He Said/She Said, Save Our Sons, and the Stories that Stick: Part Two of a Two-Part Series of Columns

SHERRY F. COLB

In this second in a series of columns on the U.S. Department of Education’s recent push toward a higher burden of proof in determinations of sexual harassment or assault under Title IX, Cornell Law professor Sherry F. Colb suggests that gendered narratives play a role in people’s willingness to regard an acquaintance rape case as “he said/she said.” Colb describes several examples in which people prefer a story that confirms a pre-existing bias over truth based on evidence.

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Goral v. Dart

Citation: 2020 IL 125085

Opinion Date: October 22, 2020

Judge: Neville

Areas of Law: Civil Procedure, Government & Administrative Law, Labor & Employment Law

Cook County Sheriff Dart instituted disciplinary proceedings against several Sheriff’s officers (plaintiffs) by filing charges with the Cook County Sheriff’s Merit Board under Counties Code, 55 ILCS 5/3-7011. The plaintiffs filed motions with the Board to dismiss the charges. While the administrative proceedings were pending, the plaintiffs filed suit, seeking declaratory, injunctive, and monetary relief against the Sheriff, Cook County, the Board, and the Cook County Board of Commissioners, asserting that the Board was not legally constituted because several of its members were appointed to or served terms that did not comply with the Code section 3-7002 requirements. The Illinois Supreme Court reversed the dismissal of the suit for failure to exhaust administrative remedies. Because the plaintiffs challenged the authority of the Board to address the charges, the “authority” exception to the exhaustion requirement applied. The circuit court can adjudicate the requests for back pay and other claims, which do not fall within the particular expertise of the Board. The plaintiffs raised the issue before the Board, which refused to hear them until after the disciplinary proceedings were complete. Given that the Board had not taken any substantive action regarding the disciplinary charges before the filing of the lawsuit, the “de facto officer doctrine” does not apply.

People v. Lusby

Citation: 2020 IL 124046

Opinion Date: October 22, 2020

Judge: Mary Jane Theis

Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Juvenile Law

In 2002, Lusby was convicted of first-degree murder, aggravated criminal sexual assault, and home invasion and sentenced to 130 years’ imprisonment. Though he was 23 years old at the time of the trial, he was only 16 years old at the time of the offenses. After an unsuccessful direct appeal and post-conviction proceedings, he sought leave to file a successive post-conviction petition, asserting that his sentencing hearing was constitutionally inadequate under the Supreme Court’s 2012 decision, Miller v. Alabama. The Will County Circuit Court denied that motion. The appellate court reversed. The Illinois Supreme Court reinstated the trial court’s decision, denying relief. Lusby failed to show cause and prejudice such that the trial court should have granted leave to file a successive post-conviction petition. Lusby had every opportunity to present mitigating evidence but chose not to offer any. The trial court considered his youth and its attendant characteristics before concluding that his future should be spent in prison. The de facto discretionary life sentence passes constitutional muster under Miller; Lusby has not shown prejudice under 725 ILCS 5/122-1(a)(1). Miller does not require a court to use “magic words” before sentencing a juvenile defendant to life imprisonment but only requires consideration of “youth-related factors.”

Tabirta v. Cummings

Citation: 2020 IL 124798

Opinion Date: October 22, 2020

Judge: Anne M. Burke

Areas of Law: Civil Rights, Personal Injury

Tabirta was driving a truck in Ohio, when another truck, driven by Cummings, collided with his vehicle. Plaintiff suffered severe injuries, including the amputation of both legs. Cummings’s vehicle was owned by his employer, GML. Tabirta filed a negligence action in Cook County. The defendants moved to transfer venue. Under 735 ILCS 5/2-101, venue is proper either in the county of residence of any defendant or in the county where the transaction occurred. Tabirta cited the Cook County home office of GML employee Bolton (a part-time account representative) and argued that GML was “doing business” in the county. Cummings is not a resident of Cook County. GML is a Missouri corporation with its principal place of business and registered agent located in Randolph County. The Illinois Supreme Court held that Cook County is not the proper venue for the suit. Bolton's work for GML from his home office, standing alone, does not establish that the home was an “other office.” GML did not “purposely select” a location in Cook County to carry on its business but selected Bolton, a person with extensive experience in the food industry. Even if Bolton’s proximity to customers played a role in his hiring, GML did not own, lease, or pay any expenses associated with Bolton’s residence. GML did not hold out to customers or the public that Bolton’s residence was a GML office. GML had no office or other facility in Cook County. Bolton did not sell products from his home office. The work he conducted from his residence was merely incidental to GML’s usual and customary business of food product manufacturing.