Lots of legal writing is thick, bordering on impenetrable to the average Illinoisan. But when it comes to state Supreme Court opinions, reading can deliver a sense of what’s to come in Springfield.
One of my favorite justices in this context is P. Scott Neville, who joined the court in June 2018. Four years later, he wrote a special concurrence to a unanimous ruling in Holm. v Kodat, which addressed a dispute between Grundy County landowners regarding what constitutes private property when it comes to kayaking on the Mazon River.
At the time, Neville basically directed lawmakers to “move away from its common law that limits the use of nonnavigable lakes, rivers, and streams to riparian landowners and move to the recreational navigation doctrine, so that all waterways are available to the public for recreational use.”
Neville also authored Thursday’s majority opinion in Illinois v. Molina, a 4-2 decision affirming an appellate court ruling that a police officer who smells raw marijuana has legal grounds to search a vehicle. Shaw Media’s Emily Coleman has a good summary of the Whiteside County case at https://tinyurl.com/PeopleVMolina, and the full opinion is at tinyurl.com/MolinaSCOILL.
The majority reached its decision in context of several moving parts, but Neville explained everything deftly. As recently as September the same court ruled the smell of burnt marijuana does not give probable cause for a warrantless vehicle search. Neville wrote that opinion, too, acknowledging the 2019 legalization of recreational marijuana.
As the appellate court in Molina noted, that law set limits on transportation, consumption and possession of the drug. Specific to this instance, Neville said the state Vehicle Code has a “stringent ‘odor-proof’ container requirement,” while a similar clause applies to retail sales packaging. Burnt marijuana is different – the police officer here was trained to know the difference – and more akin to the smell of alcohol, which cannot justify a warrantless search.
“It is the General Assembly that makes the laws and regulates the use and possession of cannabis,” Neville wrote. “We are mindful that the legislature has considered amending the Vehicle Code, but it might also consider amending the Regulation Act, as both statutes govern how an individual may possess cannabis within a motor vehicle on an Illinois highway.”
He further said “consistency between the two laws is essential” for both marijuana users and police, both giving lawmakers a path and the motivation to follow.
Justice Mary O’Brien wrote the dissent, joined by Chief Justice Mary Jane Theis. That also is worth a read, “simply to point out the absurdity” of the inconsistent, narrow contextual finding, O’Brien said.
Solutions are within reach and only one governmental branch can deliver. General Assembly, the table is set for action.
• Scott T. Holland writes about state government issues for Shaw Local News Network. Follow him on X @sth749. He can be reached at sholland@shawmedia.com.
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