The Bar News

Quick Takes on Illinois Supreme Court Opinions Issued Thursday, October 18

The Illinois Supreme Court handed down seven opinions on Thursday, October 18. The court affirmed that the warrantless use of a drug-detection dog at a man’s apartment door violated his Fourth Amendment rights in People v. Bonilla, reversed the appellate court’s judgment vacating a man’s sentences and remanding for resentencing for a murder conviction in People v. Harris, upheld a circuit court’s decision to seal two motions filed by a defendant facing murder charges in People v. Zimmerman, and affirmed a defendant’s conviction for unlawful delivery of a controlled substance within 1,000 feet of a church in People v. Newton. The supreme court also reversed a circuit court’s decision to dismiss eminent domain complaints against landowners in Ameren Transmission Company of Illinois v. Hutchings, considered the meaning of the phrase “unable to satisfy any judgment” in Cassidy v. China Vitamins, LLC, and affirmed a circuit court’s order dismissing claims against an insurance company in American Family Mutual Insurance Company v. Krop.

People v. Bonilla

By Jay Wiegman, Office of the State Appellate Defender

Recently, in People v. Burns, 2016 IL 118973, the Illinois Supreme Court held that the warrantless use of a drug‑detection dog at a defendant’s apartment door, located within a locked apartment building, violated a defendant’s rights under the Fourth Amendment to the United States Constitution. Today, the supreme court applied the same protection to unlocked apartment buildings in People v. Bonilla, 2018 IL 122484.

The facts were undisputed, largely because the state did not present the search warrant and affidavit relied on by the trial court when it heard and granted the defendant’s motion to suppress. The supreme court admonished the state for this failing: “It is inconceivable that the State would expect this court to review the propriety of the trial court’s ruling on defendant’s motion to suppress evidence without providing a copy of the documents that were considered by the trial court in making its ruling.” Bonilla, 2018 IL 122484. As a result, the court considered the matter purely as a question of law, which the court stated was “whether the warrantless use of a drug‑detection dog at the threshold of an apartment door, located on the third floor of an unlocked apartment building containing four apartments on each floor, violated defendant’s fourth amendment rights.” Bonilla, 2018 IL 122484.

In determining whether Bonilla’s Fourth Amendment rights were violated, Justice Kilbride, writing for the majority, relied primarily upon the court’s recent decision in Burns, as well as the United States Supreme Court’s decision in Florida v. Jardines, 569 U.S. 1 (2013), which held that a warrantless “dog sniff” of an individual’s front porch was a search for purposes of the Fourth Amendment and suppressed the recovered evidence. The court in Jardines specifically regarded the curtilage as part of the home itself for Fourth Amendment purposes. In Burns, the Illinois Supreme Court applied the holding of Jardines to apartment buildings. And while the apartment building in Burns was unlocked, the court in Bonilla considered that to be a distinction without a difference.

Also, as it did in Burns, the court in Bonilla, rejected the state’s claim that the good-faith exception to the exclusionary rule applied. Rejecting the state’s argument that dog sniffs are not searches, the court noted that the cases relied upon by the State, like United States v. Place, 462 U.S. 696 (1983), City of Indianapolis v. Edmond, 531 U.S. 32 (2000), and Illinois v. Caballes, 543 U.S. 405 (2005), involved the use of dog sniffs in public places, rather than at the threshold of a person’s home. 

Chief Justice Karmeier dissented, as did Justice Thomas, who relied primarily on his dissent in Burns. The chief justice added the observations that the common hallways of an apartment building are not curtilage, and that the officer had a right to be in front of the defendant’s doorway. The chief justice also considered the officer to have acted in good faith, given the status of the law at the time the warrant was obtained.

People v. Harris

By Kerry J. Bryson, Office of the State Appellate Defender

Darien Harris was convicted of first-degree murder, attempted first-degree murder, and aggravated battery with a firearm arising out of a shooting at a Chicago gas station. He was sentenced to an aggregate term of 76 years of imprisonment. That sentence was comprised of a 45-year sentence for first-degree murder consecutive to a 31-year sentence for attempted first-degree murder. Harris was 18 years old at the time of the incident.

In the appellate court, Harris successfully argued that the aggregate 76-year term constituted a de facto life sentence and violated the proportionate penalties clause of the Illinois constitution. Specifically, the appellate court concluded that even though Harris was technically an “adult” by virtue of his being 18 years old, he was entitled to the protections afforded to juveniles under recent developments in juvenile sentencing law – specifically, the United States Supreme Court’s holding in Miller v. Alabama, 567 U.S. 460 (2012), that a juvenile offender may not be sentenced to life imprisonment without consideration of the offender’s youth and “attendant characteristics.” In reaching this conclusion, the appellate court noted brain development science, suggesting that older teens are more like adolescents than fully mature adults.

The Illinois Supreme Court allowed the state’s petition for leave to appeal and, today, reversed the appellate court’s proportionate penalties determination. But, the court did not reach that result by considering the merits of Harris’ claim. Instead, relying on People v. Thompson, 2015 IL 119151, the court found that because Harris had not raised the proportionate penalties claim in the trial court, the record was inadequate to consider it. Specifically, the court noted that there was only basic information about Harris in the record, most of which came from the presentence investigation report, but nothing about “how the evolving science on juvenile maturity and brain development that helped form the basis for the Miller decision applies to defendant’s specific facts and circumstances.” So, the majority did not resolve the question presented by this case (whether a mandatory, aggregate, de facto life sentence imposed on an 18-year-old defendant is constitutionally infirm under the proportionate penalties clause of the Illinois constitution).

The court did reach two arguments raised by Harris on cross-appeal, however, and rejected them both. With regard to sentencing, the court disagreed that the 76-year aggregate term was facially unconstitutional under the Eighth Amendment. The court held that an 18-year-old defendant is an “adult” not subject to Miller’s protections. After a detailed discussion of the evidence presented at trial, the court also rejected Harris’ challenge to the sufficiency of the evidence of guilt on the murder charge.

Justice Burke wrote a special concurrence stating that she would have reached the merits of the proportionate penalties challenge. Specifically, she outlined that because Harris received the mandatory minimum term, the trial court could not have exercised any discretion, and thus the challenge was really to the statutory scheme that required the mandatory de facto life sentence. Such a challenge is not fact-specific to defendant’s case, but rather concerns the lack of trial court discretion, making it a facial challenge. Regardless, Justice Burke would have rejected Harris’ claim on its merits because he was 18 years old and, despite scientific research, the question is really one of “social policy that rests on the community’s moral sense.” Presently, that does not include extending Miller protections to offenders 18 years or older.

People v. Zimmerman

By Kerry J. Bryson, Office of the State Appellate Defender

Kirk Zimmerman, facing a first-degree murder charge in the death of his former spouse, filed two motions in limine under seal. Zimmerman’s motions sought to exclude “sensitive, private, and/or inflammatory information” concerning himself, witnesses, and third parties from his trial. The information in question had been provided by the state during discovery. (There was also a request to close the courtroom proceedings on the motions, but the state agreed not to introduce at trial any of the evidence in the motions, so Zimmerman withdrew the request to close.)

Multiple media outlets intervened and filed an objection to the sealing of Zimmerman’s motions. The media argued that sealing violated the presumption of the right of access under the First Amendment and common law. Ultimately, the trial court granted the request to seal and said it would revisit the matter once the jury was seated. The media intervenors filed an appeal.

The Illinois Supreme Court first considered whether there was jurisdiction for the interlocutory appeal. The majority cited prior cases where Supreme Court Rule 307(a)(1) was interpreted to confer appellate jurisdiction over interlocutory orders circumscribing public access of information in juvenile and civil cases, and found no reason to treat criminal cases differently. On this point, Justice Thomas dissented, noting that Rule 307 is a civil rule that does not apply to criminal cases. Instead, Justice Thomas noted a rule amendment might be appropriate to provide for such appeals in criminal cases, but without such a rule there was no jurisdiction for an interlocutory appeal here.

On the merits, the majority first found that there was no First Amendment right of access to the information in question here. Such an analysis involves a two-step “experience and logic test.” Specifically, is the document one that has historically been open to the press and general public (experience), and does public access to the document play a significant positive role in the functioning of the particular judicial process in question (logic)? The court answered both of these questions in the negative, noting that the sensitive information referenced in the motion in limine was a matter of discovery, not trial evidence, and that disclosure could actually play a negative role by tainting the jury pool.

The common law presumption of public access has been codified in the Clerk of Courts Act in Illinois (705 ILCS 105/16(6)) and provides generally that all records filed with the clerk are public records and open to inspection without cost. But, the right of access is not absolute, and a court has discretion to deny access. Here, the court did not abuse its discretion in sealing the motions where the material in question was sensitive and inflammatory, the material was not trial evidence but rather was discovery, and this was a high publicity case. The supreme court cited with approval the fact that the trial court agreed to revisit the sealing order once the jury had been empaneled, thereby striking a balance between the right of public access and Zimmerman’s right to a fair trial.

People v. Newton

By Jay Wiegman, Office of the State Appellate Defender

The penalty for delivering less than one gram of cocaine is enhanced from a Class 2 felony to a Class 1 felony when it occurs “within 1,000 feet of the real property comprising any church, synagogue, or other building, structure, or place used primarily for religious worship.” 720 ILCS 570/407(b)(2)(West 2014). In People v. Newton, 2018 IL 122958, the Illinois Supreme Court considered whether the enhancement was properly applied to the defendant where the detective who initiated the controlled buys testified that they occurred 518 feet from a building that he knew was operating as a church at the time of the controlled buys. The officer believed the building was a church because it had signage for a church and he had observed cars coming and going from the church parking lot. At trial, photos showing the building and a sign reading “First Christian Church,” and which also contained an image of a red goblet with a white cross, were admitted into evidence. After his conviction, Newton maintained that the statute required the state to demonstrate with particularized evidence that the church was used primarily for religious worship at the time of the offense.

Writing for the majority, Justice Theis first considered the plain language of the statute, and determined that “for a location to fall within the ambit of the statute, it must be property that is used primarily for religious worship, and the legislature has already determined that a church or a synagogue meets that requirement.” Newton, 2018 IL 122958. In so finding, the court rejected the defendant’s argument that the phrase “used primarily for worship” modifies the word “church.” Newton, 2018 IL 122958. The majority considered it redundant to say that a church is primarily used for worship. Newton, 2018 IL 122958. The court stated that whether a building was a church was a fact-intensive question dependent upon the particular facts and circumstances of a given case: in some cases, the trier of fact may be presented with a property that has the classic, iconic characteristics of a church. Newton, 2018 IL 122958. In others, the trier of fact may be asked to consider whether other particular structures are places of worship. Newton, 2018 IL 122958.

Justice Burke, joined by Justice Neville, dissented. The dissent termed the majority’s analysis “unconstitutional and unworkable,” and in contravention of the purpose of the statute. Newton, 2018 IL 122958 (Burke, J., dissenting). The dissent opined that the majority had created an unconstitutional, mandatory  presumption that evidence showing the building to look like a classic, iconic church was sufficient. The dissent would instead have the trier of fact focus on a building’s particular purpose. The dissent stated that “the State should have to present evidence beyond a reasonable doubt that the building was active and in use primarily for religious worship on the date of the offense,” evidence that could come in the form of testimony from the church pastor or a parishioner. Newton, 2018 IL 122958 (Burke, J., dissenting).

It should be noted that while the version of 720 ILCS 570/407(b)(2) in effect at the time of Newton’s offense did not require the state to prove that worship service were actually occurring at the time of the unlawful delivery, the current version now requires such evidence. 720 ILCS 570/407(b)(2)(2018).

Ameren Transmission Company of Illinois v. Hutchings

By Michael T. Reagan, Law Offices of Michael T. Reagan

The defendant landowners in these 34 consolidated eminent domain cases opposed Ameren’s being granted easements over their property for a new transmission line because they had not been given notice of the possible routing across their property in proceedings before the Illinois Commerce Commission in which Ameren had been granted eminent domain authority. The Circuit Court of Edgar County granted the landowners’ motion to dismiss, finding that the section of the Public Utilities Act upon which Ameren was proceeding was unconstitutional both on its face and as applied. The circuit court found that the act failed to require notice to any landowner whose property might be considered for alternate routes proposed in the course of the certification process before the commission. The circuit court noted that while notice was required to landowners identified in the initial application, landowners whose property was proposed in alternate routes later suggested by the utility or an intervenor were not provided the same opportunity to participate and object. 

In this Supreme Court Rule 302 (a)(1) direct appeal, the court decided that it did not need to reach the merits of the circuit court’s due process analysis because that court lacked the jurisdiction to review the constitutionality of the commission’s administrative proceedings. Justice Thomas wrote the majority opinion. Justice Garman specially concurred, and Justice Kilbride concurred in part and dissented in part, with an opinion.

The majority’s analysis began with the principle that the presumption of general subject matter jurisdiction enjoyed by Illinois courts is inapplicable where administrative proceedings are involved because the Illinois Constitution empowers courts to review administrative actions only “as provided by law.” The Public Utilities Act states that a party affected by a decision of the commission must appeal to the appellate court. The court then noted that the act provided that the power to review a final decision of the commission included whether the action of the commission was “in violation of the state or federal constitution or laws.” “Absent such jurisdiction, a court has no power to review the legality or constitutionality of Commission proceedings.” The court held that the circuit court was not exercising special statutory jurisdiction when it determined that the commission’s proceedings violated due process. The circuit court had jurisdiction to adjudicate the eminent domain complaints, but the supreme court held that the circuit court had no authority to review whether the commission’s proceedings violated the constitution. The court concluded that because the constitutionality of the commission’s proceedings was beyond the circuit court’s power to decide, the circuit court’s conclusion that the commission’s proceedings were in violation of due process could not form the basis for dismissing the complaints. 

Justice Garman’s lengthy special concurrence was divided into two parts. The first part addressed the circuit court’s jurisdiction, which was the basis of the majority opinion, and the second part was devoted to Ameren’s additional argument that issue preclusion premised upon defendants’ participation in the earlier appeal from the commission proceedings barred consideration of the question of constitutionality in this case. This opinion noted that the circuit court held not only that the commission’s decision was unconstitutional but that the relevant portion of the Public Utilities Act was also unconstitutional. Justice Garman stated that the appellate court’s authority in administrative review and the Public Utility Act did not, and could not, strip a circuit court of jurisdiction to consider the constitutionality of the Public Utilities Act. The act did not do so by its terms, and the general assembly is not permitted to remove matters from a circuit courts’ general jurisdiction.  The concurring opinion states that “only appeals challenging an agency’s final determination itself are reserved for appellate courts.” This first part of the concurring opinion concluded that the majority’s analysis raises significant threats to individual rights, and that some defendants would be left without any opportunity to assert their constitutional rights.

However, in the second section, the concurring opinion stated that defendants had raised the same arguments in the prior administrative appeal to the appellate court, in which the arguments were rejected. The opinion drew upon the fact that all defendants had stipulated in the circuit court proceedings that they were to be treated as parties to that earlier appeal. Justice Garman ultimately concluded that all components of issue preclusion were satisfied, and that although she respectfully disagreed with the majority’s analysis, she concurred in the reversal of the circuit court’s decision.

Justice Kilbride joined the first part of Justice Garman’s special concurrence. However, the two opinions parted company on the second part of that concurrence. Justice Kilbride noted that it was undisputed that many of the landowners in these eminent domain actions were not actual parties in the prior administrative appeal. He concluded that it would be inequitable to apply res judicata in a manner that resulted in the denial of due process for those non-participating owners. He further noted that “unfortunately” the supreme court had denied the landowners’ petition for leave to appeal in the administrative review case. He concluded that the defendants who were not parties to the prior appeal were entitled to have this court address its claims of deprivation of due process.

Cassidy v. China Vitamins, LLC

By Joanne R. Driscoll, Forde Law Offices LLP

Pursuant to section 2-621(b) of the Code of Civil Procedure (735 ILCS 5/2-621(b)(4) (West 1994), a distributor of product stored in a defective container was dismissed from a strict product liability action after certifying the identity of the manufacturer of the container. The plaintiff obtained a default judgment against the manufacturer, and after unsuccessfully seeking to collect its judgment, moved to reinstate the proceedings against the distributor pursuant to sections 2-621(b), which requires a showing that the manufacturer is “unable to satisfy any judgment.” 

In this appeal, the Illinois Supreme Court was called upon to resolve a conflict as to the meaning of the phrase “unable to satisfy any judgment” found in section 2-621(b)(4). A divided appellate court panel held that the term focused on the plaintiff’s ability to collect the judgment against the manufacturer, that is, whether the manufacturer was “judgment-proof” or “execution-proof,” disagreeing with its sister court in Chraca v. U.S. Battery Manufacturing Co., 2014 IL App (1st) 132325, which held that the term focused on the manufacturer’s inability to pay because it was bankrupt or nonexistent.

Applying rules of statutory construction, and overruling Chraca, the supreme court, in a 5–2 decision authored by Justice Kilbride, held that under subsection (b)(4), a plaintiff can seek reinstatement upon a showing of inability to collect from the manufacturer and was not limited to having to show that the manufacturer was bankrupt or nonexistent. First, viewing section 2-621(b) as a whole, the court noted that subsection (b)(3) already covered the manufacturer’s nonexistence, which would make subsection (b)(4) redundant. Second, viewing those two provisions together, the court found that the legislature chose to make subsection (b)(4) broader and more open-ended than subsection (b)(3). Last, the court examined subsection (b) in light of the legislature’s overarching purpose of providing relief to injured parties through strict product liability actions, reasoning that that purpose would be accomplished by reading subsection (b)(4) more broadly. 

Justice Karmeier, joined by Justice Thomas, dissented, stating that the majority decision failed to follow the first rule of statutory construction, which is to give the words “unable to satisfy” their ordinary and popular meanings. Examining dictionary definitions of “unable,” the dissent concluded that the phrase required a showing that the manufacturer was incapable of fulfilling its obligation under a judgment, not whether the plaintiff’s efforts at collection were unsuccessful. The dissent also criticized the majority’s reliance on the general policy behind strict product liability when the policy at issue here was the “‘seller’s exception,’” which, as set forth in the Restatement (Third) of Torts:  Product Liability 1, cmt. e, at 9 (1998), is intended to save a non-manufacturer defendant’s resources when it did not render the product defective or was not in a position to prevent the defect. According to the dissent, the majority’s reading of subsection (b)(4) does not afford the non-manufacturer this policy protection.

American Family Mutual Insurance Company v. Krop

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

Upon the purchasers’ receipt of an insurance policy with understandable terms, the clock starts ticking on an action against an insurance agent for failing to provide the extent of coverage requested by the purchasers.  Articulating and applying this principle, the Illinois Supreme Court determined that a two-year statute of limitations barred plaintiffs’ action against an insurance agent, which was filed after the policyholders learned of a problem with their homeowners policy, when the insurance company denied liability coverage for a lawsuit.

According to the allegations in an action against Andrew Varga, an American Family Mutual Insurance Company agent, the plaintiff homeowners, Walter and Lisa Krop, changed insurance carriers in 2012.  The Krops asked Varga to replace a Travelers policy with an American Family policy providing coverage equal to the couples’ old Travelers policy.  More than two years after American Family issued the policy, the Krops were sued. They then learned that their liability coverage was more narrowly defined than under the Travelers policy. The Krops contended that the Travelers policy would have provided liability coverage for the lawsuit against them, which alleged defamation, invasion of privacy, and intentional infliction of emotional distress. American Family denied coverage for the lawsuit. 

A two-year statute of limitations contained in 735 ILCS 5/13-214.4 (West 2014) unquestionably governed the Krops’ deadline for suing Varga: under the statute, the Krops had to bring suit “within 2 years of the date the cause of action accrue[d].” Id. The question not specifically answered by the statute is the meaning of accrual. The supreme court found the answer in case law holding that, for torts arising out of contractual relationships, a cause of action accrues at the time the contract is breached, rather than when a party sustains damages. 

The supreme court held plaintiffs to an obligation to know the specifics of an understandable insurance policy upon purchase of the policy; the court ruled the alleged breach of contract occurred on the day that the insurer issued the contract. Moreover, in discussing the discovery rule, the supreme court determined that insurance customers are injured upon delivery of a policy that does not conform to their request for coverage. In this case, the supreme court viewed the differences in the two policies as apparent from the definitions of the type of legal liability covered in the respective policies.

Citing section 2-2201 of the Insurance Placement Liability Act, the supreme court rejected plaintiffs’ argument that the insurance agent owed plaintiffs a fiduciary duty. 735 ILCS 5/2-2201(b) (West 2014).  The statute precluded a finding that the statute of limitations did not accrue until the insurance company denied coverage for the defamation lawsuit.

Justice Theis, joined by Justice Kilbride, dissented. Justice Theis wrote that the accrual date for the statute of limitations depended on the characterization of the cause of action. In her view, the majority should have considered the Krops’ action against Varga to be a negligence action. From that premise, the statute of limitations accrued at the time of injury, that is, at the time American Family denied coverage for the lawsuit.  Any contention that an injury accrued before that point, in Justice Theis’ view, was speculation and transformed the statute of limitations into a statute of repose.

Posted on October 18, 2018 by Rhys Saunders
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