THE MANDATORY CHICAGO SPORTS FAN REPORTING ACT

THE PEOPLE OF THE CITY OF CHICAGO, STATE OF ILLINOIS IN GENERAL ASSEMBLY

Chicago, Illinois

RICHARD M. DALEY, MAYOR

PREAMBLE : We, the elected representatives of the People of the City of Chicago in the State of Illinois, authorized by the City Charter to act for the general welfare and moral edification of all City residents, and acting in defense of children everywhere, do hereby pass this ACT intended to protect the health, safety and community spirit of this Great City.

§ 1 – SHORT TITLE : This Act shall be known as the “MANDATORY CHICAGO SPORTS FAN REPORTING ACT” (hereinafter, the “Act”).

§ 2 - PURPOSES : The People of the City of Chicago intend to memorialize their understanding that sports team devotion is a citizen’s single most important civic duty. Allegiance to a Chicago city sports team is necessary to sustain robust public pride. The City Council desires to reinforce city pride and cohesion by requiring all city residents—no matter the duration of their residency—to declare allegiance to a Chicago city sports team every calendar year, beginning January 1, 2009. The Council believes that compulsion is necessary to ensure that every Chicago resident keeps his or her priorities straight in life. Sports are a priority in Chicago. Every Chicago citizen must be a sports fan. Law is the only way to ensure proper dedication to an eligible Chicago city sports team. The Council believes that the Act will improve civic and community life by creating a city esprit de corps revolving around eligible sports teams. The General Assembly further believes that enforcement of the Act will create jobs and raise revenue for the city.

§ 3 – DEFINITIONS : The following definitions apply throughout this Act:

(a) Resident : A “resident” is any living person within the city limits of the city of Chicago. This term includes everyone, even those merely passing through the city, also known as “Transitory Residents” (see below at § 5).

(b) Eligible Chicago City Sports Team : An “Eligible Chicago City Sports Team” includes and is strictly limited to the following professional sports franchises headquartered within the city of Chicago: (i) The Chicago Cubs; (ii) The Chicago White Sox; (iii) The Chicago Bears; (iv) The Chicago Blackhawks; (v) The Chicago Bulls; (vi) Chicago Fire.

(c) Reporting Period: “Reporting Period” means January 1 through December 31 in any calendar year beginning in 2009.

(d) Allegiance Form: An “Allegiance Form” means a paper or electronic affirmation that a Resident is a Fan of an Eligible Chicago City Sports Team.

(e) Fan : A “Fan” means a Resident who believes strongly in the success of any Eligible Chicago City Sports team. “Fans” must attend at least 10 home games played by the Eligible Chicago City Sports Team indicated in such “Fan’s” Allegiance Form during any Reporting Period.

(f) Enforcement Bureau : “Enforcement Bureau” means any office, institution, patrol, group or individual constituted by city Charter to enforce the provisions of this Act.

§ 4 – OBLIGATIONS OF RESIDENTS : During every Reporting Period, Residents must:

(a) Obtain an Allegiance Form from any duly-authorized city agency;

(b) Submit said Allegiance From in a manner consistent with all applicable local laws;

(c) State under oath that such Resident is a Fan of an Eligible Chicago City Sports Team;

(d) Attend at least ten (10) home games played by the Eligible Chicago City Sports Team identified in said Resident’s Allegiance Form;

(e) Retain receipts as proof of attendance at all home games described in § 4(d);

(f) Mail all receipts described in § (4)(e) to a duly-authorized city agency prior to the end of the Reporting Period;

(g) Publicly display devotion to the Eligible Chicago City Sports Team identified in such Resident’s Allegiance Form for the applicable Reporting Period;

(h) Maintain a regular cable television subscription for coverage of all regular and postseason games played by the Eligible Chicago City Sports Team identified in such Resident's Allegiance Form for the applicable Reporting Period;

(i) Pay an annual Submission Fee of $150.00 for each Allegiance Form submitted, payable within 30 days of said submission.

§ 5 – OBLIGATIONS OF TRANSITORY RESIDENTS : Transitory residents have the same obligations as all other Residents under this Act. To ensure compliance with this Act, Enforcement Bureaus are hereby authorized to construct compliance checkpoints at all roadways and railways leading in or out of the city of Chicago. Enforcement Bureaus are hereby authorized to stop all motorists or rail travelers at such checkpoints to verify their Allegiance Form status for the applicable Reporting Period. Additionally, Enforcement Bureaus are hereby authorized to question all national and international travelers arriving at or departing from Chicago city airports to verify Allegiance Form status for the applicable Reporting Period. Any Transitory Resident found not to have duly submitted an Allegiance Form for the applicable Reporting Period shall be required to make a declaration consistent with this Act, and to pay a penalty of $1,000 U.S. Currency, plus the usual $150.00 Submission Fee (see § 4(i)).

§ 6 – PUBLIC DISPLAY OF DEVOTION : Consistent with § 4(g), all Residents are obligated to publicly display devotion to the Eligible Chicago City Sports Team identified in such Residents’ Allegiance Form for the applicable Reporting Period. Such displays must consist of:

(a) Wearing Eligible Chicago City Sports Team-marked clothing at least twice per week;

(b) Discussing Eligible Chicago City Sports Team events at least once per day; but on Mondays, Residents must discuss such events at least three times (3) per day;

(c) Placing Eligible Chicago City Sports Team bumper stickers on their automobiles;

(d) Possessing at least one (1) photograph of: (i) Michael Ditka; (ii) Michael Jordan; or (iii) Harry Caray. Photographs of Brian Urlacher will not be considered;

(e) Drinking at least two (2) toasts to Eligible Chicago City Sports Team players each weekend day during the applicable Reporting Period;

(f) Painting one’s face with the colors of the Eligible Chicago City Sports Team identified in such Resident’s Allegiance Form at least once during the applicable Reporting Period;

(g) Sending a verified photograph of each Resident’s compliance with § 6(f) to a duly-authorized city agency within 30 days of the taking of such photograph.

§ 7 – ENFORCEMENT AND PENALTIES :

(a) Any member of Chicago’s Executive Branch has authority to enforce this Act, including, but in no way limited to:

(i) The Chicago Police Department;

(ii) The Chicago Department of Jails;

(iii) The Chicago Airport Authority;

(iv) The Mayor’s Office;

(v) The Department of Sewers;

(vi) The Department of Parking Enforcement;

(vii) The Department of Streets and Sanitation;

and

(viii) The Department of Revenue.

(b) Authorized Executive Branch officers are hereby empowered to conduct random stops to verify any Resident’s compliance with the Act. Upon such stops, officers shall ask the following questions: “Are you a Resident of the City of Chicago? Are you a sports fan? Are you a Cubs fan? Are you a Sox fan? Are you a Bears fan? Are you Blackhawks fan? Are you a Bulls fan? Are you a Fire fan?” If such resident responds that he is not a fan of any of the aforementioned teams, the officer shall state: “I am going to have to take you in for violating the Mandatory Chicago Sports Fan Reporting Act.”

§ 8 - SPECIFIC OFFENSES AGAINST THE ACT :

(1) Failure to Report Fan Status for any applicable Reporting Period is a Class C Felony punishable by up to 5 years in prison and a $15,000 fine.

(2) Willful Failure to Report Fan status for more than two (2) Reporting Periods is a Class A Felony punishable by up to 20 years in prison and a $100,000 fine.

(3) Negligent Failure to Properly Complete an Allegiance Form is a Class A Misdemeanor punishable by up to 6 months in prison and a $1,500 fine.

(4) Intentionally Supporting a Rival Team is a Class A-1 Felony punishable by death or life in prison, notwithstanding compliance with this Act in all other respects.

(5) Ignorance of the law shall not be a defense to any crime enumerated in this Section, consistent with principles of Illinois criminal law, and any provision of the State or United States Constitution notwithstanding.

(6) Conviction under any offense enumerated in this Section shall never be judicially determined to be a deprivation of life, liberty or property without Due Process under the State or United States Constitutions.

ILLINOIS REWRITES THE HEARSAY RULE

Yesterday, the Illinois General Assembly unanimously passed a bill that alters the common law hearsay rule in First Degree Murder prosecutions. This is a dramatic step. I have often written that the law's main purpose is neither justice nor fairness. But evidence rules such as the prohibition against hearsay are one example of the law's concern for just results. I have also written that the common law generally reflects chauvinistic, outdated values that do little but protect property interests against those with less property. Yet the common law gave us the hearsay rule to ensure that no one loses their life or their property without strong, empirical proof. The hearsay rule protects justice because it is a safeguard against bad evidence. Without it, people could go to prison on fabricated testimony. People could lose their liberty without a chance to challenge the person who spoke out against them. This is intolerable in a society dedicated to liberty under law.

Law concerns only body and property. True, these may not be the only important things in human existence, but we gain insights into a government's character by evaluating how it treats the bodies and property of its citizens. Both the English and American systems profess respect for bodily liberty and integrity. To that extent, their legal systems developed evidence rules that indulge every ambiguity in favor of the person who stands to lose his bodily liberty. England enshrines this principle in Magna Carta: "No man shall be executed, imprisoned or otherwise disseized but by the law of the land." America picked up this ideal in the Fifth and Fourteenth Amendments, namely that neither State nor Federal governments may deprive a citizen of "life, liberty or property without Due Process of law." These two principles reflect the same core idea: That government may not take away a person's life, bodily liberty or property without affording him a relatively fair process under law. While "fair process under law" may often be less than perfect in practice, the principle is a sound one. It sets an aspirational standard that expresses respect for the individual in his confrontation with government power.

Evidence rules developed in England in order to provide "fair process under law" prior to adverse government action against an individual. Before government could condemn a man, it had to show that the man violated the law by convincing sensory evidence. To do this, it had to bring in the best facts. People believe what they directly see; they are much less likely to believe something reported to them by a third-party. This is pure "common sense." One much more readily believes that a man stole an apple if one sees the man surreptitiously taking an apple from a cart than if one heard from a jealous neighbor that he took the apple. The common law recognized this by enforcing the hearsay rule. At common law, the court refused to even consider statements made outside the courthouse if they were offered to prove the truth of the matter asserted. Without going into excruciating detail, the common law carved out a great many exceptions to this general ban, but the principle itself is simple and just: You cannot take away a man's liberty by presenting a witness who simply recites what he heard from a person who is not in court. After all, how can the accused man challenge a statement when the speaker is not there? The witness could simply invent what he heard. Invention is no basis to send a man to prison or--worse--put him to death. Such a result would contravene the very spirit of "fair process under law" that Magna Carta and the Constitution both intended to protect.

But Illinois decided it would "relax" the hearsay rule in First Degree Murder cases. In its new legislation, the General Assembly declared that hearsay statements only by a murder victim may be considered against the Defendant if there is a "likelihood" that the Defendant killed the victim in order to prevent her testimony. This undermines the very purposes that animate the hearsay rule. It allows a jury to convict a man for murder based upon a dead person's statements to a third party. Obviously the Defendant cannot challenge the dead person's version of events. Consider what mischief this could cause. For example, in a murder prosecution, the State may present the testimony of the victim's mother--who is biased and hostile to the Defendant--to say her daughter told her a week before her death: "My husband wants to kill me." At common law, this statement is pure hearsay if it is offered to prove the Defendant either killed or had a motive to kill his wife. There is no way the Defendant can challenge the accusation because his wife is dead. Yet under the Illinois law, this statement may be used to condemn the Defendant. He could even face the death penalty on this evidence.

Defendants have a categorical right to challenge the evidence presented against them. No matter how much we may "think" a murder Defendant committed the crime, our Constitution requires much more than mere intuition to take away his life or liberty. They must be allowed to challenge adverse testimony face-to-face. U.S. Const. Amd. 6. A famous evidence scholar wrote: "Cross-examination is the greatest legal invention for the discernment of truth." Yet under the new Illinois hearsay rule, Defendants will be forbidden from applying that invention. They must sit helplessly by while witnesses recite the victim's statements. By the same token, witnesses will be free to invent, embellish and fabricate the "victim's words" as much as they wish. True, a good defense attorney could undercut the witness' recollection of the victim's words, but this is modest recompense for the damage such statements can do. The common law had very good reasons for excluding hearsay; and the Illinois law brings them disturbingly back to the light.

I am quite confident that the Illinois law will not survive constitutional scrutiny. Aside from technical constitutional violations, the law squarely arouses a sense of unfairness. You don't have to be a lawyer to know that hearsay is usually extremely unreliable, and it is doubly problematic to think that Illinois now allows its use to justify convictions for murder. Hearsay is inherently suspect. It borders on the absurd to consider that Illinois wants to allow it in the most serious criminal prosecutions, but not others. This differential treatment presents separate constitutional problems under Equal Protection principles. Specifically, a legislature must have "rational basis" for allowing hearsay in prosecutions for one crime, but not in others. Is it rational to allow victim hearsay in First Degree Murder cases, but not Second Degree Murder cases? If the State has an interest in convicting killers, it should allow hearsay in both situations, yet it selectively targets only one. Beyond that, hearsay lends itself to fabrication. To rest a conviction on fabrication would be to deprive a man of liberty without "fair process under law."

Illinois' law makes further constitutional missteps. In 2004, the United States Supreme Court decided Crawford v. Washington, 541 U.S. 36 (2004). In that case, the Court concluded that the Sixth Amendment forbids any court from considering a statement made by an "unavailable witness" for "testimonial reasons" if the Defendant had no prior opportunity to cross-examine the speaker. "Testimonial" statements mean statements made with a reasonable expectation that the statement would be used in a criminal investigation or prosecution. Classic "testimonial" statements include statements made to police, detectives, prosecutors and other "law enforcement professionals." The Illinois law places no limitation on the "type of listener" to whom a murder victim makes a statement. In Illinois, a police officer may testify: "The victim called me 4 days before the murder and said: 'My husband is going to kill me soon.'" Any reasonable person would feel that such a statement would be used in a subsequent criminal proceeding. The Defendant had no prior opportunity to cross-examine it. Indeed, it may be pure fabrication. Obviously the victim is dead and she is now "unavailable" as a witness. Under Crawford v. Washington, the statement violates the Sixth Amendment. Yet Illinois now presumes to admit such statements.

I rarely defend legal technicalities. But when legal procedure operates to defend individual liberty against governmental intrusion, I am a vigorous advocate for the individual. Illinois' new hearsay rule should shock anyone who cares about limitations on governmental power. As much as I ridicule the common law, I am thankful that it has been wise enough to ban hearsay as a basis for condemning people to imprisonment or death. Illinois' new hearsay rule denies a Defendant the right to challenge evidence arrayed against him. It also provides an opportunity for vindictive witnesses to fabricate a dead person's words in order to convict the Defendant. While the law may not always provide fairness, the hearsay rule is an instance when it does. To undercut the hearsay rule is to introduce a whole new dimension of unfairness into the already unfair confrontation between individual and State in criminal prosecutions. I am an unabashed theorist; I care about fairness and justice. The hearsay rule is a procedural mechanism that protects both. To that extent, I oppose any legislative attempt to reduce those protections.

Every government wants to enforce its criminal laws and convict the guilty. But we must never allow its zeal for convictions to dismantle the constitutional protections that shield us from brute government power. If we allow even one deviation, we set a precedent for further erosion. When that happens, we will be hard pressed to stop the government from assuming more and more tyrannical ways.