By Lee An Schoeffel, Springfield
Administrative law
Weatherly v. Illinois Human Rights Comm'n, No. 1-01-2255 (April 16, 2003). The Illinois Human Rights Commission correctly concluded that it lacked jurisdiction to consider a discrimination charge of retaliation for complaining about racial discrimination filed more than 180 days after termination of plaintiff by her employer as amendment to charge of racial discrimination, which was dismissed. Amended charge did not relate back to the original charge. Further, estoppel and equitable tolling did not apply to prevent running of the time limit set forth in section 7A-102(A)(1) of Human Rights Act (775 ILCS 5/7A-102(A)(1) (West 1998)).
Moren v. Illinois Department of Human Rights, No. 1-01-2080 (1st District, May 9, 2003). The appeal from a decision of the Chief Legal Counsel of the Department of Human Right's designee is timely, although filed 42 days after decision was mailed by the Department of Human Rights, because regulations of the Department provide that decisions are deemed served five days after they are mailed. Further, because the 40th day after mailing was a Saturday, petitioner had until the following Monday to file. It would be fundamentally unfair to penalize petitioner for relying on the Department's regulation (56 Ill. Adm. Code § 2520.20 (2002)) and insist on strict interpretation of Administrative Review Act (735 ILCS 5/3-113(a) (West 2000)). However, a finding of no substantial harassment based on occasional or casual race-related remarks is not an abuse of discretion.
Constitutional law
People v. Alexander, No. 93952 (May 22, 2003). Provisions of section 11-20.1(f)(7) of the Criminal Code of 1961 (720 ILCS 5/11-20.1(f) (West Supp. 2001)), which define "child," are unconstitutionally broad because they include computer-generated graphics which appear to depict children. However, because that section is severable from the remainder of the child pornography statute, the trial court erred by striking all of the charges against the defendant. Applying the plain language to the term "child," the complaint charges the defendant with possession and intent to distribute child pornography by electronic means, which does not unconstitutionally impair defendant's first amendment rights.
Puffer-Hefty School District No. 69 v. Du Page Regional Board of School Trustees of Du Page County, No. 2-02-0196 (2nd District, April 25, 2003). Dissolution of school district with a population of less than 5,000 residents pursuant to section 7-2a(b) of the Illinois School Code (105 ILCS 5/7-2a(b) (West 1996)), violates neither the equal protection clause (U.S. Const., amend. XIV) of the federal Constitution nor the special legislation clause (Ill. Const. 1970, art. IV, §13) of the Illinois Constitution and was properly accomplished by petition of "committee of Ten." Further, once petition is filed, "final action" has occurred, signatures are presumed to be informed expression of intent of signers, and no subsequent opportunity to add signatures, withdraw signatures or rescind withdrawn signatures should be given.
Criminal law
Criminal counsel
People v. De La Paz, No. 93208 (May 8, 2003). Because Apprendi does not apply retroactively to convictions in which the direct appeal process had concluded at the time that Apprendi was decided and because defense counsel's refusal to believe that her angry and difficult client was not unfit to participate in post-conviction proceedings and does not constitute ineffective assistance of counsel, trial and appellate court properly dismissed defendant's post-conviction petition.
People v. Moore, No. 87958 (May 22, 2003). Trial court erred when it refused to investigate or even address defendant's pro se motion for appointment of counsel other than public defender filed during the course of post-trial proceedings.
People v. Moore, No. 1-01-0436 (1st District, March 24, 2003). Defendant failed to establish that counsel in public defender's office assigned to represent defendant in his post-trial motion alleging ineffective assistance of trial counsel labored under an actual conflict of interest. Both attorneys being from public defender's office is insufficient grounds to require assignment of a different attorney. Further, hearing on post-trial motion failed to establish ineffective assistance of trial counsel.
People v. Little, No. 4-01-0386 (4th District, March 20, 2003). Defense counsel failed to comply with requirements of Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)) when he filed pro forma motion to reduce sentence without reviewing transcript of sentencing proceedings and without stating any reasons in motion to reconsider sentence for modification. Further, Rule 604(d) certificate was defective when it stated that defense counsel had reviewed transcript of sentencing proceeding before it had even been transcribed.
In re Detention of Hughes, No. 2-00-0999 (2nd District, April 10, 2003). Defendant was not deprived of effective assistance of counsel by virtue of failure to object to trial under Sexually Dangerous Persons Act (725 ILCS 205/0.01 through 12 (West 1998)) or because of a violation of the speedy trial statute (725 ILCS 5/103-5 (West 1998)). The speedy trial statute does not apply to proceedings that are civil in nature. Proceedings under the Sexually Dangerous Persons Act are civil in nature. Further, although it was error to admit results of plethysmograph test without proper Frye hearing, it was not plain error, and defendant waived it by failing to object. In addition, because State gave race neutral reason for excuse of only African American juror, there was no Batson violation.
People v. Stivers, No. 2-01-0991 (2nd District, April 15, 2003). The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2000)) provides a three-stage process to adjudicate petitions filed under it. The trial court erred when it dismissed the defendant's post-conviction petition at the first stage (whether the petition is "frivolous or is patently without merit" 725 ILCS 5/122-2.1(a)(2) (West 2000)) because the defendant had waived review of his guilty plea by failing to file a direct appeal. Matters such as waiver and timeliness must be affirmatively raised by the State and are not proper grounds for summary dismissal. Further, the defendant's allegation of ineffective assistance of counsel for failing to file motion to dismiss based on statute of limitations states the gist of a constitutional claim.
In re Detention of Hargett No., 3-02-0064 (3rd District, April 18, 2003). Trial court erred when it denied motion to substitute judge for cause based on conflict of interest where the judge was State's Attorney at the time that defendant pled guilty to qualifying sexual offenses. Further, trial court erred when it allowed State's psychological experts to testify based on results of MNSOST-R and Static-99 tests without Frye hearing.
People v. Johnson, No. 2-01-1431 (2nd District, May 15, 2003). Trial court erred when it dismissed defendant's post-conviction petition because the attorney appointed to assist him failed to file proper Supreme Court Rule 651 (134 Ill. 2d R. 651(c)) certificate of compliance, failed to consult effectively with defendant and improperly informed the court in open court of the results of his investigation when case was at procedural stage.
Sentencing
People v. Donoho, No. 92988 (April 3, 2003). In defendant's trial for criminal sexual assault and aggravated criminal sexual abuse, trial court did not abuse its discretion when it admitted evidence of defendant's conviction, more than 10 years earlier, of indecent liberties with a child, to show defendant's propensity pursuant to the provisions of section 115-7.3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-7.3 (West 1998)). Further, that section does not violate the equal protection clauses of the federal and State constitutions nor article I, sections 7 and 8 of the Illinois Constitution. However, because defendant's prior conviction was not for criminal sexual assault, aggravated criminal sexual assault, or rape, the trial court erred by interpreting the provisions of section 12-13(b)(4) of the Criminal Code of 1961 (720 ILCS 5/12-13(b)(4) (West 2000) to require enhancement of defendant's conviction for criminal sexual assault to a Class X felony and sentencing him accordingly.
People v. Baker, No. 4-01-0597 (April 30, 2003). The 15-year enhancement of defendant's sentence for aggravated kidnapping (720 ILCS 5/10-2(a)(6) (West 2000)) because he used a firearm while kidnapping his victim violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, §11) because it contains the identical elements as armed violence predicated on kidnapping (720 ILCS 5/33A-1(c)(1) (West 2000)) while imposing a much harsher penalty (720 ILCS 5/10-2(b) (West 2000); 730 ILCS 5/5-8-1(a)(3) (West 2000)).
Vehicle code
People v. Greco, No. 89940 (May 8, 2003). Defendant had standing to challenge the constitutionality of the permissive inference in section 4-103.2(b) of the Illinois Vehicle Code (625 ILCS 5/4-103.2(b) (West 2000)) because his due process rights are implicated in application of its provision to charges against him of knowingly possessing special mobile equipment. Further, because the permissive inference that a person who is in control of special mobile equipment is presumed to know it is stolen regardless of the length of time since the theft makes the presumption less likely to be true than not when applied to the charges against him, the statute violates due process as applied. However, court's ruling that section 1-191 of the Illinois Vehicle Code (625 ILCS 5/1-191 (West 2000)), defining the offense of unlawful possession of special mobile equipment, is unconstitutionally vague is premature.
Election law
Jenkins v. McIlvain, No. 1-03-0646 (1st District, March 24, 2003). Because the courts have interpreted section 10-5 of the Election Code (10 ILCS 5/10-5 (West 2000)) to require that statement of economic interests be filed both before end of nomination period and within same calendar year in which candidate files nominating papers, trial court did not err when it dismissed plaintiffs' complaint seeking to compel election authorities to place plaintiffs' names on April 1 municipal election ballot. Further, local clerk has authority to refuse to certify candidates who do not comply with statute even though they have not been rejected by local election board.
Knobeloch v. Electoral Board, No. 5-03-0128 (5th District, March 26, 2003). Candidate for municipal supervisor of streets must be stricken from the ballot because his statement of candidacy and other nominating papers were notarized by person authorized to administer oaths in Missouri, not a person authorized to administer oaths in Illinois, as required by sections 10-4 and 10-5 of the Election Code (10 ILCS 5/10-4, 10-5 (West 2000)).
Bendell v. Education Officers Electoral Board For School District 148 and Its Members, No. 1-03-0695, 1-03-0696 Cons. (1st District, April 28, 2003). The education officers electoral board for the school district lacks standing to appeal the decision of trial court reversing its ruling and ordering that candidate for school board election be placed on ballot. However, court will consider appeal based on objector's notice and brief. Although the provisions of section 10-4 of the Election Code (10 ILCS 5/10-4 (West 1993)) requiring that nominating petitions be "neatly" fastened together in "book form" and securely fastened together is mandatory and requires strict, and not just substantial compliance, evidence was sufficient to find that candidate's nominating petitions, consisting of no more than six to eight pages, were securely fastened with paper clip.
Hough v. Will County Board of Elections, No. 3-02-0743 (3rd District, April 25, 2003). The appellate court lacks subject matter jurisdiction to consider an appeal from the decision of a county election board granting objection to nominating petitions of appellant because appellant failed to serve copy of petition contesting decision on objectors personally or to file certificate of service with circuit clerk as required by section 10-10.1 of the Election Code (10 ILCS 5/10-10.1 (West 2002)). Service of objectors' attorney is insufficient. The failure of a party to comply with any of the jurisdictional requirements when appealing an electoral board decision invites dismissal via section 2-0619 of the Code of Civil Procedure (735 ILCS 2-0619 (West 2002)), for lack of subject matter jurisdiction.
Freedom of Information Act
Illinois Education Ass'n v. Illinois State Board of Education, No. 93347 (May 22, 2003). The trial and appellate courts erred when they granted summary judgment to the State agency denying plaintiff's Freedom of Information Act request for documents and communications supplied to the Illinois Attorney General pertaining to a request for an Attorney General opinion. Although the Attorney General's opinion writing function is an inherent part of the Attorney General's duty to "represent" public bodies, the affidavits presented by the State agency were conclusory in nature and did not meet the heavy burden of demonstrating legitimate expectation of confidentiality necessary for applying the exemption set forth in section 7(1)(n) of the Freedom of Information Act (5 ILCS 140/7(1)(n) (West 2000)). On remand, the State agency must present objective indicia that the attorney-client exemption of section 7(1)(n) is applicable.
Labor law
Chicago Teachers Union v. Chicago School Reform Board of Trustees, No. 1-01-4414 (1st District, March 12, 2003). Illinois Educational Labor Relations Board's decision that transfer of certified teacher from regular permanent position to a reassigned teachers pool was not subject to arbitration since it was matter of "class assignment and staffing" as used in section 4.5(a)(4) of the Illinois Educational Labor Relations Act (115 ILCS 5/4.5(a)(4) (West 2000)) was clearly erroneous.
Municipal law
Key Outdoor Inc. v. City of Galesburg, Illinois, 327 F. 3d 549 (7th Cir. 2003). In state action (that was ultimately removed to federal court) seeking compensation for defendant's enactment of ordinance banning outdoor signs beginning in 2009, district court erred in dismissing outright state law claims in addition to federal claims under Highway Beautification Act (23 USC §131(g)). Although plaintiff did not contest the district court's dismissal of the federal claim, the district court should have remanded state law claims back to state court since there was no precedent from state court as to issues raised in state law claims, and since district court's dismissal of state law claims was based on plaintiff's failure to seek remedy in state court which it had originally attempted to do. Moreover, plaintiff is free to raise Highway Beautification Act issue in state court since state court may elect to enforce said Act as matter of state law.
Hawthorne v. Village of Olympia Fields, No. 93462 (April 17, 2003). Non-home-rule municipality exceeded its authority when it excluded "day care home" licensed by the Illinois Department of Children and Family Services (DCFS) pursuant to the Child Care Act of 1969 (225 ILCS 10/1 et seq. (West 2000)) from permissible uses in residential districts. Therefore, trial and appellate courts properly enjoined it from exercising its zoning authority in a way that conflicts with the Child Care Act of 1969 or the DCFS regulations adopted pursuant to that Act.
First Bank and Trust of Illinois v. Village of Orland Hills, No. 1-01-3539 (1st District, March 17, 2003). Trial court was correct when it granted motion to dismiss pursuant to section 2-0619 of the Code of Civil Procedure (735 ILCS 5/2-0619 (West 1998)). The language of the annexation agreement and the subsequent amendment allow disconnection of parcel of real estate from village dependent on village's inability to compel water company to provide water service to subdivision pursuant to pending litigation. Further, court properly considered recitals in amendment agreement as describing context surrounding amendment to agreement.
McMahon v. City of Chicago, No. 1-02-0536 (1st District, April 22, 2003). Plaintiff's complaint for breach of contract for artwork supplied by plaintiff was properly dismissed pursuant to section 2-0615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-0615 (West 2000)) because it alleged a breach of contract based on an agreement that was not in compliance with the provisions of State statute or local purchasing ordinances. First, the contract was not approved by an authorized purchasing agent, and second, it was not publicly advertised and subject to competitive bidding.
City of Decatur v. Page, No. 4-02-0863 (4th District, May 20, 2003). Trial court erred when it granted summary judgment to city, which issued a ticket for driving overweight truck to driver on city's roads. In order to regulate the weight of trucks driving on its roads, the city is required by section 11-207 of the Illinois Vehicle Code (625 ILCS 5/11-207 (West 2000)) to post signs warning of limits, even though the weight limit is the same as that imposed under the Vehicle Code.
Pensions
Krohe v. City of Bloomington, No. 94112 (March 20, 2003). For purposes of the Public Safety Employee Benefits Act (820 ILCS 320/10 (West 2000)), the phrase "catastrophic injury" is synonymous with an injury resulting in a line-of-duty disability under section 4-110 of the Illinois Pension Code (40 ILCS 5/4-110 (West 2000)). Therefore, the defendant was required to provide medical insurance for the family of the plaintiff, a disabled firefighter receiving a line-of-duty pension.
Shields v. Judges' Retirement System, No. 94029 (May 22, 2003). By plain meaning of section 18-129 of Pension Code (40 ILCS 5/18-129 (West 1992)), a retired judge convicted of a felony resulting in the forfeiture of his pension, was entitled to a full refund of his contributions to the pension fund without any reduction for annuity benefits actually paid to him.
Knight v. Village of Bartlett, No. 1-01-2991 (1st District, March 28, 2003). Police pension board could not simultaneously find that claimant suffered from severe psychological condition rendering him unfit to serve as police officer and deny his disability application. Further, board's determination that claimant's disability was not related to his employment as a police officer is against the manifest weight of the evidence, it being clear that claimant's condition resulted from his work as an undercover narcotics officer.
Rizzo v. Board of Trustees of the Village of Evergreen Park Police Pension Fund, No. 1- 02-0747 (1st District, April 17, 2003). Trial court erred when it reversed decision of police pension board denying plaintiff's disability pension because one of the physicians appointed by board failed to certify plaintiff as disabled. Board correctly interpreted provisions of section 3-115 of Pension Code (40 ILCS 5/3-115 (West 1996)) that disability pension can only be awarded when all three board-appointed physicians submit certification that police officer is disabled. Physician's certification of no disability is never required.
Taxation
Arangold Corp. v. Zehnder, No. 93836 (March 20, 2003). Because there is a basis for the General Assembly to conclude that tobacco products increase the burden on the State for payment of medical care of its impoverished elderly, the plaintiffs failed to establish that the Tobacco Products Tax Act of 1995 (35 ILCS 143/10-10 et seq. (West 2000)) violates either the due process clause (Ill. Const. 1970, art. I, §2) or the uniformity clause (Ill. Const. 1970, art. IX, §2) of the Illinois Constitution.
Balmoral Racing Club, Inc. v. Gonzales, No. 1-02-0084 (1st District, March 31, 2003). Circuit court had jurisdiction to consider declaratory judgment action against Illinois Racing Board for refund of excess pari-mutuel taxes paid for calendar year 1999 because it is action against State officials for actions beyond their statutory authority. Further, plaintiff's complaint correctly interprets Illinois Horse Racing Act of 1975 (230 ILCS 5/1 through 55 (West Supp. 1999)) to require reimbursement for calendar year 1999 despite amendment effective January 1, 2000. Further, action is not barred by voluntary payment doctrine, and court should allow amendment on remand to request court to facilitate potential remedy of withholding future taxes.
Kankakee County Board of Review v. State of Illinois Property Tax Appeal Board No. 3- 01-0406 (3rd District, March 31, 2003). Decision of the Property Tax Appeal Board (PTAB) that request of owner of industrial site for reduction in assessed valuation for 1998 and 1999 tax years was warranted is not against manifest weight of the evidence despite admission of tax declaration sheet demonstrating sale in 2000 of subject property for higher price. PTAB could properly conclude that 1997 appraisal was more reliable because, among other considerations, purchase price could have been affected by re-zoning of subject property, and taxing body failed to set forth details of purchase transaction.
Commonwealth Edison Co. v. People ex rel. Coffman, No.2-02-0342 (2nd District, April 9, 2003). Trial court properly granted summary judgment in favor of forest preserve district dismissing objection of taxpayer to taxes levied to retire general obligation bonds related to development of golf course. Bonds were not issued in violation of the Local Government Debt Reform Act (30 ILCS 350/1 et seq. (West 2000)), and golf course development is specifically authorized by Downstate Forest Preserve District Act (70 ILCS 805/1 et seq. (West 2000)).
Terrill v. Oakbrook Hilton Suites & Garden Inn, LLC, No. 2-02-0415 (2nd District, April 21, 2003). Hotel operator may not use the provisions of section 3(f) of the Hotel Operators' Occupation Tax Act (35 ILCS 145/3(f) (West 2000)) to obtain dismissal of class action lawsuit brought by patron of hotel for security fee listed as "room occupancy taxes," but paid to the Village of Oakbrook Terrace pursuant to an agreement and not to the Department of Revenue. Further, plaintiff is not foreclosed from bringing complaint by virtue of her failure to demand refund before filing complaint.
Tort immunity and liability
Carver v. Sheriff of LaSalle County, 324 F. 3d 947 (7th Cir. 2003). District court erred in finding that county was not responsible for paying settlement agreed to by county sheriff, who was sued in his official capacity in underlying Title VII action. Moreover, county is indispensable party to Title VII action, and thus has right to veto any settlement proposed by sheriff.
Mills v. County of Cook, No. 1-01-4091 (1st District, March 31, 2003). Trial court erred when it granted section 2-0619 (735 ILCS 5/2-0619 (West 2000)), motion to dismiss medical malpractice complaint based upon a finding that section 6-106(a) Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/6-106(a)(West 2000)) immunizes defendant from liability. Because doctor had correctly diagnosed plaintiff's decedent with pneumonia, but provided inadequate treatment, according to plaintiff's expert, there is no immunity.
Paszkowski v. Metropolitan Water Reclamation District, No. 1-01-4419 (1st District, April 21, 2003). Trial court erred when it applied the one-year limitation of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/8-101 (West 1998)), rather than four-year period of section 13-214 of the Code of Civil Procedure ((735 ILCS 5/13-214 (West 1998)) for construction litigation to dismiss plaintiff's complaint for negligence against water reclamation district for injuries he sustained while working on deep tunnel project. Rejecting holding in Greb v. Forest Preserve District of Cook County, 323 Ill. App. 3d 461 (2001), appellate court held that section 13-214 of the Code of Civil Procedure is more specific than section 8-101 of the Local Governmental and Governmental Employees Tort Immunity Act, therefore, the provisions of section 13-214 of the Code should be applied.
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