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Samuel Postell

Samuel Postell is a staff writer at Ballotpedia. Contact us at editor@ballotpedia.org.

Illinois Supreme Court rules that police misconduct records cannot be destroyed, contrary to collective bargaining agreement

On June 18, 2020, the Illinois Supreme Court ruled 6-1 that the need to keep police misconduct records outweighs a section in the collective bargaining agreement between the city of Chicago and the Fraternal Order of Police (FOP).

At issue was Section 8.4 of the collective bargaining agreement, the Local Records Act, and the Freedom of Information Act. In 2011 and 2012, the FOP filed two grievances against the city of Chicago when the city refused to destroy complaint records that were more than five years old. The city denied both grievances and the FOP initiated arbitration.

Section 8.4 of the collective bargaining agreement reads, “All disciplinary investigation files, disciplinary history card entries, Independent Police Review Authority and Internal Affairs Division disciplinary records, and any other disciplinary record or summary of such record other than records related to Police Board cases, will be destroyed five (5) years after the date of the incident or the date upon which the violation is discovered, whichever is longer.”

In his opinion, Justice Lloyd Karmeier wrote, “We find further support that Illinois public policy demands the oversight of the destruction and maintenance of government records through creation of a State Records Commission which, under the State Records Act, similarly requires state agencies to seek the approval of the State Records Commission prior to the destruction of state records.” As for the right to contract, Karmeier wrote, “While parties are generally free to make their own contracts, this court has long held that when a conflict exists between a contract provision and state law, as it clearly does in this case, state law prevails.”

In his dissent, Justice Thomas Kilbride wrote that the court’s decision that the collective bargaining agreement violated state law foreclosed the possibility of the city of Chicago and the FOP meeting in order to renegotiate the contract to ensure better compliance with state law. He wrote, “I believe the parties should be allowed to meet and negotiate in accordance with the arbitrator’s directive. This court could retain jurisdiction and remand for negotiations. After proceeding with negotiations, it would be warranted for this court to review the status of any agreement.”

In response to the decision, FOP President John Catanzara said, “It goes against every ounce of logic there is… the contractual rights that were in our collective bargaining agreement for the better part of four decades were set in stone.” He said he is instructing the union’s lawyers to see if there is a way to take the case to the U.S. Supreme Court.

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New Mexico Supreme Court rules in cases involving police uniforms and vehicle markings

On June 11, 2020, the New Mexico Supreme Court consolidated two cases and clarified requirements for marks of identification for police officers in aggravated fleeing cases.

New Mexico law considers aggravated fleeing a fourth-degree felony. The law describes aggravated fleeing as “a person willfully and carelessly driving his vehicle in a manner that endangers the life of another person after being given a visual or audible signal to stop, whether by hand, voice, emergency light, flashing light, siren or other signal, by a uniformed law enforcement officer in an appropriately marked law enforcement vehicle.”

The court ruled that a district court properly dismissed a charge against a man in San Juan County because the pursuing sheriff’s deputy was driving an SUV with lights behind the grille of the vehicle, but no decals, insignias, or lettering to indicate it was a law enforcement vehicle.

Justice Michael Vigil, who wrote the majority opinion, ruled that a police vehicle must be marked by “decals or other prominent and visible insignia identifying it as such.” Vigil also wrote, “Reiterating the definition of ‘mark’ as that which provides identification, we cannot conclude that lights or a siren are unique in identifying a police officer’s vehicle where emergency vehicles, tow trucks, and even civilian vehicles may be equipped with these same signaling devices.”

In a second case, the court agreed with the Court of Appeals that a man’s conviction should be reversed because the pursuing sheriff’s deputy was wearing civilian clothing rather than a uniform. The sheriff’s deputy was wearing a badge displayed on his shirt pocket and driving an unmarked SUV because he was working as an investigator for the sheriff’s office. Justice Vigil wrote that he must look at the “plain meaning” of the word uniform to rule in the case. He wrote, “while a police officer’s badge is a distinctive accessory that identifies a police officer, it is not, standing alone, a uniform.”

In a dissenting opinion, Chief Justice Judith K. Nakamura wrote that the ruling “has the pernicious effect of permitting some offenders who knowingly disobey officer commands and then flee in a manner that endangers the public to avoid criminal punishment simply because an officer’s uniform and/or vehicle were not sufficiently distinctive.”

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Justice Paul Thissen will run for a full term on the Minnesota Supreme Court

On May 19, 2020, Justice Paul Thissen announced that he had filed to run in the 2020 election for the Minnesota Supreme Court.

“I am excited to launch my campaign, even in these trying circumstances… My first years as a justice have confirmed how deeply our courts touch the lives of Minnesotans in the most fundamental ways,” Thissen said.

Thissen filed for the ballot by mail due to changes that the state made to its election procedures in response to the coronavirus pandemic. The filing period is open until 5 p.m. on June 2.

Judges of the Minnesota Supreme Court are chosen in nonpartisan elections to six-year terms. Interim vacancies are filled via gubernatorial appointment. Appointed judges serve until the next general election occurring more than one year after their appointment. They may then stand for election to a full term, and other candidates may file to run against them. Each current member of the state supreme court was initially appointed rather than elected.

Thissen was first appointed to the court in 2018 by Gov. Mark Dayton (D). He was appointed to fill the vacancy of Justice David Stras, who was appointed by President Donald Trump (R) to the Eighth U.S. Circuit Court of Appeals. Thissen was Gov. Dayton’s fifth appointment to the state supreme court.

The primary election for Justice Thissen’s seat on the state supreme court will take place on August 11, 2020. The general election for the seat will take place on November 3, 2020.

Before becoming a state supreme court justice, Thissen was a registered member of the Democratic-Farmer-Labor (DFL) Party and served in the state legislature for eight terms.

He served as Speaker of the House and Minority Leader. He ran for governor in 2010 but suspended his campaign when he was considered as an applicant to fill the vacancy on the state supreme court.

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Virginia Supreme Court to hear environmental law case on oyster fisheries

On May 18, 2020, the Virginia Supreme Court announced that it will hear a case between the City of Suffolk and a group of Virginia oyster fishermen. The original lawsuit was filed in November 2018 by C. Robert Johnson III, Lisa Lawson Johnson, Thomas Hazelwood, Johnson and Sons Seafood, and Hazelwood Oyster Farms, who sued the city and the Hampton Roads Sanitation District.

The plaintiffs alleged that the city and the sanitation department were polluting the Nansemond River by depositing sewage and allowing unwanted stormwater to enter the waterway. They argued that the government has taken their property by causing the river to become so polluted that they cannot harvest oysters from waterways in which they hold leases.

Circuit Court Justice L. Wayne Farmer took up the case on April 9, 2019. The lawsuit was dismissed in September 2019. The appeal took issue with Justice Farmer’s use of caselaw from 1919 which they argued is not in consonance with modern environmental regulation policy.

Joseph Waldo Lyle, who will be representing the oystermen before the state supreme court, remarked “The law says governments can pollute the waterways… It’s not 100 years ago. It is today, and the issue will always be, how can you put untreated raw sewage into a river that people fish, raise oysters, and swim, and boat in?” He said, “The Supreme Court of Virginia has said this case is important enough to determine whether or not the city’s right and they can discard waste and human sewage into the Nansemond River… It’s a very important, precedent-setting case.”

There are two ways that appeals cases can reach the Virginia Supreme Court. The most common is based on the argument in a dissenting opinion at the level of the court of appeals, and the least common is when a party successfully seeks discretionary review by the supreme court. The plaintiffs’ case sufficiently convinced the justices of the Virginia Supreme Court that the appeal merited discretionary review of the lower court, allowing the case to circumvent hearing in the appellate court.

Virginia is one of only two states in the country that uses legislative selection to appoint state supreme court justices. Virginia has used legislative selection to select its justices since 1776 when the state constitution was written. This year, there are no vacancies on the Virginia Supreme court, nor are there any retention elections for justices currently sitting on the court.

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Minnesota Gov Tim Walz (D) appoints Gordon Moore to state Supreme Court

On May 15, 2020 Gov. Tim Walz (D) announced District Court Justice Gordon Moore as his first appointment to the Minnesota Supreme Court. Justice David Lillehaug intends to resign in July 2020, and Justice Moore will take his seat on the bench.

Lillehaug has served on the Minnesota Supreme Court since 2013, and announced that he would retire due to a diagnosis of Parkinson’s disease. If Justice Lillehaug had not resigned from the court, he would face nonpartisan election to keep his seat on the bench.

There are seven justices on the Minnesota Supreme Court. Justices in Minnesota are selected through nonpartisan elections, but in the case of a vacancy the governor appoints a replacement. Each justice currently sitting on the Minnesota Supreme Court was initially placed on the court by the governor to fill a vacancy. Five of the seven justices have been appointed by Democratic governors, and two have been appointed by Republican governors.

When Gov. Walz announced Justice Moore’s appointment, said, “Supreme Court Justices decide some of the most pressing and significant questions of our time, and the feedback from Judge Moore’s peers was resounding: he is a brilliant jurist and a leader in his community. He has spent his career working hard for the people of Southern Minnesota, and he will bring a fair and respected voice to the Minnesota Supreme Court.”

In addition to his judicial experience, Justice Moore served as special assistant and assistant attorney general under Attorney General Skip Humphrey, a member of the Democratic-Farmer-Labor Party.

Although the appointment of Justice Moore means that Minnesotans will not vote in a nonpartisan election to fill Justice Lillehaug’s seat, Paul Thissen will be subject to retention through nonpartisan election on November 3, 2020.

Additional Reading



Van Pounds Challenges Incumbent Justice Thomas Balmer for Position 1 on the Oregon Supreme Court

Primaries are taking place for three positions on the Oregon Supreme Court on May 19, 2020. The Position 1 primary is the only contested primary, between current Justice Thomas Balmer and Van Pounds.

If a justice wins over fifty percent of the vote in the primary election, then he secures a seat on the supreme court. If neither candidate wins over fifty percent of the vote, then the two candidates will compete for a majority of the vote in the general election held on November 3, 2020

Justice Balmer has been on the state supreme court since 2001 when he was appointed by Governor John Kitzhaber (D). He was re-elected in 2002, 2008, and 2014 to serve full terms on the court. He was unopposed in each race. Balmer served as the chief justice from 2012-2018.

Van Pounds works in the Oregon Department of Consumer and Business Services. He ran for a seat on the Oregon Supreme Court in 2018, but was defeated by Justice Meagan Flynn. Flynn had been appointed by Governor Kate Brown (D) in 2017.

The Oregon Constitution establishes non-partisan election as the mode of selection for state court justices. In the event of vacancies, justices are appointed by the governor.

Although Covid-19 has altered the primary election dates of many states, Oregon will still hold its primary election on May 19, 2020. Oregon’s elections are conducted by mail, so there are no alterations to this year’s primary election schedule.

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Chair of Rhode Island Senate Judiciary Committee seeks appointment to she state Supreme Court

On April 28, 2020, State Senator Erin Lynch Prata (D-RI), applied to fill retiring Justice Gilbert Indeglia’s seat on the state supreme court.

Senator Lynch Prata is a former clerk to Supreme Court Associate Justice Maureen McKenna Goldberg. She stated that becoming a supreme court justice “has always been a dream,” and that the position on the state supreme court provides an opportunity for her to “give back to the community in a new way.”

Because she currently holds a political position, she sought an advisory opinion from the Rhode Island Ethics Commission to ensure that her application was not in conflict with the “revolving door” provision in the state code of ethics, which prohibits state legislators from applying to state agencies within a year of their departure from the legislature. In her letter to the ethics commission, she asked that the commission “provide me with guidance as to whether I am correct that the revolving door provision does not apply to a member of the General Assembly who seeks appointment by the Governor to the constitutional office of Supreme Court Justice.”

The code of ethics states that she may seek election to any constitutional office or “be appointed to a senior policy-making position on a general officer’s or general assembly’s staff, or appointment by the governor as a department director.” The code of ethics does specify judgeships in its enumeration of offices which may be sought within the one year time-frame of departing from the state legislature.

Lynch Prata argues a position on the state supreme court is a constitutional office as opposed to a position within a state agency. In an interview on April 28, she said, “The law is clear. If I didn’t think this was an appropriate thing to do, I wouldn’t be doing it.”



Illinois Supreme Court rules fantasy sports a game of skill, not chance

In April 2016, Illinois residents Colin Dew-Becker and Andrew Wu competed in a fantasy sports contest hosted by the website FanDuel. They each paid a total of $109: a $100 wager and a $9 fee to the company. Wu defeated Dew-Becker, and three days later Dew-Becker invoked an 1819 law called The Loss Recovery Act in order to recover his bet.

The Loss Recovery Act provides an avenue for the losing party of an illegal wager to recover the funds lost. Dew-Becker’s invocation of the Loss Recovery Act presupposes that FanDuel fantasy sports contests are gambling venues and therefore illegal. The Illinois Supreme Court took up the case to determine the legality of fantasy sports websites as online gambling venues.

On April 16, 2020, the state supreme court ruled that fantasy sports is a “game of skill” as opposed to a “game of chance” and therefore venues like FanDuel do not fall under the umbrella of illegal online gambling venues, nor do wagers placed on fantasy sports match-ups qualify as online gambling. Chief Justice Anne Burke wrote the majority opinion. Justice Lloyd Karmeier was the lone dissenter.

In the majority opinion, Justice Burke wrote “Because the outcomes of head-to-head DFS contests are predominately skill-based, we conclude that (Dew-Becker) was not engaged in ‘gambling’ with (Wu) as required… We determine here only that the DFS contest at issue in this case does not fall under the current legal definition of gambling.”

In his dissent, Justice Karmeier wrote, “Throughout the history of antigambling laws, courts have recognized the effort and ingenuity man has exerted to circumvent the law by disguising activities as legal or contests of skill although the intended appeal is to chance… The ingenuity exerted in head-to-head DFS contests duped the majority into believing it is a game of skill when truly it is a game of chance.”

Although the court upheld the legality of fantasy sports betting hosted by companies such as FanDuel, the five majority justices provided that state lawmakers are able to alter current regulations to manage daily fantasy sports contests.

Additional reading:


Alaska Supreme Court Justice Craig Stowers announces early retirement, anticipates wave of mandatory retirements

Thirty-two states have constitutionally mandated retirement ages for state supreme court justices. Twenty of those states mandate retirement at 70 years of age. Alaska is one of them, and four of the five justices on the Alaska Supreme Court will be required to retire between February 2023 and February 2025.

Regarding the upcoming turnover of the Alaska Supreme Court, Justice Craig Stowers declared that he will retire on June 1, 2020. He said that “a turnover of this magnitude would cause great disruption in the Court’s ability to accomplish all that it is charged to do.” He said that such turnover “would be devastating for the court, the Alaska court system, and ultimately the people of Alaska.”

Justice Daniel Winfree will face mandatory retirement in 2023. Justices Peter Maassen and Joel Bolger will face mandatory retirement in 2025.

Alaska uses the Assisted Appointment method to fill vacancies on the Supreme Court. The Alaska Judicial Council receives applications to fill the vacancy and may choose two or more of those applicants to suggest to the governor for nomination. The Alaska Judicial Council is composed of three lawyer members appointed by the governor and approved by the state legislature, three non-lawyer members appointed by the state Bar Association, and the chief justice of the Alaska Supreme Court who acts as ex officio chair of the council.

New justices serve an initial term of at least three years, after which the justice must stand for retention in an uncontested yes-no election to remain on the bench. The Alaska Judicial Council publishes judicial performance reviews for retention elections and may recommend that any justice or judge either be retained or not be retained.

Eight individuals applied to fill the position:

• Dario Borghesan: A chief assistant attorney general in Anchorage, Alaska. Borghesan graduated from the University of Michigan Law School in 2008.
• Judge Dani Crosby: A superior court judge in Anchorage. Crosby graduated from Gonzaga University School of Law in 1996.
• Attorney Kate Demarest: A senior assistant attorney general in Anchorage. She graduated from the University of Minnesota Law School in 2008.
• Judge Jennifer Stuart Henderson: A superior court judge in Anchorage. She graduated from Yale Law School in 2001.
• Judge Yvonne Lamoureux: A superior court judge in Anchorage. She graduated from the University of Virginia School of Law in 2003.
• Attorney Margaret Paton Walsh: A chief assistant attorney general in Anchorage. She graduated from Harvard Law School in 2004.
• Judge Paul A. Roetman: A superior court judge in Kotzebue, Alaska. He graduated from Regent University School of Law in 1999.
• Judge Jonathan Woodman: A superior court judge in Palmer, Alaska. He graduated from the Ohio State University College of Law in 1993.

Additional Reading:
Alaska Supreme Court
Craig Stowers



Maryland Senate passes Maryland Renaming Court of Appeals Amendment

Maryland and New York are the only states in the nation that do not call its court of last resort the supreme court, but that could change after November 3, 2020.

On March 13, 2020, the Maryland Senate passed Senate Bill 0393 by a vote of 45-1. If the bill is passed by the General Assembly, it will appear on the November 3, 2020, ballot as a legislatively referred constitutional amendment.

Maryland’s court of last resort is currently called the Maryland Court of Appeals. The bill seeks to make the following changes:

  1. Rename the Maryland Appellate Court to be the Supreme Court of Maryland,
  2. Rename the Court of Special Appeals to be the Maryland Appellate Court,
  3. Change the title of a Judge of the Court of Appeals to be a Justice of the Supreme Court of Maryland, and
  4. Change the name of the Chief Judge of the Court of Appeals to be the Chief Justice of the Supreme Court of Maryland.

In order to add a legislatively referred constitutional amendment to the ballot in Maryland, it must be approved by at least 60% of both houses of the legislature.

The Senate bill was sponsored by Sen. Douglas Peters (D), Sen. Jill Carter (D), Sen. Brian Feldman (D), Sen. Guy Guzzone (D), Sen. Nancy King (D), Sen. Susan Lee (D), Sen. William Smith (D), Sen. Jeff Waldstreicher (D), and Sen. Chris West (R).



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