 1976.   427 U.S. 539 ]

 

Another high profile case in 1965, Billie Sol ESTES, Petitioner, v. STATE OF TEXAS, also lead to a negative perception of media in the trial court room.

"As has been said, the chief function of our judicial machinery is to ascertain the truth. The use of television, however, cannot be said to contribute materially to this objective. Rather its use amounts to the injection of an irrelevant factor into court proceedings. In addition experience teaches that there are numerous situations in which it might cause actual unfairness—some so subtle as to defy detection by the accused or control by the judge"

[ Billie Sol ESTES, Petitioner, v. STATE OF TEXAS. Argued: April 1, 1965.    Decided: June 7, 1965.    381 U.S. 532 ]

It was not till an opinion in Noel CHANDLER and Robert Granger, Appellants, v. State of FLORIDA , provided an opening for reconsidering the widepread ABA sanctioned prohibition of broadcasting in the courtroom.

" An absolute constitutional ban on broadcast coverage of trials cannot be justified simply because there is a danger that, in some cases, conduct of the broadcasting process or prejudicial broadcast accounts of pretrial and trial events may impair the ability of jurors to decide the issue of guilt or innocence uninfluenced by extraneous matter. The appropriate safeguard against juror prejudice is the defendant's right to demonstrate that the media's coverage of his case—be it printed or broadcast—compromised the ability of the particular jury that heard the case to adjudicate fairly."

[ Noel CHANDLER and Robert Granger, Appellants, v. State of FLORIDA. Decided: Jan. 26, 1981.   449 U.S. 560 ]

But as  author, Mike Strand, relates, the attempt by the Fair Trial-Free Press Committee of the Illinois State Bar Association (ISBA), shortly after this opinion, to request an  experiment with cameras and microphones for a one-year test period at the trial and appellate court levels, was turned down.

Apparently, even  a better behaved media and a Supreme court decision recognizing that a universal ban was not consitutional, did not change many minds regarding the appropriateness and advisability of permitting broadcast media in the trial courtroom. So it is not a surprise that it has taken this long for the policy announcement by the Illinois Supreme Court.

The courts will retain complete control even under the new more open policy. "The Illinois policy gives absolute discretion to the trial judge on whether to allow extended media coverage of a proceeding, notwithstanding a request by the news media." Additional restrictions include :

* the chief judge of each circuit will have to apply to the high court for permission to allow cameras in the courtrooms.
* Witnesses and parties in a suit can object to a request.
* No more than two video cameras and no more than two still photographers are allowed. So media organizations must agree on pooling arangement to share the coverage.
* Certain types of cases such as sexual abuse, police informants, juvenile, divorce, adoption, child custody, are exempt from coverage.
* Coverage of jury selection, the jury and individual jurors also is prohibited under the policy.

"Court spokesman Joe Tybor said the new rules for cameras will be on a limited and experimental basis to determine whether media access and fair trials can co-exist." The Media will have a chance to behave in a fashion that will persuade judges and the bar that the balance can be maintained.