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People v Brzuskiewicz


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#1 mauserme

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Posted 13 April 2018 - 11:03 AM

Saw this on AR15.com

 

A Kane County Judge has ruled 725 ILCS 5/112A - 11.5 (Protective Order Issuance) unconstitutional as it violates the due process and separation of powers guarantees in the US Constitution.

 

A copy of the supplemental ruling is attached.

 

 

 

 

 

Attached Files


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Link to ILGA House Audio/Video..........Link to ILGA Senate Audio/Video ..........Advanced Digital Media Link ..........Blue Room Stream Link

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#2 cybermgk

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Posted 13 April 2018 - 11:16 AM

I tend to think this makes these Lethal Order of Protection bills on the same grounds.


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#3 transplant

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Posted 13 April 2018 - 11:19 AM

Read this yesterday. This is a fantastic ruling.

 

Won't bind on the whole state unless it goes up the courthouse food chain.



#4 Hipshot Percussion

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Posted 13 April 2018 - 12:36 PM

Just read it.  NICE. I love the part where the State cites Cleveland Bd of Education v Loudermill as a case that supports their position, only to have the Judge say "The Loudermill case actually supports the respondent's assertion that the act is unconstitutional."  Just warms the cockles of my heart to know the State's research hurt themselves and helped the respondent :)  The judge - at least to me, and IANAL - really seemed to slap around the State.

 

Hopefully, they appeal it up the ladder so it becomes a Statewide ruling.


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#5 Hatchet

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Posted 13 April 2018 - 12:43 PM

The state of chicago has already been on the phone and told them to not appeal it. 


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#6 tkroenlein

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Posted 13 April 2018 - 12:57 PM

Not to be a Debbie downer, but this guarantees that a new, more progressive law is in the pipeline...*oh look...this one is already filed...*

#7 BobPistol

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Posted 13 April 2018 - 05:26 PM

The state of chicago has already been on the phone and told them to not appeal it. 

 

Dr. Freud, you slipped :)


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#8 ChicagoRonin70

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Posted 17 April 2018 - 10:14 PM

So, does this mean that the State of Illinois was beaten like the biihtch they iz with this ruling? And since the ruling states that the Act is unconstitutional, and that it can't be severed from the rest of the law, according to the ruling, does that mean that the law is stricken down on Constitutional grounds? How can it not be, if a court rules it as unconstitutional?


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#9 lawman

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Posted 17 April 2018 - 10:35 PM

It is stricken down as unconstitutional within that particular court only.  If it is appealed to the the second circuit and the trial court is upheld, then it becomes binding on the entire second circuit.  If it is then appealed to the Illinois Supreme Court and upheld, then it becomes binding and therefor unenforceable in the entire state.  This is a win.  I'd rather defend a win on appeal than to argue for a reversal.  Expect an appeal.



#10 Euler

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Posted 17 April 2018 - 10:54 PM

Reading the attached PDF, my understanding that the Kane County Circuit Court refused to issue a Protective Order because, in its opinion, the law is unconstitutional. That doesn't strike down the law. I believe the State Supreme Court would be required to do that. It just means the Kane County Circuit Court will not issue a Protective Order in this case.

The opinion contained in the PDF would allow the State Supreme Court to issue a ruling saying "Yeah, what they said," which would then strike down the law. In the meantime, the Kane County Court is also saying it will never issue a Protective Order under the existing law, because the law is not only unconstitutional, but it's unconstitutional on its face.

So I guess the issue now is whether Illinois will appeal (or perhaps already has appealed) the Kane County decision to the State Supreme Court.

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#11 ChicagoRonin70

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Posted 17 April 2018 - 10:57 PM

It is stricken down as unconstitutional within that particular court only.  If it is appealed to the the second circuit and the trial court is upheld, then it becomes binding on the entire second circuit.  If it is then appealed to the Illinois Supreme Court and upheld, then it becomes binding and therefor unenforceable in the entire state.  This is a win.  I'd rather defend a win on appeal than to argue for a reversal.  Expect an appeal.

 

So, what if the State of Illinois doesn't appeal, in order to keep the damage localized? Is there any way to force the issue, or for someone to use it in other, wider jurisdictions to invalidate the law for everyone? After all, if it's unconstitutional for one jurisdiction in the U.S., by the very definition of "unconstitutional" that would make it universally so.


"A well educated Media, being necessary for the preservation of a free State, the right of the people to keep and read books, shall not be infringed."

 

"A well regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear arms, shall not be infringed."

 

“One can never underestimate the idiocy of those determined to be offended by things that don't affect their real lives in the slightest.” —Me
 
“Hatred is the sharpest sword; the desire for peace is armor made of willow leaves in the face of an enemy who despises you, as neither alone will stop a strike that is aimed at your neck.” —Samurai proverb
 
“An armed society is a polite society. Manners are good when one may have to back up his acts with his life.” —Robert Heinlein
 
“I reserve the right to take any action necessary to maintain the equilibrium in which I've chosen to exist.” —Me
 
"It ain't braggin' if you done it." —Will Rogers

 

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#12 TomKoz

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Posted 18 April 2018 - 06:45 AM

If unconstitutional, why State court ?

Why not file a Federal Civil Rights Violation case?
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#13 Euler

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Posted 18 April 2018 - 11:22 AM

If unconstitutional, why State court ?

Why not file a Federal Civil Rights Violation case?


The Kane Count Court opinion references the Illinois Constitution as well as the US Constitution, therefore the opinion is that the law is unconstitutional on state constitutional grounds. A federal court wouldn't rule on that, at least not directly.

Edited by Euler, 18 April 2018 - 11:23 AM.

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#14 NakPPI

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Posted 18 April 2018 - 11:35 AM

The name of this case is People vs... it's a criminal case, as stated in the opinion. He didn't file the case, he got arrested... Then raised a defense based on the constitutional grounds and won. Sent from my XT1650 using Tapatalk
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#15 lawman

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Posted 18 April 2018 - 03:14 PM

Reading the attached PDF, my understanding that the Kane County Circuit Court refused to issue a Protective Order because, in its opinion, the law is unconstitutional. That doesn't strike down the law. I believe the State Supreme Court would be required to do that. It just means the Kane County Circuit Court will not issue a Protective Order in this case.

The opinion contained in the PDF would allow the State Supreme Court to issue a ruling saying "Yeah, what they said," which would then strike down the law. In the meantime, the Kane County Court is also saying it will never issue a Protective Order under the existing law, because the law is not only unconstitutional, but it's unconstitutional on its face.

So I guess the issue now is whether Illinois will appeal (or perhaps already has appealed) the Kane County decision to the State Supreme Court.

 

As I stated in the post above this one, the appeal would have to go to the Illinois second circuit court of appeals first, then either side could appeal to the Illinois supreme court.



#16 skinnyb82

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Posted 29 April 2018 - 07:05 AM

It's only binding within the circuit, guiding/persuasivein all others. If appealed, it will be binding within the jurisdiction of the appellate court (district)but guiding for all others. Supreme Court, binding entire state.
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