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Volume 157, No. 133 Fr i d a y, July 8, 2011 Forty-eight pages in three sections $1.00 Trial Notebook Experts debate merits of the ‘material support’ ban Ferguson was a prosecutor and By Patricia Manson Amendment challenge to material support The “material support” provision is Deutsch and Lyon were on the defense Deadlocked arbitrators exceeded Law Bulletin staff writer provisions “is an ominous expansion of the needed so that those connected with team in the trial of former grocer Muham- Chicago attorney Michael E. Deutsch law and threatens anyone who is involved groups that have “some nexus” with mad Salah and business professor Ab- authority by delegating their job contends that laws that prohibit giving aid in any political activity in support of terrorism “know where the line is,” Fer - delhaleem Ashqar. and comfort to terrorists have been foreign struggles,” Deutsch said. guson said. making the award as they deem best In early 2007, a federal jury in Chicago stretched so far out of shape by the “I think the law has been expanded Ferguson conceded that the line is not supported by the evidence.” acquitted the men in 2007 of charges that president and the U.S. Supreme Court beyond what the intent of Congress set in stone. Paragraph 12 said “the strict formal they sent money to the militant Pales- that they no longer resemble the mea- was.” Prosecutors need the leeway to re- rules of evidence do not apply,” while tinian group Hamas to help finance mur- By Steven P. Garmisa sures enacted by Congress. Professor Andrea D. Lyon of DePaul spond to any changes in the way terrorists Paragraph 17 authorized the arbitrators ders, bombings and kidnappings. Despite his background as a consti- University College of Law contended that pursue their goals, Ferguson said. Hoey & Farina “to ask questions of any witness if they The jury found Salah and Ashqar guilty tutional law professor, President Obama is the alleged expansion of material support “The law is written with some degree do not understand the answer or they of lesser obstruction-of-justice charges. “essentially following the game plan set provisions leaves individuals and entities of openness and flexibility to allow it to be want clarification for any purpose.” Ferguson is now Chicago’s inspector out by the prior administration” and using uncertain as to which activities are for- applied in a way that evolves with the As recounted by the reviewing general. Deutsch is with the Peoples Law the ban on “material support” to foreign bidden. circumstances that we see in the ter- court, there was no dispute about the Office. terrorist organizations as a weapon “The problem with the law is that it’s so rorism realm,” Ferguson said. In an unusual case where arbitrators following facts (taken from Butikofer’s Three years after the verdict was re- against those who oppose certain U.S. vague it would be very difficult to give any But Ferguson contended that this flex- deadlocked during deliberation, they dissent): turned in Salah and Ashqar’s case, the U.S. policies, Deutsch said. money to any kind of foreign humanitarian ibility does not prevent individuals and voted to resolve the impasse by asking During deliberations, Kertz said he Supreme Court in Holder v. Humanitarian And Deutsch said he the U.S. Supreme organization without having some concern organizations from knowing when they one of the defendants what he thought believed that Trimble was not entitled Law Project, 130 S. Ct. 2705 (2010), held Court — or at least a majority of its that you’re giving funds to a bad cause,” step over the line from providing hu- was a fair amount to pay the plaintiff. to any compensation because of the that the government had the authority to members — has not acquitted itself any Lyon said. manitarian aid and conflict-resolution ser- They ended up awarding the plaintiff delay in asserting his claim, but Bu- bar all forms of material support to des- b e t t e r. But former federal prosecutor Joseph vices to bolstering the activities of ter- what the defendant suggested. tikofer argued Trimble deserved Material – page 22 Because of this unusual arrange- $158,675. After two hours of delib- A 6-3 ruling a year ago rejecting a First M. Ferguson does not see it that way. ro r i s t s . ment, the Illinois Appellate Court con- eration, Kertz reportedly suggested cluded the arbitrators exceeded their letting the defendants decide how much authority by improperly delegating they owed Trimble. Casino tax their official functions. With Butikofer dissenting, the mo- The trial judge was ordered to vacate tion passed and the parties and lawyers the award and instruct the parties to were summoned back into the con- money remains proceed with a fresh set of arbitrators. ference room. Kertz asked Tony Graves Trimble v. Graves, No. 5–10–0075 (April what he thought would be a fair amount 14, 2011). to pay Trimble and Graves said up in the air In 1998, R. Joe Trimble leased some $7,000. By John Flynn Rooney registered Jersey cows to Clover Farms The award — signed by Kertz and Law Bulletin staff writer for one year. At some point, Clover Kuenstler — gave Trimble $7,676. The collection and distribution of a Farms allegedly stopped paying rent. Trimble petitioned to vacate the casino tax signed into law by former But Trimble reportedly failed to fetch award, but the trial judge rejected his Illinois Gov. Rod R. Blagojevich cannot be the surviving cows until 2005. request, concluding the arbitrators did enjoined, a federal appeals court ruled A year later, Trimble signed an ar- not exceed their powers when they today in a divided opinion. bitration agreement with Jim Graves, voted to ask Graves what he thought he The 7th U.S. Circuit Court of Appeals Jerry Graves and Tony Graves (d/b/a owed Trimble. Because the strict rules issued an en banc decision in the case Clover Farms). Trimble named Tim of evidence did not apply — and the brought on behalf of four riverboat casinos Butikofer as his arbitrator and the de- arbitrators were authorized to ask clar- operating in Illinois. The defendants in the fendants selected Fred Kuenstler. Then ifying questions — they were entitled underlying case are Illinois horse racing Butikofer and Kuenstler picked Alois to reopen the evidence, the judge tracks. Kertz as the neutral. said. Judge Richard A. Posner wrote today’s Paragraph 6 of the arbitration agree- Reversing, the appellate court ex- majority decision joined by four other ment said that deliberations would start plained that “the arbitrators exceeded judges, while Judge Diane S. Sykes w ro t e as soon as the parties finished pre- their powers when they failed to adhere a dissent, joined by Judges William J. senting evidence and argument — and to the terms of the agreement.” Bauer and Michael S. Kanne. that the arbitrators “will not separate Here are highlights of Justice In the majority decision, Posner ex- until the matter is resolved to their Richard P. Goldenhersh’s opinion (with tended a temporary restraining order for satisfaction and a written document omissions not noted in the text): 30 days against releasing more than $170 prepared, which can be handwritten, Continued on page 4 million being held in escrow at all Illinois racetracks, said William J. McKenna, a Foley & Lardner LLP partner repre- Ben Speckmann senting Balmoral Racing Club Inc. and Maywood Park Trotting Association Inc. Case Summaries After nearly two decades on the bench, Cook County Circuit Judge Jennifer Duncan-Brice will retire at the end of the That extension would allow the riverboat month. casinos to ask U.S. Supreme Court Justice Employment bias — investigation by Ball State; the uni- Elena Kagan to continue the stay order, versity determined that the complaint pending the casinos’ possible filing of a employer liability was substantiated. Ball State’s normal Jurist has ‘that quality that every judge’ wants certiorari petition with the nation’s high- procedure involves progressive disci- est court, McKenna said. Kagan is the pline, beginning with an oral warning. By Pat Milhizer At the end of the month, Duncan- rests. She moved to property condem- Law Bulletin staff writer Brice will continue to handle disputes, nation cases and represented the city’s justice responsible for handling such mat- The district court correctly But in this case, the university de- ters within the 7th Circuit. termined that the situation was serious Growing up the daughter of a steel but she won’t be in the Daley Center. landmark commission before being pro- granted summary judgment on a mill worker, Jennifer Duncan-Brice got The judge who has earned praise from moted to chief and deputy positions in “We are pleased by the [majority] de- enough to immediately give written cision and we’re very gratified,” M c Ke n n a Title VII employment- warnings to both McVicker and Davis. used to moving to a new city to follow lawyers and judges will retire for a the office. discrimination case, given that her father’s job opportunities. mediation gig on July 29, one day shy of Circuit Judge James P. Flannery Jr.has said. “But we also recognize that this legal Shortly thereafter, Vance made a battle is not over.” the plaintiff failed to establish second complaint about use of epithets But in nearly two decades as a Cook her 60th birthday. known Duncan-Brice since they were County circuit judge, Duncan-Brice got “It’s a huge loss,” said Associate law students. Arlington Park Racecourse LLC “is any basis for employer liability by McVicker and Davis.

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