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92_HB2299gms
STATE OF ILLINOIS
OFFICE OF THE GOVERNOR
SPRINGFIELD, 62706
GEORGE H. RYAN
GOVERNOR
February 8, 2002
To the Honorable Members of the
Illinois House of Representatives
92nd General Assembly
Pursuant to the authority vested in the Governor by
Article IV, Section 9(e) of the Illinois Constitution of
1970, and re-affirmed by the People of the State of Illinois
by popular referendum in 1974, and conforming to the standard
articulated by the Illinois Supreme Court in People ex Rel.
Klinger v. Howlett, 50 Ill. 2d 242 (1972), Continental
Illinois National Bank and Trust Co. v. Zagel, 78 Ill. 2d 387
(1979), People ex Rel. City of Canton v. Crouch, 79 Ill. 2d
356 (1980), and County of Kane v. Carlson, 116 Ill. 2d 186
(1987), that gubernatorial action be consistent with the
fundamental purposes and the intent of the bill, I hereby
return House Bill 2299, entitled "AN ACT in relation to
terrorism", with my specific recommendations for change.
House Bill 2299 amends the Criminal Code of 1961, the
Solicitation for Charity Act, the Firearm Owners
Identification Card Act, the Code of Criminal Procedure of
1963, the Boarding Aircraft with Weapon Act, the Statewide
Grand Jury Act, the Unified Code of Corrections, and the
Charitable Trust Act with respect to investigating,
prosecuting and punishing acts of terrorism.
House Bill 2299 creates a new Terrorism Article to
replace the current international terrorism provision and
covers the commission of a terrorist act, making a terrorist
threat, falsely communicating a terrorist threat, soliciting
or providing support to a terrorist act, and hindering
prosecution of terrorism.
The bill also defines a terrorist act, creates a Class X
felony with mandatory imprisonment of 20 years to natural
life and adds a death penalty qualifier for first degree
murder resulting from a terrorist act. Furthermore, House
Bill 2299 raises the penalty for boarding or attempting to
board a commercial or charter aircraft with a firearm,
explosive or other dangerous weapon from a Class A
misdemeanor to a Class 4 felony.
This bill additionally allows for freezing assets,
seizure and forfeiture of property connected with terrorism
violations and expands consensual eavesdropping without a
court order, nonconsensual wiretap and Statewide grand jury
statutes to include investigation of terrorism offenses. A
sunset provision for the eavesdropping, wiretap and search
warrant changes takes effect on January 1, 2005. Finally,
House Bill 2299 allows the Attorney General to take action
against a charitable organization that acts to further
terrorist activities, directly or indirectly, or uses
charitable assets in support of terrorist acts.
However, as I told members of the General Assembly and
the people of Illinois in a special preparedness briefing on
October 11, 2001, "to simply act symbolically and overreach
our authority is both irresponsible and detrimental to the
federal government's efforts."
I maintain that position with respect to House Bill 2299.
There are provisions in this legislation that would not
significantly enhance the State's efforts and powers to
battle acts of terrorism and other language that could erode
protections on individual liberties that have been the law of
the land in Illinois for many years.
With that said, I believe it is helpful to review my
Administration's record on combating the threat of terrorism.
Since 1999, we, as a State, have worked hard to address
issues surrounding terrorism and domestic preparedness. Our
efforts began long before the terrorist attacks on New York
City and Washington D.C. of September 11th, 2001.
In order to bolster our existing emergency response
infrastructure, in May of 2000 I appointed the first
Statewide Terrorism Task Force in Illinois' history. The
purpose of this task force was to identify strengths and
weaknesses in our response plans, especially in regard to
biological or chemical terrorism, to improve our emergency
programs and to coordinate needed training at the local
level.
The 33 member organizations of this task force include
our Emergency Management Agency, the State Police, State Fire
Marshal, Department of Military Affairs, Department of Public
Health, Department of Nuclear Safety, Environmental
Protection Agency, the American Red Cross, local emergency
response teams, the Illinois Association of Chiefs of Police
and the FBI, among others.
As a result:
* The task force has created several response teams in
every area of the State. These teams would be called on
quickly when they are needed to deal with an emergency
situation.
* In January of 2001, the task force set up the first-ever
Statewide mutual aid system to deal quickly and
effectively with a release of hazardous material anywhere
in Illinois. Under this agreement fire departments
throughout the State have agreed to pool and share
resources in the event of a terrorist attack or natural
disaster.
* The State also created more than 64 separate special
response teams throughout the State that are equipped and
trained to respond to any specialized emergencies. We
now have 32 "haz mat" teams prepared to deal with
biological, chemical or nuclear incidents.
* The task force created, at the State level, three State
inter-agency teams to respond to emergencies and any kind
in Northern, Central and Southern Illinois. These teams
are designed to bring State resources and expertise to
the local level for emergencies of any kind. These
emergencies can involve dangerous chemicals, radiation
leaks and large fires, as well as the lingering after
affects of a disaster that face a community.
* In August of 2001, Illinois became only one of ten states
in the nation to have trained and equipped certified
Civil Support Team within the National Guard that is
capable of responding to events that include nuclear,
biological and chemical weapons. The Illinois CST
consists of experts in biological and chemical warfare
and is supplied with state-of-the-art detection and
decontamination equipment.
* The task force has coordinated and implemented an
anti-terrorism training program for police officers,
firefighters and emergency personnel through the State.
In the last 17 months, the State has trained more than
19,000 emergency personnel from across Illinois in
dealing with a possible terrorist attack. In all, these
emergency personnel have completed more than 184,000
hours of training - almost 10 hours of special training
per person. This training includes dealing with weapons
of mass destruction, hazardous materials and chemical
agents.
The work of the Terrorism Task Force supplements our
State's already strong network of emergency programs.
* We conduct disaster exercises every other year at each of
the State's nuclear power plants, which means that we
conduct three disaster readiness drills annually. In
cooperation with the Nuclear Regulatory Commission,
federal and State agencies and our nuclear operators, we
have changed procedures and significantly enhanced
security in recognition of the new potential threats to
these facilities.
* Throughout the State, local emergency and disaster teams
regularly train and hold exercises to prepare for the
needs of a large-scale emergency. And throughout the
course of every year, various State agencies coordinate
training and inspect the assets we have within
communities to deal with emergencies.
* In 2000, the Illinois Emergency Management Agency handled
more than 1,200 hazardous material incidents, 80 search
and rescue missions, 100 railroad incidents and trained
800 people in emergency management procedures.
* The Department of Public Health coordinated more than 100
hospital inspections and found 96 percent in substantial
compliance with all regulations.
* Since 1999, Public Health has trained 1,000 physicians
and emergency room personnel in treating victims of
potential terrorist incident involving toxic gases,
bacteria or viruses.
* The State Fire Marshal last year handled more than 3,500
emergency situations and follow-up investigations at fire
scenes.
* The Illinois State Police started work on the StarCom 21
system, a state-of-the-art radio network that will
replace 1960's technology for providing radio
communications. This Statewide radio network will finally
ensure that different agencies and emergency responders
can communicate with earth other and it will provide an
essential and independent mechanism for communication if
telephone networks are disabled.
* The General Assembly and I have used the Illinois FIRST
program to beef up equipment, training and facilities for
the State Police, local law enforcement, fire departments
and emergency medical teams. To date, we've approved
more than $137 million for new fire trucks, breathing
equipment, thermal imaging cameras, bullet-proof vests,
communications systems, new "jaws of life" equipment,
fire-proof uniforms, "haz mat" response supplies, police
stations, fire houses, ambulances, cars, trucks, axes,
ladders, computers and other emergency equipment.
And since the tragic events of September 11th and the
ensuing War on Terrorism, we have stepped up these efforts.
In the wake of these terrorist acts, my Administration did a
thorough review of how the State of Illinois would and could
respond in the event such attacks were perpetrated in
Illinois. Resources and assets to deal with terrorism were
identified and emergency plans expanded. I appointed a
Director of Homeland Security and have directed a full effort
to improving our State's security and our coordination with
both the federal and local governments. Since international
terrorism cuts across national as well as state boundaries, I
believe that the investigation and prevention of terrorism in
the United States is unquestionably the primary
responsibility of the federal government. State government
should be poised to assist as needed and to fill in any gaps
in our developing security network. Towards this end, it is
appropriate for State criminal laws to be reviewed and
revised as needed.
Illinois already has a significant number of laws on the
books that are available today to investigate, prosecute and
punish terrorist acts. Currently in Illinois law:
* The International Terrorism Act makes it a Class 1 felony
to solicit or provide material support or resources to
support international terrorism.
* The current causing a catastrophe provision is a Class X
felony and covers explosion, fire, flood, collapse of a
building, release of poison, radioactive material,
bacteria, virus, or other dangerous substance, that
results in injury to 5 or more persons, substantial
damage to 5 or more buildings, or substantial damage to
vital public facility. If a death or deaths occur as a
result, murder can also currently be charged.
* The death penalty or natural life in prison can be
imposed for the murder of two or more persons; a murder
committed during the hijacking of a plane, train, bus or
other public conveyance; the murder of a policeman,
fireman or paramedic; or a cold, calculated premeditated
murder committed pursuant to a plan or scheme which would
cover murder by anthrax, bomb or other
biological/chemical means.
* Illinois law enforcement officers can currently obtain a
court order for a wiretap to investigate murder,
conspiracy to commit murder, money laundering, conspiracy
to commit money laundering, the unlawful sale of
firearms, hostage taking, and occupation by force of any
premises, place, vehicle, vessel or aircraft.
* Illinois law enforcement officers can currently conduct
one-party consent to eavesdropping in emergency
situations necessary to protect law enforcement officers
or in a situation involving a clear and present danger of
imminent death or great bodily harm to persons from a
hostage taking or occupation by force of any premises,
place, vehicle, vessel or aircraft.
I am in agreement with some of the provisions in House
Bill 2299. However, given the scope and complexity of House
Bill 2299, the few short weeks of the fall veto session may
not have provided a sufficient amount of time for the careful
scrutiny and debate that would likely have occurred in the
regular legislative session on some of the more controversial
provisions of this bill.
I certainly understand the General Assembly's desire to
take swift action to address this issue of great public
concern. However, the fact that the issue of terrorism is an
issue of such great public concern and grave importance means
that there is all the more reason to diligently scrutinize
and carefully consider all aspects of this bill so that we
can fulfill our responsibility to enact the best law that we
can. House Bill 2299 contains several technical problems and
raises certain constitutional issues, which I believe should
be addressed.
While the death penalty does seem to be a proportionate
penalty for terrorist murderers given our State's current
system of capital punishment, the addition of yet another
factor in aggravation for applying the death penalty is
premature in light of the fact that my Commission on Capital
Punishment has yet to report. Furthermore, as previously
noted, current Illinois death penalty provisions already
address murder committed by terrorist and adding more factors
to our existing statute only increases the potential that our
existing law will be found unconstitutionally over broad.
In fact, it would be difficult to imagine a scenario
under which a terrorist act resulting in death would not
already qualify for capital punishment under our current
statute. Moreover, terrorism is currently a death eligible
offense under federal law, making this provision of the bill
redundant in yet another way. Therefore, I believe the death
penalty provision should be removed from this bill.
The seizure and forfeiture of property of suspected
terrorists is also appropriate. However, unlike other
criminal forfeiture laws House Bill 2299 does not contain
sufficient protection for innocent property owners and
lienholders, who did not know about or participate in the
terrorism offense.
Also, the bill does not clearly state a time frame in
which a forfeiture action must be brought before the court
after seizing the property of a person who has not been
charged with a terrorist offense. With the unlimited statute
of limitations in which to bring a terrorist prosecution,
this creates a legal limbo where property of an uncharged
person could be held indefinitely. I suggest language to cure
these problems.
Additionally, concerns regarding the proposed new Section
16.5 that would be added to both the Solicitation for Charity
Act and Charitable Trust Act have been brought to my
attention. As passed, House Bill 2299 allows the Attorney
General to freeze the assets of an individual suspected of
violating this act. However, charities suspected of directly
or indirectly supporting terrorism would be subject to having
all their assets seized even before a hearing date is set.
While I agree that the Attorney General should be able to
seize any books or records necessary for his investigation,
seizure of a charity's assets before a hearing or any due
process would not appear necessary to accomplish the purposes
of this bill and may prove to be problematic for innocent
charities.
I do believe that a charity directly or even indirectly
involved in supporting terrorism should be subject to the
same strict penalties outlined for individuals or
organizations that actually commit terrorist acts, but I do
not believe that such charities ought to be subjected to
different and more severe penalties. I have suggested changes
that will provide charities with protections that are more in
line with those proposed for individuals who violate this
act.
House Bill 2299 allows untrained persons to conduct
wiretap intercepts. Under current law any person who conducts
a wiretap must be a trained electronic criminal surveillance
officer. When the State wiretap law was enacted, it was
agreed that only trained law enforcement personnel would
carry out these intercepts. Such training is essential not
only to minimize the intrusive nature on such electronic
surveillance, but also to guarantee conformity with the court
order authorizing the wiretap.
House Bill 2299 creates a huge exception to this
provision and will allow any untrained person approved by the
court to conduct a wiretap interception. This new exception
is not limited to terrorism offenses as are the other changes
to the wiretap law, and will apply to any offense for which a
wiretap order can currently be obtained. This new provision
also is not affected by the sunset provision for the
terrorism measurers, so it will remain in the law. Because it
is not limited to terrorist offenses, this exception could
become the most used provision in the whole bill.
I find little justification for allowing untrained
persons to conduct wiretaps since training is readily
available for law enforcement personnel. Not only does the
scope of this provision reach far beyond Illinois laws
governing terrorism without any justification whatsoever, but
it may actually prove to make prosecution of terrorist acts
more difficult by disqualifying important evidence due to
mistakes made by untrained personnel carrying out complicated
electronic surveillance. I believe this provision should be
removed.
House Bill 2299 requires a physician who is treating a
condition the physician suspects is the result of the patient
engaging in terrorist activity to report this to law
enforcement. Failure to so report even by a physician who is
otherwise without knowledge or involvement in the terrorist
activity is a criminal offense. This mandated reporting is a
violation of doctor-patient privilege and the medical
confidentiality provisions.
Accordingly, the medical confidentiality statute should
be amended, as it has for certain other criminal offenses,
to allow the mandated reporting without violating the
confidentiality provisions.
There are also certain other technical problems with the
bill for which I propose changes. Therefore, I make the
following specific recommendations for change:
on page 1, line 22, by deleting "and assets"; and
on page 1, line 24, by inserting "and freezing of all
assets" after "Police"; and
on page 2, line 17, by replacing "Section" with "Sections
4 and"; and
on page 2, by inserting between lines 17 and 18 the
following:
"(430 ILCS 65/4)
Section 4. (a) Each applicant for a Firearm Owner's
Identification Card must: (1) Make application on blank
forms prepared and furnished at convenient locations
throughout the State by the Department of State Police; and
(2) Submit evidence under penalty of perjury to the
Department of State Police that: (i) He or she is 21 years
of age or over, or if he or she is under 21 years of age that
he or she has the written consent of his or her parent or
legal guardian to possess and acquire firearms and firearm
ammunition and that he or she has never been convicted of a
misdemeanor other than a traffic offense or adjudged
delinquent, provided, however, that such parent or legal
guardian is not an individual prohibited from having a
Firearm Owner's Identification Card and files an affidavit
with the Department as prescribed by the Department stating
that he or she is not an individual prohibited from having a
Card;
(ii) He or she has not been convicted of a felony under
the laws of this or any other jurisdiction;
(iii) He or she is not addicted to narcotics;
(iv) He or she has not been a patient in a mental
institution with the past 5 years.
(v) He or she is not mentally retarded;
(vi) He or she is not an alien who is unlawfully present
in the United States under the laws of the United States;
(vii) He or she is not subject to an existing order of
protection prohibiting him or her from possessing a firearm.
(viii) He or she has not been convicted within the past 5
years of battery, assault, aggravated assault, violation of
an order of protection, or a substantially similar offense in
another jurisdiction, in which a firearm was used or
possessed;
(ix) He or she has not been convicted of domestic battery
or a substantially similar offense in another jurisdiction
committed on or after the effective date of this amendatory
Act of 1997; and
(x)He or she has not been convicted within the past 5
years of domestic battery or a substantially similar offense
in another jurisdiction committed before the effective date
of this amendatory Act of 1997; and
(xi)He or she is not an alien who has been admitted to
the United States under a non-immigrant visa (as the term is
defined in Section 101(a)(26) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)26))), or that he or she is
an alien who has been lawfully admitted to the United States
under a non-immigrant visa if that alien is:
(1) admitted to the United States for lawful hunting
or sporting purposes;
(2) an official representative of a foreign
government who is:
(A) accredited to the United States Government
or the Government's mission to an international
organization having its headquarters in the
United States: or
(B) en route to or from another country to
which that alien is accredited;
(3) an official of a foreign government or
distinguished foreign visitor who has been so
designated by the Department of State;
(4) a foreign law enforcement officer of a friendly
foreign government entering the United State on
official business; or
(5) one who has received a waiver from the Attorney
General of the United States pursuant to 18 U.S.C.
922 (y)(3); and
(3) Upon request by the Department of State Police, sign
a release on a form prescribed by the Department of State
Police waiving any right to confidentiality and requesting
the disclosure to the Department of State Police of limited
mental health institution admission information from another
state, the District of Columbia, any other territory of the
United States, or a foreign nation concerning the applicant
for the sole purpose of determining whether the applicant is
or was a patient in a mental health institution and
disqualified because of that status from receiving a Firearm
Owner's Identification Card. No metal health care or
treatment records may be requested. The information received
shall be destroyed within one year of receipt.
(b) Each application form shall include the following
statement printed in bold type: "Warning: False statements
of the applicant shall result in prosecution for perjury in
accordance with Section 32-2 of the Criminal Code of 1961.".
(c) Upon such written consent, pursuant to Section 4,
paragraph (a) (2) (i), the parent or legal guardian giving
the consent shall be liable for any damages resulting from
the applicant's use of firearms or firearm ammunition."; and
on page 4, line 28, by replacing "9-1, 14-3," with
"14-3"; and
on page 4, by deleting lines 30 through 32; and
by deleting pages 5 through 12; and
on page 13, by deleting lines 1 through 29; and
on page 22, line 32, by replacing "agriculture" with "or
in connection with agricultural production"; and
on page 30, line 19, by inserting "or any person claiming
an interest in the property" after "person"; and
on page 32, line 12, by inserting "within 60 days" after
"Article"; and
on page 32, line 16, by inserting "immediately" after
"shall; and
on page 36, by inserting after line 23 the following:
(c) Exemptions from forfeiture. A property interest is
exempt from forfeiture under this Section if its owner or
interest holder establishes by a preponderance of evidence
that the owner or interest holder:
(A)(i) in the case of personal property, is not legally
accountable for the conduct giving rise to the forfeiture,
did not acquiesce in it, and did not know and could not
reasonably have known of the conduct or that the conduct was
likely to occur, or
(ii) in the case of real property, is not legally
accountable for the conduct giving rise to the forfeiture, or
did not solicit, conspire, or attempt to commit the conduct
giving rise to the forfeiture; and
(B) had not acquired and did not stand to acquire
substantial proceeds from the conduct giving rise to its
forfeiture other than as an interest holder in an arms length
commercial transaction; and
(C) with respect to conveyances, did not hold the
property jointly or in common with a person whose conduct
gave rise to the forfeiture; and
(D) does not hold the property for the benefit of or as
nominee for any person whose conduct gave rise to its
forfeiture, and, if the owner or interest holder acquired the
interest through any such person, the owner or interest
holder acquired it as a bona fide purchaser for value without
knowingly taking part in the conduct giving rise to the
forfeiture; and
(E) that the owner or interest holder acquired the
interest:
(i) before the commencement of the conduct giving rise to
its forfeiture and the person whose conduct gave rise to its
forfeiture did not have the authority to convey the interest
to a bona fide purchaser for value at the time of the
conduct; or
(ii) after the commencement of the conduct giving rise to
its forfeiture, and the owner or interest holder acquired the
interest as a mortgagee, secured creditor, lien holder, or
bona fide purchaser for value without knowledge of the
conduct which gave rise to the forfeiture; and
(a) in the case of personal property, without
knowledge of the seizure of the property for forfeiture;
or
(b) in the case of real estate, before the filing in
the office of the Recorder of Deeds of the county in
which the real estate is located of a notice of seizure
for forfeiture or a lis pendens notice."; and
on page 56, line 22, by deleting "or court approved
designee"; and
on page 84, line 8, by deleting "and assets"; and
on page 84, line 10, by inserting "and freezing of all
assets" after "Police"; and
on page 84, by inserting after line 32 the following:
Section 40. The Code of Civil Procedure is amended by
changing Section 8-802 as follows:
(735 ILCS 5/8-802)
Section 8-802. Healthcare practitioner and patient. No
physician, surgeon, psychologist, nurse, mental health
worker, therapist, or other healing art practitioner
(referred to in this Section as "healthcare practitioner")
shall be permitted to disclose any information he or she may
have acquired in attending any patient in a professional
character, necessary to enable him or her professionally to
serve the patient, except only (1) in trials for homicide
when the disclosure relates directly to the fact or immediate
circumstances of the homicide, (2) in actions, civil or
criminal, against the healthcare practitioner for malpractice
(in which instance the patient shall be deemed to waived all
privileges relating to physical or mental condition), (3)
with the expressed consent of the patient, or in case of his
or her death or disability, of his of her personal
representative or other person authorized to sue for personal
injury or of the beneficiary of an insurance policy on his or
her life, health, or physical condition, (4) in all actions
brought by the patient, his or her personal representative, a
beneficiary under a policy of insurance, or the executor or
administrator of his or her estate wherein the patient's
physical or mental condition is an issue (in which instance
the patient shall be deemed to have waived all privileges
relating to physical or mental condition), (4.1) in all
actions brought against the patient, his or her personal
representative, a beneficiary under a policy of insurance, or
the executor or administrator of his or her estate wherein
the patient's physical or mental condition is an issue, (5)
upon an issue as to the validity of a document as a will of
the patient, (6) in any criminal action where the charge is
either first degree murder by abortion, attempted abortion or
abortion, (7) in actions, civil or criminal, arising from the
filing of a report in compliance with the Abused and
Neglected Child Reporting Act, (8) to any department, agency,
institution or facility which has custody of the patient
pursuant to State statute or any court order of commitment,
(9) in prosecutions where written results blood alcohol tests
are admissible pursuant to Section 11-501.4 of the Illinois
Vehicle Code or (10) in prosecutions where written results of
blood alcohol tests are admissible under Section 5-11a of the
Boat Registration and Safety Act or (11) in criminal actions
arising from the filing of a report of suspected terrorist
offense in compliance with Section 29D-10(p)(7) of the
Criminal Code of 1961.
In all instances where a patient or the patient's
representative seeks damages for personal injury, death, pain
and suffering, or mental or emotional injury and where a
written request pursuant to Section 2-1003 has been made,
then (1) the healthcare practitioner is authorized to provide
information regarding the patient to attorneys for any of the
parties in pending civil, criminal, or administrative
proceedings in written or verbal form as described in Section
2-1003 and (2) any attorney for any party in any civil,
criminal, or administrative action brought by or against a
patient, his or her personal representative, a beneficiary
under a policy of insurance, or the executor or administrator
of his or her estate wherein the patient's physical or mental
condition is an issue may obtain in written or verbal from as
described in Section 2-1003 any information that any
healthcare practitioner has acquired in attending to the
patient in a professional character. Nothing in this Section
shall preclude or limit any formal discovery.
A health care practitioner, as defined in Section 2-1003,
shall have the right to (1) communicate at any time and in
any fashion with his or her own counsel and professional
liability insurer concerning any care or treatment he or she
provided, or assisted in providing, to any patient and (2)
communicate at any time and in any fashion with his or her
present or former employer, principal, partner, professional
corporation, professional liability insurer, or counsel for
the same, concerning care or treatment he or she provided or
assisted in providing, to any patient during the pendency and
within the scope of his or her employment or affiliation with
the employer, principal, partner, or professional
corporation.
In the event of a conflict between the application of
this Section and the Mental Health and Developmental
Disabilities Confidentiality Act to a specific situation, the
provisions of the Mental Health and Developmental
Disabilities Confidentiality Act shall control.
This amendatory Act of 1995 applies to causes of action
filed on or after its effective date."
With these specific recommendation for change, House Bill
2299 will have my approval. I respectfully request your
concurrence.
Sincerely,
s/GEORGE H. RYAN
Governor