The Bar News

Quick Takes on Illinois Supreme Court Opinions Issued Friday, January 25

The Illinois Supreme Court handed down eight opinions on Friday, Jan. 25. In People v. Witherspoon, the court considered whether a person who enters another person’s home in violation of a court order thereby enters “without authority” under the home invasion statute. In People v. Johnson, the supreme court concluded that the appellate court erred in considering the merits of a man’s sentencing challenge because he could not challenge it other than through withdrawal of his plea. The court ruled that a defendant was required to offer some affirmative evidence that the parking lot where he was arrested for DUI was not a public highway in People v. Relwani. In Rosenbach v. Six Flags Entertainment Corp., the court ruled that consumers do not have to demonstrate “injury or adverse effect” to sue companies under the state’s biometric privacy law. The supreme court upheld a trial court’s ruling granting a father who had joint custody of his children to relocate in In re Marriage of Fatkin and clarified the rules governing the admission of photographs in motor vehicle cases in Peach v. McGovern. In In re Appointment of Special Prosecutor, the court rejected arguments by the Better Government Association to release documents in a FOIA request. In Smith v. The Vanguard Group, the court determined that a man did not violate an injunction when he changed the beneficiary designation from his wife to his sons.

People v. Witherspoon

By Jay Wiegman, Office of the State Appellate Defender

A person commits home invasion when “without authority he or she knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present . . . and . . . [i]ntentionally causes any injury . . . to any person or persons within the dwelling place.” 720 ILCS 5/19‑6(a)(2) (2014). In People v. Witherspoon, 2019 IL 123092, the Illinois Supreme Court considered whether a person who enters the dwelling place of another in violation of a court order thereby enters the dwelling “without authority” under the home invasion statute, and determined that the person does.

The defendant and the complainant were involved in a sexual relationship. In early August 2014, the defendant was charged in a separate case with domestic battery and criminal trespass to a residence. One condition of his release on bond was that defendant have no contact with the victim, S.L., and that he refrain from entering or remaining at the victim’s residence or going on the premises located at the victim’s residence. The sexual relationship continued throughout August 2014, even after defendant had been ordered by the circuit court to refrain from having contact with S.L. and to refrain from entering her residence. At the defendant’s trial, S.L. testified that, during defendant’s visits in August, she would let him into her home at these times. In late August, the complainant accused the defendant of battering her and sexually assaulting her in her home. Upon his arrest, police found cocaine in the defendant’s clothing.

The trial court ultimately found the defendant not guilty of aggravated criminal sexual assault but guilty of domestic battery and possession of a controlled substance. The trial court wrestled with the question of whether the defendant committed home invasion by entering the home “without authority,” and ultimately concluded that the conditions of defendant’s bail bond deprived Witherspoon of any authority to enter S.L.’s residence. The court merged the domestic battery conviction into the home invasion conviction and sentenced defendant to concurrent terms of 14 years’ imprisonment for home invasion and three years’ imprisonment for unlawful possession of a controlled substance. The appellate court stated that the consent of the resident of a dwelling place trumps a court order that prohibited that person from entering the dwelling place and reversed the home invasion conviction. People v. Witherspoon, 2017 IL App (4th) 150512.

A unanimous Illinois Supreme Court reversed the judgment of the appellate court and affirmed the judgment of the circuit court. Writing for the court, Justice Burke observed that the plain language of the home invasion statute does not limit the phrase “without authority” to those situations in which authority to enter is denied by the occupant. Witherspoon, 2019 IL 123092, ¶ 24. Moreover, the court determined that the defendant’s reading of the phrase “without authority” is at odds with the purpose of the home invasion statute, which is intended to protect the safety of persons in their homes. Witherspoon, 2019 IL 123092, ¶ 25. The court held that a defendant enters the dwelling place of another “without authority” when either the occupant has not granted consent to enter or a court order has prohibited entry. Witherspoon, 2019 IL 123092, ¶ 25. Further, while the court agreed with the defendant that the state is required to prove that the defendant knowingly entered the complainant’s home without authority, the state only had to prove the defendant’s knowledge of the court order prohibiting him from entering the residence. Witherspoon, 2019 IL 123092, ¶ 32-33.

People v. Johnson

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

Octavius Johnson was charged with various drug offenses arising out of several controlled purchases. The charges included a Class X possession-with-intent-to-deliver within 1000 feet of a church, three Class 1 delivery charges, and five lesser charges. Ultimately, he pled guilty to two of the Class 1 charges, in exchange for dismissal of the remaining counts and a sentencing cap of 13 years of imprisonment. At sentencing, the court imposed an 11-year term, noting several factors in aggravation, including that Johnson’s conduct threatened serious harm to others and that he received compensation for the offenses.

Johnson filed post-plea motions to withdraw his plea and to reconsider his sentence. On appeal, he abandoned the motion to withdraw plea and sought only to challenge his sentence. Johnson argued that he need not withdraw his plea, as is generally required to challenge any aspect of a negotiated plea of guilty, including the sentence. Instead, Johnson argued that because the trial court relied on two improper sentencing factors inherent in the drug offense (threat of harm and receiving compensation), he could challenge his sentence on that limited basis. The appellate court agreed with Johnson and ordered a remand for a new sentencing hearing.

The Supreme Court began its analysis with a discussion of the history of Illinois Supreme Court Rule 604(d) and the motion requirements applicable to various types of guilty pleas. Generally, if a plea contains any sort of negotiation as to the sentence to be imposed (whether it be a specific sentence or “cap” on the sentencing range, as in Johnson’s case), an individual is required to seek withdrawal of his plea in order to challenge the imposed sentence.

Here, Johnson argued that the language of Rule 604(d) only requires withdrawal of the plea where an individual challenges his sentence as “excessive” and not where he argues that the sentencing judge considered improper factors. The supreme court held, however, that this is a distinction without a difference. An argument that the court considered an improper statutory aggravating factor is, in essence, an excessive sentence challenge. The court’s decision resolved a split of authority on this question among the appellate court districts.

The supreme court concluded that the appellate court erred in considering the merits of Johnson’s sentencing challenge because he could not challenge his 11-year sentence other than through withdrawal of his plea. The appellate court’s order remanding for resentencing was vacated.

People v. Relwani

By Jay Wiegman, Office of the State Appellate Defender

The implied consent statute in DUI cases states:

“Any person who drives or is in actual physical control of a motor vehicle upon the public highways of this State shall be deemed to have given consent . . . to a chemical test or tests of blood, breath, other bodily substance, or urine for the purpose of determining the content of alcohol, other drug or drugs, or intoxicating compound or compounds or any combination thereof in the person’s blood if arrested . . . [for a DUI offense]. 625 ILCS 5/11‑501.1(a) (2016).

A driver’s license is summarily suspended when the driver refuses or fails to complete any of the enumerated tests when requested by a law enforcement officer possessing probable cause and after receipt of appropriate warnings and documentation. A driver may seek rescission of his license by making a written request within 90 days of receiving notice of the suspension. It is well-established that “the motorist, who is requesting judicial rescission of [a summary] suspension, should bear the burden of proof” and must present a prima facie case supporting that request. People v. Orth, 124 Ill. 2d 326, 337‑38 (1988).

A property is considered a “public highway” if it is both “publicly maintained” and either open to use by the vehicular public or it constitutes public school property. 625 ILCS 5/1‑126 (2016). In People v. Relwani, 123385, the Illinois Supreme Court considered the narrow question of whether a defendant seeking rescission of the statutory summary suspension of his driver’s license on the basis that he was not in physical control of his car on a public highway is required to offer affirmative evidence to satisfy his initial burden of making a prima facie showing that he was not on a “public highway” while in control of his car.

Relwani was found alone in an altered or partially unconscious state behind the steering wheel of a running car in a Joliet Walgreens parking lot at about 3:30 a.m. He filed a petition to rescind the summary suspension of his driver’s license and argued at a hearing on the petition that rescission was warranted because he was arrested in a privately owned Walgreens parking lot that did not meet the definition of a “public highway,” as required by the implied consent law. Stating that the defendant had not presented evidence that the parking lot was not publicly maintained and open to use by the vehicular public, the circuit court granted the state’s motion for a directed finding.

On appeal, a majority of the appellate court affirmed because the only evidence the defendant offered on whether the parking lot was a “public highway” was noting it was near a Walgreens store; therefore, the majority concluded the trial court’s directed finding for the state was not against the manifest weight of the evidence. People v. Relwani, 2018 IL App (3d) 170201, ¶¶ 18‑20. The dissenting justice maintained that because defendant established that he was arrested in a Walgreens parking lot the burden shifted to the state to prove that the parking lot was publicly maintained and used for public vehicular travel; in the dissent’s view, requiring the motorist to provide proof that the parking lot was not a “public highway” for purposes of summary suspension places an undue burden on defendants to prove that private property is not publicly maintained. Relwani, 2018 IL App (3d) 170201, ¶¶ 35‑42 (Lytton, J., dissenting).

A unanimous supreme court upheld the trial court’s directed finding for the state. Writing for the court, Justice Kilbride rejected the defendant’s claim that defendant’s mere reference to “Walgreens,” without more, established either the identity of the entity that maintained the lot or the public’s use of the lot. Relwani, 123385, ¶ 23. The court also rejected the defendant’s policy argument, based on the dissent in the appellate court, that requiring more evidence than he offered to avoid a directed finding would also create an undue burden on petitioner‑motorists who may not have access to the information necessary to satisfy the publicly maintained requirement. The court considered the defendant to have overstated the difficulty a private citizen would have in proving the private nature of a property. The court specifically noted that “[s]omething as simple as evidence of a posted ‘private property’ sign may, in the proper circumstances, suffice to satisfy the prima facie burden of proof in a rescission action, shifting the burden to present evidence on the lot’s ‘public highway’ status to the State. Relwani, 123385, ¶ 29.

Rosenbach v. Six Flags Entertainment Corp.

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

The Biometric Information Privacy Act (740 ILCS 14/1 et seq.) provides that when that Act’s protective provisions concerning the collection of biometric information are not complied with, “any person aggrieved by a violation” of the Act shall have a private right of action. When this minor plaintiff’s thumb scan was captured in the Six Flags amusement park system in support of the sale of a repeat-entry pass, the Act was allegedly not complied with. This complaint alleges that plaintiff’s biometric information was obtained without informing the plaintiff in writing a) that the information was being collected or stored, and b) of the specific purposes for which the information was collected and how long it would be kept, and that the Act was also violated in not obtaining a written release before collection of the information.

The circuit court denied in relevant part defendants’ section 2-615 motion to dismiss. Defendants obtained certified questions under SCR 308 and pursued this interlocutory appeal. The controlling issue under both of the certified questions was “whether an individual is an aggrieved person under Sec. 20 (of the Act) … when the only injury he alleges is a violation of Sec. 15(b) of the Act by a private entity who collected his biometric identifiers and/or biometric information without providing him with the required disclosures and obtaining his written consent as required by (the Act).” The appellate court answered both questions in the negative. The appellate court ruled that a plaintiff is not “aggrieved” within the meaning of the Act, and may not pursue either damages or injunctive relief under the Act, based solely on a violation of the Act.  Rather, additional injury or adverse effect must be alleged.

The supreme court reversed the appellate court, holding that when a private entity fails to comply with one of the Act’s requirements, “that violation constitutes an invasion, impairment, or denial of the statutory rights of any person whose biometric identifier or whose biometric information is subject to the breach.  … [S]uch a person or customer would clearly be ‘aggrieved’ within the meaning of Sec. 20 …  No additional consequences need be pleaded or proved.” The opinion draws upon the court’s reading of the plain language of the act, and the court’s perception of the dangers inherent in the unauthorized dissemination of biometric data. Among the stated risks is that biometric identifiers cannot be changed if compromised or misused. Also, at root the court relied upon its earlier definition of “aggrieved” from “more than a century ago.”

Justice Karmeier wrote for a unanimous court. Among the useful canons of statutory construction which were described, is that “the same word may mean one thing in one statute and something different in another, dependent upon the connection in which the word is used, the object or purpose of the statute, and the consequences which probably will result from the proposed construction.” 

In re Marriage of Fatkin

By Joanne R. Driscoll, Forde Law Offices LLP

In this appeal from an order granting a father’s petition to relocate the children out of state, the supreme court was first called upon to determine whether the trial court’s order was immediately appealable under Illinois Supreme Court Rule 304(b)(6) as a “custody or allocation of parental responsibilities judgment or modification of such judgment” (Ill. S. Ct. R. 304(b)(6) (eff. Mar. 8, 2016)).  In its construction of the phrase “allocation of parental responsibilities,” the supreme court looked at section 600(b) of the Marriage Act (750 ILCS 5/600(b) (West 2016)), which defined that term to include “both parenting time and significant decision-making responsibilities with respect to a child.”  Based on that definition and the vocabulary and substance of the trial court’s order, the supreme court found that the order of relocation fell within Rule 304(b) and was immediately appealable.

On the issue of whether the trial court erred in granting the relocation petition, the supreme court reiterated the paramount consideration of the best interests of the children and the substantial deference given to the trial court’s determination because of its ability to observe both parents and the children. Reversing the appellate court on this point, the court found there was “absolutely no basis” for the concluding that the trial court’s decision was “‘clearly against the manifest weight of the evidence.’” To the contrary, it found that the trial court’s handling of this difficult case was “exemplary” and that the trial court’s numerous, detailed findings were supported by the evidence.

Peach v. McGovern

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

Reversing an appellate decision, the Illinois Supreme Court clarified the rules governing the admission of photographs in motor vehicle cases. The court also reinforced the principle that a jury may reject an expert’s testimony concerning a plaintiff’s injury claim when the expert bases his opinion on information received from an interested litigant that is contradicted by trial testimony.   

The accident involved the defendant rear-ending the plaintiff’s truck when the plaintiff was waiting at a stop sign for traffic to clear. The parties testified to different versions of the accident. Defendant testified that she “spaced out” and “tapped” or “rolled into” plaintiff’s truck. Plaintiff told his girlfriend that defendant “plowed” into the truck, while reporting to his doctor that the impact occurred at 25 to 30 miles per hour and informing a police officer that both vehicles sustained minor damage. The parties agreed that photographs taken of their respective vehicles accurately portrayed the condition of the vehicles immediately after the accident.

Plaintiff testified that, for the six years between the accident and the trial, he regularly experienced neck pain. Plaintiff’s treating physician, a pain management specialist, testified in an evidence deposition to his treatment of the plaintiff and his diagnosis, which included whiplash syndrome, chronic neck pain, cervical disc herniation, and cervical degenerative disc disease. The physician opined that the accident caused whiplash, and that even a low-speed collision can cause hyperflexion/hyperextension injuries. On cross examination, the physician stated that he could not say whether photographs showing minor vehicle damage would affect his diagnosis; the inquiry was beyond his expertise. The witness explained that in reaching his conclusions, he relied on plaintiff’s account and objective MRI findings. The defendant presented no witnesses. 

The trial court directed a verdict for plaintiff on the issue of negligence, but not on proximate cause and damages, and the jury returned a verdict for the defendant. Challenging the admission of photographs of the vehicles and arguing that the verdict was against the manifest weight of the evidence, plaintiff appealed. The appellate court sided with the plaintiff. The appellate court reversed the judgment and remanded with instructions to conduct a new trial on damages.  

Reinstating the judgment of the circuit court, the supreme court first addressed the admissibility of the photos. It explained that the court's decision in Voykin v Estate of DeBoer, 192 Ill 2d 49 (2000), did not preclude admission of post-accident photographs depicting the vehicles or argument that the photos made questionable plaintiff's injury claims. The court explained that Voykin, which held that, generally, expert testimony is required to link a prior injury to the claimed damages, did not apply where, as here, no prior injury was involved. The supreme court overruled the appellate decisions with contrary analysis. The test of admissibility is whether "a jury can properly relate" vehicle damage in photographs to the claimed injury without a medical expert. Here the trial court did not abuse its discretion in determining that lay jurors could rely on their common sense to determine whether the photos depicting minor damage to the vehicles rebutted plaintiff's claim that the accident caused the injuries claimed. The supreme court noted that a different rule would impose an unnecessary financial burden on parties, including pro se plaintiffs and defendants. 

The supreme court also disagreed with the appellate court’s reversal of the circuit court’s order denying plaintiff’s request for a new trial. The supreme court found that sufficient evidence supported the verdict. It noted that the jury could reject the physician’s testimony, which relied on plaintiff’s subjective expressions of pain. The jury was not required to accept the testimony of plaintiff’s medical expert given the conflicting accounts of the impact. Reasoning that the Illinois Constitution requires judges to preserve the rights of litigants to have a jury decide substantial fact issues, the court held that the jury alone was empowered to decide plaintiff’s credibility. In essentially entering a judgment notwithstanding the verdict, the appellate court substituted its judgment for the jury’s resolution of the factual disputes. Consequently, the supreme court reversed the appellate court’s judgment and reinstated the circuit court’s entry of judgment on the jury’s verdict.  

In re Appointment of Special Prosecutor

By Joanne R. Driscoll, Forde Law Offices LLP

At issue in this appeal is a Freedom of Information Act (FOIA) requester’s right to seek copies of various materials related to grand jury proceedings.

The Better Government Association (BGA) made FOIA requests to the office of the special prosecutor (OSP) and the City of Chicago for copies of various materials related to the grand jury indictment of Robert Vanecko for involuntary manslaughter in connection with the death of David Koschman. During the grand jury proceedings, the criminal court issued a protective order in 2012 that placed the grand jury materials under seal. In 2014, the court continued its 2012 protective order in effect but added language prohibiting the city from complying with any FOIA request “that identified or characterized documents as having been disseminated to the OSP in furtherance of the Koschman investigation.”

Relying on the criminal court’s protective orders, the OSP and the city denied the BGA’s FOIA requests, claiming that the requested materials were exempt under section 7(1)(a) of FOIA (5 ILCS 140/7(1)(a) (West 2014)) because the disclosure was prohibited by state law. The BGA then sought declaratory relief in the chancery court, which upheld the OSP’s exemption based upon a separate criminal law provision that prohibited disclosure of grand jury matters, but not as to the city. The appellate court affirmed as to the OSP (except which respect to certain documents not at issue) but reversed as to the city, holding that it too was not required to disclose the requested materials under FOIA. The supreme court unanimously affirmed (with Justice Thomas taking no part in the decision).

With respect to the OSP, the supreme court discussed the need for grand jury secrecy embodied in section 112-6(c)(1) of the Code of Criminal Procedure of 1973 (the Code) (725 ILCS 5/112-6(c)(1) (West 2014)). That provision bars disclosure of “matters occurring before the Grand Jury.” Looking to federal caselaw that construed the same phrase under federal law, the court gave the phrase broad reach to include anything that would reveal what transpired during grand jury proceedings. It then held that the materials sought by the BGA fell within the prohibition of section 112-6(c)(1) of the code, thus triggering the exemption of section 7(1)(a) of FOIA for information prohibited from disclosure by state law. 5 ILCS 140/7(1) (West 2014).

The supreme court rejected the BGA’s alternative argument that because section 3(a) of FOIA permits disclosure, the request for grand jury materials falls with the exception in section 112-6(c)(3) for disclosure “when a law so directs.” According to the court, the adoption of that interpretation would effectively nullify the secrecy provision in section 112-6 of the code. The court also rejected the BGA’s reliance on the public interest exception recognized under federal law, noting that the BGA has not shown a “particularized need” for disclosure that outweighs the policy of secrecy of grand jury proceedings.

The city’s denial of the BGA’s FOIA request was upheld based on a different FOIA provision, namely, section 11(d), which authorizes a circuit court to order FOIA disclosure only where the public body has “improperly withheld” the requested documents. 5 ILCS 140/11(d) (West 2014). Agreeing with the appellate court’s analysis and reliance on GTE Sylvania, Inc. v. Consumers Union of the United States, Inc., 445 U.S. 375 (1980), the court held that the criminal court’s protective orders (even if erroneous) took precedence over the disclosure requirements of FOIA so that the city was not improperly withholding agency records. The BGA’s remedy, according to the court, was to request that the criminal court modify or vacate its prior orders barring disclosure; and if the court refused, the BGA could take a direct appeal from that refusal rather than make an impermissible collateral attack on the original orders.

Smith v. The Vanguard Group

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

Here the supreme court interpreted the intent of the parties to a stipulated injunction to decide whether the injunction prohibited one of the parties from changing the beneficiary designation for his individual retirement account from his wife to his sons.  

Donald Smith died in 2015. Two years earlier, Donald sought injunctive relief to restore funds he alleged his wife, JoAnn, had withdrawn from Donald’s financial accounts while he was hospitalized and to prevent further conversion of his assets. Donald and JoAnn stipulated to an injunction ordering that neither party engage in any “transaction” regarding their financial accounts. During the hospitalization and just eight days before Donald sued JoAnn, “someone” (JoAnn, according to Donald’s sons) designated JoAnn as the beneficiary of Donald’s individual retirement account with the Vanguard Group. While the injunction remained in force, unbeknownst to JoAnn, Donald designated his sons as the sole beneficiaries of the Vanguard account. Six months later, Donald and JoAnn agreed to dismiss the injunctive action and a dissolution action that had been consolidated with it. Donald died the next year.

JoAnn discovered the beneficiary change after Donald died and filed a lawsuit seeking a declaratory judgment and making other claims against Donald’s sons and Vanguard. The circuit and appellate courts determined that Donald’s beneficiary change did not violate the injunction.

The supreme court agreed with the lower courts. Exploring the meaning of the word “transaction” to discern JoAnn’s and Donald’s intent in the stipulated injunction, the supreme court concluded that the couple meant to restore and maintain their accounts but did not address beneficiary changes with no immediate effect. Because Donald outlived the injunction, ownership of the Vanguard funds did not change until after the injunction no longer prohibited transfer. Donald, therefore, did not violate the injunction when he changed the beneficiary designation to his sons, so the Vanguard funds were theirs.

Posted on January 25, 2019 by Rhys Saunders
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