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Government Lawyers NewsletterThe newsletter of the ISBA’s Standing Committee on Government Lawyers

March 2004, vol. 5, no. 4

Case law update

Administrative law

Nudell v. Forest Preserve Dist. of Cook County, 207 Ill.2d 409 (October 17, 2003). Pursuant to section 3-103 of Administrative Review Act (735 ILCS 5/3-103 (West 1998)), 35-day period for filing a complaint to review a final administrative decision begins to run on the date that the agency decision is deposited in Untied States mail, rather than from the date that the decision is actually received, overruling Lockett v. Chicago Police Board, 133 Ill.2d 349 (1990), and Carver v. Nall, 186 Ill.2d 554 (1999).

Vuagniaux v. Department of Professional Regulation, No. 94073 (November 20, 2003). Licensed chiropractic physician sought administrative review of decision of the Department of Professional Regulation reprimanding and fining him for violating advertising provisions of the Medical Practice Act of 1987 (225 ILCS 60/26 (West 1998)). The Supreme Court held, among other things, that: (1) the Department's Medical Disciplinary Board, which included a member who was appointed by the Board, rather than by the Governor, was not properly constituted; (2) the Board did not have implicit authority to make temporary appointments of members; (3) the decision of the Department of Professional Regulation would be set aside, and the matter would be remanded to the Department for reconsideration by a legally constituted Board; (4) unauthorized appointment of this Board member did not invalidate the actions taken by the Department before the member's appointment; and (5) the General Assembly had a rational basis for its structuring of the Board.

Lehmann v. Department of Children and Family Services, 342 Ill.App.3d 1069 (1st District, September 9, 2003). Procedural delays in administrative appeals process regarding the expungement of a child abuse finding did not deprive foster parents of their due process rights. Sufficient evidence supported finding that child abuse allegations against foster parents should not be expunged.

Harrisonville Telephone Co. v. Illinois Commerce Comm'n., 343 Ill.App.3d 517 (5th District, September 17, 2003). The Illinois Commerce Commission may require only one motion to rehear its decision before appeal. The case law requiring second rehearings is no longer relevant in light of the amendment of our State's constitution, as well as the enactment of both Supreme Court Rule 335 and the new version of the Public Utilities Act (220 ILCS 5/1-101 et seq. (West 2000)).

In re John Paul J., 343 Ill.App.3d 865 (1st District, September 24, 2003). Failure to conduct shelter care hearing within 48 hours of taking minor into custody does not deprive court of jurisdiction to consider neglect petition. Further, failure to conduct hearing within time limits of section 2-14 of the Juvenile Court Act of 1987 (705 ILCS 405/ 2-14 (West 1994) is waived by respondent's failure to move for dismissal of the petition for adjudication of wardship.

Nickels v. Burnett, 343 Ill.App.3d 654 (2nd District, October 20, 2003). Plaintiff landowners brought action for nuisance and brought motion for preliminary injunction to prevent defendant landowners from constructing hog confinement facility pursuant to letters issued by Illinois Department of Agriculture authorizing construction of such facility. The appellate court held that: (1) trial court did not violate separation of powers; (2) plaintiffs were not required to exhaust their administrative remedies; (3) the Livestock Management Facilities Act (510 ILCS 77/1 et seq. (West 2002)) did not preempt statutory or common law nuisance claims; and (4) the motion for preliminary injunction was not premature.

Civil procedure

Niemberg v. Bonelli, 344 Ill.App.3d 459 (5th District, October 29, 2003). Petition to vacate judgment filed pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2000)), is not a new action for purposes of motion for substitution of judge as a matter of right pursuant to section 2-1001(a)(2) of the Code (735 ILCS 5/2-1001(a)(2) (West 2000)).

Civil rights

Nelson v. Crystal Lake Park District, 342 Ill.App.3d 917 (2nd District, August 27, 2003). A park commissioner brought a §1983 action against a municipal park district, alleging that the district's imposition of a one-meeting suspension against her for purported release of executive session material and purported sexual harassment of an employee, without discussing the asserted inappropriate conduct with her in executive session, deprived her of her statutory right to serve in her capacity as a duly-elected public official. The appellate court held that: (1) trial court properly treated district's motion to dismiss as motion under statute by which a party challenges legal sufficiency of the cause of action, rather than statute by which a party raises an external defect or defense; (2) park district was a State actor subject to a §1983 suit; (3) commissioner had a due process property interest in her position; (4) alleged one-meeting suspension, though brief, was a deprivation of a due process property interest; (5) park district's alleged act of publicizing purported grounds for commissioner's suspension was an act on which to base §1983 claim of violation of due process liberty interest in commissioner's reputation; and (6) park district's alleged failure to discuss commissioner's purportedly inappropriate behavior with her in executive session before imposing sanction upon her, as required by policy manual, was sufficient ground on which to base a §1983 claim.

Criminal law

Criminal general

People v. Graves, 207 Ill.2d 478 (September 18, 2003). Because the elements of unauthorized theft of more than $10,000 from a victim over the age of 60 (720 ILCS 5/16-1(a)(1), (b)(5) (West 2000); 730 ILCS 5/5-5-3.2(b)(4)(ii), 5-8-2(b)(4) (West 2000)) and theft by deception of $20,000 from a victim over the age of 60 (720 ILCS 5/16-1(a)(2), (b)(7) (West 2000); 730 ILCS 5/5-8-1(a)(5) (West 2000)) do not contain identical elements, appellate court's holding that defendant's 12-year sentence for unauthorized theft of $20,000 from elderly victims was not unconstitutionally disproportionate to three- to seven-year penalty for theft by deception.

People v. McCoy, 207 Ill.2d 352 (October 17, 2003). Defendant was convicted, after a bench trial, of two counts of aggravated criminal sexual assault. On appeal the Supreme Court held that defendant cannot challenge convictions on the sole basis that they are legally inconsistent with acquittals on other charges at the trial.

People v. Lopez, 207 Ill.2d 449 (October 17, 2003). Defendant charged with aggravated criminal sexual abuse filed motion seeking independent physical examination of the three-year-old victim. Appellate court properly reversed trial court's order prohibiting State from introducing any medical evidence of alleged three-year-old victim of sexual assault's condition as sanction for victim's parent's refusal to submit child to examination by defense expert, because court lacks authority to compel physical examination of minor victim, overruling People v. Glover 49 Ill. 2d 78 (1971). However, on remand, when the defendant requests an independent physical exam and the victim refuses, the trial court must balance the due process rights of the defendant with the privacy rights of the victim when determining what medical evidence, if any, the State is allowed to present.

People v. Pelt, 207 Ill.2d 434 (October 17, 2003). Defendant was convicted of aggravated battery of a child and first-degree felony murder predicated on aggravated battery of a child. The Supreme Court held that defendant's aggravated battery of his infant son was an act that was inherent in, and arose out of, the killing of the infant, and thus, aggravated battery of a child could not serve as the underlying felony for first-degree felony murder.

People v. Hanna, 207 Ill.2d 486, (October 17, 2003). Trial court erred when it held that breath testing equipment had not been properly certified by Illinois Department of Public Health as required by section 11-501.2 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501.2 (West 1998)) and the administrative regulations promulgated thereunder (77 Ill. Adm. Code §510.40(c) (1996)), because interpretation requiring Department to repeat tests already performed by National Highway Traffic Safety Administration is absurd.

People v. Derr, No. 5-01-0977 (5th District, September 10, 2003). By answering jury's question about how close in time the act resulting in the victim's death has to be to robbery with, "Death does not have to be contemporaneous with the robbery; however, there must be some concurrence between the force used and the taking of the property," the trial court potentially misled the jury into thinking that defendant could be convicted of felony murder if he stole personal items from victim's body after victim was already dead, rather then caused victim's death in the course of a robbery. Therefore, felony murder charge must be retried.

People v. Henderson, 343 Ill.App.3d 1108 (1st District, September 25, 2003). Defendant was convicted of rape and deviate sexual assault. The appellate court held that: (1) Habitual Criminal Act (720 ILCS 5/33 B-1 et seq. (West 1998)) does not violate requirement that any fact, other than prior conviction, that increases maximum penalty for crime must be charged in indictment, submitted to factfinder, and proved beyond a reasonable doubt, and (2) results of testing the bloodstains on the pants recovered in the defendant's bedroom had the scientific potential to produce new, noncumulative evidence materially relevant to the defendant's assertion of actual innocence of rape offense, and thus defendant was entitled to obtain post-conviction forensic testing of pants.

People v. Briseno, 343 Ill.App.3d 953 (1st District, September 26, 2003). Because defendant was not in custody when he admitted to police officer at roadside stop that he smoked marijuana right before driving, he was not entitled to Miranda warnings. Further, section 11-501 (a)(6) of the Illinois Vehicle Code (625 ILCS 5/11-501(a)(6) (West 2000)) is not unconstitutionally vague. In addition, evidence of defendant's slurred speech, bloodshot eyes, admission of consumption of cannabis and slow motor skills were sufficient to find defendant guilty of DUI.

People v. Lee, 343 Ill.App.3d 431 (4th District, October 3, 2003). Defendant was convicted after a jury trial of second-degree murder and two counts of aggravated battery with a firearm. The Supreme Court, exercising its supervisory authority, directed the appellate court to vacate its judgment, and to reconsider. On reconsideration, the appellate court held that: (1) defendant's belief that deadly force was necessary was unreasonable; (2) convictions for both second-degree murder and aggravated battery with firearm violated the one-act, one-crime doctrine; but (3) the conviction and sentence for the battery, which was the offense with the higher sentence, would stand, even though murder was legislatively classified as the more serious offense among the multiple offenses.

People v. Balayants, 343 Ill.App.3d 602 (2nd District, October 22, 2003). Trial court infringed on defendant's right of confrontation in robbery trial when it barred defendant from cross-examining State's principal witness about his incarceration pending criminal charges with potential sentence of 15 years even though no plea offer had been requested or made.

People v. Edwards, 343 Ill.App.3d 1168 (2nd District, October 27, 2003). Defendant was convicted of felony murder predicated upon offense of robbery, and was sentenced to natural life imprisonment. On appeal, the appellate court held that: (1) defendant waived issue on appeal that he was denied fair trial when trial court failed to sua sponte instruct jury as to definition of robbery; (2) trial court's failure to give jury instruction was not reviewable under plain error exception; and (3) trial court did not abuse its discretion in determining that certified record of proceedings was accurate as to testimony of witness.

People v. Harris, 343 Ill.App.3d 1014 (4th District, October 29, 2003). The appellate court held that: (1) section 24-1.1 of the Criminal Code of 1961 (720 ILCS 5/24-1.1 (West 2000), statute defining unlawful possession of weapon by felon was not unconstitutional; (2) probative value of naming defendant's four prior felony convictions after defendant offered to stipulate to prior convictions, was substantially outweighed by unfair prejudice; and (3) trial court's refusal to accept defendant's stipulation to his prior felony convictions to prove unlawful possession of weapon by felon was plain error.

People v. Forcum, 344 Ill.App.3d 427 (5th District, November 7, 2003). Special interrogatory given to jury during guilt phase of deliberation with regards to enhancing factors for murder of household member and exceptionally brutal behavior formed proper basis for enhanced sentence and constitutionally applied procedural amendment of statute enacted after acts forming basis of conviction. Further, gruesome photographs of victim were properly admitted to show nature and extent of victim's injuries and manner inflicted. Although hearsay evidence that victim feared defendant lacked proper foundation, it was harmless error. In addition, although armed violence count must be vacated as violative of one-act, one-crime rule, home invasion need not be.

People v. Rish, No. 3-01-0161 (3rd District, November 10, 2003). Trial court erred when it dismissed post conviction petition of murder defendant without an evidentiary hearing. Petition and affidavits sufficiently allege violation of defendant's due process when attorney representing defendant allowed defendant to make series of inconsistent statements during two days of interrogation without informing her that he was close personal friend of victim and attorney for police officer involved in investigation. Further, petitions contain sufficient allegations of Brady violation based on lies by investigator. However, Apprendi sentencing issues will not be applied retroactively.

In re Detention of Bolton, 343 Ill.App.3d 1223 (4th District, November 13, 2003). Jury verdict finding defendant subject to commitment under the Sexually Violent Persons Commitment Act must be vacated. The court allowed the State to introduce findings of psychologists based on actuarial tests that had not been properly validated by means of aFrye hearing.

People v. Willis, No. 1-01-4170 (1st District, November 18, 2003). Although there was probable cause to arrest defendant, detention for unreasonable length of time without providing him with a probable cause hearing violated his constitutional rights and confession given after 72 hours must be suppressed. Failure to suppress defendant's confession was reversible error.

People v. Etherly, No. 1-01-4166 (1st District, November 21, 2003). Allegations by defendant, that he did not receive fair trial because prospective jurors were not questioned about their potential bias against gang members, were sufficient to state constitutional deprivation as required for first-stage review under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2000)). Res judicata can be basis for first-stage dismissal of petition for post-conviction relief where the facts are undisputed regarding an issue that has in fact been raised and previously ruled upon. The Post-Conviction Hearing Act precludes first-stage dismissal, based on waiver or procedural default, for issues of procedural compliance or for issues that could have or should have been raised, which require fact finding, resolution of disputed facts or consideration of matters outside the record; and res judicata could not be basis for first-stage dismissal of defendant's petition.

People v. Probst, 344 Ill.App.3d 378 (4th District, November 21, 2003). Per se conflict did not exist, for purposes of ineffective assistance claim, based on defense counsel's prior representation of undercover informant who was key prosecution witness.

Criminal counsel

People v. Johnson, No. 90678, 90693, 90706 cons. (October 17, 2003). Cumulative error and pervasive pattern of unfair prejudice in the second and third cases, relating to prosecutor's closing argument attempting to stir jury's outrage and divert jury's attention from more tangible issues regarding guilt or innocence, denied defendants a fair trial. Probative value of gang-affiliation evidence was not substantially outweighed by danger of unfair prejudice. Evidence that defendant in first case had taken and failed a polygraph examination was admissible. Defendant in first case's prior arrests as a juvenile, and his adjudications as a juvenile delinquent, were admissible. Defendant in first case was not substantially prejudiced by prosecutor's closing argument improperly commenting on defendant's exercise of his right not to testify.

People v. Jennings, 343 Ill.App.3d 717 (5th District, October 16, 2003). Although member of appellate prosecutor's office was not properly appointed or statutorily authorized to try defendant's murder trial, conviction is not void because prosecuting attorney was licensed attorney and defendant failed to object to his participation in trial.

Criminal procedure

People v. Blue, 207 Ill.2d 542 (November 20, 2003). Double jeopardy did not preclude the State in retrial from using defendant's conviction for police officer's murder to establish defendant's eligibility for the death sentence under multiple-murder aggravating factor.

People v. Pinkonsly, 207 Ill.2d 555 (November 20, 2003). Appellate court erred when it reversed trial court's denial of 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2002)) motion challenging unlawful delivery of controlled substance charges based on ineffective assistance of counsel. Ineffective assistance is not available for 2-1401 motions. However, extended term sentence was not available for narcotics racketeering charge, as it was not being the most serious charge of which defendant was convicted.

People v. LaFond, 343 Ill.App.3d 981 (3rd District, October 23, 2003). Defendant was not precluded from retrial of aggravated battery and resisting a police officer charges after trial court declared mistrial when one juror was hospitalized during deliberation, other jurors were unavailable to continue deliberation the following Monday, and defendant refused to stipulate to deliberation by fewer than 12 jurors. Further, because record was adequate to ascertain that defendant objected to trial by fewer than 12 jurors, there was no basis to conclude ineffective assistance of counsel for failure to sufficiently preserve record.

People v. Morales, 343 Ill.App.3d 987 (4th District, November 3, 2003). Warrantless search of vehicle by police officers incident to lawful arrest of driver properly extended to jacket of defendant, who was a passenger in the vehicle.

People v. Hood, 343 Ill.App.3d 1245 (4th District, November 3, 2003). Trial court committed reversible error when it allowed State to present expert testimony of reverse extrapolation of alcohol by coroner in reckless homicide trial to rebut defendant's claim that he had consumed only two beers when Supreme Court Rule 412(a)(i) (188 Ill. 2d R. 412(a)(i)) disclosure attached autopsy report to describe subject matter of coroner's testimony and State did not inform defendant that coroner would be offered for alcohol level testimony until after defendant's case in chief.

People v. Stewart, 343 Ill.App.3d 963 (2nd District, November 5, 2003). Technical defect in eavesdropping authorization order did not require suppression of recorded telephone conversations between defendant and victim.

In re Detention of Erbe, 344 Ill.App.3d 350 (4th District, November 13, 2003). Trial court properly admitted results of actuarial-based evaluation techniques in commitment trial pursuant to Sexually Violent Persons Commitment Act without Frye hearing, they being generally accepted tests. Further, defendant was not denied effective assistance of counsel by attorney moving to continue and failing to appear at probable cause hearing.

Criminal sentencing

People v. Baker, 342 Ill.App.3d 615 (4th District, August 22, 2003). State concedes that trial court lacked authority, after finding defendant had violated terms of probation and as part of three-year prison sentence, to order that defendant submit to Treatment Alternatives for Special Clients evaluation as condition of mandatory supervised release. That power is exclusively vested in the Prisoner Review Board.

People v. Moore, 343 Ill.App.3d 331 (2nd District, September 16, 2003). Defendant was properly convicted of murder and subjected to 50 years with 25-year enhancement for use of a gun based on section 5-8-1(a)(1)(d)(iii) of the Unified Code of Corrections (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2000)), which does not violate proportionate penalties clause or constitute double enhancement.

People v. Carmichael, 343 Ill.App.3d 855 (1st District, September 30, 2003). Trial court erred when it treated defendant's previous conviction for armed violence as a "forcible felony" in order to elevate defendant's conviction for unlawful possession of a firearm by a felon to a class 2 felony. However, sentencing range does not violate proportionate penalties clause, and case can be remanded for resentencing.

People v. Washington, 343 Ill.App.3d 889 (1st District, September 30, 2003). Aggravated unlawful use of weapon cannot be compared to reckless discharge of a weapon statute for purposes of proportionate penalties analyses, because the statutes target different behaviors.

People v. Smith, 343 Ill.App.3d 613 (2nd District, October 23, 2003). Agreeing with 1st District People v. Askew, 341 Ill. App. 3d 548, 554 (2003), opinion, omission of recidivism exception when amending section 5-8-2(a) of Code of Corrections (730 ILCS 5/5-8-2(a) (West 2002) to comply with Apprendi was legislative oversight rendering that section inconsistent with other provisions of Code. Court will resolve ambiguity by inferring recidivism exception into statute to comport with clear legislative intent. Therefore, trial court did not err when it imposed extended sentence upon revocation of probation for forgery based on defendant's prior criminal record.

People v. Culbreath, 343 Ill.App.3d 998 (4th District, October 29, 2003). Defendant, on trial for aggravated battery, was not deprived due process when his attorney agreed to waive presence of court reporter during voir dire, particularly since defendant failed to supply appellate court with bystander's report or complain of any error during jury selection process.

People v. Sanchez Jr., 344 Ill.App.3d 74 (1st District, November 4, 2003). Defendant's mandatory natural life sentence for aggravated criminal sexual assault based on his prior conviction for criminal sexual assault did not violate proportionate penalties clause of State Constitution. Apprendi did not render defendant's natural life sentence unconstitutional.

Ethics

In re Gorecki, No. 96299 (November 20, 2003). Proper sanction for attorney who admittedly violated Rules of Professional Conduct when she left three messages on answering machine falsely indicating that county board chair could be bribed into providing a job is a four-month suspension from the practice of law. Attorney led otherwise exemplary life and showed genuine remorse for her behavior, taking full responsibility.

Freedom of Information Act

Harwood v. McDonough, 344 Ill.App.3d 242 (1st District, October 17, 2003). The Illinois Department of Commerce and Community Affairs (DCCA) was entitled to summary judgment dismissing the plaintiff's Freedom of Information Act action challenging the claimed exemption from disclosure of Arthur Andersen report, analyzing benefits of pursuing relocation of Boeing headquarters to Illinois, as preliminary recommendation of policy pursuant to the provisions of section 7(1)(f) of the Act (5 ILCS 140/7(1)(f) (West 2000)). Comments by the Governor and DCCA Director citing information contained in report's executive summary did not preclude use of exemption. Requester was not entitled to redacted copy of report that would consist of blank pages. Further, the response to a request for invoices indicating that no invoices had yet been received from Andersen was proper.

Labor law

City of Loves Park v. Illinois Labor Relations Bd State Panel, 343 Ill.App.3d 389 (2nd District, October 10, 2003). Collective bargaining agreement, which provides for arbitration of covered employees' discharge and discipline determinations, is legal and enforceable under Municipal Code. Board's determination that city committed unfair labor practice by challenging arbitrator's authority and refusing to recognize determination that there was no cause to terminate subject employee is not clearly erroneous.

Mental health law

People v. Masterson, 207 Ill.2d 305 (October 2, 2003). The definition of "mental disorder" in the Sexually Violent Persons Commitment Act should be read into the Sexually Dangerous Persons Act (SDPA) to correct legislative oversight. A finding of sexual dangerousness must be accompanied by an explicit finding that it is substantially probable the person subject to the commitment proceeding will engage in the commission of sex offenses in the future if not confined. SDPA complies with due process.

In re Detention of Varner, 207 Ill.2d 425 (October 2, 2003). Sexually Violent Persons Commitment Act, as applied in this case, does not unconstitutionally deprive the respondent of substantive due process. The jury was specifically instructed in such a way that it was clear that the State had the burden of proving that the respondent suffered from a mental disorder, which was defined in such a way that the jury was required to find an inability to control respondent's behavior.

In re Detention of Swope, 343 Ill.App.3d 152 (2nd District, September 16, 2003). Refusal of Department of Human Services employees to speak with petitioner's expert violated petitioner's right to due process. Petitioner waived review of due process issue by acquiescing in deposition procedure. Trial court's application of incorrect standard of State's burden of proof was harmless error.

In re Detention of Harold Powell, 344 Ill.App.3d 97 (1st District, October 29, 2003). The time requirements for filing petitions under the Sexually Violent Persons Commitment Act are mandatory and not directory. State's petition to commit inmate, which was filed based on inmate's anticipated release date, was untimely.

Municipal law

In re Application of the County Treasurer, 343 Ill.App.3d 122 (1st District, August 29, 2003). Purchaser of property at tax sale on which portion of building had been demolished was required to reimburse municipality for cost of demolition of that portion of building located on property before he could take title to property. Further, duly recorded demolition lien was sufficient to trigger provisions of section 22-35 of the Property Tax Code (35 ILCS 200/22-35 (West 2002)) despite failure on part of city to file section 11-31-1 of the Municipal Code (65 ILCS 5/11-31-1 (West 2002)).

Serpico v. Village of Elmwood Park, 344 Ill.App.3d 203 (1st District, October 31, 2003). City ordinance prohibiting certain types of electronic video gaming devices does not warrant First Amendment scrutiny and bears rational basis to legitimate state purpose of regulating gambling. Further, ordinance is neither overly broad nor violative of equal protection.

Special districts

Wauconda Fire Protection District v. Stonewall Orchards, LLP, 343 Ill.App.3d 374 (2nd District, October 2, 2003). Fire protection district brought action against county and golf course located in an unincorporated area of the county, seeking enforcement of its fire protection ordinance requiring sprinklers to be installed in connection with construction of a new clubhouse at golf course. The circuit court granted county's and golf course's motions to dismiss. On appeal, the court held that: (1) county was not a "municipality" within meaning of statute depriving district of authority to enforce its ordinances in municipalities with their own fire protection codes (70 ILCS 705/11 (West 2002)); (2) golf course was required to comply with both sets of relevant ordinances; and (3) district was required to enforce its own ordinance (70 ILCS 705/11 (West 2002)) and could not require county to withhold certificate of occupancy.

School law

Dukett v. Regional Board of School Trustees, 342 Ill.App.3d 635 (4th District, August 7, 2003). Decision denying petition to detach from school district and attach to adjoining school district filed by family whose members more closely associate with adjoining school district and who are paying tuition for children to attend adjoining district, when neither district will be affected in any substantial manner, is clearly erroneous.

Taxation

Ceres One Corp. v. Naperville Township Road District, 343 Ill.App.3d 382 (2nd District, September 30, 2001). Taxpayers filed objections to township road district's 1996 levy. The appellate court held that hard road tax levy expired five years after it was passed by referendum on April 10, 1979, and, thus, the 1996 road tax was ultra vires.

Leafblad v. Skidmore, 343 Ill.App.3d 640 (2nd District, October 20, 2003). Taxpayer filed action to enjoin county treasurer from collecting part of real estate tax bill, alleging that disputed taxes were based on unauthorized reassessment. The appellate court held that the appeal was rendered moot by taxpayer's voluntary payment of disputed property tax, and that the public interest exception to mootness doctrine did not apply.

Mill Creek Development, Inc. v. Property Tax Appeal Bd., No. 3-02-0596 (3rd District, October 29, 2003). Property owner petitioned for review of decision of the Property Tax Appeal Board, which upheld increased tax assessment on property. The appellate court held that: (1) farm land that was platted and subdivided prior to assessor's changing of property status to residential land was to be assessed at the farm land valuation; (2) land that was platted and subdivided subsequent to assessor's changing status to residential property was to be assessed at the residential valuation; and (3) property valuation which was based on comparable local market values was thorough and accurate.

Tort immunity and liability

Van Meter v. Darien Park Dist., 207 Ill.2d 359 (October 17, 2003). Homeowners brought negligence action against municipal defendants, among others, alleging that surface water flooded home upon completion of adjacent municipal recreation area. The circuit court granted municipal defendants' motion to dismiss. Homeowners appealed. The Supreme Court held that questions of material fact existed as to whether conduct of municipal defendants in designing and constructing municipal recreation area in such a manner as to allegedly cause surface water to flood adjacent home was result of a policy decision and was discretionary, precluding an involuntary dismissal of negligence complaint based on affirmative defense of discretionary act immunity.

Hager v. Il In One Contractors, Inc., 342 Ill.App.3d 1082 (1st District, September 5, 2003). Injured construction worker brought action against contractor, city, and public building commission, after he allegedly slipped and fell on debris resulting from concrete overpour. The court found that four-year statute of limitations period for suits involving construction under section 13-214 of the Code of Civil Procedure (735 ILCS 5/13-214 (West 2000)), rather than one-year limitations period under section 8-101 of the Tort Immunity Act (745 ILCS 10/8-101 (West 2000)) applied to construction worker's action.

Ozik v. Gramins, No. 1-00-3280 (1st District, October 27, 2003). Evidence that police officers stopped severely intoxicated 19-year-old driver and issued traffic citations to him, but allowed him to continue driving vehicle, was sufficient for jury to award damages for wrongful death of passenger of intoxicated driver's car, subsequently killed in motor vehicle accident, based on officers' willful and wanton negligence. Further, there is no immunity under sections 4-102 and 4-107 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/4-102, 4-107 (West 1994)). In addition, defendants waived issue of contribution from driver by failing to tender jury instruction on that issue at trial.

Zoning

Board of Trustees of the University of Illinois v. Shapiro, 343 Ill.App.3d 943 (1st District, September 30, 2003). University board of trustees brought condemnation proceeding against owner's property. Defendant waived the issue of legitimate exercise of eminent domain authority by University by failing to file motion to dismiss and traverse at trial. Further, appellate court held that: (1) valuation of properties sold under threat of condemnation was not admissible to establish valuation; (2) values of improved properties were not admissible; (3) expert testimony about possible rezoning was not admissible; and (4) valuation was to be established according to board's evidence, as property owner presented no alternatives.


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