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Choose Life Update from Legal Counsel
November 2007 Update (November 27, 2007) Illinois 'Choose Life' Plates Go Before U.S. Court of Appeals 'Choose Life' Specialty License Plates Go Before U.S. Court of Appeals Today Three-Judge Panel to Hear Illinois Secretary of State Jesse White's Appeal of Lower Court Order to Begin Producing 'Choose Life' Plates Lawyers for Illinois Attorney General, Lisa Madigan and Illinois Secretary of State Jesse White, will appear before a three-Judge panel of the U.S. Court of Appeals this morning at 9 a.m. to urge that a lower court ruling that Illinois begin producing "Choose Life" specialty license plates be overturned. The argument will take place in the appellate courtroom on the 27th floor of the Dirksen Federal Building at 219 South Dearborn Street – the corner of Adams and Dearborn Streets – in downtown Chicago. Each side will argue for twenty minutes before three appellate Judges, whose identities are never disclosed until the morning of the oral argument. On January 22, 2007, the 34th anniversary of Roe v. Wade, 'choose life' supporters learned that federal district Judge David Coar had granted 'summary judgment' for Choose Life, Inc. which had filed a lawsuit several years ago, together with several Illinois adoption advocates, after years of futile efforts to persuade Secretary Jesse White and the Illinois General Assembly to approve the "Choose Life" specialty plates. Although over 25,000 Illinois citizens had signed petitions for the Choose Life plates, White insisted that special legislation was needed before he could approve or issue the plates. During successive sessions of the Illinois General Assembly the Choose Life plate died in committee as key legislators blocked approval of the pro-adoption plates. Lawyers from Illinois Attorney General Lisa Madigan's office have argued before Judge Coar and on appeal that Illinois' refusal to approve Choose Life plates was lawfully based on the 'controversial' nature of the plates' message – the slogan "choose life" and two smiling kids' faces. But Judge Coar found that numerous specialty plates supporting other private causes ("pet friendly," pro-organ donation, environmental and peace birds) had been approved, and he ruled that disapproval of the pro-adoption plate was content-based discrimination in violation of the First Amendment. Judge Coar also found that Secretary White's insistence that he needed to get a new law approving each plate was baseless, as Illinois law vests final authority to issue specialty plates in the Secretary, without need of any new law. The State was ordered to approve the Choose Life plate, and on working out minor details to begin producing and selling them. On appeal the Attorney General's office has argued that government may discriminate as to which messages it will approve as license plates constitute "government speech," not private speech, and that the government may censor its own speech. In a Tennessee case brought by ACLU lawyers, another U.S. Court of Appeals agreed with Illinois' contention, ruling two years ago that plates do convey government speech. Thus if the Circuit Court of Appeals here in Chicago agrees with Judge Coar, there will be a "split in the Circuits" that could catapult this case one step higher – up to the U.S. Supreme Court – as this same issue has arisen in many other courts around the country. "We are confident and indeed hopeful that Judge Coar's ruling in favor of the Choose Life specialty plates will be affirmed on appeal as his decision was squarely based on First Amendment law," states Tom Brejcha, president and chief counsel of the Thomas More Society of Chicago, a public interest law firm representing the Choose Life plaintiffs. "And moreover, the stakes couldn't be any higher as a win for 'choose life' will help thousands of kids find homes with loving families throughout our entire State of Illinois!" A decision by the Court of Appeals will be expected sometime early next year. Contact:
Tom Brejcha
February 2007 Update (February 26, 2007) When Judge Coar handed down his decision ordering that the Secretary of State must issue a "choose life" specialty license plate, which was made public last January 22, 2007, he also entered a "stay" (suspension) of enforcement for thirty (30) days because, he said, his ruling was a "case of first impression" here in the midwestern states (Illinois, Indiana and Wisconsin) that fall within the jurisdiction of the '7th Circuit' U.S. Court of Appeals. Attorneys from the office of the Illinois Attorney General went back into Judge Coar's courtroom two weeks ago asking that Judge Coar reconsider and reverse his ruling, and further requesting that this "stay" be extended beyond 30 days until he had passed on their motion to reconsider. Judge Coar very abruptly denied the motion to reconsider on the spot. And he also denied the Attorney General's motion to extend the "stay " order past 30 days, so that it was due to expire last week -- on February 21, 2007, Ash Wednesday. But then the Attorney General filed a Notice of Appeal on February 14th, taking the case up to the Court of Appeals. Having done this, they then went back into Judge Coar's court and asked him to continue the stay indefinitely, pending the resolution of the appeal. We asked for time to respond to this request, urging that the Attorney General had not made out a sufficient case for such a long "stay," which could continue for as long as a year or more. Judge Coar said there was no need for our filing any papers in opposition to this extended "stay," because he was going to grant it. He commented that it was a significant matter whenever a federal court would order state officials to take certain action and that the appellate court should pass on his ruling before it went into effect. We believe, however, that this stay should be vacated, as the First Amendment rights of Illinois citizens have now been infringed, as a matter of law. Such infringement of fundamental constitutional rights constitutes "irreparable injury," and should not be permitted to continue any longer. The overwhelming weight of legal authority supports Judge Coar's ruling for the "choose life" specialty license plates, on the merits. If the "stay" were lifted, the Secretary of State would suffer no legally cognizable harm commensurate with the harm inflicted by the "stay" through denial of citizens' rights. The process for approving the design and initating the manufacture of any new specialty plate reportedly takes several months, according to the Secretary's own officials. So, there is no reason for further delay in beginning that process. "Choose life" plates are already on Illinois roads, borne on vehicles from the many oth er states where these plates have been approved. They have posed no safety or other law enforcement problems. Thus we will be moving very shortly to vacate Judge Coar's "stay" order. If he adheres to his "stay" order, we will take an expedited appeal from that ruling. We will ask the Court of Appeals either to direct that the "stay" order be vacated, or at least to expedite the adjudication of the appeal from Judge Coar's ruling on the merits in favor of the "choose life" specialty plates. In any event, we remain very optimistic about the outcome of the Secretary's appeal. Stay tuned for reports of further developments! Tom Brejcha, president and chief counsel, attorney for Choose Life
Illinois, Inc. (February 8, 2007) Good news from Judge Coar as this morning he denied Jesse White's motion asking that he reverse or amend his prior ruling. We were prepared to ask for time to respond to that motion, but no response was needed. The Judge already had made up his mind. As for the further request for a continuation of the stay of Judge Coar's order that the state start producing the choose life plate within 30 days from his ruling, the Judge pointed out that the stay already had been granted -- i.e., 30 days is enough for now. That period will expire on February 21st, less than two weeks hence. As for any continuation of the stay beyond that date, Judge Coar told the Assistant Attorney Generals who appeared in court this morning that they should come back in and make application for further stay upon filing their appeal, if they're going to appeal. [response to Judge David Coar's February 8, 2007 ruling reaffirming his decision in favor of Choose Life license plates in Illinois. The complete press release follows.] IMMEDIATE RELEASE Contact: Tom Brejcha, Thomas More Society, Chicago February 8, 2007 Tel. 312-782-1680 ofc; 312-590-3408 cell JUDGE DENIES JESSE WHITE’S EFFORT TO OVERTURN “CHOOSE LIFE” PLATE DECISION Free Speech Battle With Pro-Adoption Organization Chicago—This morning a federal district judge denied a motion by the Secretary of State to overturn his recent ruling that allowed “Choose Life” to be a slogan on Illinois specialty license plates. On January 22, Federal Judge David Coar had ruled in favor of Choose Life Illinois plaintiffs in their lawsuit against Jesse White, explaining that their message was protected by the First Amendment and entitled to be on the plates. Judge Coar had stayed enforcement of the January ruling for 30 days, and when White’s lawyers – from the office of Illinois Attorney General Lisa Madigan – sought to extend that stay beyond its scheduled expiration date of February 21, Judge Coar declined to do so, saying he might consider extending the stay if White pursued a further appeal to the U.S. Court of Appeals from this trial court ruling in favor of the “Choose Life” plates. Tom Brejcha, president and chief counsel at Chicago’s Thomas More Society, a public interest law firm representing the non-profit group, Choose Life Illinois, Inc., hailed Judge Coar’s latest ruling as another strong endorsement of his clients’ First Amendment rights. “This isn’t rocket science, but rather a plain and simple application of rudimentary First Amendment principles,” Brejcha said. “Once you open up state license plates as a public forum where citizens can set up their soap boxes and promote their private causes – ranging from peace plates, environmental plates, pet friendly plates to plates for Masons and Knights of Columbus – you can’t constitutionally suppress the rights of over 25,000 Illinois citizens who signed petitions for Choose Life to promote the cause of adoption and raise funds to support young women who choose to bear their infants and give them the priceless gift of life in loving, adoptive families.” Jesse White’s spokesmen recently faulted the Choose Life group for failing to follow the usual procedure of getting a bill passed in the General Assembly. Brejcha responded to this allegation stating, “Judge Coar ruled that Illinois law gives the Secretary of State himself full authority to approve or reject specialty plates. Secretary White can’t lawfully pass the buck to the General Assembly, as if legislators should be casting votes as grand inquisitors or censors approving some causes, disapproving others. Every American has the right to stand on his or her soap box and promote a cherished cause, unless it’s obscene, or threatening, or fighting words, or an incitement to violence. If those who oppose adoption or advocate against choosing life want to petition for their own specialty plate, more power to them – this is still a free country!” Jim Finnegan, retired business executive and president of Choose Life Illinois, said that he and his fellow board members, including Mrs. Virginia McCaskey of the Chicago Bears, “look forward to the day when Illinois drivers may help more children find loving homes by buying these plates, whose proceeds will be earmarked only for agencies supporting adoption.” Other Choose Life plaintiffs in the lawsuit include Phyllis Finnegan
of Barrington, adoption advocate; Richard and Sue Bergquist of Naperville, parents of
eleven children, nine of whom are adopted, six with special needs. Also: Dan
and Sandy Gura of Lake Zurich, adoptive parents; Becky McDougall of Sunny Ridge Family
Center in Wheaton, an adoptive mom; Tom and Bethany Morrison, adoption advocates; Dan
Proft, himself an adoptee; Richard and Jill Stanek of Mokena, adoption advocates; and Joe
and Carol Walsh, directors of Aid for Women of Northern Lake County, a crisis pregnancy
center in Waukegan. In addition, the Rev. Scott and Janet Willis, who lost their six
children in a tragic fire following a collision with an illegally licensed Illinois
truck driver, are adoption advocates and Choose Life supporters but they didn't join the
suit as they had relocated to Tennessee before its filing in 2004. Contacts for
the Media Tom
Brejcha, Chief Counsel, Thomas More Society,
312-590-3408 cell, 312-782-1680 office Andrew Schadegg, TC Public Relations: 312-422-1333 (January 22, 2007) Tom Brejcha, President and Chief Counsel of the Thomas More Society stated, “We applaud Judge Coar’s decision as a ringing endorsement of the First Amendment rights of all Illinois citizens and as very welcome news for the cause of adoption in Illinois. Many more children will enjoy the gift of life in loving families thanks to Judge Coar’s ruling.” [response to news of Judge David Coar's January 19, 2007 ruling in favor of Choose Life license plates in Illinois. The complete press release follows.] For Immediate Release Contact: Andrew Schadegg, drew@tcpr.net January 22, 2007 312-422-1333 Secretary of State to
Make Pro-Adoption Plates Available to the Public Chicago—On Friday, a ruling was handed down from the Northern
Illinois District Court allowing the pro-adoption message “Choose Life” to be an
option for specialty license plates in the State of Illinois. Citing First Amendment protection, Judge David
Coar ruled in favor of Choose Life Illinois (CLI), explaining that their message is
constitutionally entitled to be on Illinois license plates. In
Judge Coar’s Memorandum it states that “…the Secretary of State is ordered
to issue the ‘Choose Life’ plates.” CLI,
a pro-adoption organization, had filed the lawsuit against the Secretary of State, Jesse
White, claiming that the process by which the “Choose
Life” specialty license plate was disapproved in Illinois was “viewpoint
discriminatory” in violation of the First Amendment and, therefore,
unconstitutional. CLI also stated that certain members of the
Illinois General Assembly had demonstrated anti-adoption prejudice during the last two
legislative sessions by placing political roadblocks in the way of a bill that would have
added the “Choose Life” specialty license plate to the 60 specialty plate
options currently available to Illinois citizens. Prior to the courts ruling, CLI had
received over 25,000 signatures from private citizens, petitioning the legislature to
allow the “Choose Life” message. Illinois
adoption advocate, Jim Finnegan, is head of the group that filed the lawsuit. In addition, Chicago Bears owner Virginia
McCaskey, who is a member of the Choose Life Board of Directors, was also one of the
fifteen plaintiffs in the case. Tom Brejcha, President and Chief Counsel of the Thomas More Society,
states, “We applaud Judge Coar’s decision as a
ringing endorsement of the First Amendment rights of all Illinois citizens and as very
welcome news for the cause of adoption in Illinois. Many more children will enjoy the gift
of life in loving families thanks to Judge Coar’s ruling.” Proceeds from the sale of the specialty plates
will go to pro-adoption groups. Working with Brejcha on the case were co-counsel, Christopher Henning, also of Thomas More Society in Chicago, and attorneys Alan Untereiner and Damon Taaffe of the Washington, D.C. law firm, Robbins, Russell, Englert, Orseck & Untereiner, LLP, and Tim Kelly of the south suburban Chicago law firm, Appel & Kelly, Ltd. Tom
Brejcha, Esq., Chief Counsel, Thomas More
Society:312-590-3408 cell, 312-782-1680 ofc Andrew Schadegg, TC Public Relations: 312-422-1333
December 2006 Update (December 19, 2006) Judge Coar's schedule seems painfully leisured... Maybe next year?? February 2006 Update (February 6, 2006) You may recall that Judge Coar set a trial date of January 2006, “engraved in stone,” to hear the federal lawsuit filed by Illinois Choose Life, Inc. The lawsuit charged that the legislative process to approve specialty license plates in the State of Illinois is discriminatory and, therefore, unconstitutional. After determination there were no disputes about the facts in the case, that trial date (to resolve fact issues) was canceled. Now the cross motions for summary judgment filed by Illinois Choose Life and the Secretary of State are under advisement by the judge. Judge Coar must evaluate the arguments from each side regarding the law so he can make his ruling in the case. Thomas Brejcha December 2005 Update (December 10, 2005) In order to raise funds and promote adoptions in Illinois, Illinois Choose Life, Inc., a not-for-profit tax exempt entity, secured some 35,000 signatures statewide on petitions in a vain effort to win approval of a "Choose Life" specialty license plate by Illinois' Secretary of State, who has approved numerous other specialty license plates promoting other political causes (e.g., environment, peace, fighting cancer, etc.) and even some religious groups (e.g., the Knights of Columbus). While the "Choose Life" application met (and indeed, far exceeded) all politically neutral criteria for approval of specialty plates, the Secretary of State abdicated his statutory responsibility to approve or deny the plate and deferred the matter to the Illnois General Assembly, which failed to act at all on, let alone approve, the "Choose Life" plate. As a result, Illinois Choose Life, Inc., together with its directors and steering committee members, have filed a federal court lawsuit seeking a court order mandating issuance of a "Choose Life" plate and/or invalidating the current Illinois procedure subjecting specialty license plate applications to the functional equivalent of a "political veto," which renders the entire procedure an unconstitutional form of state censorship over the expression of political views in a public forum -- i.e., "viewpoint discrimination" in violation of the First Amendment to the U.S. Constitution. Currently a summary judgment motion, seeking a final judgment "on paper," has been filed by Illinois Choose Life, Inc. and the private plaintiffs, and the Secretary of State, represented by the Illinois Attorney General's office, has filed a counter motion for summary judgment, and both motions remain under advisement and awaiting decision by U.S. District Judge David Coar in Chicago. Thomas Brejcha |
