Quick Takes on Illinois Supreme Court Opinions Issued Thursday, February 7
The Illinois Supreme Court handed down two opinions on Thursday, Feb. 7. In Beaman v. Freesmeyer, the court clarified the proper test for the “commencement or continuance” prong of the tort of malicious prosecution. In People v. Gawlak, the court reversed the appellate court’s decision in a case involving due process rights and the assistance of counsel.
By Joanne R. Driscoll, Forde Law Offices LLP
In this appeal, the supreme court clarified the proper test for the “commencement or continuance” prong of the tort of malicious prosecution.
After the plaintiff’s conviction for first-degree murder was vacated, based on the withholding of exculpatory evidence, he brought suit against the police officers who investigated the murder and their employer. The circuit court granted summary judgment to the defendants and dismissed the malicious prosecution claim and other dependent claims, and the appellate court affirmed. Those courts limited their analysis of the commencement or continuance element of the tort of malicious prosecution to whether the defendants “pressured or exerted influence on the prosecutor’s decision or made knowing misstatements upon which the prosecutor relied.” 2017 IL App (4th) 160527, ¶ 58. On appeal, the plaintiff identified three tests in the caselaw for the commencement or continuance element: (1) the “significant role” test; (2) the “advice and cooperation” test; and (3) the “pressure, influence, or misstatement” test, arguing that the significant role test should have been applied.
After examining the history of the common-law tort of malicious prosecution and recognizing the purpose of tort law, which is to hold wrongdoers accountable for foreseeable consequences of their conduct, the court held that the commencement or continuance element requires the defendant to have been both the cause in fact and proximate cause of the commencement or continuation of the original criminal proceedings. While the court agreed that the causation analysis includes whether the defendant played a significant role in the plaintiff’s prosecution, the court defined that phrase to include all of the standards cited by the plaintiff; namely, whether defendant’s participation in the criminal case was “‘so active and positive’ to ‘amount to advice and co-operation’” and whether the defendant “‘improperly exerted pressure on the prosecutor, knowingly provided misinformation to him or her, concealed exculpatory evidence, or otherwise engaged in wrongful or bad-faith conduct instrumental in the initiation of the prosecution.’”
Because the appellate court’s standard failed to consider whether the officers proximately caused the commencement or continuance of the criminal proceedings, and focused only on the factors of pressure, influence or misstatement, the supreme court reversed and remanded.
By Jay Wiegman, Office of the State Appellate Defender
The fundamental due process right to the aid of counsel during a hearing “has always included the right to the aid of counsel when desired and provided by the party asserting that right.” Powell v. Alabama, 287 U.S. 45, 68 (1932). In particular, the Powell court declared that if, “in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.” Powell, 287 U.S. at 69. In People v. Gawlak, 2019 IL 123182, the Illinois Supreme Court considered whether, as had been held by the appellate court, the circuit court arbitrarily violated the due process rights of a defendant where the circuit court denied the oral motion of a private attorney who sought leave to file a limited appearance in one of the defendant’s numerous, collateral petitions, a petition that requested DNA testing. Ultimately, the court reversed the appellate court’s judgment after it concluded the no Powell violation occurred, but exercised its supervisory authority to vacate the circuit court’s judgment and remand the matter to the circuit court for further proceedings.
In Gawlak, the defendant had filed a number of pro se collateral challenges to his convictions of aggravated criminal sexual assault; these motions included a post-conviction petition, a 2-1401 petition for relief from judgment and a motion seeking DNA testing under 725 ILCS 5/116‑3 (2014). After the state objected to the petition for DNA testing on the grounds that identity was not at issue, attorney Joel Brodsky accompanied the defendant to court and asked for leave to file a limited scope appearance in the 116-3 action, which Brodsky argued was permitted by Supreme Court Rule 13. The circuit court denied Brodsky’s oral request, and later denied the defendant’s 116-3 motion. The appellate court concluded that the defendant’s due process rights had been violated by the denial of Brodsky’s request for leave to appear in a limited fashion, vacated the trial court’s denial of the motion seeking DNA testing, and remanded so that the defendant could retain counsel, if he so chose. People v. Gawlak, 2017 IL App (3d) 150861.
A unanimous supreme court determined that no Powell violation occurred, but reversed the appellate court’s judgment and, in its supervisory capacity, vacated the circuit court’s judgment and remanded to the circuit court so that Gawlak can retain counsel, if he so chooses. Authored by Justice Kilbride, the opinion re-affirms the fundamental importance attached to the right to counsel, whether the proceeding is criminal or civil in nature. Given the unique facts of this case, the opinion focuses primarily on whether counsel complied with Supreme Court Rule 13(c)(6), and whether the circuit court’s ruling on the defendant’s 116-3 motion seeking DNA testing was arbitrary.
While the due process right to the choice of counsel under Powell is fundamental, it is not absolute; thus, due process violations occur when a court arbitrarily refuses to hear from private counsel, whether in a civil or criminal case. In the instant case, the supreme court determined that the circuit court properly refused Brodsky’s request (even though it did so on other grounds), because counsel failed to follow the procedures set forth in Supreme Court Rule 13(c)(6), which included submitting the form contained within the Rule, attesting that counsel and his client had entered into a written agreement, and specifying the issues or proceedings to which the appearance was limited. Because Brodsky “made no attempt whatsoever to comply with Supreme Court Rule 13(c)(6) when he sought to enter a limited scope appearance,” the circuit court’s denial of Brodsky’s oral request was not arbitrary and did not violate the strictures of Powell. Gawlak, 2019 IL 123182, ¶ 39.
Nonetheless, because there was confusion both as to the nature of a 116-3 action in the circuit court and as to counsel’s intention regarding the scope of his representation of Gawlak, the supreme court remanded the matter to the circuit court to provide the defendant with the opportunity to retain counsel.