The Bar News

Quick Take on Illinois Supreme Court Opinion Issued Thursday, August 9

The Illinois Supreme Court handed down one opinion on Thursday, August 9. The supreme court addressed the issue of whether the lower court erred when it terminated a father’s parental rights on the grounds that he was an unfit person under the Adoption Act.

In re N.G., a minor, 2018 IL 121939

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC 

In a 4-3 decision of the Illinois Supreme Court, the majority’s expansive view of the judiciary’s obligation to right a constitutional wrong clashes with the dissent’s adherence to judicial restraint. The supreme court ruled that a circuit court cannot terminate parental rights on the basis of a parent’s felony criminal conviction, where the conviction was based on a statute later deemed unconstitutional on its face.

The supreme court addressed a circuit court ruling obtained at the request of the Department of Children and Family Services (DCFS) to terminate the parental rights of Floyd F. to his minor child, N.G., under a provision of the Adoption Act establishing a statutory presumption that a parent is “depraved” if he is convicted of three or more felonies.  750 ILCS 50/1(D) (West 2010).  The supreme court’s ruling rested on its decision in People v. Aguilar, 2013 IL 11216, where the court found that an Illinois statute criminalizing the aggravated unlawful use of a weapon on its face violated the Second Amendment of the United States Constitution.  

In a decision written by Chief Justice Karmeier, with Justice Burke concurring and Justices Kilbride and Neville specially concurring with separate opinions, the court found Floyd F.’s 2008 conviction void.  Thus, the conviction could not support a finding that he was depraved under the provision of the Adoption Act at issue.

The court began its review of the appellate court’s decision to reverse the circuit court’s termination ruling by observing that Floyd F.’s federal constitutional rights had twice been violated: first, the conviction violated Floyd F.’s Second Amendment rights; second, the involuntary termination of his parental rights violated the Due Process Clause of the Fourteenth Amendment – his liberty interest in raising his child.  A key aspect of the court’s analysis was its distinction between a conviction resulting from a statute with constitutionally deficient procedures and a conviction under a statute ruled unconstitutional on its face.  Floyd F.’s conviction under the latter category of constitutionally infirm criminal statutes was void, the court ruled.  Citing Montgomery v. Louisiana, 577 US ___, 136 S.Ct. 718, 730-31 (2016), the majority reasoned that no punishment could be imposed under the subject weapon law.  The conviction must be treated as though it did not exist, and, the court found, cannot be used for any purpose.

The court determined that it had an affirmative duty to invalidate the still-standing conviction.  Following a thorough and lengthy discussion of federal, sister state and Illinois precedent, the court reached the conclusion that no fixed procedure dictated the mechanism or forum for a collateral attack on such a conviction.  Moreover, the supreme court charged any court having jurisdiction over the parties and the case with an independent duty to vacate a void conviction – sua sponte, if need be.  Under the court’s ruling, DCFS could proceed on remand to challenge Floyd F.’s parental fitness under some other provision of the Adoption Act.  No ruling could rely, however, on the 2008 conviction vacated by the court.

Justice Kilbride and Justice Neville each wrote a special concurrence emphasizing that the burden of vacating such a conviction does not rest with the defendant.  Justice Neville wrote that all participants in the criminal justice system, including prosecutors, must bear the burden of correcting a void conviction.

Justice Theis, joined by Justice Thomas and Justice Garman, provided a sharply worded dissent.  A sampling of Justice Theis’ critique of the majority opinion includes that the appellate court lacked jurisdiction to vacate the 2008 judgment of conviction; that no evidence was presented to the trial court in the termination proceedings establishing proof that Floyd F.’s conviction was based on an unconstitutional statute; and that the court’s opinion provides appellate courts with “the green light to undo final judgments” in completely different proceedings.

Posted on August 10, 2018 by Rhys Saunders
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