Quick takes on Thursday's Illinois Supreme Court opinions
Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the Civil case Downtown Disposal Services, Inc., v. The City of Chicago and the Criminal case People v. Murdock.
By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC
A corporation must be represented by counsel in legal proceedings. In a four to three split opinion, with Justice Burke writing for the majority, the Illinois Supreme Court ruled that a corporation's complaint, filed by its lay president rather than by an attorney, was not automatically a nullity. Rather, circuit courts should consider the circumstances of the case to determine whether the filing defect requires dismissal or may be cured.
Downtown Disposal failed to appear at several scheduled administrative hearings in response to notices of city ordinance violations. After the department of administrative hearings entered default judgments against the corporation, Peter Van Tholen, the president of the company, filed motions to set aside the judgments. Van Tholen appeared before an administrative law officer and blamed poor record keeping by the City for the company's failure to receive the notices. Citing a lack of evidence to support the change-of-address explanation, the hearing officer denied the motions to vacate and told Van Tholen that he had a right to appeal to the circuit court. Van Tholen then filed pro se complaints. Arguing that the complaints had not been filed by an attorney, and thus were null and void, the City won motions to dismiss the complaints. The appellate court declined to apply the nullity rule and reversed the judgment.
After determining that Van Tholen had engaged in the unauthorized practice of law, and acknowledging Illinois appellate precedent establishing that the such conduct required dismissal, the majority concluded that a per se nullity rule is unreasonable. The court cited a number of decisions from other jurisdictions; in particular, the supreme court extensively cited a decision of the Court of Appeals for the Seventh Circuit, In re IFC Credit Corp., 663 F.3d 315 (7th Cir. 2011). While a court may dismiss an action where a "nonlawyer's participation on behalf of the corporation is substantial, or the corporation does not take prompt action to correct the defect," a circuit court may determine that dismissal is not warranted. Relevant circumstances include whether the nonattorney acts unknowingly and only minimally participates in the case, whether the corporation acts diligently to correct the mistake, and whether the nonattorney's participation prejudices the corporation's opponent. The supreme court found that deeming Downtown Disposal's complaints a nullity would be too harsh under the circumstances; the situation could be remedied by allowing amendment of the complaints to add counsel's signature.
Justice Karmeier, joined by Chief Justice Kilbride and Justice Thomas, dissented. Justice Karmeier contended that the majority's decision sanctioned the unauthorized practice of law in a decision breaking with more than 150 years of precedent. Painstakingly analyzing the federal and out-of-state cases cited by the majority, the dissent concluded that those decisions provided little support for relaxing the nullity rule. Justice Karmeier also criticized the majority for reviewing the record to determine whether the nullity rule should be applied, rather than remanding the case to the circuit court to conduct that analysis.
By Kerry J. Bryson, Office of the State Appellate Defender
Germill Murdock was 16 years old in 2001 when he was interrogated about a murder. He admitted to driving two individuals to the scene of the murder, and at one point admitted that he was aware they were planning to kill someone.
In a post-conviction petition, Murdock argued that his trial attorney was ineffective for not seeking suppression of his statements. The trial court denied the petition after a hearing, and Murdock appealed. The appellate court remanded the matter to the trial court for a suppression hearing. At that hearing, the motion to suppress was denied. Murdock appealed, and the appellate court affirmed.
Murdock argued that the denial was in error, noting that there was no juvenile officer present during the interrogation and that he had not been permitted to speak with a “concerned adult” when his grandparents (with whom he lived) had come to the police station while he was being held there. Murdock urged the Court to consider evidence from the original post-conviction hearing – specifically his grandmother’s testimony that she had asked to speak to Murdock at the police station but was refused access to him – in evaluating the issue. The Court declined and limited its review to the evidence from the suppression hearing. After considering that evidence, the court affirmed the denial of the motion to suppress, finding that the totality of the circumstances did not demonstrate that defendant’s statement was involuntary. While the absence of a juvenile officer and the lack of contact with a concerned adult weighed against a finding of voluntariness, neither factor was dispositive.
Interestingly, the Court noted that there are two lines of cases when it comes to the role that a juvenile officer plays during the interrogation of a minor: (1) the role of verifying that the parents/guardians have been notified, of ensuring that Miranda warnings are given, and of ensuring that the juvenile is properly treated and not coerced; or (2) the more active role of demonstrating an interest in the minor’s welfare and affirmatively protecting the minor’s rights. The Court declined to decide which line of cases is correct, however, because there was no juvenile officer present here (the investigating officer’s claim that he was also acting as a juvenile officer was rejected because the two roles are incompatible).
The Court emphasized that the absence of a juvenile officer is a “significant” factor and that the inability to speak with a concerned adult “weighs against voluntariness.” The Court made very clear, however, that neither factor is controlling; the voluntariness inquiry is focused on the totality of the circumstances for a minor, just as it is for an adult.
Writing for the dissent, Justice Burke stated that the appellate court erred in remanding for a suppression hearing when Murdock appealed from the denial of his petition after a third-stage evidentiary hearing. The dissent concluded that the appellate court should have reviewed the claim of ineffective assistance of counsel based on the record before it at that time. At issue would have been the question of prejudice which was dependent on the merits of Murdock’s suppression motion. Considering the evidence at the post-conviction hearing, the dissent would have concluded that the motion had merit, that the outcome of Murdock’s trial likely would have differed in the absence of the evidence in question, and that Murdock therefore received ineffective assistance of counsel warranting remand for a new trial.
The dissent noted that the Post-Conviction Hearing Act is structured to allow adjudication of constitutional claims as promptly as possible. The dissent cautioned that the procedure used by the appellate court here – remanding for a suppression hearing after an evidentiary hearing had already been held – jeopardized the search for truth because, over time, memories fade and witnesses become unavailable.