SIU Lawyer Southern Illinois University School of Law
RIVERS RUN THROUGH IT: A Look at Floodplain Management in the Aftermath of 2011â€™s Record Breaking Floods
CONTENTS 1 DEAN’S MESSAGE 3 STUDENTS
This magazine is organized by the priorities established by the law school faculty through the
self-study process in 2008.
The activities and achievements
27 SCHOLARSHIP 37 SERVICE 45 COMMUNITY
WRITERS Unless otherwise noted, news items were originally written by Pete Rosenbery, SIUC University Communications, and updated by Alicia Ruiz PHOTOGRAPHERS Russell Bailey, Steve Buhman, Eric Johnson, Barbara Smith, Bobby Samat, Paul Scudder Joyce Yong, School of Law 2L JD/MD student Cover photo of sandbag line and flood photos in Feature section, courtesy of the Illinois National Guard. DESIGNER Katie Randall, SIUC Printing and Duplicating CONTRIBUTORS Barbara Smith, Publications Assistant, SIU School of Law Elizabeth O’Neil, Director of Alumni & Annual Giving Judi Ray, Constituent Development Officer Alicia Ruiz, Director of Communications and Outreach
highlighted here illustrate our continued commitment to these priorities.
DEAN’S MESSAGE e
Looking back over the past year, my first as Dean at SIU, I cannot ignore the challenges that have confronted legal education. The legal profession, not immune to the global economic downturn, has changed. Every week seemed to bring a new headline decrying the oversupply of lawyers into a shrinking market of legal jobs. Law school deans, among others, were repeatedly called upon for explanations, predictions, and defenses about the role and responsibility of legal education in this changing market. There is no simple answer. Each law school, in accord with its own mission, must make its own assessment about the path forward. Living and working in southern Illinois, an area affected by above-average poverty statistics long before the recession, the challenges for legal education do not appear to call for a reduction in the number of people educated as lawyers. Many of the stories in the following pages remind me that the decline in law jobs does not reflect a declining need for legal services. I am inspired by the passion, determination and empathy with which our students and faculty rise to accept challenges such as domestic violence, elder abuse, wrongful convictions, access to health care, and environmental disasters. This does not seem like the time to limit the energy of these motivated individuals to help us, as a community and a nation, solve our current and future problems. The difference in the numbers of newly licensed attorneys and new jobs in traditional settings suggests a need for law schools and the profession to work together to redefine the way legal services are provided. The old model isn’t working. As a profession, we need to be creative in finding ways to fulfill our responsibility to society to make sure that people have access to justice through high quality legal representation that is affordable and available to all segments of our society. As law schools, we need to be sure that we are providing our students with the tools necessary to enable them adapt to a changing profession in a global environment. I challenge the profession to collaborate with the law schools to meet these goals. The cover photo illustrates the power of individuals working together in times of challenge. I hope that as lawyers and educators we are inspired by that image of collaboration as we move forward. It reminds me of the first quote on the tablet at the entrance of our Lesar Law Building: “Justice is a human enterprise.”
Cynthia L. Fountaine Dean and Professor of Law Southern Illinois University School of Law
SIU LAWYER / FALL 2011 1
STUDENTS e We strive for a highly qualified, diverse student body from across the country and from all walks of life. Small by design, SIU School of Law has one of the lowest student-faculty ratios in legal education.
The School of Law welcomed 122 new JD students, 7 MLS students, and 6 LLM students. Despite a national trend of declining applications, our JD applications were up by 6% compared to last year. In addition, we increased our admitted student selectivity in our 1L class by 4.8%. Nationally, 9.9% fewer students applied to law schools and the overall number of applications declined by 11%. In 2010-11, the School of Law was represented in 16 states at over 50 different recruitment forums and gave presentations at nearly 20 colleges and universities across the United States. We were very fortunate to have alumni who graciously volunteered their time to represent the SIU School of Law at many of the recruitment fairs. Without their help we would not have been able to meet so many prospective students. Arizona State University TREVOR BURGGRAFF (J.D., ‘09; LL.M., ‘10)
Brigham Young University CHRIS DEXTER (’95)
Centre College and University of Kentucky-Lexington
Class of 2014 Starts the Year with Public Service Project This year’s Orientation offered first-year law students the chance to do more than meet faculty and gain insight into surviving the intensity that comes with starting law school. Incoming students had the opportunity to participate in a community public service project at Pyles Fork Preserve in Carbondale. During the volunteer work day, students cut back vegetation, cleared downed tree limbs, and helped establish a native prairie area. “This will give the students an opportunity to bond with each other and become integrated in the community,” said Dean Cynthia L. Fountaine. “They will have a chance to get to know each other in a setting outside of the traditional, sometimes stressful, law school setting, while also giving back to their community.” The SBA sponsored a picnic lunch at the end of the project. The event was held in cooperation with Green Earth, Inc. Created in 1974, the organization’s mission is to acquire, preserve and provide public access to natural areas in Carbondale. Hiram H. Lesar, founding dean of the law school, was one of the organization’s first board members.
LUKE BENTLEY (’90)
Eastern Kentucky University GALE (COOK) ROSE (’91)
IUPUI-Indianapolis ALESHA ACTION (’04) LIZZIE SCHUERMAN (’06)
Miami Law School Admission Council Forum RICK GARCIA (’10)
New York Law School Admission Council Forum
Washington DC Law School Admission Council Form
IGOR GRICHANIK (’09)
ARNOLD PIRTLE (’90)
CALVIN CHOI (’08) ANDREW ROSZAK (’08) SARA SAMSON (’07) DAVID WOOD (’07)
University of North Carolina-Wilmington
University of Wisconsin-Madison
University of Detroit-Mercy
TRACY WILKINSON (’00)
M. PAIGE REED (’94)
University of Utah RELMA MILLER (’96)
SIU LAWYER / FALL 2011 3
SIU Law Journal
Congratulations to the members of the 2010-11 SIU Law Journal. Journal students continue to publish three issues a year. An electronic archive of past issues is being created; some issues are available at www. law.siu.edu/Journal/issues.
Executive Board Board of Editors, 2010-11 EDITOR IN CHIEF
Ross J. Sorensen MANAGING EDITOR
Allison B. Pitzer SURVEY EDITOR IN CHIEF
Kelly M. Murray LEAD ARTICLES EDITOR
Justin A. Volker ARTICLES EDITORS
Grant P. Gorman Heather Heisner Cassie R. Linders Brady M. McAninch Grant McBride Kevin D. Posch Sheri Prusak Tonya Joy Reedy Kathryn G. Ross Nicholas N. Tinsman CASENOTE AND COMMENT EDITORS
Matthew R. Avis Lauren A. Heischmidt Cara R. Sronce Kory R. Watson RESEARCH EDITOR
Michael Blum FACULTY ADVISOR
4 SIU LAWYER / FALL 2011
2010-11 SIU Law Journal members at their Awards Ceremony
Stephanie Black Josh Chumbly John Clark Jessica Davis Jordan Dorsey Craig Griffin Jacie Hartle Bobi James Daniel Janowski Nicole LaForte Natalie Lorenz Meg Madden Charles McGuire Amy Oxley Angela Rollins Neil Schronert Tim Shrake Ron Timmons Tyler Whitaker
Ross Sorenson “Illinois’s First Attempt at Sustainable Building is Green for All the Wrong Reasons” BEST CASENOTE
Kelly Murray “Have Household Exposure Claims Washed Out in Illinois?: Nelson v. Aurora Equipment Co., 909 N.E.2D 931 (Ill. App. Ct. 2009)” BEST CASENOTE AND COMMENT EDITOR
Nick Tinsman BEST ARTICLES EDITOR
Matthew Avis Brady McAninch OUTSTANDING SERVICE
Allison Pitzer Ross Sorensen
STUDENTS MOOT COURT BOARD (APPELLATE DIVISION)
2010-2011 Elizabeth A. Adams David W. Aubrey Allison M. Balch Douglass R. Bitner Michelle A. Dewey Brant T. Eichberg Lauren A. Gearhart Mark R. Gillingham Kelly M. Greco Matthew J. Ham Michael W. Hassel Michael J. Herzog
Jesse P. Hodierne Shannon D. Rieckenberg Kathryn G. Ross Kari Scott Matthew C. Spain Travis E. Strobach Stavri Vako Alex M. Vansaghi Rebecca L. Warren Kendra A. Wolters Jennifer R. Zanfes
FACULTY ADVISOR Cheryl Anderson 2010-11 Moot Court Board members at their Awards Ceremony
Moot Court Achievements
SIU Law students tested their oral advocacy skills this year through participation in a variety of appellate and trial advocacy competitions throughout the country.
Appellate Advocacy 2010 Intramural Moot Court Competition winners: Champion Team: Second Place Team: Best Brief: Second Place Brief: Best Oralist: Second Place Oralist: Third Place Oralist:
Beth Adams Jennifer Zanfes Jessica Davis Stavri Vako Jessica Davis Stavri Vako Beth Adams Jennifer Zanfes Michael Herzog Michael Hassel Rebecca Warren
During the Spring 2011 Semester, the Moot Court Board sent teams to compete in four competitions: • The Asylum and Refugee Law National Moot Court Competition at UC Davis School of Law, in Sacramento, CA, where our 2L team won the best brief award again this year.
• The National Cultural Heritage Law Moot Court Competition at DePaul University College of Law, in Chicago, IL, where the 2L team of Allison Balch, Matt Ham, and Matt Spain; and the 3L team of Brant Eichberg, Kathryn Ross, and Travis Strobach competed. Both teams advanced to the quarterfinals. • The ABA National Appellate Advocacy Competition at the Eighth Circuit Courthouse, in St. Louis, MO, where the 2L team of Elizabeth Adams, Mark Gillingham, and Mike Hassel; and the 3L team of Michelle Hook Dewey, Alex Vansaghi, and Kendra Wolters competed. The 3L team advanced to the round of semi-finals. • The National Moot Court Competition in Child Welfare and Adoption Law at Capital University Law School, in Columbus, OH, where the 2L team of Lauren Gearhart, Michael Herzog, and Jennifer Zanfes; and the 3L team of Shannon Crain Rieckenberg and Kari Scott competed. Both teams did very well, arguing three preliminary rounds and then advancing to the first elimination round, with the 2L team ranked 8th overall.
Trial Advocacy Students competed in three mock trial competitions this year. • The mock trial team consisting of Brooke Hurst, Bryce Joiner, Deana Meiners and Emily Rollman competed in the American Association of Justice Regional Competition in Indianapolis, Indiana. • Two mock trial teams participated in a regional competition in Valparaiso, Indiana, as part of the Texas Young Lawyers Association (TYLA) National Trial Competition. The teams consisted of Mitchell McGough and Oliver Clark, Jr.; and Andrew Flynn and Jerry Tuffentsamer. • Two mock trial teams competed in the ABA Labor and Employment Law Trial Advocacy Competition in Chicago, IL. The teams consisted of Mitch McGough, Tania Aldaddah, Stephanie Black and Deana Meiners; and Morgan Clymer, Sherrell Forbes, Emily Rollman and Jerry Tuffentsamer. FACULTY ADVISOR Christopher Behan CHIEF JUDGE Mitchell E. McGough
SIU LAWYER / FALL 2011 5
Law students assist downstate Innocence Project
Students in the Southern Illinois University School of Law are involved in legal research that could ultimately mean freedom for wrongfully convicted prisoners. Students Jennifer Donnelly and Angela Rollins last year began assisting the Downstate Illinois Innocence Project, an organization whose work is to not only assist wrongfully convicted prisoners prove their innocence, but also aims to reform the state’s criminal justice system. Additional students are involved with the program through unpaid externships. Prior to taking a case, the project needs “strong evidence” that inmates are actually innocent -- such as eyewitness misidentification, false confessions, ineffective counsel, unreliable forensic evidence and misconduct by prosecutors and police. Once a case is taken, the services are free. The project assists attorneys who represent convicted inmates in appellate cases where there is a strong chance the inmate is innocent, and concentrates on non-death penalty cases that carry long sentences. Donnelly, a third-year law student from Chillicothe, near Peoria, said the externship opens up the realization that “there are real situations where there are innocent people out there serving time for crimes that they didn’t do.” “That is a big issue in the criminal justice system today which I think a lot of people don’t understand really happens -- people can falsely confess to something they didn’t do, or an eyewitness can falsely identify someone who wasn’t even there,” she said. Under the direction of Professor William A.
6 SIU LAWYER / FALL 2011
Participating last year were, from left: Christine Hummert, Heather Dragoo, Jennifer Donnelly, Amanda Reed, Angela Rollins, and Nicole LaForte. With the students are, from left, Professor William A. Schroeder and Assistant Professor Christopher W. Behan.
Schroeder and Assistant Professor Christopher W. Behan, the students worked last year on case research that involves the first-degree murder, armed robbery, and attempted aggravated kidnapping conviction of Thomas McMillen in the June 1989 death of 18-yearold Melissa Koontz. The woman’s body was found in a cornfield west of Springfield after she disappeared while on her way home from a grocery store where she worked. McMillen is one of five people convicted in connection with Koontz’ slaying and is serving a life sentence. The innocence project is reviewing the evidence and seeking post-conviction advanced forensic DNA testing for McMillen, who maintains his innocence. The project’s previous work has resulted in exonerations of three people, including Julie Rea Harper, a Lawrenceville woman initially convicted in 2002 of the October 1997 stabbing death of her 10-year-old son, Joel Kirkpatrick. Bill Clutter, the project’s director of investigations, and innocence project students presented evidence to exonerate Harper and cast the focus on convicted serial killer Tommy Lynn Sells. In 2004, the Fifth District Appellate Court vacated Harper’s conviction on procedural error and ordered a new trial. In July 2006, a Clinton County jury, which heard details of Sells’ confession to killing Kirkpatrick, found Harper not guilty.
Those types of results with student participation are important in shaping a student’s legal training, Behan said. Donnelly worked with the project while an undergraduate student at the University of Illinois at Springfield.
“There’s a very real human cost to miscarriages of justice,” Behan said.“When you have somebody who is wrongfully convicted you take years and years and years away from them that can never be given back.The best we can do for these people who have been wrongfully convicted is to try to get them out so they can enjoy whatever years of their lives they have.”
STUDENTS The innocence project is important both in Illinois and nationally, said Dean Cynthia L. Fountaine. Those involved “are serving a crucial role in ensuring that justice is served in our criminal justice system by obtaining exonerations for those wrongfully convicted of crime,” she said. “I am delighted that our students have the opportunity to be involved with this project,” Fountaine said. “Many of them will work as prosecutors or defense attorneys once they graduate, so this is an excellent opportunity to get practical experience working on criminal cases. This type of experiential learning is critical to help us address the flaws in the system that lead to wrongful convictions so that they can be prevented in the future.” Schroeder, a former prosecutor, believes some wrongful convictions happen when the legal system focuses too much on process -- such as whether suspects receive their Miranda Rights, and if searches are conducted pursuant to a proper warrant -- rather than guilt or innocence. Many wrongful convictions hinge on bad witness identifications, false confessions, and police concentrating solely on one suspect. “This work could not only exonerate wrongfully convicted persons, but could ultimately lead to police and prosecutors reopening old cases to track down the real criminals,” he said. “Wrongful convictions do not just hurt the wrongfully convicted person: they hurt society because a wrongful conviction means the real bad guy is still on the street.” Students in the program have the opportunity to learn how to write legal motions and arguments, go into court, and interact with clients, Schroeder said. Being involved in exonerating a wrongly convicted person will give students “a tremendous sense of accomplishment for rectifying a really grievous wrong,” Schroeder said.
The University of Illinois at Springfield houses the Downstate Illinois Innocence Project through its Institute for Legal, Legislative and Policy Studies. Last fall, the Project received a Bloodsworth PostConviction DNA Testing Grant from the U.S. Department of Justice that includes support for the collaborative efforts with the SIU School of Law and University of Illinois College of Law. Experienced appellate attorney John Hanlon began as the program’s legal director on Feb. 1. He is overseeing the case work of students and educating them in the field of wrongful convictions. The grant supports the screening of cases received by the Project where DNA testing might prove guilt or innocence. And the grant defrays costs of post-conviction DNA tests.
said the externship will help her law career because it will allow her to learn about the criminal justice system while also learning how to analyze, investigate and compile case files, she said.
Rollins, and law school classmates Heather Dragoo, Amanda Reed, Christine Hummert, and Nicole LaForte are evaluating cases referred to the Project to see whether the cases qualify under the Bloodworth grant, Behan said.
Donnelly said she is very passionate about the project, and her “dream job” is to work with an innocence project when she graduates. She said she would like to remain involved in this case, even on a pro bono basis.
Larry Golden, the project director, said the legal capability that law schools possess is an important component. The program’s benefit can be a “life-changer,” and not just for exonerated inmates, but also for the students involved, several of whom Golden expects will remain with their cases after they graduate. Golden said he anticipates a long-term relationship with the law school. “We are absolutely delighted we can establish this,” Golden said. “What we are putting together is a model I think is going to eventually gain some national attention.” Dragoo said she knew the national Innocence Project in New York was a “great project,” and she “jumped at the chance” when the opportunity arose to work with a similar project in Illinois. She came to law school with an interest in biotechnology, the field responsible for many of the techniques used in DNA testing. She
Donnelly has done a lot of research into McMillen’s case, which she started on when she was an undergraduate student. Four years later, “we are closer, but we still have a long ways to go,” said Donnelly, who is looking for issues not argued at McMillen’s trial but which could be raised on appeal. “It’s definitely helping me form good arguments that may seem small and minute, but could really be a huge deal and be the difference between guilt and innocence,” she said.
The work provides valuable lessons for law school students, she said. “I hope they really have a better understanding the ramifications of being falsely convicted have on somebody and their families for their entire life, and that we, as young, almost attorneys, can really play a large role in fixing those wrongs,” Donnelly said. Behan echoes Donnelly’s thoughts. “There’s an inspirational aspect of working with this that I believe will be good for the students; to feel that they are on the side of social justice,” Behan said. “It’s also good to see how the wheels of justice can grind somebody down to powder. As they go through the files it’s easy to see where prosecutors might have over-reached or where defense attorneys didn’t do enough -- which will give them hopefully the background not to make the same mistake themselves, whether they are prosecutors or defense attorneys.”
SIU LAWYER / FALL 2011 7
SIU JD/MD Student Awarded ACP Internship
A JD/MD student at Southern Illinois University was awarded a national internship from the American College of Physicians (ACP) for 2011. David H. Slade, a third-year medical student, will earn a combined MD/JD degree after completing six years of study in both medicine and law. He was selected because of his interest in health policy, law and ethics as well as his experience as a summer fellow at the National Institutes of Health and serving on the ethics committees of two of SIU’s affiliated hospitals. The 2011 ACP internships were awarded to only one medical student and one resident physician in the U.S. They provide an opportunity to learn about legislative process, health policy and advocacy. Interns assist with research and analysis of current issues in health and medical education policy, on-going advocacy initiatives and development of advocacy materials. They attend congressional hearings, coalition meetings and accompany government affairs staff on visits to members of Congress.
3L Jaye Lindsay wins Health Law writing competition
While a third-year law student last fall, Jaye R. Lindsay earned top honors in the 2010 Illinois Association of Healthcare Attorneys’ Law Student Writing Competition. Lindsay, wrote about the inequity in assessing property taxes on non-profit hospitals in Illinois in “Poverty, Profits, and Provena: A Demographic Approach to Charity Care.” Lindsay received his award during the organization’s 28th annual health law symposium on Tuesday, Oct. 26, at Navy Pier in Chicago. He also received $2,500 for the award. Existing property assessment standards apply “one rigid set of factors to all non-profit hospitals,” regardless of factors including hospital size, community size, and population demographics that include age, income levels
8 SIU LAWYER / FALL 2011
and other factors and, in particular, have more of an impact on rural hospitals, Lindsay said. In using examples from other states, Lindsay said his piece argues “that demographic factors should be directly included in any future legislative attempts to codify or revise the existing standard.” Instead of mandating “rigid numerical percentage of charity be given by a hospital in order to meet the standard for receiving a property tax exemption, the standard should take into account the existing community served by the hospital,” Lindsay said. Lindsay also examined a March 2010 Illinois Supreme Court decision involving Provena Covenant Medical Center and the Illinois Department of Revenue. The court ruled the state was correct to take away the hospital’s tax exemption for tax year 2002 because the hospital did not provide enough charity care. Lindsay said the article argues “that small, underfunded, rural hospitals can maintain their exemption and thus remain in the communities they serve only if a more holistic approach is taken.” Lindsay is the first student from the law school to win the contest, said W. Eugene Basanta, the Southern Illinois Healthcare Professor of Law.
“It’s a significant award,” he said. “It’s a very positive recognition of the quality of one of our students.That’s good for the program and good for the law school.” Lindsay attributes his success to his faculty advisers, particularly Michele Mekel, an assistant professor in the law school. “She has been a source of constant motivation and support,” he said. “Her suggestions and insights helped me throughout the past year and resulted in a more informed approach to the research and writing process.
Lindsay’s winning effort is “demonstrative of student initiative combined with the health law opportunities and mentorship available through SIU School of Law’s Health Law Program and the Center for Health Law and Policy,” Mekel said.
Student Organization Activity Highlights Black Law Students Association Bake sale fundraiser to help the organization articulate and promote the professional needs and goals of Black law students and lawyers of tomorrow.
Environmental Law Society Trail cleanup in the Shawnee National Forest. Past ELS President Jennifer Scanlan Janasie ’02 spoke about her environmental career and about finding a job in this field. Janasie served as an Assistant Attorney General in Illinois and as the Environmental Health Policy Coordinator for the Alliance for a Healthy Tomorrow.
Equal Justice Works “SIU Run From the Law – 5K Run/Walk” Movie night with a viewing and discussion of “The Released” from the PBS series Frontline. The film sheds light on the issue of mental illness and its impact on the criminal justice system and communities by following the release of six inmates suffering from mental illness.
International Law Society Movie night with a viewing and discussion of “Crossing Borders,” a documentary that follows four Moroccan and four American university students as they travel together through Morocco confronting the complex implications of the supposed “clash of civilizations” between Islam and the West. Brown Bag Luncheon with Assistant Professor Lucian Dervan who spoke about his recent trip to Israel to study counter-terrorism and its implications for the U.S.‘War onTerror.’
J. Reuben Clark Law Society
Phi Delta Phi
Family Picnic at Evergreen Park (cosponsored with SBA)
Donation Drive - clothing/coats/shoes/ toys for local community
Law and Medicine Society
Law, Medicine and the Movies featuring Avatar and a bioethical and legal dialogue on transhumanism/virtual reality, disability, and indigenous culture rights.
Student Animal Legal Defense Fund (SALDF)
Military Law Society Hosted Major General William Enyart, ’79, Adjutant General for the Illinois National Guard, to speak about issues concerning the law and the military.
Volunteer work and donation drive to benefit the local St. Francis Animal Shelter.
Student Bar Association Annual Chili Trivia Night
SIU LAWYER / FALL 2011 9
TEACHING e We choose faculty who teach well, love the classroom, and place high expectations upon themselves and their students.We value educational innovation and strive to implement the best of theoretical and experiential teaching in our classroom and clinical environments.
Full-time Faculty 2011-12 JILL E. ADAMS
Associate Professor of Law PETER C. ALEXANDER
Professor of Law CHERYL L. ANDERSON
Associate Professor of Law W. EUGENE BASANTA
Southern Illinois Healthcare Professor of Law Co-Director, Center for Health Law and Policy
From left: Tom Britton, Michele Mekel, and Mark Schultz
CHRISTOPHER W. BEHAN
TRACIE R. PORTER
Assistant Professor of Law
Director of Academic Success & Assistant Professor
Assistant Professor of Law
KEITH H. BEYLER
HEIDI E. RAMOS
Associate Professor of Law Director of Lawyering Skills
Clinical Assistant Professor
DOUGLAS W. LIND
Professor of Law
THOMAS C. BRITTON
Director of the Law Library Associate Professor of Law
MARK F. SCHULTZ
Associate Professor of Law Director of Graduate Legal Studies
R. HOKULEI LINDSEY
Professor of Law MARK BRITTINGHAM
Clinical Assistant Professor of Law
Assistant Professor of Law
Professor of Law Director of International Law Programs
MELISSA J. MARLOW
LUCIAN E. DERVAN
PATRICIA ROSS MCCUBBIN
Clinical Professor of Law
WILLIAM A. SCHROEDER
Associate Professor of Law Director of Faculty Development GAIL THOMAS
Clinical Assistant Professor CANDLE WESTER-MITTAN
Assistant Professor of Law
Professor of Law
Access Services Librarian Assistant Professor
WILLIAM A. DRENNAN
Associate Professor of Law
Associate Professor of Law
ALICE M. NOBLE-ALLGIRE
Assistant Professor Law Library Reference Librarian
Clinical Associate Professor of Law Interim Clinic Director
Professor of Law
FRANK G. HOUDEK
Clinical Professor of Law
Professor of Law Associate Dean
CORNELIUS A. PEREIRA
Acquisitions/Catalog Librarian Assistant Professor SIU LAWYER / FALL 2011 11
PROFESSOR LEONARD GROSS retired
PROFESSOR R.J. ROBERTSON retired
in December, 2010. He had been a member of the faculty since 1983. You can find a link to his “Last Lecture,” sponsored by the SBA, at www.law.siu. edu/news/events. SBA Last Lecture Series - Professor Leonard Gross “Lessons Learned: A Life in the Law”
in June, 2011. He had been a member of the faculty since 1982.
PROFESSOR MARK LEE retired in May,
ASSISTANT PROFESSOR SUZANNE SCHMITZ retired in July, 2011. She
2011. He had been a member of the faculty since 1977. He has been appointed as the inaugural Lawrence Irving Distinguished Senior Teaching Fellow at the University of San Diego School of Law.
12 SIU LAWYER / FALL 2011
He received the Outstanding Teacher of the Year Award from the Classes of 1985, 1994, 2001, 2002, 2004, 2006, 2007, and 2011.
had been a member of the faculty since 1993. Professor Schmitz started her career at the law school teaching in the Alternative Dispute Resolution Clinic, where her particular area of interest was mediation. In 2005 she accepted the position of Assistant Professor of Law and Director of the Academic Success Program.
“I am very pleased to welcome our new faculty members to the SIU law community,” Dean Cynthia L. Fountaine said. “Each of them has outstanding credentials.Together, they bring with them more than 30 years of experience in private practice in law firms ranging in size from one to 900, as well as experience in the public sector and in legal education. I look forward to the new energy and ideas they bring with them to SIU.”
TWINETTE L. JOHNSON is an assistant professor of law and also directs the school’s Academic Success Program.
Johnson comes to the law school from the St. Louis University School of Law, where she served in several capacities since August 2003. During that time, she served as associate professor of legal writing and associate director of the bar preparation programs. She also served as a faculty member in St. Louis University’s Summer Institute program, where she taught courses in legal skills and contracts. She will be teaching an Agency and Partnership class during the spring 2012 semester. Her previous experience includes a law clerkship with Judge W. Duane Benton at the Supreme Court of Missouri. She also was an associate attorney with the New York-based Shearman & Sterling, LLP, representing corporations and financial institutions in investment grade and non-investment grade financings. Johnson earned her law degree from Tulane University Law School in 1999, and a bachelor’s degree in English literature from St. Louis University in 1996. She is currently pursuing a doctorate in public policy with an emphasis on urban development and community development policy from St. Louis University.
VALERIE J. MUNSON, a visiting clinical assistant professor of law this past year, is now an assistant professor
of law. Prior to coming to the SIU School of Law, Munson was at the University of St. Thomas School of Law in Minneapolis, Minn., where she was assistant director of the Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy. In addition, she taught courses including nonprofit organization law, and supervised upper-level student writing projects. Munson’s career also includes 25 years legal experience in Philadelphia, with firms including Eckert, Seamans, Cherin & Mellott, where she was founder and chair of the firm’s Religion and Law Practice Group. Munson will be teaching Lawyering Skills. Her scholarship interests include religion and law, non-profit law, and lawyer formation. Munson earned her law degree from Rutgers University School of Law in 1982, and a bachelor’s degree in secondary education from Augustana College in Rock Island in 1976. She also holds a graduate diploma in 19th-Century literature from the Université de Paris-Sorbonne.
JOANNA WELLS is a clinical assistant professor in the school’s Juvenile Justice Clinic.
Wells’ experience includes 16 years as a casework supervisor and caseworker with the Illinois Department of Public Aid, in addition to working in radio in Chicago and Miami. Wells’ experience in private practice includes work in bankruptcy, commercial law, personal injury and family law. For six years, she also worked as a guardian ad litem for children in abuse cases in Williamson County. Wells earned a bachelor’s degree from the University of Illinois at Urbana-Champaign in 1971, and a law degree from the SIU School of Law in 1998.
SIU LAWYER / FALL 2011 13
Semester in Practice Program
Students who wish to participate in the Semester in Practice Program now have even more opportunities to choose from. The Program, which combines an externship with courses related to a particular field of study, has expanded to include placements in Springfield, Illinois, for students who want to focus on health law and policy, and in Chicago, Illinois, for students who want to focus on criminal law. Initiated in the 2009-2010 school year by Associate Professor and Director of Graduate Legal Studies Thomas C. Britton and Professor William A. Schroeder, the programs allows students to study away from the law school in Carbondale while still earning a full semester’s credit.
Criminal Law The Criminal Law Practice program, overseen by Professor Schroeder, began with placements in the Missouri Public Defender’s Office in Jackson, Mo. Starting this fall students are also be able to work in various sites in the Chicago, Illinois, area. For Bill Hickman, as a third-year law student, the chance to move from the classroom to the courtroom was an opportunity he could not pass up. “It’s one thing to learn about the right to a speedy trial; it’s another to draft a motion and then argue it in the courtroom,” he said. Hickman worked three days a week with the Missouri Public Defenders’ office in Jackson, Mo. He earned nine hours of credit, and also took two additional courses in criminal procedure.
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Christopher Davis, a district public defender with the Missouri Public Defender’s Office in Jackson, said the law school’s program is invaluable. “It’s a great program,” he said. “We get free assistance and the students learn a lot from it, as well. Professor Schroeder has gone out of his way to provide us with high-quality students who contribute to the office.”
Law and Government The Law and Government program focuses on state and local governments in Springfield. During its first year, four students worked in the offices of Illinois Attorney General Lisa Madigan, the Illinois Municipal League, and counsels for House Speaker Michael J. Madigan, D-Chicago, and Senate President John J. Cullerton, D-Chicago.
and chair of the Department of Medical Humanities at the SIU School of Medicine, along with a bioethics class that Mekel is teaching in Springfield and in Carbondale through distance learning.
Students must also simultaneously enroll in two classes, and Britton said he offers distance learning technology for them. He teaches in Springfield one week and teaches via video to classes in Carbondale, then teaches the next week in Carbondale while teaching via video to Springfield.
Working with the Illinois Department on Aging is an opportunity Evetts said he could not pass up. With interests in patient and consumer advocacy, Evetts said the program will “provide experiences impossible to obtain or recreate in a traditional classroom setting.”
“That way we are combining ongoing personal contact between faculty and students even though they are 180 miles away,” he said.
“Health law is an important field as a person’s individual health, well-being and access to care greatly influence their quality of life,” he said. “I expect that what I will learn, not only about the law but about government agencies and their administration, will greatly shape my education and work after school.”
Health Law and Policy Third-year law students Brad Evetts and Josh Waltrip are spending the fall semester in Springfield. Evetts is working in the legal counsel’s office with the Illinois Department of Aging; Waltrip is working with legal counsel at both the SIU School of Medicine and Memorial Medical Center. Assistant Professor Michele Mekel is overseeing the students’ participation. Along with the externship, Evetts and Waltrip will take a public health law class in Springfield taught by Ross Silverman, professor
“The program is a natural extension of our partnership with the SIU School of Medicine, and it allows us to continue to develop the relationships that we have established with attorneys at health care agencies and associations in Springfield,” said Dean Cynthia L. Fountaine. “ This is a historically significant time for our students to be immersed in an environment where health law and policy issues are being debated and shaped. I hope and expect to see many of them take advantage of the opportunity.”
School of Law hosts “Women in Leadership Program” The second “Women in Leadership Program” was held in January, 2011.
Cindy Galway Buys, an associate professor of law and director of the international law programs, and Alice M. Noble-Allgire, a professor at the law school, created the program last year to address gender inequities they see within the legal profession. Dean Cynthia L. Fountaine the first female dean in the law school’s 38-year history, said the program is important for several reasons. “While the numbers show that women have been graduating from law school in nearly equal numbers to men for the past two decades, women are still under-represented in leadership positions such as partnerships in law firms, the judiciary, and senior law school administrators. I hope to see an increase in the number of women in leadership positions in the legal profession,” she said. Because there are fewer women in leadership positions, there are fewer opportunities for female law school students to observe and learn from women mentors and role models, Fountaine said. “This program gives students the opportunity to learn from and establish personal connections with women leaders,” she said.
“I see this program as one piece of an overall commitment to creating a law school environment that nurtures a diverse student body and provides opportunities to enhance each student’s preparation to excel in an ever-changing and demanding profession,” Fountaine said. The gender imbalance “has the potential to undermine the public’s confidence in our legal system,” Noble-Allgire said. “Simply put, the legitimacy of our courts is impaired if the public perceives that the key players within the system are not representative of the demographics of our community.” Women hold fewer than 16 percent of equity partnerships in the nation’s top law firms, comprise 20 percent of the nation’s law school deans, 20 percent of corporate general counsel, and 32.4 percent of state court judges, according to the American Bar Association’s Commission on Women in the Profession. “Wherever you are looking at leadership in the legal profession they are predominately men,” Buys said. “We want to educate women as law students about what it takes to be a leader, and some of the things they may want to do to move along in their career to leadership positions.” Workshop topics included gender and communication, negotiation, interviewing, networking, gender issues in the workplace, developing a personal-professional brand, and balancing career and family. The program features law school faculty and other faculty on campus, alumni, and local attorneys participating in lectures, small group discussions, group exercises, and panel discussions. Jane Sanders, the author of “GenderSmart -- Solving the Communication Puzzle Between Men and Women,” delivered the keynote address during a dinner at the conclusion of the workshop. SIU LAWYER / FALL 2011 15
Photos courtesy of the Illinois National Guard
RIVERS RUN THROUGH IT:
A Look at Floodplain Management in the Aftermath of 2011’s Record Breaking Floods by Alicia Hill Ruiz
Over the past year, the world has watched water wreak havoc on communities, cities and nations. From the tsunami in Japan to Hurricane Irene along the Eastern seaboard of the U.S., in the face of extreme weather events, it can seem as though we are helpless against the incredible force that is water. But, of course, we – scientists, engineers, policy makers - have developed incredibly complex systems to manage water. Most of U.S. water law and policy focuses on the quantity, quality, and distribution of water. To be sure, these are critical and complicated issues, made even more so by the predictions of the impending global water shortage crisis. But strong and clear laws are also necessary to guide us when water, through the effects of weather, threatens human life, property, and the infrastructures that allow us to live and work productively. The state of Illinois benefits in many ways from the rivers that form its borders – the Mississippi on the west, and the Ohio on the southeast. Our official state song acknowledges these waterways in its opening line, “By thy rivers gently flowing, Illinois, Illinois…” But rivers do not always flow gently. This past spring, after a season of unrelenting rains pounded the Mississippi Basin, the southern tip of Illinois, marked by the confluence of these two mighty rivers, faced record-breaking floods. According to the National Weather Service, flood stage at Cairo, Ill., the town that sits nearest the confluence, is 40 feet. The record, set in 1937, stood at 59.5 feet. By the time the U.S. Army Corps of Engineers detonated the Birds Pont-New Madrid levee,
river levels had reached 61.72 feet. Maj. Gen. Michael Walsh, president of the Mississippi River Commission, was quoted as saying, “[t]his is the largest flood that we have ever seen in our lifetimes.” Missouri farmers and landowners, as well as the Governor of Missouri, took legal action to try to protect their property from the diversion of water onto their land that the operation of the floodway would create. The U.S. Supreme Court refused Missouri’s request to intervene and stop the blasts after the federal court denied the State of Missouri’s request for an injunction. On May 2, the Corps of Engineers blew a two-mile hole in the levee, activating the floodway. Water levels in river towns in southern Illinois began dropping within hours. U.S. Agriculture Secretary Tom Vilsack and Federal Emergency Management Agency Administrator Craig Fugate released a joint statement following the breach of the levee. “The Birds Point-New Madrid Floodway was designed and built 80 years ago to mitigate these conditions and provide a last safeguard for millions of Americans,” the statement read. “Last night, that safeguard was utilized, sparing many from additional hardship.” The statement continued, “The 130,000 acres of Missouri farmland was established as a floodway in 1928. The federal government had purchased flood easements on the land, and has been since empowered to blow up Birds Point levee, if needed, to protect cities downstream and across the river in Cairo.”
Massac County Courthouse with the Ohio River encroaching from behind.
The articles in this section offer a closer look at how the flooding was managed. First, a short article about the response of the Illinois National Guard, overseen by Adjutant General William Enyart, a graduate of the SIU School of Law. Next, a history of the federal government’s efforts to control flooding, written by Professor Emeritus Robert Beck. Beck, who has been writing about water law issues since the 1960s, focuses on the 1928 Act that authorized creation of the floodway. Finally, a synopsis of a second-year law student’s research into the takings issues that have arisen with respect to the operation of the floodway. Based upon this research, Brian Lee, with coauthor Professor Alice Noble-Allgire, has already produced one article that will be published in the American Bar Association’s Probate & Property magazine and plans to develop his research into a longer Comment for the SIU Law Journal next spring.
SIU LAWYER / FALL 2011 17
Maj. Gen. William L. Enyart, The Adjutant General of the Illinois National Guard, speaks during a press conference in Marion, IL, in May, 2011. Behind him, Governor Pat Quinn; Ron Pate, VP for Operations, Ameren; and Sheila Simon, Illinois lieutenant governor and a former faculty member at SIU School of Law
As Gov. Pat Quinn’s primary military advisor, Maj. Gen. William L. Enyart, Adjutant General of the Illinois National Guard, and member of the SIU School of Law Class of 1979, is directly responsible for the state’s military response to a crisis or disaster. This included the floods in southern Illinois in the spring of 2011, when the Governor activated more than 500 troops for multiple flood mitigation missions. These missions included protecting drinking water supplies, saving public records and artifacts threatened by rising waters, assisting local law enforcement with traffic control and evacuating citizens, patrolling levees for trouble spots, transporting emergency workers and supplies and restoring communication networks and cellular telephone service in areas damaged by the floods. The Illinois National Guard works closely with agencies such as the Illinois Emergency Management Agency to ensure that their troops are well trained to respond to state emergencies as part of the state and local emergency response team. The Adjutant General exercises overall command and control over Illinois National Guard troops when they are activated by the Governor. In addition, President Barack Obama may call Illinois National Guard troops into federal service. Therefore, the Guard is responsible to ensure the troops are trained and equipped for the national defense. Thirty-four Illinois National Guard troops have given their lives in defense of their country during the conflicts in Afghanistan and Iraq. During the southern Illinois floods, more than 900 Illinois National Guard troops were deployed overseas.
“The towns and cities of Illinois rely upon us for assistance when a disaster strikes and the Illinois National Guard has responded quickly and effectively every time,” said Maj. Gen.William L. Enyart,The Adjutant General of the Illinois National Guard. “All of our troops are proud to help when our communities need us most.”
18 SIU LAWYER / FALL 2011
The Federal Government and Early Efforts to Control Flooding: A Brief Account of How “The Birds Point—New Madrid Floodway” Came into Being By Robert E. Beck Professor of Law Emeritus The principal federal agency dealing with efforts to control flooding in the United States is the U.S. Army Corps of Engineers, founded by Act of Congress in 1802.1 Early on the Corps became involved with navigation.2 Rivers, supplemented by canals, were the early major highways in the United States, and flooding can make navigation dangerous. Thus, from time to time during flooding, the Corps has shut down navigation on both the Ohio and the Mississippi. Still with the enactment of the Rivers and Harbors Act of 1899,3 in which Congress consolidated many of the water-related duties and responsibilities that had devolved upon the Corps over the years, there was no mention of projects to control flooding.4 However, levees and revetments were authorized and built because of potential bank destabilization and erosion, the direct causes of the perceived dangers to navigation. Congress’s first specific, but still indirect, efforts to address flooding from the perspective of protecting or reclaiming lands had come in 18495 and 18506 with the enactment of Swamp Lands Acts making swamp lands available to States for reclamation through the construction of drains and levees. Apparently these efforts were no more successful in Congress’s eyes
than Congress’s later effort to get States to undertake irrigation projects by making desert lands available first to individuals7 and later to the States.8 (See page 23 to learn about alum Kristen Johnson’s current work with the Bureau of Reclamation, established in 1902 to manage irrigation in the arid west.) In 1879,9 Congress created the Mississippi River Commission. Of the seven commissioners, three were to be from “the Engineer Corps of the Army,” with one of the commissioners to be the President of the Corps Commission. The Commission’s principal functions were surveying and planning, and among the four basic objectives for planning was one to “prevent destructive floods.”10 The Commission soon recommended a plan for levees and channel improvement to Congress, which Congress adopted March 3, 1881.11 Congress provided specifically that “no portion of the sum hereby appropriated [for work on the Mississippi River] shall be used in the repair or construction of levees for the purpose of preventing injury to lands by overflow, or for any other purpose whatever except as a means of deepening or improving the channel of said river.”12 The distinction between improving the channel for navigation and protecting land from being flooded was important because if Congress was exercising its power over navigation,
the federal government generally would not be liable for consequential damage that occurred to private parties in the course of that exercise.13 So when in 1884,14 Congress created the similarly constituted Missouri River Commission, Congress authorized construction of levees only “if … it should be done as a part of … [the Basin Commission] plan to afford ease and safety to the navigation and commerce of the river and to deepen the channel.” 15 The planned way to improve navigation was basically two-fold: to confine the River to a narrower and swifter channel which would scour the bed and help deepen the river while also constructing levees to raise the river level and contain the water. A system of continuous levees from Cairo to the Head of the Passes16 was proposed in the plan and “the extension of this levee system by the United States from Cape Girardeau, Missouri, to the Head of the Passes, was authorized by act of Congress in 1906.”17 Basically from 1883 onward, after the 1882 flood had destroyed many of the existing levees, levees have been built “in conformity with the grades and methods of construction adopted by the Mississippi River Commission ….”18 In 1928, Congressman Driver presented the House with a list of existing levee districts from Cape Girardeau to the Gulf of Mexico, noting that 2,453.21 miles of levees have been constructed with a bonded indebtedness of $43,805,451 and
SIU LAWYER / FALL 2011 19
FEATURE STORIES commerce, and the movement of the United States mails.”27
real estate liens of $205,650,492.19 A 1938 Court of Claims opinion noted conditions on the Missouri border: “By 1925, continuous levees had been constructed on the Missouri side of the Mississippi River from Commerce, Missouri, approximately 40 miles above Cairo, southward to Birds Point, Missouri, thence down to Dorena, Missouri, thence following the river on the Missouri side, in a westerly direction to the mouth of St. Johns Bayou.”20 Also in 1928, Representative Sinclair of North Dakota summarized the relevant history on flood control: “As is generally known, the ‘levees only’ plan has heretofore been adopted as the sole means of controlling the Mississippi floods. …. About the year 1890 the Congress permitted the building of levees as a partial aid in stabilizing river banks, and this policy prevailed until 1917. Whatever protection was afforded from levees prior to that time was furnished by the individual landowners or levee districts located along the river. It really was not until 191721 that Congress recognized flood control of the Mississippi River as a part of the national responsibility.”22 Although under the 1917 Act, the Secretary
20 SIU LAWYER / FALL 2011
of War was to carry out the plans of the Mississippi River Commission, proposed “works and projects” for flood control would likely be submitted to the Board of Engineers for Rivers and Harbors, which Congress had created in 1902.23 The submission to the Board would be for the Board’s “consideration and recommendation,” including stating its opinion as to “what Federal interest, if any, is involved in the proposed improvement.”24 Continued flooding on the Mississippi, including a particularly bad flood in 1927, led Congress to enact the 1928 Act25 that gave the Corps authority to create the Birds Point—New Madrid Floodway, the levees for which were breached in the 2011flood. Congressman Driver summarized the 1927 flood: “there were 246 lives lost and there was swept away … 7,879 houses, 17 gins, 118 stores, 2,997 barns, and 16, 971 outbuildings, together with 12,626 horses and mules, 25,716 head of cattle, 133,174 head of hogs, 2,560 sheep and goats, 719,647 poultry, $1,628,711 in merchandise, $1,317, 515 worth of farm implements, $3,054,544.50 in feedstuffs, and $4,730,627 in household goods and effects; also 58,844 houses were damaged, 2,148 stores damaged, 285 gins damaged, 11,944 barns damaged, and 36,723 outbuildings damaged.” 26 The 1928 Act refers to “national concern in the control of these floods in the interests of national prosperity, the flow of interstate
Work on a federal flood control bill began with apparent urgency after the flood of 1927 with President Coolidge ordering several federal agencies to do studies and to submit plans.28 Two plans resulted from these studies, one from the Mississippi River Commission and one from the Army Corps of Engineers, known generally as the Jadwin plan for the Chief of Engineers, General Jadwin. In the meantime, the House held hearings, starting November 7, 1927, and running through February 1, 1928.29 Senate Bill No. 3740, “for the control of floods on the Mississippi River from the Head of Passes to Cape Girardeau, Mo., and for other purposes,” which became the vehicle for enactment of the 1928 Act was introduced into the Senate on March 14, 1928, by Senator Jones of Washington and referred to the Committee on Commerce.30 Apparently, the bill was “a compromise measure, embodying features of numerous bills which have been introduced in both branches of Congress.”31 On March 24, 1928, Senator Jones reported S. 3740 without amendment.32 Being reported without amendment, the bill apparently had been worked out in, or by, the committee before being introduced into the Senate. The Senate considered and passed the bill on March 28, with 70 Senators voting in favor and 23 not voting.33 Among the 23, were some paired Senators who would have voted against the bill.34 The Commission and Jadwin plans had similarities and differences. One difference between the two plans that was noted in the Senate was a cost difference, with the Jadwin plan at about $100,000,000, less than the Commission plan. This difference was explained as due to General Jadwin’s view that parts of the project contained natural flowage rights so “that the people have no legal right to claim any damages if the Government floods it.”35 However, there seemed to be resistance to this view, with Senator Jones noting: “We have provision in the bill for condemnation of rights of
FEATURE STORIES way, flowage, and so on. We feel that under the constitutional provision no private property can be taken for public use without compensation.”36 The bill was referred to the House on March 30.37 Representative Reid reported the bill for the Committee on Flood Control on April 2 with 33 amendments.38 Although issues relating to total project cost, local cost sharing, and source retention facilities had been noted in the Senate, the Senate had little discussion on these issues. Contrary to the Senate, the House had considerable discussion on each of these issues. With the general realization that levees were inadequate to the task of flood control, the question for Representative Sinclair was: “shall we let the waters out of the river, or shall we prevent them from reaching the river by retention dams and source-stream reservoirs in the headwaters of the various tributaries?”39 Neither the Commission plan nor the Jadwin plan had proposed construction of source-stream reservoirs. S. 3740, however, contained a provision for carrying out some previously authorized surveys of tributaries “as speedily as practicable” with the Secretary acting through the Corps of Engineers “to prepare and submit to Congress at the earliest practicable date projects for flood control on all tributary streams.”40 Representative Sears of Nebraska objected to the failure to consider source reservoirs for immediate construction, contending that no bill should go forward until that had been done. He thought leaving consideration up to General Jadwin would result in reservoir source control having “no more show than a one-legged grasshopper in a pen of hungry turkeys.”41 Congressman Reid, however, noted that “there is a provision in the bill that if it should be determined that reservoirs will help to control floods in the lower Mississippi Valley, then they might be substituted in place of some of the proposed flood ways.”42 House amendments: (1) added additional already authorized surveys; (2) specified eight tributary rivers and their tributaries; (3) specified six elements to be considered in the reports; 43 and (4) substituted the Commission for the Board to receive the reports and give conclusions and recommendations44 before the Secretary of War submitted his report to Congress.45 The House also added a provision authorizing inquiry into the extent and manner in which “proper forestry practice” could control floods.46 On a point of difference between the two plans, however, the Commission plan had recommended higher levees in this Missouri section with floodways located lower down on the Mississippi.47 Apparently Chief Engineer Jadwin had rejected the Commission’s approach as too expensive and instead recommended the Birds Point-New Madrid Floodway.48 President Coolidge apparently favored the Jadwin plan, and S. 3740
SIU LAWYER / FALL 2011 21
FEATURE STORIES contained a statement adopting that plan.49 However, the same provision in the bill also provided for a five-person board “authorized and directed to consider the engineering differences” in the two plans and after study to determine what action was to be taken with the board’s decision to be followed.50 But if the decision was to follow a “new method” on “any controverted problem” between the two plans, the matter was to be submitted to Congress, leading a House member to note that this was going around in circles.51 Congressman Reid responded that the members of Congress are not experts but had to choose a plan, so they wrote in the Jadwin plan.52 The House did amend S. 3740 to reduce the Board size from five to three by removing the Secretary of the War and one civil engineer.53 The remaining civil engineer was to be “chosen from civil life.” Instead of the Board having the final say, the President would have the final say. Having already favored the Jadwin plan, it would be likely that in any disagreement, President Coolidge would decide in favor of following through with the Jadwin plan. So what the plans added to deal with the inadequacy of the levees only policy were the floodways. A House amendment added: “No liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place”54 with a proviso that, if lands not then overflowed become overflowed because it was impracticable (as defined) to construct levees to protect those lands, the U.S. was to acquire those lands in fee or “floodage rights” over them. An amendment also changed the Senate’s compensation and property acquisition provisions substantially. While S. 3740 authorized the condemnation of interests in land needed to carry out the project,55 under a House amendment, the U.S. needed only to “provide flowage rights for additional destructive floodwaters” that will pass over the land because of diversions from the main channel,56 thereby seeming to adopt General Jadwin’s view that there is an existing natural flowage right for recurring flood waters. Congressman Reid argued
22 SIU LAWYER / FALL 2011
that the land in Missouri was protected by levees; therefore, there was no existing floodway.57 S. 3740 provided that the value of any benefit derived by a landowner from the project was to be deducted from the amount of compensation.58 It also provided for a determination whether levees could be built to reduce the overflow on land that has occurred from levees being built on the other side of the river.59
amendments being reworded and then accepted.69 In the House discussion of the conference report, Congressman Reid noted that there were three important changes to S. 3740, among which he included: “the United States will not now have to pay for flowage rights over lands now used in conducting the destructive water from the Mississippi Rived (sic).”70 The House agreed to the conference report on May 8th.71
Another point much debated in the House was the provision in S. 3740 that the full expenses of the projects would be borne by the federal government60 in lieu of the usual sharing of costs with states.61 Senator Hawes of Missouri was given credit for this provision.62 The House retained the no “local contribution” provision, but amended S. 3740 to provide that for levee work on the Mississippi between Rock Island, Illinois, and Cape Girardeau, Missouri, and for levee work on the tributaries of the Mississippi from Rock Island to Head of Passes, the states or levee districts are to pay one-third of the cost of the work.63 The House substituted “states or levee districts” for “local interests” as to maintenance after completion and as to accepting land turned over to them but added the requirement that they provide without cost to the U.S. the rights of way for “levee foundations and levees” on the mainstem of the Mississippi between Cape Girardeau and the Head of Passes.64 A proposed amendment to levy and collect assessments on “specially” benefited property was defeated.65
The Senate received an amended Conference report on May 7th.72 Throughout the House discussions there had been various criticisms of the Corps of Engineers. In the Senate discussions on the conference report, Senator Frazier noted: “They [people who wrote letters from various parts of the country] are not going to be satisfied to leave this whole situation up to the Army engineers, who for the past 50 years have made a failure of taking care of those flood waters, who have let that valley be flooded time after time ….”73
On April 24, 1928, the House passed its version of S. 3740 containing 33 amendments by a vote of 254 yeas, 91 nays, and 87 not voting.66 On April 27th, the Senate disagreed with the House amendments and requested a conference.67 On April 28th, the House insisted on the House amendments and agreed to the conference, also appointing members to the Conference Committee.68 The Conference Committee submitted its report to the House on May 3d, recommending that the House recede from 5 amendments, that the Senate accept 22 amendments, with the remaining 6
But Congressman Reid had noted in House discussion:“We finally came to the conclusion that if you are really going to have flood control, it has got to be done by one agency in a uniform and coordinated manner. It is impossible to have flood control by local option.”74 No substitute for the Corps had appeared. On May 9th, the Senate agreed to the Conference report75 and presented the enrolled bill to President Coolidge on May 10th.76 The President signed the bill on May 15, 1928.77 The Act resulted in the construction of the Birds Point—New Madrid floodway; two
FEATURE STORIES lawsuits resulting in judicial opinions were brought contemporaneously in connection with the construction of the floodway. Kirk v. Good,78 was decided in 1929 and Matthews v. United States,79 in 1938. Both cases denied relief to plaintiffs. The cases are discussed in the full version of the article by Brian Lee and Alice M. Noble Allgire. 1 2
5 6 7 8 9 10 11 12 13
14 15 16
17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36
Act of Mar. 16, 1802, ch. 9, §§ 26-28, 2 Stat. 132, 137. For details of this early history, see Todd Shallat, Water and Bureaucracy Origins of the Federal Responsibility for Water Resources, 1787-1838, 32 Nat. Resources J. 5 (1992). Act of Mar. 3, 1899, 30 Stat. 1121. Section 1 which runs from id. page 1121 through page 1149 contains a list of authorized projects for “improving” rivers, harbors, etc., that will give the reader a good sense of what was going on. Occasionally there is reference to a project to protect or stabilize river banks. Act of Mar. 2, 1849, 9 Stat. 352 (specific to Louisiana). Act of Sept. 23, 1850, 9 Stat. 519 (generally applicable). Desert Land Act of 1877, 19 Stat. 377. Act of Aug. 18, 1894 (Carey Act), ch. 301, § 4, 28 Stat. 422. Act of June 28, 1879, 21 Stat. 37. Id. § 4. Act of Mar. 3, 1881, ch. 136, 21 Stat. 468, 474. Id. Sanguinetti v. United States, 264 U.S. 146 (1924); Cubbins v. Mississippi River Comm’n, 241 U.S. 351 (1916); Jackson v. United States, 230 U.S. 1 (1913). Act of July 5, 1884, 23 Stat. 133, 144. 23 Stat. at 146. Basically this is the northern most point of the mouth of the Mississippi. Here three branches of the River go in differing directions. 230 U.S. at 17, referring to 34 Stat. 208, ch. 2572 (1906). 230 U.S. at 17. 69 Cong. Rec. 6785 (1928). Matthews v. United States, 87 Ct. Cl. 662, 67374 (1938). Act of Mar. 1, 1917, 39 Stat. 948. 69 Cong. Rec. 6775 (1928). Act of June 13, 1902, 32 Stat. 331, 372 (§ 3). 39 Stat. at 950 (§ 3). Act of May 15, 1928, 45 Stat. 534. 69 Cong. Rec. 6785 (1928). 45 Stat. at 535 (§ 2). See 69 Cong. Rec. 5484 (1928) (Sen. Jones). These hearings were chaired by Representative Reid of Illinois. 69 Cong. Rec. 5284 (1928). 69 Cong. Rec. 5492 (1928). 69 Cong. Rec. 5307 (1928). S. Rep. No. 619 accompanied the bill. 69 Cong. Rec. 5480-5491 (1928). See 69 Cong. Rec. 5492 (1928) (Sen. King). 69 Cong. Rec. 5485 (1928) (Sen. Jones). Id.
37 38 39 40 41
42 43 44 45
46 47 48
51 52 53 54 55 56 57 58 59 60 61
62 63 64
67 68 69 70 71 72 73 74 75 76 77 78 79
69 Cong. Rec. 5708 (1928). 69 Cong. Rec. 5802 (1928). H. Rep. No. 1100 accompanied the bill. 69 Cong. Rec. 6775 (1928). Sec. 10, 69 Cong. Rec. 5483 (1928). 69 Cong. Rec. 6772 (1928). The Shellenberger amendment to authorize construction of reservoirs was defeated 107 to 114. Id. at 7015. 69 Cong. Rec. 6795 (1928). Amends. 28, 29, 30, 69 Cong. Rec. 7779. H. Conc. Res. # 34 agreed to by the Senate, 69 Cong. Rec. 7960. President Coolidge had supported going forward without consideration of source retention facilities. 69 Cong. Rec. 7126 (1928). Amend. 31, 69 Cong. Rec. 7779. 69 Cong. Rec. 6790 (1928) (Mr. Reid). For a description of the floodway plan, see Matthews v. United States, 87 Ct. Cl. 662, 676681, 683-684 (1938). Sec. 1, 69 Cong. Rec. 5482 (1928). The Board consisted of the Secretary of War, the Chief of Engineers, the President of the Commission, and two civil engineers appointed by the President. 69 Cong. Rec. 6780 (Mr. Morton D. Hull). 69 Cong. Rec. 6790 (1928). Amends. 1 through 10, 69 Cong. Rec. 77787779. Amend. 14, 69 Cong. Rec. 7779. See Conf. Rep. at 69 Cong. Rec. 7778 (1928). Section 3, 69 Cong. Rec. 5483. Amend. 15, 69 Cong. Rec. 7779 (emphasis added). 69 Cong. Rec. 7000-7001 (1928). Section 4, 69 Cong. Rec. 5483. Section 11. 69 Cong. Rec. 5483. 45 Stat. 535 (§ 2) (“no local contribution to the project herein adopted is required”). For example, the 1917 legislation provided for the “local interests” share to “not be less than onehalf of such sum as may have been allotted by the commission for such work.” 39 Stat. at 948 (§ 2(b)). 69 Cong. Rec. 5493 (1928) (Sen. Heflin). Amend. 23, 69 Cong. Rec. 7779. 69 Cong. Rec. 7134, § 3(c). President Coolidge favored local contribution and definitely the feature that required providing land for “protective works.” 69 Cong. Rec. 7126. 69 Cong. Rec. 7017 (1928) (110 to 118). 69 Cong. Rec. 7124-7125 (1928). For the bill as passed by the House, see 69 Cong. Rec. 71337135 (1928). 69 Cong. Rec. 7326 (1928). 69 Cong. Rec. 7409 (1928). 69 Cong. Rec. 7686-7687 (1928). 69 Cong. Rec. 8122 (1928). 69 Cong. Rec. 8123 (1928). 69 Cong. Rec. 7962 (1928). 69 Cong. Rec. 8182 (1928). 69 Cong. Rec. at 6789. 69 Cong. Rec. 8193 (1928). 69 Cong. Rec. 8246 (1928). 69 Cong. Rec. 8785 (1928). 13 F. Supp. 1020 (E.D. Mo. 1929). 87 Ct. Cl. 662 (1938).
KRISTEN JOHNSON ’08 Attorney-Advisor,
Division of Land and Water Resources, Office of the Solicitor, U.S. Department of the Interior. On the other end of the water management spectrum, the federal government carries out responsibilities for the provision of usable water to the generally arid American West. At the U.S. Department of the Interior, Kristen counsels the Bureau of Reclamation on a myriad of agency activities and authority. Reclamation was established by Congress in 1902 for the purpose of reclaiming the arid west and settling the western part of the then expanding United States. The mission of the Bureau of Reclamation is “to manage, develop, and protect water and related resources in an environmentally and economically sound manner in the interest of the American public.” Today, Reclamation’s projects provide agricultural, municipal, and industrial water to about one-third of the population of the West. Kristen’s work primarily focuses on ensuring projects meet environmental compliance requirements. The largest project she currently works on involves the possible removal of four private hydroelectric dams on the Klamath River in southern Oregon and northern California. See Kristen’s alumni profile at www.law.siu.edu
SIU LAWYER / FALL 2011 23
High Water in the Nation’s Breadbasket
A Takings Analysis of the Government’s Response to the Mississippi River’s Great Flood of 2011 A synopsis of an article by Brian Lee and Professor Alice M. Noble-Allgire On May 3, 2011, a class action lawsuit was filed against the United States of America alleging that the activation of the Birds Point-New Madrid Floodway constituted a taking of private property, requiring compensation under the Takings Clause of the U.S. Constitution. Alternatively, to the extent that the government holds flowage easements over some of the property, the suit seeks damages for exceeding the scope of those easements and, in some cases, specific performance of provisions within the easements to compensate landowners for sand and gravel deposits left behind by the floodwaters. In an article, which will be published in the American Bar Association’s Probate & Property magazine, Lee and Noble-Allgire look at the takings issues that have arisen in past lawsuits regarding the Floodway, as well as the issues raised in the pending action. The article also looks at the Floodway’s history and design, as well as controversy over its creation, and the distinction between flood control and navigation. In cases involving floodwaters, courts have consistently held that a distinction is to be made between a taking and a mere injury to property. The latter, which has been described as “indirect and consequential” falls inside the scope of tort law and is therefore not compensable under the Takings Clause. For a taking for which just compensation is due, government action must “constitute an actual and permanent invasion of the land amounting to an appropriation thereof rather than merely an injury to the property.” How these holdings will apply to the facts in the current class action will be decided by the federal court of claims in Big Lake Farms, Inc. v. United States of America.
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Brian Lee, Class of 2013, inside the Fifth District Appellate Courthouse in Mt. Vernon, IL. In addition to his research into the takings issue this summer, Brian also worked as a Judicial Extern for the Appellate Court.
Q&A with Brian Lee Hometown: Lincoln, Illinois Undergraduate: B.A. in Philosophy, University of Illinois-Urbana/Champaign
How did you go about researching this issue? After researching the relevant law, I realized that I needed more factual information than what was found in the complaint in order to determine all the issues with which the suit would deal. I obtained the name of the plaintiff’s attorney, J. Michael Ponder, from the complaint, and contacted his firm to set up an interview. I drove down to Cape Girardeau, Missouri, to interview Mr. Ponder, who was very accommodating and helpful with my understanding of the issues. He also provided me with a copy of a flowage easement (shown on page 25) purchased by the United States pertaining to land situated in the Floodway.
Did anything surprise you as you learned more about this situation and the law and history surrounding it? Two things surprised me the most: (1) that courts have held floodwaters to a different standard when determining whether government-induced flooding constituted a taking under the 5th amendment; and (2) that the Floodway had only been put into operation once before May, 2011, in its over-eighty-year history.
What did you find most interesting about the situation and/the law and history surrounding it? It was really interesting to research the reasons that the Flood Control Act of 1928 was passed, how the underlying facts behind those reasons have changed, and the ways in which the Act has been altered over the years.
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SCHOLARSHIP e We expect high standards of scholarship from both our faculty and our students. The law schoolâ€™s presence on the campus of a major research university permits cross disciplinary scholarship, including the work done by our Center for Health Law and Policy in conjunction with the SIU School of Medicine.
Faculty Publications and Presentations CINDY BUYS
Publications “Discrimination Claims against Law Firms: Managing Attorney-Employees from Hiring to Firing.” Texas Tech Law Review (IN PRESS) (with Leonard Gross) W. EUGENE BASANTA
Publications Code of Medical Ethics of the American Medical Association: Current Opinions with Annotations. 2010-2011 ed. Chicago: American Medical Association, 2010. 489 p. (W. Eugene Basanta, Ross D. Silverman, Frank G. Houdek, and Connie Poole). “Communicating with Dying Patients: Informed Consent, Physician First Amendment Rights, and State Regulation in the United States,” 18th World Congress on Medical Law, Zagreb, Croatia (2010). ROBERT BECK
Publications “Municipal Water Priorities/Preferences in Times of Scarcity: The Impact of Urban Demand on Natural Resource Industries,” 56 Rocky Mt. Min. L. Inst. 7-1 to 7-34 (2010). Beck’s annual supplements to Chapters 11, 12, 13, 14, 52, 58, & 62 of LexisNexis, Waters and Water Rights, were published in December, 2010.
“Bringing Human Rights Home: Implementing International Human Rights in Domestic Legal Systems,” Jurisprudencija (The Law Journal of Mykolas Romeris University in Vilnius, Lithuania) (forthcoming) “Nottebohm’s Nightmare: Have We Exorcised the Ghosts of WWII Detention Camps or Do They Still Haunt Guantanamo?” CHICAGO-KENT J. INT’L & COMP. L. (forthcoming) “Movsesian v. Victoria Versicherung and the Scope of the President’s Foreign Affairs Power to Preempt Words,” (with Grant Gorman) was accepted for publication by the Northern Illinois University Law Review. “Ensuring Consular Notification Rights for Foreign Defendants” appeared in the Jan. 5, 2011 issue of the BNA Criminal Law Reporter, vol. 88, no. 13. “Do Unto Others: Strangers in a Strange Land: The Importance of Better Compliance with Consular Notification Rights?” (with Ioana Navarrete and Scott D. Pollock), 21 Duke J. Int’l & Comp. L. 101 (2011) Presentations Buys participated in the International Association of Law Schools conference in Buenos Aires, Argentina, in April, 2011. She gave a presentation about the Immigration Detention Project as a method of teaching knowledge, skills and values. Buys was a speaker on two panels at AALS Annual Meeting in January: “International Law Year in Review,” and “Was Medellin v Texas Wrongly Decided?”
Buys presented “The Constitutionality of the Arizona Immigration Law,” at Southern Illinois University Carbondale as part of the university’s observance of Constitution Day.
Publications “The 21st Century World of White Collar Criminal Defense Careers,” in Criminal Justice, edited by Ellen Brotman, 39-44. American Bar Association, 2010. “Bargained Justice: Plea Bargaining’s Innocence Problem and the Brady SafetyValve.” Utah Law Review (2012) (IN PRESS). “Re-Evaluating Corporate Criminal Liability: The DOJ’s Internal Moral Culpability Standard for Corporate Criminal Liability.” Stetson Law Review (2011) (IN PRESS). “Over-Criminalization 2.0: The Role of Plea Bargaining.” 7 Journal of Law, Economics, and Policy 645 (2011) (IN PRESS). “American’s Prison Culture in an International Context: An Examination of Prisons in America, the Netherlands, and Israel.” 22 Stanford Law & Policy Review 413428 (2011). “Information Warfare and Civilian Populations: Can the Law of War Adapt to a New Generation of Weaponry?” Goettingen Journal of International Law 373-396 (2011)
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William Drennan receiving an “Excellence Through Commitment” Award from Chancellor Rita Cheng for outstanding scholarship.
“A Dedication to Service: An Introduction to Acting Deputy Attorney General Gary G. Grindler’s Commencement Address.” 34 Southern Illinois University Law Journal 797798 (2010) Presentations Voluntariness and Plea Bargaining’s Innocence Problem, Southeastern Association of Law Schools (August 4, 2010). Panelist, Re-Evaluating Corporate Criminal Liability, Southeastern Association of Law Schools (July 31, 2010). Presenter, U.S. Terrorism Prosecutions and the Prevalence of Plea Bargaining in the American Criminal Justice System, International Criminal Tribunal for the former Yugoslavia (“ICTY”), The Hague, The Netherlands (June 11, 2010). Panelist, Over-criminalization: Is There a Problem to Solve? SEALS 2011
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Publications “Where Generosity and Pride Abide: Charitable Naming Rights,” was accepted for publication by the Cincinnati Law Review. LEONARD GROSS
Gross was the main presenter at the 2010 Ralph Anderson Interfaith Dialogues. His presentation was entitled, “Church & State in America: The Bald Knob Cross and the Ground Zero Mosque.” The program was sponsored by the Carbondale Interfaith Council.
Gross was a speaker at a forum sponsored by the Paul Simon Public Policy Institute in November, 2010, entitled “The 2nd Amendment in Focus.”
Gross spoke at a seminar on Lawyer and Law Firm Disputes before the Texas bar in Dallas. His topic, “Discrimination Claims Against Law Firms: Managing Attorney Employees From Hiring to Firing,” was based on an article he co-authored with Associate Professor Cheryl Anderson.
Code of Medical Ethics of the American Medical Association: Current Opinions with Annotations. 2010-2011 ed. Chicago: American Medical Association, 2010. 489 p. (with W. Eugene Basanta, Ross D. Silverman, and Connie Poole) “Memorial and Appreciation for Earl C. Borgeson (1922-2010).” 103 Law Library Journal 507-514 (2011).
SCHOLARSHIP DOUGLAS LIND
Publications “Nonlegal Research,” in The Lawyer’s Research Companion: A Concise Guide to Sources. 2d ed. Buffalo, N.Y.: William S. Hein & Co. [IN PRESS] SUSAN LIEMER
“An Early Unrecorded London Variant of ‘The Raven.’” 43 Poe Studies 80-85 (2010).
Seven entries in the “Annual Review of Intellectual Property Law Developments” (2010). The Review is a publication of the American Bar Association’s Section of Intellectual Property Law. On the Origins of le Droit Moral: How NonEconomic Rights Came to Be Protected in French IP Law, has been accepted for publication by the Journal of Intellectual Property Law at the University of Georgia School of Law. Presentations “A Lecture from Hogwarts” (Anglo-Saxon Legal References in Harry Potter) Liemer was one of eighteen professors chosen to present a paper at the Law and Literature Symposium at Villanova University, last fall. Her paper analyzed the origins of the French droit moral, intellectual property laws which protect the rights of French authors, visual artists, and performing artists.
Presentations McCubbin spoke at a conference on “China’s Environmental Governance: Global Challenges and Comparative Solutions,” sponsored by the U.S.-China Partnership at the Vermont Law School. McCubbin spoke to the Jackson County Bar Association about the regulation of greenhouse gases under the Clean Air Act.
Publications “Native Hawaiians and the Ceded Lands Trust: Self-Determination as an Alternative to the Equal Protection Analysis.” 34 American Indian Law Review 223-257 (2011). “Agreements Between Developers and Grassroots Community Groups Creating ‘Cultural Reserves’ in Hawai’i,” Midwestern People of Color 20th Anniversary Scholarship Conference, Chicago, April 2010.
McCubbin spoke at Eastern Illinois University and Indiana State University about her experience as a Fulbright Scholar in China. McCubbin moderated a panel at the American Bar Association’s Annual Fall Meeting on Environmental Law. The panel discussed the pros and cons of using the Clean Air Act to regulate greenhouse gases. McCubbin spoke at a conference of the American Society of Law, Medicine & Ethics in Atlanta. The conference was focused on “Using Law, Policy, and Research to Improve the Public’s Health.” MICHELE MEKEL
Liemer gave a presentation on Beyond Text: Non-Verbal Communication Training for Lawyers, at the Legal Writing Institute’s bi-ennial conference last summer. Liemer spoke about Creative Leadership: Giving Effective Feedback, at the bi-annual conference of the Association of Legal Writing Directors, at the Pacific University McGeorge School of Law this summer.
Co-authored a chapter on the nondelegation doctrine in a new book on “Principles of Constitutional Environmental Law,” which was just published by the Environmental Law Institute and the American Bar Association.
“Legal Considerations for Transplant Assessment of Incarcerated Individuals.” Progress in Transplantation [IN PRESS]. (with Wayne Paris) PATRICIA MCCUBBIN
Publications “The Role of Judicial Review in Chinese and American Energy and Climate Change Policy.” Vermont Journal of Environment Law (2011) [IN PRESS]. “American Electric Power (AEP) v. Connecticut” March/April 2011 edition of Trends, a publication of the ABA Section on the Environment.
Mekel’s paper entitled, “Review of ‘Heath Law and Bioethics: Cases in Context,’” was listed on SSRN’s Top Ten download list for Medical-Legal Studies eJournal last fall. Presentations “Legal Approaches for Increasing Organ Donation Rates: A Multi-National Review,” poster presentation at the 2011 American College of Legal Medicine Annual Meeting (with Wayne Paris)
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SCHOLARSHIP Schultz presented his paper entitled “The Nigerian Film Industry and Lessons Regarding Cultural Diversity form the Home Market Effects Model of International Trade” at the “Bits Without Borders” conference held at Michigan State University School of Law.
Publications Property and Lawyering. 3d ed. St. Paul, Minn.: West, 2010 (with R. Wilson Freyermuth and Jerome M. Organ).
Presentations Porter presented her paper “Lions & Tigers: Creating an Even Playing Field – Conflicts of Interests and Fiduciary Duty between Lenders and Borrowers in the Residential Mortgage Transaction” at the Lutie Lytle Legal Scholarship Conference in June 2011 and the Southeastern Association of Law Schools (SEALS) New Scholars Conference in July 2011. Porter spoke on the “Foreclosure and Race Panel,” during the ABA Mid-Year Meeting. The panel was sponsored by the Coalition on Racial and Ethnic Justice. Porter served on the Planning Committee for the Joint Meeting of the Midwest and Southeast/Southwest People of Color Legal Scholarship Conferences in Ft. Lauderdale, Florida, and was the Moderator for the “Immigration and Ethnicity” Plenary Panel. SUZANNE J. SCHMITZ
Publications “Illinois Family Mediations: The Case Against Allowing GALS.” 98 Illinois Bar Journal 57677, 586 (2010).
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Schultz’s paper entitled, “The Nigerian Film Industry and Lessons Regarding Cultural Diversity from the Home Market Effects Model of International Trade in Films” will be published as a chapter in a book published by Edward Elgar Publishing entitled Transnational Culture in the Internet Age. Presentations Schultz was a visiting professor at the University of Botswana in Gaborone, Botswana the week of Mar. 11—18, 2011. While there he presented two public lectures: The Law and Economics of Protecting Traditional Knowledge, and Opportunities and Challenges for the Commercialization of Traditional Knowledge. Schultz spoke on “Growing Wealthy While Maintaining Cultural Identity” at the Free Market Foundation of Southern Africa’s Intellectual Property Indaba in Johannesburg, South Africa. In connection with the conference, he appeared on two prime time satellite news programs broadcast throughout Africa to discuss the development of movie industries in developing countries. He also appeared on a panel at the Federalist Society National Convention in Washington, D.C. to debate the regulation of intellectual property. Schultz organized and moderated a panel at the AALS Annual meeting on “Social Norms in a Networked Era” for the Internet and Computer Law Section.
Schultz presented his paper “Copyright Strength and the Contribution of the Publishing Industries to Economic Output” in August at the Tenth Annual IP Scholars Conference held at U.C. Berkeley Law School. WILLIAM SCHROEDER
Publications “Federal Habeas Review of State Prisoner Claims Based on Alleged Violations of Prophylactic Rules of Constitutional Criminal Procedure: Reviving and Extending Stone v. Powell, ” will be published in volume 60 of the Kansas Law Review.
NOLAN L. WRIGHT
Publications Review of Susan Brooks & Robert G. Madden, eds., Relationship-Centered Lawyering: Social Science Theory for Transforming Legal Practice (2010). 102 Law Library Journal 640-643 (2010).
Poster Presentations at the American College of Legal Medicine Annual Meeting Several students and faculty presented research posters during the 2011 American College of Legal Medicine Annual Meeting, Feb. 24-27, in Las Vegas, NV. 3L JONATHAN INGRAM presented three posters:
• Compelling Market Participation Through a Non-Tax “Tax” • Innovation, Access, and Pharmaceutical Prices • Quality of Care Data, Created Facts, and Copyright Law MICHELE MEKEL, J.D., MHA, MBA, Assistant Professor of Law & Medicine, SIU, & Wayne Paris, Ph.D., LCSW, Program Director & Associate
Professor, School of Social Work, Abilene Christian University presented: • Legal Approaches for Increasing Organ Donation Rates: A Multi-National Review MICHAEL SINHA, SIU MD/JD Candidate; Kristina Dzara, Ph.D., Researchers III & Adjunct Clinical Assistant Professor, SIU Department of Psychiatry; & MARSHA RYAN, M.D., J.D., SIU Adjunct Professor of Law & SIU Assistant Professor of General Surgery presented:
• Uniting Trainees of Medicine and Law: A Survey of Family Practice Residents and Law Students in the Medical Malpractice Law Clinical Rotation Elective
Awards & Appointments PETER ALEXANDER received “Distinguished Visiting Teaching Award” from Notre Dame Law School in May. TOM BRITTON was appointed by Chancellor Rita Cheng to co-chair, along with our MLS graduate and Professor of Psychology Peggy Stockdale,
the SIUC campus-wide strategic planning initiative. The Strategic Planning Steering Committee was charged by the Chancellor with reviewing existing planning documents such as Southern at 150, the NCA Institutional Self Study, and the Higher Learning Commission’s reaction to the Self Study, as well as organizing strategic planning efforts. LUCIAN DERVAN was appointed to the Advisory Committee and the faculty of the newly established NACDL White Collar Criminal Defense
College at Stetson. WILLIAM DRENNAN was honored as an “Outstanding Scholar for 2011” at Southern Illinois University’s “Excellence Through Commitment”
Awards Ceremony in April, 2011. Drennan focuses his scholarly work on a variety of tax areas -- the intersection of intellectual property law and taxation, tax laws involving charities and charitable giving, and tax treatment of deferred executive compensation. FRANK G. HOUDEK was presented with the Marian G. Gallagher Distinguished Service Award by the American Association of Law Libraries, July
25, 2011. MICHELE MEKEL will serve on the Technical Planning Committee for the IEEE International Workshop on Wireless Body Area Networks for
mHealth (WiBAN) 2012.This is an IEEE (Institute of Electrical and Electronics Engineers )-sponsored event in conjunction with the International Conference on Computing, Networking and Communications. The WiBAN portion of the conference is an international academic conference on the technical, as well as the technical and legal aspects of electronic health networks.
SIU LAWYER / FALL 2011 31
SCHOLARSHIP Increasingly, the quality of life -- and even survival -- for many people depends on receiving an organ transplant.The demand is not keeping pace with the supply. According to the U.S. Health Resources and Services Administration, the number of people in the United States awaiting an organ transplant as of Feb. 10 stood at 110,324, an increase of more than 84 percent from the 59,862 people on a waiting list in 1998. In 2008, the number of people needing an organ transplant was 100,597, while the total number of U.S. organ donors was 14,203, including 6,219 living donors, according to federal data.
Researchers explore approaches to organ donation
The social, ethical and legal issues surrounding organ donation are often highly emotional on a personal level and controversial on a national level. In considering how to increase organ donation rates in order to reduce the disparity between demand and supply, research from current and former faculty at SIU suggests there is no onesize-fits-all legal solution for governing organ donation. Rather, research by Assistant Professor Michele L. Mekel and Wayne Paris indicates that to be successful, the legal system a country adopts to govern organ procurement and distribution must match with the country’s overarching value system. Paris, an associate professor at Abilene Christian University School of SocialWork, began research last year on identifying and assessing various international legal approaches governing organ procurement and distribution. Paris is a former assistant professor in the School of Social Work at SIUC.
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Mekel said research goals are two-fold: identify the legal structures and underlying social values in place in selected nations around the world with regard to organ procurement and distribution, and assess how differing legal approaches might align with underlying social values in order to create systems that are both socially and legally viable, and that, as a result, increase organ donor rates. There are four primary donation systems found throughout the world -- presumed consent, optin, registered donor priority for transplants, and legalized donor compensation. Presumed consent systems have a legal presumption that individuals will donate their organs upon death. There are two forms of presumed consent systems. In “soft” presumed consent systems, people may choose to decline to participate by voluntarily opting out prior to their death, or the person’s attending physician or family can also decline to donate the person’s organs after they die, Mekel said. A “hard” presumed consent system, such as the one in place in Austria, is much more strict, and typically only the individual organ donor can opt out in writing prior to death, she said. Great Britain and the United States use an “opt-in,” system, in which donors must explicitly decide whether to donate their organs, Mekel said. In an opt-in system, the legal presumption is that people do not wish to donate their organs unless they expressly choose to become organ donors and take specific steps to make that choice known, Mekel said.
The U.S. system has a few limited exceptions, created by state law, in which presumed consent can come into play, Mekel said. Some states, including Illinois, have narrowly tailored presumed consent laws, which provide that, in certain circumstances, specific tissues, such as corneas, may be taken for transplant without donor consent, she said. Several countries use a combination of systems. Austria, for example, has both a “hard” presumed consent system and a priority system, where those who opt out go to the bottom of the donor list in the event they need a transplant. “This combination of hard presumed consent for organ donation and donor priority for organ distribution reinforces a societal norm that strongly favors organ donation in the Austrian system,” she said. Singapore and Israel also utilize registered donor priority systems. In Israel, a person who is a registered donor or previous donor receives priority on organ recipient waiting lists. Iran utilizes legalized donor compensation, where there is a combined government and private funding mechanism to pay people for donating a kidney.The compensation applies only to kidneys, the most needed organ, and Iran is the only country in the world where demands for kidney transplants do not exceed supply, she said. In the United States, it is illegal to buy and or sell organs. Mekel said the laws that govern the U.S. organ procurement system -- including the National Organ Transplant Act and the Uniform Anatomical Gift Act -- “make it very clear that the American system is based on altruism,” she said. As for augmenting the nation’s current system with additional approaches to enhance donation rates, Mekel said a priority system, such as the kind used in Israel, might work well because “it comports with the current altruistic, optin system,” and is also in line with the nation’s “entrenched” values that favor individual rights. “There is no one size fits all system. Nations must adopt an organ procurement system and distribution system that fits with their overarching values or it will not be successful,” she said.
National Health Law Moot Court Competition
Questions surrounding organ transplant donation and constitutional rights were also the focus of the 19th annual National Health Law Moot Court Competition in November, 2010. The case involved a constitutional challenge to a state’s “presumed consent” statute for corneal transplantation. Issues included whether there was a constitutional violation of the mother’s due process rights concerning her property interest in her son’s body, as well as whether there was an infringement of the family’s constitutional rights of free religious exercise. Thirty-three teams representing 24 schools met in the nation’s only health law moot court competition. Although SIU law students cannot compete, they help run the event and also participate by scoring technical components of the competitors’ legal briefs, including proper style, citations, and typographical errors. An expert panel from the American College of Legal Medicine judges the substantive portion of the brief. Panelists for the final round included U.S. District Chief Judge Thomas B. Russell, who presides over the U.S. District for Western Kentucky; Judge John Marshall Rogers of the Sixth District U.S. Circuit Court of Appeals; and Dr. Dale H. Cowan, president of the American College of Legal Medicine. A team from South Texas College of Law won the 2010 competition. The law school’s Center for Health Law and Policy, the School of Medicine’s Department of Medical Humanities, the American College of Legal Medicine, and the American College of Legal Medicine Foundation co- sponsored the event.
The Journal of Legal Medicine & Legal Medicine Perspectives 2010-2011 COMMENTARY EDITOR-IN-CHIEF
Jonathan Ingram COMMENTARY MANAGING EDITOR
Elizabeth Boratto COMMENTARY CITATIONS EDITOR
J. Richard Lindsay LEGAL MEDICINE PERSPECTIVES MANAGING EDITOR
Chris Phillips LEGAL MEDICINE PERSPECTIVES ASSISTANT MANAGING EDITOR
Christine M. Hummert Amy Kristen Travis D. Livermore Lesley Lueke Brittany L. Newell Ellen R. Ogden Jason Sterzer Joseph A. Venditti III Jennifer M. Wagner Joshua C. Waltrip JOURNAL OF LEGAL MEDICINE AWARD
Jonathan Ingram LEGAL MEDICINE PERSPECTIVES AWARD
Justin H. Lines
ASSOCIATE COMMENTARY EDITORS
BEST 2L LEGAL MEDICINE PERSPECTIVES BRIEF WRITER
Jennifer R. Donnelly Lisa A. Foran Holly J. Galvin Lana Large Troy A. Luster Emily J. Sullivan Adam Tucker STUDENT CONTRIBUTORS
Allison M. Balch Clancy Bireline M. Heather Dragoo Ayla Ellison Bradley J. Evetts
Allison Balch BEST 3L LEGAL MEDICINE PERSPECTIVES BRIEF WRITER
Adam Tucker BEST JOURNAL OF LEGAL MEDICINE COMMENTARY FALL 2010
Lesley Lueke BEST JOURNAL OF LEGAL MEDICINE COMMENTARY SPRING 2011
SIU LAWYER / FALL 2011 33
Dr. Arthur Grayson Lecture
“Health Disparities, Race, and Health Care Reform: Where are We, and Where Do We Want to Go?” Frank M. McClellan, a nationally recognized expert in medical liability law, discussed the impact of health care reforms in alleviating disparities within the system during the 14th annual Dr. Arthur Grayson Lecture. McClellan, Professor of Law Emeritus of the Beasley School of Law at Temple University, also served as the Garwin Visiting Distinguished Professor of Law and Medicine at SIU during the 2010-11 academic year. While most of the debate and the new laws focus on a person’s access to health care, McClellan believes that for an affordable health care system to succeed, the need is to re-prioritize and focus strategies on social factors that have the most influence in determining health. While access for an estimated 40 million people who are without health care is vital in system reforms, McClellan said the health needs of 200 million people with illnesses that could have been controlled or eliminated much earlier also need to be addressed. Studies consistently show that minorities and people living in poorer socioeconomic regions of the country are more likely to become sick and have a shorter life expectancy. Even with increased access to health care, major issues of timely access and cultural competence remain, McClellan said. Cultural competence involves health care providers who relate to patients and understand existing environmental factors that allow patients to participate meaningfully with the providers in their health care, Basanta said.
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If large portions of the population are sick, the nation will not have a health care system that is affordable, McClellan said. The United States has the best technology, highest trained medical health care force, yet one of the worst medical delivery systems in the developed world, he said. “Part of the answer is that we spend most of our time and money and public attention on treating and curing complex diseases and too little time making sure that basic primary care and health education are available, and that health care providers have an understanding of how to effectively deliver care,” McClellan said. “We are going to have to reconfigure how we deliver services, who delivers the services, and in what environment they deliver the services.” McClellan described a conference he attended in Chicago where an internist spoke of “Project Brotherhood,” which seeks to provide increased primary medical care and early diagnosis to African American men. About 30 doctors set up shop in a barbershop where men come not only for free haircuts, but the chance to talk with doctors about various health issues. Because of “that one little small step,” patients who otherwise might not seek medical help until more serious problems arise, receive earlier diagnosis of prostrate cancer, along with counseling on obesity, health, and other concerns, McClellan said. “The social approach to the problem allowed the medical delivery to be effective,” he said.
McClellan said he was pleased to be at SIU. “This faculty, particularly in law and medicine and this program, has long been recognized as one of the leading schools in the country for doing innovative work both in terms of education and scholarship,” McClellan said.
SIU/SIH Health Policy Institute “The Health Care Quality Improvement Act of 1986 Meets the Era of Health Care Reform: Continuing Themes and Common Threads”
Panelists at the 14th annual SIU/SIH Health Policy Institute examined how themes central to federal laws put in place in 2010 will impact or improve upon federal health policy laws enacted 25 years ago. The 2010 Patient Protection and Affordable Care Act continues many similar themes of the government’s role in health care that came with the 1986 Health Care Quality Improvement Act (HCQIA), said Assistant Professor Michele Mekel. Other themes involve the relationships between health care providers and health care payers -- the government and insurance companies, and
From left: Moderator Michele Mekel, Assistant Professor of Law, SIU School of Law; William Robinson, Public Health Consultant; David C. Pate, President and CEO for St. Luke’s Health System in Boise, ID; Kristin Madison, Professor of Law at the University of Pennsylvania Law School; Mark Rust, Barnes & Thornburg, LLP, Chair of the firm’s national Healthcare Department; James N. Thompson, Senior Consultant, The Hayes Group International; Moderator Ross Silverman, Associate Professor of Medical Humanities and Medical Jurisprudence, SIU School of Medicine
hospitals and physicians, she said. The focus for those attending was to see how the two laws build upon each other, Mekel said. The conference helped give health care providers, policymakers, physicians, attorneys, and others who are interested in the medical and legal issues that involve health care reform some perspective on “where we’ve come from,” she said. “Far too often we look at new legislation or a new trend from within a vacuum,” she said.
Mekel hopes participants gained perspective on the history of the government’s involvement with health care quality, data monitoring and provider relationships, and then use that in determining “where we are going as we unfold health care reform.” Southern Illinois Healthcare, the SIU School of Medicine, the law school’s Center for Health Law and Policy, the Paul Simon Public Policy Institute, and St. Louis-based Sandberg, Phoenix & von Gontard law firm were program sponsors.
“Blood Libel and Generational Curses: The Legacy of American Eugenics” A social theory that once reached the United States Supreme Court, was practiced in Nazi Germany, and remains in state statutes today was the focus of the lecture presented by the 2011 John & Marsha Ryan Bioethicist-in-Residence Paul A. Lombardo. Lombardo, a professor at Georgia State University College of Law in Atlanta, discussed the eugenics movement in America. Eugenics involves either attempting to improve
From left: Dean Cynthia Fountaine, Professor Paul Lombardo, Dr. Marsha Ryan ’87, & John Ryan ’76
a society by breeding positive heredity qualities, or at the other end of the spectrum, trying to erase purported genetic defects by discouraging or eliminating reproductive possibilities.
Supreme Court decision in “Buck v. Bell” which endorsed eugenical sterilization laws in aVirginia case. Lombardo has written about Buck’s case for more than 20 years.
A senior adviser toThe Presidential Commission for the Study of Bioethical Issues, Lombardo is a national expert on eugenics. His advocacy for state governmental repudiation of eugenics has been successful in seven states, and he sponsored a historical marker memorializing the 1927 U.S.
Lombardo also met with law students and with the combined ethics committees of Southern Illinois Healthcare before traveling to Springfield, to meet with faculty and students at the SIU School of Medicine.
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SERVICE e We believe public service is one of the highest callings of the bar.We demonstrate our commitment to public service through our clinics, which serve critical needs within underserved segments of the community; the individual pro bono initiatives of our faculty, students and staff; and the service our staff and faculty give to bench, bar, and educational committees at the local, regional, and national levels.
ISBA honors law student for public service
Angela Rollins received the 2011 Student Division Public Service Award from the Illinois State Bar Association during the organization’s 135th annual meeting in June. “I’m very committed to public interest work so I was very honored to win this award,” said Rollins, who is from Royalton, Illinois. “It’s an honor to receive this from the Illinois State Bar Association.” In addition to a No. 2 ranking in a law school class of 120 students, Rollins’ current and recent work includes the Downstate Illinois Innocence Project, the law school’s Immigration Detention Project, the Land of Lincoln Legal Assistance Foundation, the Office of the Federal Public Defender for the Southern District of Illinois, and the law school’s Domestic Violence Clinic. She also worked as a judicial extern for federal Judge J. Phil Gilbert.
“Angela isn’t a lawyer yet, but she has already accomplished a lifetime of important public service. Her achievements should be an inspiration to all law students and lawyers alike,” said Mark D. Hassakis of MountVernon, the 2010-2011 ISBA president.
Dean Cynthia L. Fountaine said the law school is “very proud” of Rollins’ selection. “Her service exemplifies our law school’s commitment to encourage students to recognize their responsibility to ‘give back’ to their communities, and we are delighted that her outstanding service has been recognized by the state bar,” Fountaine said. “Angela sets a positive example for other students and lawyers and exemplifies the positive values of public service and commitment to her community.” “Since I’ve come to the law school I’ve done everything I can in public interest work,” she said. Rollins began working for Land of Lincoln as an administrative secretary in 2003. It was there while assisting indigent clients with issues ranging from domestic violence to illegal evictions that her passion for public interest work began, she said. “I just really fell in love with what I was doing,” she said. While working at Land of Lincoln, Rollins pursued a paralegal degree, and upon graduation, worked three years as a paralegal for Walgreens Co., in Danville. While the company was fine, Rollins realized corporate law didn’t fit what she wanted to do. “Working in corporate, I wasn’t able to help people, and I wanted to get back into public interest work,” she said. A non-traditional student, Rollins chose the SIU School of Law because of its proximity to home, the educational opportunities, and emphasis on public service law. Rollins and another student, Jennifer Donnelly, last fall began assisting the Downstate Illinois Innocence Project, an organization whose work is to not only assist wrongfully convicted prisoners prove
their innocence, but also aims to reform the state’s criminal justice system. “I knew there would be plenty of opportunities to pursue things like the Innocence Project,” she said. “If I were at a larger school I probably would not have been able to work with faculty, and have faculty who were responsive to forming the Innocence Project.” Rollins is also working as a research assistant for William A. Schroeder, a professor at the law school. Schroeder, a co-director of SIUC students involved with the Innocence Project, said Rollins’ and Donnelly’s efforts started the law school’s involvement. He is delighted to have her as a research assistant. “She’s a really hard-working person,” Schroeder said. “She’s very diligent, thoughtful and organized. She does a lot of things and she does them well.” She takes the initiative and sees it through.”
SIU LAWYER / FALL 2011 37
Message from the Clinic Director It is a very exciting time in the Legal Clinic. For the first time since 1999, we are starting a new clinic program - the Juvenile Justice Clinic. At the same time, the Civil Practice and Domestic Violence Clinics continue to provide incomparable legal training opportunities to the law students and much needed legal representation to senior citizens and victims of domestic violence. The receipt of a first-time grant led to the creation of the Juvenile Justice Clinic. The Clinic, supervised by Clinical Assistant Professor Joanna Wells, a SIU Law alum with several years of juvenile court experience, started operating in July and enrolled its first students in the Fall semester. Joanna will be appointed as Guardian ad Litem for children in juvenile abuse, neglect and dependency cases in Jackson County. The students in the Clinic will assist Joanna in her GAL duties, including factual investigations, conducting interviews, reviewing court documents and extensive case histories, drafting and filing court documents, negotiating with counsel and others and appearing in or observing court. The clinic class sessions will focus on juvenile court procedure and the substantive legal issues most commonly encountered in neglect, abuse and dependency cases. Many of the class sessions will bring in juvenile experts to address these topics. As for the ongoing clinic experiences - both the attorney supervisors and students have been extremely busy in the Civil Practice and Domestic Violence Clinics. In the Civil Practice Clinic, supervising attorneys Rebecca O’Neill and Heidi Ramos introduce students to life as an attorney in a small law office - Kaplan Hall. Students learn and practice such legal skills as client advocacy, working with attorneys and staff in a law office setting, appropriate professional court conduct and interactions, file management and case management and developing and implementing legal theories. This past year the Clinic has seen a substantial increase in the number of cases overall and particularly in dissolutions of marriage and guardianship. The Clinic is also handling some construction cases that arose from the severe storm in May of 2009. Not surprising given the current economic situation, the Clinic has also seen an increase in the number of clients with consumer/credit problems. Students in the Civil Practice Clinic continue to get valuable client counseling and document drafting experience in handling estate planning and advance directive matters. Starting this Fall, students will be exposed to and trained about the newly amended Illinois statutory power of attorney forms and procedures. The expertise provided by the clinic faculty will be invaluable to them as they graduate and move into a law practice. Illinois’ new Civil Union law will also become an area of interest and opportunity for students as the law’s effect on family law, real estate, estate planning and debt collection gets sorted out. Supervising attorney Gail Thomas and her students in the Domestic Violence Clinic have had a large number of cases involving serious issues of domestic abuse. Last Fall, two of Gail’s students co-wrote an appellate brief in a case that was successfully affirmed. Students have had many opportunities to interview clients, write questions, prepare witnesses and present evidence and arguments in court. New to the Clinic are procedures relating to Illinois’ new Stalking and Civil No Contact laws, which have added new dimensions to the educational experience in the DV Clinic. Students also have continued to handle family cases through the clinic’s collaboration with the Carbondale office of Land of Lincoln Legal Assistance. John Erbes Interim Director SIU Legal Clinic
38 SIU LAWYER / FALL 2011
New grant allows students opportunity for hands-on training in juvenile law SIU law students will have the opportunity to learn more about juvenile law thanks to a grant from the Administrative Office of the Illinois Courts. The law school’s legal clinic will use the grant to allow a supervising attorney to serve as a court-appointed Guardian ad Litem in child-related abuse, neglect and dependency cases in Jackson County. Students who are under the supervising attorney’s direction will assist in the case investigation and preparation, and present to the court an opinion of what is in a child’s best interest. John F. Erbes, interim clinic director, said he is excited by the opportunity to open up another area of the law in which students will gain practical experience. “I’ve always thought the Guardian ad Litem model would be a great clinic program because the students will be exposed to a specific area of the law,” Erbes said. “They will interact with the court system, attorneys, medical professionals and childwelfare professionals.” Students will receive “tremendous experience fairly quickly,” Erbes said, noting that many law school graduates find themselves involved with juvenile law issues and serving as Guardian ad Litem in a variety of legal areas. The $116,000 grant is part of the AOIC’s Court Improvement Program through the U.S. Department of Health and Human Services. The funds will cover salary and student wage expenses, along with travel costs.
“This grant fits perfectly into the law school’s mission and history as it allows us to offer students an additional opportunity for hands-on skills training, while also providing a service to the local courts and community,” said Cynthia L. Fountaine, dean of the SIU School of Law.
The award “recognizes the need
“It also enables the law school to fulfill our public service mission by helping kids in our own community,” she said. “This type of practical skills training is a hallmark of what the SIU School of Law has always done well, and what more and more law schools now recognize as critical to legal education.”
Dawn Marie Rubio, assistant
The University of Illinois College of Law has a similar Administrative Office of Illinois Courts-funded program that represents parents in abuse and neglect cases in Champaign County, Erbes said. The Court Improvement Program provides federal funding to the highest state courts “to enhance efforts in juvenile abuse and neglect court systems in our state,” said Cynthia Y. Cobbs, director of the Administrative Office of Illinois Courts. In 2009, AIOC launched a three-year “Legal Representation Initiative” that focuses on attorney training, resource development, and funding local programs and projects “that enhance the effectiveness of legal representation in child protection cases and result in improved outcomes for children and families,” she said. “Guardians ad Litem for children involved in the juvenile abuse and neglect system are integral to their safety and permanency.”
to cultivate new attorneys in the unique and specialized field of child protection,” said director of the Administrative Office of Illinois Courts. “Providing funding to the SIU School of Law Legal Clinic for the training and development of law students will provide a solid foundation for law students to work in the child protection arena as students, and hopefully, in their career as legal professionals,” Rubio said.
“Such initiatives support services for our state’s most vulnerable citizens -- those children who are victims of abuse and neglect,” Cobbs said.
SIU LAWYER / FALL 2011 39
Clinic attorneys receive Human Rights award
Legal Clinic attorneys John F. Erbes and Rebecca O’Neill received the Human Rights Day Award 2010 in recognition of their work with seniors.This was the first time the award was presented by the Southern Illinois Chapter of the United Nations Association of the United States of America.
On behalf of the Southern Illinois Chapter of the United Nations Association, Olga Weidner, President, (center) presented the award to Rebecca O’Neill (left) and John Erbes (right) during a short ceremony at the Legal Clinic in Kaplan Hall.
Dean Cynthia L. Fountaine thanked the organization on behalf of the law school for recognizing Erbes and O’Neill. “Although we may not automatically think of the elderly when we think of human rights work, it is a sad fact that they are very often vulnerable to those in our society who would take advantage of them,” Fountaine said. Erbes, the interim director since July 2009, has been a coordinator of the Civil Practice Clinic since 1996, while O’Neill, also a coordinator, has been with the clinic since 1991. The civil practice portion of the clinic provides free civil legal services for senior citizens 60 and older in 13 counties in Southern Illinois. Erbes said that he and O’Neill are very honored to be award recipients. “We are especially pleased to be recognized together and accept it on behalf of all the staff of the Legal Clinic and the hundreds of students who over the years have assisted in representing the senior clients of the Legal Clinic,” he said.
“I am proud of the work that the Legal Clinic does to defend the human rights of the elderly in Southern Illinois. It is also nice for our students who work with John and Becky in the clinic to see their work recognized in this way. Hopefully, it will help
“The clinic is proud of its reputation for serving seniors in Southern Illinois, many of whom would likely not have been able to secure legal representation without the clinic,” Erbes said. Students in our clinic learn quickly how having legal representation can empower an individual who has felt powerless in a particular situation.
inspire the next generation of
The clinic provides services to residents 60 and older in Alexander, Franklin, Gallatin, Hardin, Jackson, Johnson, Massac, Perry, Pope, Pulaski, Saline, Union and Williamson counties.
defenders as well.”
The clinic’s services include drafting of simple wills and powers of attorneys, family law matters, guardianship issues, Social Security, Medicare, Medicaid, veterans’ benefits, and consumer issues.
40 SIU LAWYER / FALL 2011
attorneys to be human rights Dean Cynthia Fountaine
Clinic work supported by grants A $40,000 grant from the Lawyers Trust Fund of Illinois supported the work of the Clinic’s Legal Services to Older Persons Program in 2011.
The clinic also accepts cases from agencies that provide services to senior citizens, including area elder abuse and case management programs. Hospitals and attending social work staff also refer cases.
The grant “is critical funding for the legal clinic,” Interim Clinic Director John F. Erbes said. “We would certainly be restricted in what we can do, how many clients we could represent, and the area we cover if we didn’t have that funding.”
Mark Marquardt, deputy director for the Lawyers Trust Fund of Illinois, notes the not-for-profit organization has provided funds to the legal clinic since 1985.
Erbes said the clinic also receives support through a federal grant through the Egyptian Area Agency on Aging.
The law school’s legal clinic “is a very effective way to make sure that vulnerable people in the southern part of the state have access to legal protection,” he said.
The number of cases the clinic handles increased from approximately 400 annually for several years to more than 600 last year, Erbes said.
“We know the clinic works with older people who are at times at risk of physical abuse and
“We are grateful for the continued financial support from the Lawyer’s Trust Fund,” said Cynthia L. Fountaine, dean of the SIU School of Law. “Especially in this difficult financial climate, we are pleased that they recognize the value of the services our faculty and students provide. Their support allows the Clinic to help hundreds of clients each year, while also opening the eyes of law students to the needs of a segment of our community that they might otherwise never see.”
financial exploitation and often times are targeted by people for scams.Without the clinic’s work, many, if not most of these people would not have any way to use the law to protect
The grant offsets overhead costs and supports paid law student workers who assist program attorneys, Erbes said.
Up to 20 law students work with one of three program attorneys each semester. The clinic’s services include drafting of simple wills and powers of attorneys, family law matters, housing, real estate and guardianship issues, Social Security, Medicare, Medicaid, and consumer issues.
John F. Erbes
Clinic Service 2010-11 Public Interest Extern Clinic
Civil Practice/Elder Law Clinic
New Client Matters Opened
Domestic Violence Clinic
SIU LAWYER / FALL 2011 41
Professor and LL.M. Student help Iranian woman gain asylum An Iranian woman’s desire for safety and freedom came true recently due to the efforts of Professor Cindy Buys and LL.M. student Susan Burns who represented her in an asylum case.
Buys learned of the woman’s plight from a former client -- another Iranian asylum seeker who she successfully represented four years ago. Buys and Burns met the woman for an interview in January.
An immigration hearing officer in Chicago granted the woman’s request to stay in the United States on April 11. The woman, not identified due to safety concerns for family that remains in Iran, is in her late 20s and living with relatives in northern Illinois.
The woman came to the United States on a sixmonth tourist visa last fall from another country, Buys said. The woman is well educated, speaks multiple languages, and worked full-time for an international company in Iran before leaving. Buys believes she will be a productive member of the United States.
Buys has been involved with asylum cases while at SIUC and as a private attorney in Washington, D.C. Buys, who is also the law school’s director of international programs, and Burns, who is pursuing her Master’s of Law degree specializing in international law and immigration law, represented the woman on a pro bono basis.
“I find my asylum cases to be the most rewarding cases I work on because you are literally saving someone’s life by allowing them to be given asylum in the United States,” Buys said.“Some of the students who protested in the demonstrations in Iran have been sentenced to death. It’s the kind of case that makes you feel good when you win and you have a really deserving client.” 42 SIU LAWYER / FALL 2011
The legal standard in asylum cases is someone must have a “well-founded fear of persecution in their home country,” Buys said. People who are already in the United States may seek asylum on the basis of race, religion, political opinion, nationality, or membership in a social group. The woman feared persecution by the Iranian government based upon her political opinion. She was involved in government protests resulting from Iran’s 2009 presidential election, and government officials identified the woman and her family as dissidents, Buys said. Burns and Buys filed the brief and supporting documents in late February, and the woman underwent a background check. Following her interview with an asylum officer on March 30, the woman learned she gained asylum less than two weeks later. Dean Cynthia L. Fountaine, said there is a large unmet need for legal services in asylum cases, and commends Buys and Burns for their “outstanding work in this case.” “In addition, providing opportunities for our students to be involved in cases like this prepares them for practice and helps them develop an appreciation of the importance of doing pro bono work throughout their careers.” This was Burns’ first asylum case and the experience was invaluable, she said.
Professor Cindy Buys
“I don’t know where else I could have gotten the experience,” Burns said. Burns earned her law degree from the SIU School of Law in 2004, and worked for the Missouri State Public Defender’s Office for a few years before returning to Carbondale. She also has a master’s degree in political science with an emphasis in international relations from the University of Illinois. The decision to seek asylum is not an easy one, and can be heart-wrenching. The Iranian government froze the woman’s parents’ passports, and her bank account is also frozen, Buys said. “She will never be able to go back to Iran unless there is a tremendous regime change. She does not know if or when she will ever see her parents again.That’s very hard,” Buys said. “Our students are very public-minded,” Buys said. “I have students all the time who ask me about working on cases, volunteering and helping people in need. That embodies the law school. I am proud of Susan. She wrote a wonderful brief and she had the fastest success in an asylum case I have ever seen.”
SERVICE professional association and at SIU. Houdek has been on the association’s executive board and was president in 1996-97, and is also involved with numerous committees. Much of his published work is on the history of the law librarian profession and the history of the association. “My primary responsibility has always been to my institution … the faculty, staff and students here at SIU, along with the clientele at other places I’ve worked at,” Houdek said. While the distinguished service award focuses on professional contributions, it also recognizes what recipients have done at their own institutions, he said.
Houdek receives association’s highest honor
The American Association of Law Libraries honored Frank G. Houdek, whose career with the Southern Illinois University School of Law includes more than 22 years as law library director. Houdek, associate dean for academic affairs and professor, received the 2011 “Marian Gould Gallagher Distinguished Service Award” -- the organization’s highest honor -- during the Association’s 104th annual meeting, July 23-26, in Philadelphia. “I am both humbled and extremely proud to receive the award,” Houdek said. “I know so many people in the profession who have done such great things. It is a little uncomfortable to be singled out for work that builds on the contributions of so many others.” Houdek came to the law school in January 1985. He said the award is only possible due to people he has worked with in the
“I couldn’t have done those outside projects without the great support I have had here,” he said. In addition to his administrative duties as library director and associate dean, Houdek also served for a year as interim law school dean prior to Dean Cynthia L. Fountaine’s arrival last summer. “I am very pleased that the AALL is honoring Dean Houdek with this award,” Fountaine said. “This award is a well-deserved recognition of his contributions to the profession. In my first year as dean, I have relied daily on his long experience at the law school, his sound judgment, and his commitment to the institution.
“Our law school and law library have been the beneficiaries of his dedication and leadership.We are lucky to have him, and I am glad that the AALL feels the same way,” Fountaine said. With more than 5,000 members, the AALL is the largest professional law library
association in the world. The association, which started in 1906, represents a wide range of law librarians in academic, private law firm, and state and county court settings. The award recognizes “extraordinary, sustained contributions to both the Association and the field of law librarianship,” said AALL president Joyce Manna Janto, deputy director of the law library at the University of Richmond School of Law. The organization faced “many thorny issues” during his tenure as association president, including the merger of West Publishing and Thomson Publishing, and Houdek guided the organization “through those difficult times with grace and humor,” she said. He was instrumental in the launch of the association’s website, was editor of the Law Library Journal, and worked on numerous special committees, Janto said. A Los Angeles native who earned his law degree from the UCLA School of Law in 1974, Houdek said that while many aspects of the law intrigued him and he respected those who practice law, he was also looking for something a bit different. He found law librarianship as one of those alternative legal careers, and a light bulb popped on, he said. Not surprisingly, Houdek says that the biggest change in libraries during his nearly four decades as a librarian and administrator is in the area of technology. In 1975, when he began his first professional job, the legal profession was at the very beginning of its move toward computerized research and computer access to information, he noted. With information now so easily accessible to students, there might be some who question the continued need for libraries. Houdek believes while the role of libraries and their physical facilities might change, there are still many reasons and intangibles for libraries to continue to exist. In addition, not everything is available electronically, and learning how to thoroughly research reliable material is critical, he said.
SIU LAWYER / FALL 2011 43
COMMUNITY e Our social traditions unite us as a law school community and emphasize the importance of friendships and balance in a professional life.
Students, faculty and staff enjoy coffee and cookies several times a year during Dean’s Socials. These informal gatherings provide an opportunity for the Dean to announce special events and recognize student and faculty achievements, and for everyone to take a little time to relax and mingle.
Professor Trish McCubbin chats with students during a Dean’s Social
Thank you to all of our 2010 Tailgate Sponsors! Bella Terra Winery Carterville Chiropractic Curves in Carbondale Heartland Catering Midland Inn Mike Miles, Attorney at Law Roberts Law Firm Trails End Lodge Jeffrey D. Williams, Attorney at Law
Holiday Receptions Please join us at one of our 2011 Holiday Receptions. More details available at www.law.siu.edu/alumni. St. Louis - Thursday, December 1 Springfield - Thursday, December 6 Chicago - Friday, December 9
SIU LAWYER / FALL 2011 45
Class Notes 1976
W. CAMPBELL BROWN ‘76,
a West Frankfort-based attorney/accountant, gave his clients an opportunity to support the American Cancer Society and Relay for Life of Franklin County this tax season. Brown’s clients wrote one check to him for 50% of his tax preparation fee and another check for 50% to the ACS.
to create special judicial courts for veterans and Active Duty personnel suffering from mental health conditions and or substance abuse.
MICHAEL J. MASLANKA ‘84, (Chicago, IL)
1977 Associate JUDGE RICHARD A. BROWN ‘77 was appointed by the Illinois Supreme Court to fill the Circuit Court vacancy created by the retirement of the resident Circuit Judge William A. Schuwerk Jr.
SUE MYERSCOUGH ’80 of Springfield was
unanimously approved by the U.S. Senate for a federal judgeship in the Central District of Illinois. Myerscough had served as a state appellate judge since 1998. From 19871998, she was a trial court judge on the Seventh Judicial Circuit in Springfield.
1982 ANTHONY L. MARTIN ’82 is working in the
new Sandberg Phoenix and vonGontard office in downtown Edwardsville. Anthony and three other attorneys opened the firm’s second Illinois office in February, 2008. JOHN LYNN ’79, who served as the law
school’s Assistant Dean of Administration and the Director of the Veterans Legal Assistance Program until his death in October, 2010, received a posthumous recognition from Illinois Legal Aid Online as their “Advocate of the Month” for March, 2011. The second printing of the manual on how to implement Veterans Courts or Programs in the State of Illinois was dedicated to the memory of “Major John F. Lynn, USMC, (Ret.), Assistant Dean and Director of the Veterans’ Legal Assistance Program at the SIU School of Law. A veteran dedicated to serving his country and fellow veterans.” The manual was prepared by the Governor’s Task Force on Veterans and Servicemembers Courts. Lynn served as a member of the Task Force under the chair of Judge Annette Eckert. Their work resulted in passage of the Illinois’ Veterans and Servicemembers Court Treatment Act which allows counties
46 SIU LAWYER / FALL 2011
After 19 years as a partner at Townsend and Townsend and Crew LLP, WILLIAM J. BOHLER ‘84 recently left to become a partner at 1100 lawyer international firm Wilmer, Cutler, Pickering, Hale and Dorr LLP (“WilmerHale”), where he will continue to focus on litigating and trying complex patent infringement and related matters.
JUDGE MIKE MCHANEY ’82 is Rend Lake
College’s 2010 Alumnus of the Year.
1983 ROBERT ADRIAN ’83 was sworn in as a
Circuit Judge in the 8th Judicial Circuit of Illinois by his classmate Judge Richard Greenlief. Adrian is the seventh person from the Class of ‘83 to become a judge. CAROLYN SMOOT ‘83 was appointed Circuit
Judge in the First Judicial Circuit of Illinois. She was sworn in on December 15, 2010. She is the first female judge in Williamson County, IL.
1984 Broadstripe (formerly Millennium Digital Media) announces that it has hired BRUCE E. BEARD ‘84 as its general counsel. Prior to joining the company, Mr. Beard was senior counsel with Cinnamon Mueller, a Chicago based law firm.
has been appointed to the ISBA’s Section Council on Human Rights, and Standing Committee on Bar Services and Activities. He is also the current Treasurer of the American Prepaid Legal Services Institute in affiliation with the ABA. BRIAN OTWELL ‘84, Sangamon County’s
chief public defender, was named as an Associate Judge in the 7th Judicial Circuit of Illinois. TERRY S. PRILLAMAN, JR. ‘84 was appointed
as General Counsel, Executive VicePresident and Chief Operating Officer of First Community Title Services, Inc., a full service regional title insurance company with offices in Champaign, Bloomington, Pekin and Peoria. After being in private practice for 16 years in Urbana, Illinois, including being a title agent for ATG, Terry has been a staff attorney, underwriter and manager of the title services department for a ATG, a regional underwriter; as well as President and General Counsel of Associated Capital Title, a regional title insurance agency underwritten by Chicago Title and ATG. Terry is presently on the ISBA Real Estate Section Council. MATTHEW DUENSING ’84 is now the
managing partner of the St. Thomas, U.S. Virgin Islands law firm of Duensing, Casner, Dollison & Fitzsimmons. The firm website is www.vilawyers.com.
1989 BRAD ELWARD ‘89, is currently serving
as Treasurer of the Appellate Lawyers Association and an Assistant Editor of the Illinois Association of Defense Trial Counsel IDC Quarterly. He is also celebrating the publication of his sixth book, Nimitz Class Aircraft Carriers (Osprey Publishing 2010), available on Amazon.com. He is a partner with Heyl, Royster,Voelker & Allen in Peoria and concentrates in appellate practice.
1991 MARK E. WIEMELT ‘91 has recently been
Three generations of Hart. From left, Richard Hart, 1999 recipient of the SIU School of Law Founders Award, Murphy Hart, Class of 1983, and 3L Ryan Hart
1986 JOHN CUNNINGHAM ’86, principal and
shareholder with Brown & James, P.C., has been recognized with a service award from the Illinois Chapter of the International Association of Arson Investigators for his continued service and dedication to the training of individuals seeking their Certified Fire Investigator (CFI) designation. John practices in the firm’s Belleville, IL office and focuses on first-party insurance claims and tort law, including arson and fraud litigation, premises liability, product liability and automobile litigation. He has spent numerous years donating his time and expertise to training individuals in classroom presentations and courtroom testimony, subjecting individuals to direct and cross examination concerning hypothetical fire investigations.
1987 CAROLYN TAFT GROSBOLL ’86, became the
new Clerk of the Illinois Supreme Court, effective January 3, 2011. The Clerk of the Illinois Supreme Court is responsible for setting and managing the docket of cases before the Supreme Court and ensuring that all filings are compliant with Supreme Court rules. The Clerk is also responsible for releasing the Court’s
decisions and maintaining the Court’s four automated record tracking systems. In addition, the Clerk maintains the registry of all of the state’s lawyers and law firms. The Supreme Court requires the Clerk to be a lawyer. Prior to 1975, the position of Clerk of the Illinois Supreme Court was filled through statewide election. Carolyn’s father, the late Justin Taft, Jr. was the last person elected statewide to the position and he served as the Supreme Court Clerk from 1969 to 1975. Carolyn was an attorney and partner at Giffin, Winning, Cohen and Bodewes P.C. in Springfield. Prior to her legal practice, she worked eleven years at the Illinois Nature Preserves Commission, as both an attorney and as the Commission’s Director. She worked five years at the Illinois Legislative Reference Bureau. Carolyn also worked for the Illinois Secretary of State’s Office working on rules and procedures and as legal counsel to the state’s driver stations.
1988 PIETER N. SCHMIDT ‘88 has been named
managing partner of Feirich, Mager, Green and Ryan. He joined FMGR in 1988 and was names as a partner in 1994. Schmidt’s practice concentrates in workers’ compensation and other employment related matters.
admitted to practice law in the state of Michigan. His Chicago-based intellectual property law firm, the Law Offices of Mark E. Wiemelt, P.C., has opened a branch office in Coloma, MI, serving Southwest Michigan. BILL HUTTON ‘91 was appointed Senior Vice
President, General Counsel and Secretary of Reinsurance Group of America, Inc. in St. Louis, Missouri.
1994 DR. ALLAN J. BERG ’94 serves as vice
president and director of University of Maryland University College (UMUC) Europe. In this position, he executes the academic, administrative, and fiscal policies of UMUC Europe and assures compliance with the Tri-Services Contract. With UMUC Europe, Dr. Berg previously held positions as area director for the Benelux, North Central Germany, and the United Kingdom, director of downrange operations, and associate dean. Prior to joining UMUC Europe in 2003, he had served as an undergraduate and graduate faculty member, director of graduate programs, and area director in UMUC’s program in Okinawa, Japan.
1995 THOMAS J. DINN III ‘95, has been appointed
as an Associate Judge in the 2nd Judicial Circuit of Illinois.
SIU LAWYER / FALL 2011 47
COMMUNITY KATHERINE SMITH KENNEDY ’95 became
the first woman president of the Federal Bar Association of Western Michigan, an organization with 400 attorneys throughout much of the state who are federal court practitioners. Kennedy is a partner at the firm of Pinsky, Smith, Fayette & Kennedy LLP, located in downtown Grand Rapids.
1996 The law firm of Simmons Browder Gianaris Angelides & Barnerd, L.L.C. announced the appointment of two new partners, MYLES EPPERSON ‘96 and Michael Stewart. Epperson joined the firm in 2002 as an attorney and works directly with patients and families affected by mesothelioma, a rare cancer caused by exposure to asbestos.
1997 Richard L. Saville, Jr., ROBERT J. EVOLA ‘97 and Ethan A. Flint are proud to announce the opening of their law firm, Saville, Evola & Flint, L.L.C. The firm will specialize in representing seriously injured plaintiffs, particularly victims of mesothelioma and lung cancer from asbestos exposure, and victims of leukemia from benzene exposure. Although the firm will handle cases nationwide, they will focus their practice in Illinois, Missouri and Kentucky. Their office is located on 322 East Broadway in Alton, Illinois. STEPHEN C. WILLIAMS ‘97, was named U.S.
Magistrate Judge for the Southern District of Illinois. Williams had been a federal public defender for six years. He worked as a public defender in St. Louis and for a private civil firm, the Womick Law Firm, before that.
SIU will host an ALUMNI GROUP ADMISSION CEREMONY at the U.S. Supreme Court on March 5, 2012. MORE INFO AT:
law.siu.edu/alumni 48 SIU LAWYER / FALL 2011
1998 KAMRAN KHAN ‘98 has joined the Law
Department at Philip Morris USA in Richmond, Virginia. Kamran will help manage litigation matters for the company. Prior to joining the Philip Morris USA Law Department, Kamran was a Partner in the National Products Liability Division at Shook, Hardy and Bacon in Kansas City, MO. Kamran had previously represented Philip Morris as national counsel. DAVID GREER ‘98 has moved to Pristina,
Republic of Kosovo to assume the position of Chief of Party (Director) for the USAID Systems for Enforcing Agreements and Decisions (SEAD) Program, a three year USAID technical assistance project implemented by Checchi and Company Consulting, Inc., a Washington, DC based Development Consulting Firm. David had previously performed similar duties with DAI, Inc. in Moldova, with Emerging Markets Group, Ltd.,in Ukaine, and ARD, Inc., in Bishkek, Kyrgyz Republic. KEITH GOOD ’98 recently interviewed U. S.
Senate Agriculture Committee Chairwoman Debbie Stabenow (D-Mich.) about the 2012 Farm Bill and other issues, as well as Budget Committee Chairman Kent Conrad (DND), for FarmPolicy.com.
2000 ANNE CLOUGH ‘00 has a private practice in
Carrollton, Illinois with her father, Richard Clough and CRAIG GRUMMEL ‘07. She is also an assistant public defender in Morgan and Jersey Counties. She lives in Carrollton with her husband and two daughters, Ryan and Emma. She would like any and all of her classmates to contact her by e-mail (email@example.com) and let her know how they are doing. JOHN HINKLE ‘00, was named CFO and
General Counsel for CPAY, a national credit, debit and gift card processor.
ROB SHUMAKER ‘00 Rob’s second novel,
Showdown in the Capital, is now out. The political thriller is available at lulu.com. His first novel, Thunder in the Capital, is also available.
2001 MATTESON ’01 was recently promoted to Senior Counsel for AREVA; a large French multinational, nuclear engineering and manufacturing company. SCOTT
SCHAEFFER ‘01 spoke on Leadership of Patient Safety at the National Quest for Excellence Conference on April 5, 2011, in Washington D.C. The Conference, in its 23rd year, is the official Conference of the Malcolm Baldridge National Quality Award, the only national quality award given by the President of the United States, and is sponsored by the National Institute of Science and Technology, a Division of the U.S. Department of Commerce. Tamara is the Director of Patient Safety for Advocate Good Samaritan Hospital in Downers Grove, Illinois, winner of the 2010 Malcolm Baldrige Award. Tamara recently married Steven Schaeffer in Hawaii on March 7, 2011. TAMARA
2002 Carmody MacDonald P.C. announces that MICHELLE N. DIBADJ ‘02 has joined the firm as an associate. Ms. Dibadj concentrates her practice in the area of medical professional defense litigation. After clerking for Judge Herndon in the federal court in the Southern District of Illinois, THERESA PHELPS ‘02 joined the law firm of Lewis, Rice & Fingersh. Theresa left Lewis Rice to accept a position at a new Clayton-based branch office of a Quincy, Illinois firm, Schmiedeskamp, Robertson, Neu & Mitchell. The biggest news is that Ryan and Theresa added a new addition to their family, a daughter.
COMMUNITY SEBRINA A. BARRETT ‘02 joined The
Missouri Bar as its deputy executive director in February 2011.Sebrina most recently served as senior director of public affairs and administrative services for the New York State Bar Association. She supervised the Departments of Media Services and Law, Youth & Citizenship, as well as provided direct support to Bar officers, the executive director, and the board of directors of The New York Bar Foundation.Barrett previously served as staff attorney, law clerk and judicial clerk with the New York State Court of Appeals, the Appellate Division, Third Department, and the Supreme Court of Missouri. She served as a confidential law clerk to the Hon. Michael A Wolff, Supreme Court of Missouri. She was an adjunct professor of media law at the State University of New York at Albany. BOB MARCUS ‘02 has been reappointed as
a Hearing Officer for the Illinois Attorney Registration and Disciplinary Commission. In the spring of 2011, Marcus, with cocounsel, appeared before the Supreme Court of the United States in protection of the Federal Employers’ Liability Act. CSX Transportation, Inc. v. McBride 10-235. This landmark case will affect railroaders and FELA practitioners nationwide. Marcus tried the case for locomotive engineer Robert McBride in 2008 which resulted in a $275,000.00 verdict. The appellate issue involves the causation standard applicable in FELA cases.
2005 NICHOLAS E. OWENS ’05 and Jeff Hall have
opened a law firm in Peoria, Hall, Owens & Wickenhauser, L.L.C. www.howlawfirm. com. is an Associate at Knapp, Ohl and Green in Edwardsville, IL. She resides in Maryville with her husband Clint Jones, her daughter Merin, 9 years-old, and her son Luke, 3 years-old. HEATHER MUELLER-JONES ’05
JOHN PERSELL ‘08 joined the staff of Pacific
LISA M. CASPER ’06 is the Assistant State’s
Attorney in Pulaski County. Her office is located in Mound City, Illinois. KIMBERLY RYKHUS ‘06 joined Archer
Daniels Midland Company in July 2010 as an attorney in ADM’s legal department. PATRICK RYKHUS ‘06 joined ADM in August
2010 as a contracts manager. KIMBERLY
Rivers Council, based in Portland, Oregon, where he will work on issues concerning the watersheds of Mt. Hood National Forest. John will also continue to represent Wyoming-based Biodiversity Conservation Alliance in public lands management matters. He is licensed in both Oregon and Wyoming. JENNIFER WALSH HAMMER ‘08, was
welcomed their son, Callan Michael Rykhus, into the world on November 6, 2010. ELIZABETH SCHUERMAN ‘06 an associate
with Tabbert Hahn Earnest & Weddle, LLP, was selected as the 2010 Indianapolis Bar Association Young Lawyer of the Year. Schuerman practices in the areas of medical malpractice, construction litigation, and general litigation. Prior to joining Tabbert Hahn Earnest & Weddle, LLP, Schuerman was an associate in a private law firm in Indianapolis.
2008 ANDREW R. ROSZAK ’08 was recently
appointed by the National Quality Forum (NQF) to serve as Co-Chair of new NQF Steering Committee on Regionalized Emergency Medical Care Services. The Steering Committee will provide guidance on the NQF project that seeks to identify approaches for systematically regionalizing emergency care services at the national, state, and regional levels. Roszak currently serves as Senior Health Policy Counsel for the Office of Special Health Affairs, Health Resources and Services Administration, US Department of Health and Human Services. BRIAN J. LAMBERT ‘08 joined the law firm
of Sivia Business & Legal Services, P.C. as an associate. Lambert has experience in the areas of business law, family law, criminal law and general civil litigation.
elected to the Under-37 position on the ISBA’s Board of Governors.
2010 RACHAEL KEEHN ’10 recently accepted a job
with the City of Carbondale. RYAN MINTON ’10 has started working as a
legal editor for the Rocky Mountain Mineral Law Foundation located in Denver, CO. The Foundation is an educational organization dedicated to the study of the legal systems and issues affecting domestic and international mineral and water resources. As a part of his duties, he is the Executive Editor of the Gower Federal Services, which is a subscription service that is available electronically on Westlaw. DAVOR MITROVIC ’10 works as an Assistant
State’s Attorney in Cook County in the 1st Municipal Division. A story about his journey from the former Yugoslavia to his current position that was reported in the Chicago Lawyer Magazine, June, 2011. One of Mitrovic’s quotes form the story, “In a war-torn country, you still had an organized society behind the front lines, but all sense of law disappeared,” he said. “I realized from an early age that what lawyers do is keep societies together. We keep people accountable for what they’ve done and that not only deters some people from doing crimes, but it also helps victims heal.”
SIU LAWYER / FALL 2011 49
2011 MICHELLE HOOK DEWEY ‘11 was appointed
to the SIU Board of Trustees by Gov. Pat Quinn on Tuesday, July 12, 2011. Michelle was elected by the students at SIU Carbondale, according to the board’s website. She is pursuing a master of law degree at SIU.
MARTHA (NEE PETERSON) MOTE ‘91, 56, of
Springfield, passed away peacefully April 13, 2011 in Chicago, surrounded by her children Robert and Karen Lane, both of Chicago. DAVID O. RUDD ‘80, 56, of Springfield, IL died
at 4:55 a.m. on Wednesday, July 6, 2011 at Memorial Medical Center. He was employed by Gallatin-River Communications as a Lobbyist and Attorney and formerly worked at the Illinois Commerce Commission. RAYMOND E. MCPHAIL ‘80, 75, of Hillsboro
died Thursday, March 3, 2011 at his residence.
The Class of 2013 includes five legacy students who have a parent who is an SIU School of Law alumnus. This photo was taken before the Induction Ceremony last fall. Back row, from left:Judge Annette Eckert; William Enyart ‘79; Elvis Cameron ‘97; Kathleen Buckley ‘89; George Black, surviving spouse of Katherine Black ‘89; Patrick McCann ‘79; Cynthia Loos ’04; Donna McCann ’98 Front row, from left:Carol McCann,Natalie Cameron, Bridget Buckley, Alex Enyart, Courtney Loos
Congratulations to the following alumni who were sworn in as judges during the past year.
JOHN LYNN ‘79, 58, of Marion, IL, died
HON. SUE MYERSCOUGH ‘80 United States
October 10, 2010, in Herrin Hospital.
District Judge, U.S. District Court for the Central District of Illinois. ROBERT ADRIAN ‘83 Circuit Judge, 8th
Judicial Circuit of Illinois. CAROLYN SMOOT ‘83 Circuit Judge, First
Judicial Circuit of Illinois. BRIAN OTWELL ‘84 Associate Judge, 7th
Illinois Supreme Court Justice Lloyd A. Karmeier with Hon. Carolyn B. Smoot as she begins work as Circuit Judge in the First Judicial Circuit.
Judicial Circuit of Illinois. THOMAS DINN ‘95 Associate Judge, 2nd
Judicial Circuit of Illinois. STEPHEN WILLIAMS ‘97 U.S. Magistrate
Judge for the Southern District of Illinois. Chief Judge Richard D. Greenlief (right) presents a gavel to Judge Robert K. Adrian (left) during Adrian’s investiture as Circuit Judge of the Illinois 8th Judicial Circuit on Dec. 6, 2010. Both are members of the Class of 1983.
50 SIU LAWYER / FALL 2011
Barbara Lesar and well-wishers greet Sheila Simon at a reception before she took office as Lieutenant Governor.
Reception honored Sheila Simon for service
A reception recognizing Sheila Simon’s service to the Southern Illinois University School of Law and the campus community was held last November before Simon took office as the Lieutenant Governor of Illinois. Simon had worked at the law school since 1998. She began her work as a staff attorney in the Legal Clinic, where she directed the domestic violence clinic. She began teaching in the lawyering skills program in 2000.
“I am delighted that Sheila has this opportunity to serve the citizens of Illinois, but I am also sorry that we are losing such a talented and enthusiastic educator,” Dean Cynthia L. Fountaine said. “We wish her the very best as she begins her new role as lieutenant governor, and we look forward to exchanging ideas with her as she begins work as the governor’s point person on education.” Associate Dean Frank G. Houdek, who also taught with Simon in the lawyering skills program, said, “I’m confident that the energy, intelligence and enthusiasm she has brought to her teaching and scholarship will serve her well in her new responsibilities as lieutenant governor.” “Sheila Simon is the model of what a public servant should be,” Houdek said. “She’s not just active in the life of her community, she genuinely enjoys people and wants to be a problemsolver, not just someone who identifies problems.”
SIU LAWYER / FALL 2011 51
52 SIU LAWYER / FALL 2011
From left: Paul Jividen, Associate Professor Sue Liemer, and Bradley Boswell
CHARTER CLASS (’76) FOR ACADEMIC EXCELLENCE SCHOLARSHIP
SCHOOL OF LAW DEAN’S CLUB SCHOLARSHIP
From left: Brian Lee, Philip Jobst, Thomas Gentry and Professor Keith Beyler
MADISON COUNTY ILLINOIS BAR ASSOCIATION SCHOLARSHIP
From left: Associate Professor John Erbes and Brad Evetts
BESSIE ENGRAM COMMUNITY SERVICE AWARD
From left: Dustin Probst and Assistant Professor Candle Wester-Mittan
GILBERT FAMILY MEMORIAL SCHOLARSHIP
From left: Jordan Dorsey and Judge Phil Gilbert
SENIOR CLASS AWARD
From left: Kevin Morrison and Professor Emeritus R.J. Robertson
RONALD E. OSMAN ENDOWED SCHOLARSHIP
From left: Jennifer Thompson and Ronald Osman
THURGOOD MARSHALL AWARD
From left: Associate Professor John Erbes and Ryan Jones
10 BETH & DARIN BOGGS SCHOLARSHIP
From left: Kory Watson and Associate Professor Jill Adams
11 CHARLES M. HUDSON PATENT LAW AWARD
From left: Jacob Mueller and Assistant Professor Tracie Porter
12 NATIONAL ASSOCIATION OF WOMEN LAWYERS
From left: Professor Cindy Galway Buys and Shannon Crain Rieckenberg
13 JULIUS A. & NORMA H. JOHNSON SCHOLARSHIP
From left: Sherrell Forbes and Visiting Lecturer Mark Brittingham
14 JUDGE RICHARD E. RICHMAN ENDOWED SCHOLARSHIP
From left: Associate Professor Sue Liemer, Jordan Dorsey, Angela Rollins and Judge J. Phillip Gilbert
15 LISA FRANKE SCHOLARSHIP
From left: Arnold and Roseanne Franke of Edwardsville, IL, Elizabeth Adams & Attorney Ted MacDonald
16 VETERAN’S LEGAL ASSISTANCE PUBLIC INTEREST AWARD
From left: Dan Swift, Patty Lynn from Office of Student Development and Justin Lines.
SIU LAWYER / FALL 2011 53
Honor Roll BARRISTER’S CIRCLE ($25,000 and above) Southern Illinois Healthcare
LESAR CIRCLE ($5000 to $24,999) Boggs, Avellino, Lach & Boggs L.L.C. Kathleen B. Fralish, Ph.D. & James S. Fralish Delney N. & Andrew G. Hilen Christopher J. & Stacey L. Julian-Fralish James Persels Shari R. Rhode Nathaliewyn F. Robbins
FOUNDER’S CIRCLE ($2,500 to $4,999) Mary Beth Guard Stephen J. Heine & Karen L. Kendall The Illinois Equal Justice Foundation John C. Ryan & Marsha G. Ryan, MD
DEAN’S CIRCLE ($1,000 to $2,499) Robert E. Beck N. Lee Beneze Gabriel & Kathleen A. Dumitrescu Gloria G. Farha Flentje & Jack Focht Fidelity Charitable Gift Fund John D. & Karlene Fraser Thomas M. Herriford Frank G. Houdek & Susan E. Tulis Jackson County Bar Association Kenneth R. & Marsha L. Hughes Karen E. & David C. Johnson William R. King Christopher Kolker Madison County Bar Association The Honorable Richard & Rachel Mills Alice M. Noble-Allgire & Richard L. Allgire Gregory L. & Lori O’Hara Kathleen L. Pine & Mark A. Brittingham Amanda A. Robertson & Ralph J. Robertson, Jr. Suzanne J. Schmitz
54 SIU LAWYER / FALL 2011
The following individuals and organizations have contributed $100 or more between July 1, 2010 and June 30, 2011. William A. Schroeder Mary C. Sexton Donald M. Shawler The Coca-Cola Company Wenona Y. Whitfield Jeffery D. Williams Christine G. Zeman
SENIOR PARTNER ($500 to $999) American Bar Association Laura S. & William E. Basanta Kenneth W. Bean Thomas A. Bell Thomas C. Britton & Molly S. Edwards-Britton John R. & Reona J. Daly Heidi S. & Myles L. Epperson Mark C. & Nancy J. Gargula Leila J. & Murphy C. Hart Leonard N. Math Beth L. & Trent A. Mohlenbrock Elizabeth A. & Shawn R. O’Neil Thomas A. & Cecilia E. Pajda Neal F. & Ann M. Perryman G. Keith Phoenix & Virginia Herrmann Edgar J. Nowakowski & Janet C. Proctor Jennifer L. Morris Pugh & Robert E. Pugh Judith A. Ray Jonathan Ries Alicia H. & Michael P. Ruiz Heija B. Ryoo Sandberg, Phoenix & VonGontard, PC Jeannette A. & Robert E. Shaw Lyndon P. & Hilary H. Sommer The Honorable Ronald D. & Annette J. Spears Thomas A. Wilson & Ann Puckett Winters Law Office Wykoff Law Office, LLC
PARTNER ($250 to $499) Peter C. Alexander, JD AT&T Foundation Laura J. & Ryan T. Barke
James & Rita Bentivoglio Christine C. Boettcher & Andy Wallace Terry I. & Rebecca S. Bruckert Linda M. & Scott J. Butler Gerald F. & Cindy G. Buys Michael C. & Nancy B. Carr Charles N. Center The Honorable Kimberly L. & Michael F. Dahlen John K. Dobbins Leif Garrison & Margaret J. Whitley Mark Hassakis Kaplan B. Taylor Mattis Sandra L. & Rickey N. McCurry Bruce J. & Sharon H. Meachum The Honorable Timothy R. & Jon A. Neubauer Susan E. Nicholas Dennis J. & Catherine L. Orsey Bob L. Perica, JD & Melissa Perica Ivka Perica The Honorable Christopher & Amy S. Perrin James R. & Lucy M. Pirages Craig R. & Roberta M. Reeves Mary C. Simon Daniel P. & Kathleen D. Slayden Douglas M. Stevenson & Elli Christmann Brian L. & Lucinda C. Strotheide Kara B. Thompson Thomson Reuters Ray W. & Marcia K. Vaughn Wells Fargo Foundation Mary B. & Ronald N. Williams
ASSOCIATE ($100 to $249) Gregory E. Ahern, Jr. & Lisa N. Ahern Leonard M. & Muriel E. Alexander Rolf Anderson Jane Angelis, Ph.D. & Paul J. Angelis Kathy M. Baker-Bowen, JD & Tom D. Bowen David N. & Susan S. Barkhausen Vicki L. Beadle & Virgil A. Beadle, Jr. Tracy A. Berberich
Thanks to all of you who contribute to the Southern Illinois University School of Law. Your generosity allows us to strengthen and expand existing programs and put new ones in place.
Mary Jane & Thomas H. Boswell Mark E. Brown Melvin L. & Patricia A. Browning Michael D. & Robin K. Burke William I. & Cathy A. Covey Christopher B. & Deanna M. Daniels Shirley D. & Thomas H. Dodd William A. Drennan James S. & Patricia A. Dunn Alexander L. & Lorraine Edgar EDR Carbondale, LLC Egyptian Area Agency on Aging, Inc. Brad A. & Marie R. Elward John F. & Julie A. Erbes Susan Frances Stanley E. & Kristal M. Freeman Leanne M. Furby & Dr. Thomas H. Furby, Ph.D. The Honorable Leslie J. Gerbracht Ted N. Gianaris, Jr. & Jennifer S. Gianaris Samuel J. Glover Steven G. Bailey & Karen F. Goodhope, MD Amanda B. & Ashley M. Gott Laura K. Grandy John W. & Mary A. Graves Lawrence D. & Sharon Green Paul M. & Sandra C. Greene Maurice R. & Susan E. Griffithe Sarah E. & William D. Hakes Hazlett & Short, P.C. Francis E. & Angie Hoffman Patricia A. & William E. Hoke John A. Hudspeth, Jr. Allen W. & Barbara A. James Frank P. James, MD, JD Michael D. Jenkins Julie A. & Kurt E. Johnson JPMorgan Chase Foundation Jennifer A. Kaleta & Edward J. Kaleta, III Cassandra L. Karimi William K. & Rebecca Keene Carrie L. Kinsella The Honorable Paul W. & Laura L. Lamar Christopher R. & Helen V. Lashley The Honorable Joseph M. & Teresa L. Leberman LexisNexis
Emerit T. & Kathryn B. Lindbeck Joel E. & Shannon Lueck George E. Marifian Akami Y. & Brian J. Marik Melissa J. Marlow & John E. Perkins Vito A. Mastrangelo & M. E. Brennan Mathis, Marifian, Richter & Grandy, Ltd. Douglas & Katherine M. McCarthy The Honorable Michael P. McCuskey Kenneth C. & Mary H. Meeker Clark R. Mills Brandon P. Edwards & Amanda D. Mulch, MD Valerie J. Munson Catherine M. & Richard H. Narup William J. Niehoff Dr. Margaret A. Noe & Charles L. Noe Daniel W. O’Brien & Elizabeth E. O’Brien, MD Lawrence J. & Rebecca J. O’Neill Donald G. & Julia L. Orzeske Vihar R. Patel, JD Arnold J. Pirtle & Jennifer Chenier-Pirtle Daniel M. & Candace G. Purdom Lara L. & Douglas J. Quivey Kevin J. Richter L C. Runyon & Gary E. Schmitz Jeremy W. Sackett Sara B. Samson, JD Diane T. & John E. Sanner Kurt S. Schroeder Mark S. Schuver David H. Searby, Jr. The Honorable Scott A. & Adriane L. Shore The Honorable Carolyn B. Smoot, JD & Charles L. Smoot Lenore S. Sobota Louise R. & Mark J. Stegman Kevin J. Stine Timothy J. Trager Anne Travelstead, Inc. Jeremy R. & Jennifer M. Walker Thomas B. & Elaine L. Waltrip James A. & Becky A. Webb Kenneth F. Werts & Lisa K. Dittmann-Werts Westlaw
Mark E. Wiemelt Courtney M. Witte, JD Ella L.York Matthew P.Young Dawne K. & Thomas J. Zupanci
Alumni who have graduated in the past five years (2006-2010) and have given an amount equal to or greater than the anniversary of the School of Law. CLASS OF 2006
James A. & Becky A. Webb Courtney M. Witte, JD Matthew P.Young Mark K. Wykoff, Sr. CLASS OF 2007
Jesse A. Placher Danielle L. Rains Sara B. Samson, JD CLASS OF 2008
Melissa L. Greathouse Craig W. Runyon CLASS OF 2009
Jessica G. Ashley, Ph.D. Ryan T. Barke Clark R. Mills Amanda D. Mulch, MD Kyle C. Oehmke Lawrence L. Wade, II Ella L.York CLASS OF 2010
Laura J. Barke
SIU LAWYER / FALL 2011 55
Ninety-nine students received Juris Doctor (J.D.) degrees during the SIU School of Law’s spring commencement ceremony on Saturday, May 14, 2011, at Shryrock Auditorium. JUDGE MICHAEL A. WOLFF, a member of the Supreme Court of Missouri, gave the commencement address. EMILY ROLLMAN was the Senior Class Speaker. JUDGE LESLIE J. GERBRACHT received the Alumni Achievement Award.
Gerbracht earned her degree from the SIU School of Law in 1997. She was appointed to the district court bench in September 2006, the first woman appointed judge in Las Animas County, Colorado. Gerbracht’s diverse docket covers a variety of cases, including adult and juvenile criminal cases, domestic relations, civil, dependency and neglect, mental health and probate. Gerbracht started a truancy prevention program within the district court. She began working for the Colorado State Public Defender’s Office after graduation. In 2005 she went into private practice, continuing to practice criminal defense while working as a mediator for the Colorado Office of Dispute Resolution.
Emily Rollman, Class 2011 Senior Class Speaker
From left: Dean Cynthia L. Fountaine, Judge Michael A. Wolff, and Alumni Achievement Award Recipient Leslie J. Gerbracht
Rule of Law Citation
A commencement hood and scroll placed on an empty chair in the front row with law school faculty symbolizes the law school standing with lawyers who are suffering for the Rule of Law.
56 SIU LAW / FALL 2011
Nasrin Sotoudeh, an Iranian human rights attorney, received the law school’s 2011 Rule of Law Citation. The citation is a formal recognition by the law school faculty of the important tradition of the legal profession that “requires lawyers to stand firm in support of liberty and justice in the face of oppression and, by their words and actions, to honor and support the Rule of Law, even at great personal risk.” Sotoudeh was sentenced to 11 years in prison by Iranian judicial authorities in January and barred
from practicing law or leaving the country for 20 years after she was found guilty of “acting against national security” and “propaganda against the regime.” Sotoudeh is well known for her passionate defense of Iran’s most legally vulnerable citizens: “Juvenile offenders facing the death penalty, human rights campaigners, and prisoners of conscience.” “As lawyers, we are part of the global community of lawyers, and it is important for our students to recognize the significance of our role in protecting the Rule of Law,” said Dean Cynthia Fountaine.
Many of the activities and accomplishments featured in this publication were made possible through private donations. Please join us in making this year as successful as last.
What is the Annual Fund? SIU School of Law faces the same challenges as most public institutions nationwide.
Financial resources – both state and federal – have dwindled substantially, while costs of higher education continue to rise. As we look to the future, you – alumni, donors and friends of SIU School of Law – play a pivotal role in continuing the success that we have enjoyed for our first 38 years. Private funds and support are essential to our future to benefit SIU LAW students by providing scholarships, support for activities such as moot court, summer externship stipends, classroom technology and course development.
How can I make a gift?
You can make a gift by using the enclosed annual fund envelope, or you can go to www.law.siu. edu/alumni and make your gift on our secure website.
“My scholarships have had a huge impact on my ability to pursue an interest in public interest law.Without scholarships I would have to focus on finding a higher-paying job to pay back loans. Now, I feel comfortable exploring careers in criminal defense or legal aid, knowing that I will not have a large student loan debt.” Angela Rollins, Class of 2012
SIU LAW / FALL 2011 57
SCHOOL OF LAW MAIL CODE 6804 SOUTHERN ILLINOIS UNIVERSITY 1150 DOUGLAS DRIVE CARBONDALE, ILLINOIS 62901
CALENDAR NOVEMBER 2011 4/5 National Health Law Moot Court Competition 9 Lesar Lecture 12 SIU vs. Eastern Illinois 12:00 tailgate | 2:00 kick-off
DECEMBER 2011 1 Holiday Reception - St. Louis 6 Holiday Reception - Springfield 9 Holiday Reception - Chicago
JANUARY 2012 5 Application deadline for U.S. Supreme Court Alumni Group Admission Ceremony 13 Women in the Law Exhibit Opening Reception & Women in Leadership Dinner
MARCH 2012 5 U.S. Supreme Court Alumni Group Admission Ceremony - Washington, D.C.