SB3501 98TH GENERAL ASSEMBLY

LRB098 14137 MRW 55681 b

98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
SB3501

Introduced 2/14/2014, by Sen. Christine Radogno

SYNOPSIS AS INTRODUCED:

See Index

Amends the Illinois Torture Inquiry and Relief Commission. Adds one member to the current 8 member Commission, with the new member to be a representative of victims of violent crime. Requires the Commission Director to be appointed by the Governor, with the advice and consent of the Senate, rather than be employed by the Commission. Requires the Director to have at least 5 years of experience in the practice of criminal law. Provides that if a victim has not been identified, located, and notified by the Commission at least 30 days prior to the any proceedings of the full Commission, the Commission shall make notification by publication no later than 20 days prior to any proceedings. Requires the Commission (rather than the Director) to use all due diligence to notify convicted claimant's victims of Commission proceedings and conclusions. Requires the Commission to certify in any court filing in a convicted claimant's case that all rules and procedures as to the identification, location, and notification of any victim entitled to notice under this Act have been complied with as required by the Act. If in a convicted claimant's case referred to a trial judge, the judge finds that a victim entitled to notice has not been properly notified or heard by the Commission or finds the Commission failed to exercise all due diligence by not following its established rules and procedures as to the identification, location, and notification of a victim, the judge shall order the case to be returned to the Commission for rehearing. Allows a victim to appeal a Commission finding to the Cook County Circuit Court Chief Judge, if the Commission did not follow established rules and procedures as to the identification, location, and notification of the victim. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning human rights.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Illinois Torture Inquiry and Relief Commission Act is amended by changing Sections 20, 25, 30, 40, 45, 50, and 55 as follows:

(775 ILCS 40/20)

Sec. 20. Membership; chair; meetings; quorum.

(a) The Commission shall consist of 9 8 voting members as follows:

(1) One shall be a retired Circuit Court Judge.

(2) One shall be a former prosecuting attorney.

(3) One shall be a law school professor.

(4) One shall be engaged in the practice of criminal defense law.

(5) Three shall be members of the public who are not attorneys and who are not officers or employees of the Judicial branch.

(6) One shall be a former public defender.

(7) One shall be a representative of victims of violent crime.

The members of the Commission shall be appointed by the Governor, with the advice and consent of the Senate. Members may be re-appointed for additional terms, as provided for under Section 25.

(a-1) The Governor shall also appoint alternate Commission members for the Commission members he or she has appointed to serve in the event of scheduling conflicts, conflicts of interest, disability, or other disqualification arising in a particular case. Where an alternate member is called upon to serve in a particular place, the alternate member shall vote in the place of, and otherwise exercise the same powers as, the member which he or she is replacing. The alternate member shall have the same qualifications for appointment as the original member. In making the appointments, the Governor shall make a good faith effort to appoint members with different perspectives of the justice system. The Governor shall also consider geographical location, gender, and racial diversity in making the appointments.

(b) The retired judge who is appointed as a member under subsection (a) shall serve as Chair of the Commission. The Commission shall have its initial meeting no later than one month after the appointment of a quorum of members of the Commission, at the call of the Chair. The Commission shall meet a minimum of once every 6 months and may also meet more often at the call of the Chair. The Commission shall meet at such time and place as designated by the Chair, in accordance with the provisions of the Open Meetings Act. Notice of the meetings shall be given at such time and manner as provided by the rules of the Commission, in accordance with the provisions of the Open Meetings Act. A majority of the voting members shall constitute a quorum. All Commission votes shall be by majority vote of the voting members appointed.

(Source: P.A. 96-223, eff. 8-10-09.)

(775 ILCS 40/25)

Sec. 25. Terms of members; compensation; expenses.

(a) Of the initial members, the appointments under clauses (a)(3) and (6) of Section 20 shall be for one-year terms, the appointments under clauses (a)(1), (2), and (4) of Section 20 shall be for 2-year terms, and the appointments under clause (a)(5) of Section 20 shall be for 3-year terms. Thereafter, all terms shall be for 3 years. Members of the Commission shall serve no more than 2 consecutive 3-year terms plus any initial term of less than 3 years. Unless provided otherwise by this Act, all terms of members shall begin on January 1 and end on December 31.

(a-5) The term of the member appointed under clause (a)(7) of Section 20 shall commence on the effective date of this amendatory Act of the 98th General Assembly and shall expire upon the conclusion of all proceedings regarding claims filed under Section 70 of this Act.

(a-10) Members serving by virtue of elective or appointive office, may serve only so long as the office holders hold those respective offices. The Chief Judge of the Cook County Circuit Court may remove members for good cause shown. Vacancies occurring before the expiration of a term shall be filled in the manner provided for the members first appointed.

(b) The Commission members shall receive no salary for serving, but may be reimbursed for reasonable expenses incurred as a result of their duties as members of the Commission from funds appropriated by the General Assembly for that purpose, or from funds obtained from sources other than the General Assembly.

(Source: P.A. 96-223, eff. 8-10-09.)

(775 ILCS 40/30)

Sec. 30. Director and other staff. The Director shall be appointed by the Governor, with the advice and consent of the Senate. The Commission shall employ a Director. The Director shall be an attorney licensed to practice in Illinois at the time of appointment and at all times during service as Director and shall have at least 5 years experience in the practice of criminal law as a former prosecutor or defense attorney. The Director shall assist the Commission in developing rules and standards for cases accepted for review, coordinate investigation of cases accepted for review, maintain records for all case investigations, prepare reports outlining Commission investigations and recommendations to the trial court, and apply for and accept on behalf of the Commission any funds that may become available from government grants, private gifts, donations, or bequests from any source.

Subject to the approval of the Chair, the Director shall employ such other staff and shall contract for services as is necessary to assist the Commission in the performance of its duties, and as funds permit.

The Commission may meet in an area provided by the Illinois Human Rights Commission, or any other State agency. The Illinois Human Rights Commission shall provide, directly or through any other State agency, office space for the Commission and the Commission staff.

(Source: P.A. 96-223, eff. 8-10-09.)

(775 ILCS 40/40)

Sec. 40. Claims of torture; waiver of convicted person's procedural safeguards and privileges; formal inquiry; notification of the crime victim.

(a) A claim of torture may be referred to the Commission by any court, person, or agency. The Commission shall not consider a claim of torture if the convicted person is deceased. The determination of whether to grant a formal inquiry regarding any other claim of torture is in the discretion of the Commission. The Commission may informally screen and dismiss a case summarily at its discretion.

(b) No formal inquiry into a claim of torture shall be made by the Commission unless the Director or the Director's designee first obtains a signed agreement from the convicted person in which the convicted person waives his or her procedural safeguards and privileges including but not limited to the right against self-incrimination under the United States Constitution and the Constitution of the State of Illinois, agrees to cooperate with the Commission, and agrees to provide full disclosure regarding inquiry requirements of the Commission. The waiver under this subsection does not apply to matters unrelated to a convicted person's claim of torture. The convicted person shall have the right to advice of counsel prior to the execution of the agreement and, if a formal inquiry is granted, throughout the formal inquiry. If counsel represents the convicted person, then the convicted person's counsel must be present at the signing of the agreement. If counsel does not represent the convicted person, the Commission Chair shall determine the convicted person's indigency status and, if appropriate, enter an order for the appointment of counsel for the purpose of advising on the agreement.

(c) If a formal inquiry regarding a claim of torture is granted, the Commission Director shall use all due diligence to notify the victim in the case and explain the inquiry process. In addition to existing rules on notification of crime victims, the Commission shall adopt rules and procedures for identifying, locating, and notifying victims entitled to notice under the Act. This shall include, but not be limited to use of law enforcement files, court files, victim impact statements, and news media accounts. If a victim has not been identified, located, and notified by the Commission at least 30 days prior to any proceedings of the full Commission held in regard to the victim's case, the Commission shall make victim notification by publication no later than 20 days prior to any proceedings in the case. The Commission shall give the victim notice that the victim has the right to present his or her views and concerns throughout the Commission's investigation.

(d) The Commission may use any measure provided in the Code of Civil Procedure and the Code of Criminal Procedure of 1963 to obtain information necessary to its inquiry. The Commission may also do any of the following: issue subpoenas or other process to compel the attendance of witnesses and the production of evidence, administer oaths, petition the Circuit Court of Cook County or of the original jurisdiction for enforcement of process or for other relief, and prescribe its own rules of procedure. All challenges with regard to the Commission's authority or the Commission's access to evidence shall be heard by the Circuit Court of Cook County, including any in camera review.

(e) While performing duties for the Commission, the Director or the Director's designee may serve subpoenas or other process issued by the Commission throughout the State in the same manner and with the same effect as an officer authorized to serve process under the laws of this State.

(f) All State discovery and disclosure statutes in effect at the time of formal inquiry shall be enforceable as if the convicted person were currently being tried for the charge for which the convicted person is claiming torture.

(g) If, at any point during an inquiry, the convicted person refuses to comply with requests of the Commission or is otherwise deemed to be uncooperative by the Commission, the Commission shall discontinue the inquiry.

(Source: P.A. 96-223, eff. 8-10-09.)

(775 ILCS 40/45)

Sec. 45. Commission proceedings.

(a) At the completion of a formal inquiry, all relevant evidence shall be presented to the full Commission. As part of its proceedings, the Commission may conduct hearings. The determination as to whether to conduct hearings is solely in the discretion of the Commission. Any hearing held in accordance with this Section shall be a public hearing and shall be held subject to the Commission's rules of operation, and conducted pursuant to the Open Meetings Act.

(b) The Commission Director shall use all due diligence to notify the victim at least 30 days prior to any proceedings of the full Commission held in regard to the victim's case. The Commission shall notify the victim that the victim is permitted to attend proceedings otherwise closed to the public, subject to any limitations imposed by this Act, and subject to Section 2(c)(14) of the Open Meetings Act. If the victim plans to attend proceedings otherwise closed to the public, the victim shall notify the Commission at least 10 days in advance of the proceedings of his or her intent to attend. The Commission may close any portion of the proceedings to the victim, if the victim is to testify and the Commission determines that the victim's testimony would be materially affected if the victim hears other testimony at the proceeding.

(c) After hearing the evidence, the full Commission shall vote to establish further case disposition as provided by this subsection. All 9 8 voting members of the Commission shall participate in that vote.

If 5 or more of the 9 8 voting members of the Commission conclude by a preponderance of the evidence that there is sufficient evidence of torture to merit judicial review, the case shall be referred to the Chief Judge of the Circuit Court of Cook County by filing with the clerk of court the opinion of the Commission with supporting findings of fact, as well as the record in support of such opinion, with service on the State's Attorney in non-capital cases and service on both the State's Attorney and Attorney General in capital cases. The filing under this paragraph shall include a certification by the Commission that all rules and procedures as to the identification, location, and notification of any victim entitled to notice under this Act have been complied with as required under subsection (c) of Section 40 of this Act.

If less than 5 of the 9 8 voting members of the Commission conclude by a preponderance of the evidence that there is sufficient evidence of torture to merit judicial review, the Commission shall conclude there is insufficient evidence of torture to merit judicial review. The Commission shall document that opinion, along with supporting findings of fact, and file those documents and supporting materials with the court clerk in the circuit of original jurisdiction, with a copy to the State's Attorney and the chief judge.

The Director of the Commission shall use all due diligence to notify immediately the victim of the Commission's conclusion in a case.

(d) Evidence of criminal acts, professional misconduct, or other wrongdoing disclosed through formal inquiry or Commission proceedings shall be referred to the appropriate authority. Evidence favorable to the convicted person disclosed through formal inquiry or Commission proceedings shall be disclosed to the convicted person and the convicted person's counsel, if the convicted person has counsel. The Commission shall have the discretion to refer its findings together with the supporting record and evidence, to such other parties or entities as the Commission in its discretion shall deem appropriate.

(e) All proceedings of the Commission shall be recorded and transcribed as part of the record. All Commission member votes shall be recorded in the record. All records of the Commission shall be confidential until the proceedings before the Commission are concluded and a final decision has been made by the Commission.

(Source: P.A. 96-223, eff. 8-10-09.)

(775 ILCS 40/50)

Sec. 50. Post-commission judicial review.

(a) If the Commission concludes there is sufficient evidence of torture to merit judicial review, the Chair of the Commission shall request the Chief Judge of the Circuit Court of Cook County for assignment to a trial judge for consideration. Prior to judicial review of the evidence of torture by the trial judge, if the judge finds that a victim entitled to notice under this Act has not been properly notified or heard by the Commission as required by this Act or finds the Commission failed to exercise all due diligence by not following its established rules and procedures as to the identification, location, and notification of a victim, the judge shall order the case to be returned to the Commission for rehearing. The court may receive proof by affidavits, depositions, oral testimony, or other evidence. In its discretion the court may order the petitioner brought before the court for the hearing. Notwithstanding the status of any other postconviction proceedings relating to the petitioner, if the court finds in favor of the petitioner, it shall enter an appropriate order with respect to the judgment or sentence in the former proceedings and such supplementary orders as to rearraignment, retrial, custody, bail or discharge, or for such relief as may be granted under a petition for a certificate of innocence, as may be necessary and proper.

(b) The State's Attorney, or the State's Attorney's designee, shall represent the State at the hearing before the assigned judge.

(Source: P.A. 96-223, eff. 8-10-09.)

(775 ILCS 40/55)

Sec. 55. No right to further review of decision by Commission; convicted person retains right to other postconviction relief.

(a) Unless otherwise authorized by this Act, the decisions of the Commission are final and are subject to review as final decisions under the provisions of the Administrative Review Law, and shall only be overturned if the court finds that they are against the manifest weight of the evidence. If the Commission did not follow established rules and procedures as to the identification, location, and notification of a victim, any finding made by the Commission may be administratively appealed by the victim to the Chief Judge of the Circuit Court of Cook County.

(b) A claim of torture asserted through the Commission shall not adversely affect the convicted person's rights to other postconviction relief.

(Source: P.A. 96-223, eff. 8-10-09.)

Section 99. Effective date. This Act takes effect upon becoming law.