Quick Takes on Thursday's Illinois Supreme Court opinions
Our panel of leading appellate attorneys review Thursday's top Illinois Supreme Court opinions in the Civil case Moline School District No. 40 Board of Education v. Quinn and the criminal cases People v. McFadden and People v. Rizzo.
By Joanne R. Driscoll, Forde Law Offices LLP
Does legislation (Public Act 97-1161) creating a property tax exemption for one lessee of one metropolitan airport authority violate the special legislation clause of the Illinois Constitution (Ill. Const. 1970, art. IV, § 13)? Affirming the appellate court, the Illinois Supreme Court held that it does.
Moline School District No. 40 (the “School District”), faced with the prospect of losing more than $150,000 in tax revenues, challenged a legislative amendment to the Property Tax Code (35 ILCS 200/1-1 et seq.), claiming it arbitrarily benefited a select group – here the sole intervening defendant, Elliott Aviation (Elliott). Elliott, a for-profit business called a fixed based operator (FOB), leased property and improvements from the Metropolitan Airport Authority of Rock Island County (the MAA). FBOs provide fuel, use of hangers, pilot resting areas, weather briefings, flight planning, aircraft maintenance, and other services to general aviation aircraft (those not operated by commercial airlines, large charters, or military).
Applying the two-part analysis for special legislation challenges, the Court found the statute unconstitutional because: (1) the classification discriminated in favor of certain persons or entities (here, Elliott); and (2) the classification was arbitrary. Addressing the pivotal question in the case – whether the statutory classification was rationally related to a legitimate state interest – the Court identified a legitimate state interest to provide a financial incentive to Elliott to expand its operations at the MAA rather than at its other facility in Iowa where no property tax liability existed. It found, however, that there was no reasonable basis for limiting the tax incentive to Elliott’s leasehold interest at the MAA when other FBOs at other Illinois airports similarly competed with more tax-friendly jurisdictions but were denied the property tax exemption.
A dissent by Justice Theis noted that the special legislation clause does not prohibit the legislature from enacting a law tailored to an entity that is uniquely situated to address conditions particular to that entity. The dissent stated that the majority opinion turns the strong presumption of constitutionality on its head and ignores the persuasive evidence presented by Elliott concerning its unique situation and the weak evidence presented by the School District showing that other FBOs (and other businesses) across the state were similarly situated to Elliott.
By Kerry J. Bryson, Office of the State Appellate Defender
In 2002, McFadden was charged with six counts of aggravated unlawful use of a weapon (AUUW), two of which were based on the same provision later held unconstitutional in Aguilar. He pled guilty to one count of AUUW.
In 2008, McFadden was charged with three counts of armed robbery and two counts of unlawful use of weapon by a felon (UUWF). At a bench trial, he stipulated that he was previously convicted of AUUW in 2002. He was convicted of all charges. On appeal, the appellate court vacated the UUWF based on Aguilar “because the State did not prove an essential element of the offense where it alleged in the charging instrument and proved at trial a predicate offense that has been declared unconstitutional and void ab initio.”
The Supreme Court majority defined the issue on appeal as whether a prior conviction asserted to be based on a statute subsequently declared facially unconstitutional may still serve as proof of the predicate felony for UUWF purposes. In holding that it may, the Court relied on United States Supreme Court precedent, Lewis v. United States, 445 U.S. 55 (1980), which held that a constitutional infirm prior conviction could be a predicate. The statute at issue in Lewis prohibited a felon from possessing a weapon despite the fact that the predicate felony might later be subject to collateral attack on constitutional grounds. The Court noted that the Illinois statute is similar to that in Lewis because it applies to any person who “has been convicted” of a felony and is not limited to those persons whose prior felony is not later subject to vacatur. The Court concluded that under Lewis, the fact of the felony conviction, without any intervening vacatur or other affirmative action to nullify it, triggers the firearms disability.
An individual’s firearms disability ceases only when his constitutionally infirm felony conviction is vacated. Thus, under McFadden, an individual must first clear his felon status before obtaining a firearm. Citizens cannot exercise “self-help” by first obtaining a firearm and then challenging their felon status in any subsequent prosecution. The Court noted that the requirement of clearing the prior conviction first is especially important in cases like this one where, from the record on file in the instant case, it is not clear that the prior AUUW conviction was based on an Aguilar-invalidated provision of the statute.
The Court also rejected what it termed “undeveloped” due process and second amendment challenges. As to the due process challenge, the Court concluded that the legislature could rationally conclude that any felony conviction, even an invalid one, is sufficient to preclude firearm possession because nothing prevents a defendant from challenging an invalid underlying conviction. As to the second amendment challenge, the Court concluded that UUWF is a presumptively lawful regulatory measure and the second amendment’s protection is reserved for law abiding, responsible citizens.
The Court also rejected McFadden’s cross-appeal to the sentence imposed for armed robbery because it was based, in part, on the invalid 2002 conviction of AUUW. The Court concluded that any weight placed on that conviction, if confirmed to be invalid, was insignificant in light of McFadden’s extensive criminal history generally, as well as the nature of the armed robbery offenses at issue.
In a partial concurrence, partial dissent, Justice Kilbride, joined by Justice Burke, stated that the question before the Court should have been whether UUWF may be predicated on a prior conviction for a felony that could never have been validly established or prosecuted in light of the void ab initio doctrine. The dissent would have answered that question in the negative and vacated the UUWF conviction. The dissent distinguished Lewis on the basis that the invalid predicate conviction there was based on a constitutional trial process error, not a void statute. Requiring prior vacatur of the predicate felony is manifestly unjust and absurd in the view of the dissenting justices.
By Jay Wiegman, Office of the State Appellate Defender
In 2013, Vincent Rizzo was charged with aggravated speeding for allegedly driving 100 miles per hour in a 55 mph speed zone, and with improper lane usage for allegedly cutting in between two semi-trucks at a high rate of speed. At the time, supervision was not an available disposition for those who drove more than 40 miles per hour over the speed limit. Rizzo's counsel, however, persuaded the trial court that denying a driver of the possibility of supervision was unconstitutional. While noting that the Legislature has a legitimate interest in enacting legislation that defines and criminalizes excessive speeding, the circuit court found that denying a defendant the dispositional option of court supervision for speeding more than 40 mph over the speed limit was "cruel and degrading punishment." Notable was the trial court's concern that the Legislature was interfering
with a judge's ability to exercise discretion in imposing sentence.
On direct appeal, the Illinois Supreme Court reversed the trial court. People v. Rizzo, 2016 IL 118599. Writing for the seven-person majority, Justice Karmeier first noted that the trial court had found the statute at issue [730 ILCS 5/5-6-1(p) (2012)] to be unconstitutional both facially and as-applied. However, a facial challenge requires a showing that the statute is unconstitutional under any set of facts. In other words, a statute cannot be both facially unconstitutional and as-applied.
Addressing the trial court's proportionate penalty analysis, the majority observed that because it had rejected the "problematic and unworkable" cross-comparison approach in People v. Sharpe, 216 Ill.2d 481 (2005), only two bases remain for mounting a proportionate penalties challenge: a defendant can argue that the penalty for a particular offense is harsher than the penalty for a different offense that contains identical elements, or that the penalty is too severe under the "cruel or degrading" standard. The majority found that the circuit court properly rejected the former approach.
However, the majority disagreed with the trial court's determination that denial of supervision to anyone who exceeds the speed limit by 40 miles per hour or more is cruel and degrading. In reaching this conclusion, the majority reiterated the general proposition that the Legislature's authorization of a designated punishment for a specific crime strongly implies that it reflects society's "moral sense" of elemental decency and fairness. It also recognized that the Legislature has broad authority to establish mandatory minimum sentences. As a result, the "mandatory requirement of conviction upon a finding of guilt, as opposed to the dispositional option of supervision, does not, in itself, violate the proportionate penalties clause."
Finally, the majority rejected the claim that the denial of supervision is a punishment, largely because the possible collateral consequences claimed by the defendant were not "a direct action by the government to inflict punishment."
Specially concurring, Justice Burke, with whom Justice Freeman joined, agreed with the result, but wrote that because the absence of supervision as a possible disposition is not a penalty, the only question that needed to be addressed was whether a mandatory misdemeanor penalty for the offense of aggravated speeding was so cruel and degrading to the offense that it shocked the moral sense of the community and thereby violated the proportionate penalty clause shocked the moral sense of the community. Justice Burke also stated a concern that the majority had been heavy-handed in its criticism of the trial judge. Justice Burke noted the circuit court's expressed concern about the inability to consider supervision for someone who, for example, was speeding because of a medical emergency, and observed that the Legislature had, as this case was pending, amended the relevant statutes to make supervision an optional disposition for first offenders