The Bar News

Quick Takes on Illinois Supreme Court Opinions Issued Thursday, November 21, 2019

The Illinois Supreme Court handed down nine opinions on Thursday, November 21. Full summaries of the opinions are available below.

People v. Abdullah

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

Illinois Supreme Court Rule 606(b) provides that where a timely post-trial or post-sentencing motion is filed “by counsel or by defendant, if not represented by counsel,” any notice of appeal—whether filed before or after the timely motion—should be stricken by the trial court so that the timely motion can be ruled upon. A defendant must then file a new notice of appeal within 30 days of the final judgment on the timely motion.           

At issue in this case was whether this same rule extends to post-sentencing motions filed by the state. Today, the Illinois Supreme Court held that the state is not authorized to file a post-judgment motion to modify a defendant’s sentences, and therefore Rule 606(b) does not permit the striking of a timely-filed notice of appeal based upon such a motion.

In 2005, Abdullah was convicted of first-degree murder and attempted murder and was originally sentenced to concurrent terms of 40 and 20 years, respectively. Approximately two weeks after sentencing, the state filed a motion to impose a mandatory minimum sentence of 45 years for the murder conviction to include a firearm enhancement, as well as mandatory consecutive sentences because one of the convictions was for first-degree murder. A week later, and still within 30 days of the original sentencing date, Abdullah filed a notice of appeal. The trial court struck the notice of appeal. The trial court ultimately modified defendant’s sentences to consecutive terms of 50 and 26 years (which also included a firearm enhancement for attempted murder).     

Abdullah’s convictions and sentences were affirmed on direct appeal, and a post-conviction petition was later dismissed. In 2014, Abdullah filed a petition for relief from judgment pursuant to section 2-1401 in which he challenged his modified sentences. That petition was denied, and Abdullah appealed. In the Appellate Court, Abdullah argued that the trial court had lacked jurisdiction to modify his sentence when it increased his total term of imprisonment from 40 years to 76 years. The Appellate Court rejected that argument, finding that Rule 606(b) had operated to maintain jurisdiction in the trial court.

In reversing the Appellate Court, the Supreme Court noted that the plain language of Rule 606(b) provides that a timely notice of appeal will be stricken “when a timely post-trial or post-sentencing motion directed against the judgment” is filed. The Supreme Court recognized that while several statutes permit defendants to file post-trial and post-sentencing motions, there is no statute, rule, or case law allowing such a motion by the state.

And, while a criminal defendant in Illinois has a fundamental right to appeal his or her conviction and sentence after final judgment, the state’s right to appeal is limited to those instances listed in Rule 604(a). Because Rule 604(a) does not authorize the state to appeal a sentencing order, it cannot file a motion to modify sentence in order to circumvent that rule. Instead, the State’s remedy lies in mandamus.

The Supreme Court reversed the denial of Abdullah’s 2-1401 petition and directed the trial court to vacate the modified sentencing orders and to reinstate the original sentence. The state remains free to seek mandamus to correct that sentence if it believes it to be unauthorized.

People v. Bates

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

Quentin Bates was convicted of sexual assault and home invasion. At Bates’ jury trial, the state presented other-crimes evidence regarding an unrelated sexual assault. Bates’ attorney filed a motion for a new trial and, at a hearing on that motion, counsel stated that he was “taken by surprise at the depth of the [other crimes] evidence and testimony” and “had no chance to review” it. The motion was denied without the trial court’s making any inquiry into counsel’s claims.

Bates argued that his attorney’s post-trial admission should have triggered a Krankel inquiry. Specifically, Bates alleged that the same principles requiring a court to inquire into a defendant’s pro se claims of ineffective assistance should also require the court to inquire where counsel raises his or her own ineffectiveness.

Under Krankel, where a defendant believes he has been denied the effective assistance of counsel and he brings that claim to the attention of the trial court, the court is required to conduct a preliminary inquiry into the claim to determine whether defendant demonstrated possible neglect of his case. Such a claim may be brought orally or in writing, and no specific form is required other than defendant must clearly assert that he has received ineffective assistance.

Today, the Illinois Supreme Court held that a trial court is required to inquire into counsel’s ineffectiveness “only upon a clear claim of ineffective assistance by a pro se defendant or by an attorney at the defendant’s direction.” So, while an attorney may be the one to bring the ineffectiveness claim which triggers the Krankel inquiry, the court clarified that an attorney may raise his or her own ineffectiveness only at the defendant’s direction. Additionally, the attorney must inform the court that the claim is being raised at the defendant’s direction. The court explicitly overruled portions of People v. Williams, 224 Ill. App. 3d 517, 523-24 (1992), and People v. Hayes, 229 Ill. App. 3d 55, 66 (1992), which permitted counsel to raise such a claim without defendant’s instruction.

Here, defense counsel did not make an explicit claim of ineffective assistance, so there was no need for the court to conduct a Krankel hearing. While counsel’s statements may have hinted at a deficiency in representation, it would be unworkable to require trial courts to “scrutinize every statement and action by counsel” where an express claim of ineffectiveness is not made.

People v. Morger

By Jay Wiegman, Office of the State Appellate Defender

Two years ago, the United States Supreme Court held that a North Carolina law that barred registered sex offenders from gaining access to commercial social networking websites impermissibly restricted the lawful speech of a registered sex offender who had completed his sentence. Packingham v. North Carolina, 582 U.S. ___, 137 S.Ct. 1730 (2017). Today, in People v. Morger, 2019 IL 123643, the Illinois Supreme Court considered whether a similar statutory condition of probation is constitutionally overbroad. The court ultimately concluded that the provision does not pass constitutional muster.

The then 20-year-old defendant was convicted of aggravated criminal sexual abuse and criminal sexual abuse of his teenaged sister. He was sentenced to four years’ probation, which ultimately included a prohibition against accessing social networking websites. The defendant’s challenge to the flat ban on the use of social media, premised on Packingham, was rejected by the Appellate Court, Fourth District, which found that the instant case differed from Packingham in part because the defendant’s access to social media had not been foreclosed altogether, and, more importantly, because the defendant’s sentence was not yet completed and his probation could not last for 30 years or more. While the defendant challenged several conditions of probation before the Appellate Court, his appeal to the Supreme Court was limited to the “complete ban” on the use of social media, a provision the defendant argued was overbroad.

Writing for a unanimous court (with Justice Burke taking no part in the consideration or decision of the case), Justice Karmeier first noted that the defendant had already completed his probation, thus rendering the matter moot. The court readily applied the public interest exception, however, because the question is of a public nature, there is a need for guidance of public officers, and the question is likely to recur.

Reviewing constitutional principles, the court recognized that Illinois has a legitimate interest in promoting the effective operation of its probation system in a manner that rehabilitates probationers while punishing them and protecting the public from crime. When deciding the propriety of a condition of probation, the overriding concern is reasonableness; where a constitutional right is involved, the condition must be narrowly drawn. Considering the statute to be content-neutral, the statutory ban on social media usage at issue the court subjected the statute to intermediate scrutiny.

The court was guided by its decision in In re J.W., 204 Ill.2d 50 (2003), in which the court concluded that a probationary condition that effectively banished the minor from his hometown was constitutionally overbroad because it failed to make any provision for J.W. to enter the area for legitimate purposes. Considerations identified in In re J.W. as bearing upon the question of whether a condition of probation, impinging upon constitutional rights, is reasonably related to the goals of probation and, thus, narrowly drawn and not overbroad, include (1) the nature of the offense, (2) the rehabilitation of the defendant, (3) whether the condition of probation reasonably relates to the rehabilitative purpose of the legislation, (4) whether the value to the public in imposing the condition of probation manifestly outweighs the impairment to the probationer’s constitutional rights, and (5) whether there are any alternative means that are less subversive to the probationer’s constitutional rights but still comport with the purposes of conferring the benefit of probation. Considering these factors, the court found that the complete ban from social media was not narrowly drawn, in part because the offense did not involve social media use, there were other conditions that served rehabilitative purposes, and the ban’s protective value did not manifestly outweigh the probationer’s constitutional rights.

The court also drew extensively from Packingham. While many courts since Packingham have focused upon specific sentences that suggest that Packingham was limited to offenders who have completed their sentences, the Morger court keyed in on discussions within Packingham that demonstrated how the internet, while subject to criminal abuses, could also serve to help probationers rehabilitate themselves, just as the Packingham court indicated that the internet can be beneficial to those who have completed their sentences. The Illinois Supreme Court thus rejected the notion that Packingham is limited to post-custodial internet bans.

Of note to practitioners, in finding 730 ILCS 5/5-6-3(a)(8.9) to be overbroad, the court pointedly noted that it expressed no opinion as to the constitutionality of other provisions contained within the Code of Corrections and applied in this case.

Robert R. McCormick Foundation v. Arthur J. Gallagher Risk Management Services, Inc.

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

This opinion presents a detailed and closely reasoned analysis of whether the common-interest exception to the attorney-client privilege extends to the facts presented. Waste Management Inc. v. International Surplus Lines Ins. Co., 144 Ill.2d 178 (1991), a case of first impression in Illinois, expanded the common-interest exception, which applies where an attorney acts for two different parties who each have a common interest such that communications by either party to the attorney are not necessarily privileged in a subsequent controversy between the parties, to the situation there where the attorney had acted for the mutual benefit of both of an insured and an insurer. “It is the commonality of interest which creates the exception….”

In this case, the plaintiff charitable foundations sued their insurance broker asserting various theories grounded upon the plaintiffs’ contention that the directors’ errors and omissions policy procured by the broker did not afford the same extent of coverage with respect to securities litigation as their prior policy had. The broker had raised affirmative defenses that the foundations’ conduct in the leveraged buyout transaction regarding the sale of the foundations’ shares in the Tribune Company were fraudulent and therefore uninsurable, and that the foundations knew of an ongoing loss before they changed insurers, likewise resulting in uninsurability. Gallagher sought discovery of communications between the foundations and their legal counsel relating to the Tribune bankruptcy and the underlying leveraged buyout litigation.

The foundations refused to tender the documents, citing the attorney-client privilege. Gallagher responded by raising the common-interest exception of Waste Management. The circuit court agreed with Gallagher. The foundations pursued this “friendly contempt” appeal under Supreme Court Rule 304(b)(5), and the appellate court affirmed the ruling on the common interest exception.

The Supreme Court reversed both courts below. Justice Thomas’ opinion for the unanimous court examined Waste Management, and the arguments of the parties in that case, in exquisite detail, including the grounding of those arguments in evidence texts. The court then took up the argument of the foundations that the Waste Management exception to the privilege did not apply here because there was no “special relationship between the defendant broker and the foundations, and that there was no cooperation clause between the parties, as was the case in Waste Management. The broker responded that it would be improper to “superimpose a special relationship requirement on the common-interest doctrine, and that here there was a commonality of interest because the broker would, if found liable, become a de facto insurer.

The court stated that “good arguments” had been presented by both sides but ruled in favor of the foundations. The court emphasized that the common-interest doctrine, in Illinois and elsewhere, arises from the situation where two or more clients consult the same lawyer. The court recognized that Waste Management expanded the doctrine to the insured-insurer relationship, but noted that no Illinois case has expanded the exception beyond that relationship. Here, the only contractual relationship between the foundations and their broker was that the broker would be required to indemnify the foundations, just as arguably the law would impose that duty regardless of contractual obligations. Fundamentally, the court could not “see how the communication by the foundations with their defense counsel is of the kind reasonably calculated to protect or further any kind of common interest….” The court is of the opinion that the interests of the foundations and their broker were always adverse, differing from the situation where an insurer and its insured would have a common interest in defeating liability.

This opinion constitutes a good exemplar of how to examine exceptions to privileges.

Horsehead Corp. v. Department of Revenue

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

Horsehead Corporation operates a zinc refining facility in Illinois in which it recovers zinc from electric arc furnace dust generated by steel-producing mills. The multi-step chemical process by which zinc is recovered from that dust involves the use of metallurgical coke which Horsehead purchases outside of Illinois. This case involves a use tax imposed by the Illinois Department of Revenue upon Horsehead for those purchases of metallurgical coke, and interest as well as late payment and filing penalties which were levied.

A use tax is imposed in Illinois on tangible personal property purchased at retail from outside the state. Generally, a use tax is the out-of-state counterpart to a sales tax on in-state purchases. The Use Tax Act contains a “chemical exemption” as an exception to the tax “but only if the chemicals or chemicals acting as catalysts effect a direct and immediate change upon a product being manufactured….” The point of controversy relates to Horsehead’s claim that the exemption applied because the coke effected a “direct and immediate change” on the zinc and iron products manufactured by it. The Department of Revenue contended that there was no such direct and immediate change because a multi-step chemical process was involved. The Illinois Independent Tax Tribunal agreed, as did the appellate court. Here, the Supreme Court also affirmed that the exemption did not apply but reversed the imposition of penalties.

The Supreme Court, first finding that the tribunal was an independent administrative body with tax expertise that acts as a “tax-expert forum,” applied the “clearly erroneous” standard of review because the decision for the tribunal presented a mixed question of law and fact.

Lakewood Nursing and Rehabilitation Center, LLC v. Department of Public Health

By Joanne R. Driscoll, Forde Law Offices LLP

In this case, the Illinois Supreme Court addressed the oft-occurring statutory construction dilemma of whether the term “shall” is mandatory or directory, this time in the context of the Nursing Home Care Act (Act) (210 ILCS 45/1-101 et seq. (West 2012)). 

When a nursing home issues a notice of involuntary transfer or discharge to a resident, the Act allows the resident to request that the Department of Public Health (Department) hold a hearing. Section 3-411 of the Act states that the hearing “shall” be conducted “not later than 10 days” after the resident’s request and that a decision be rendered within 14 days after the request.  210 ILCS 45/3-411 (West 2012).

The circuit court interpreted section 3-411 as directory, while the appellate court interpreted it as mandatory. In a unanimous opinion, the Supreme Court reversed the appellate court and affirmed the circuit court. Ascertaining and giving effect to the legislature’s intent, the court noted that the purpose of the Act was to establish standards for the treatment and care of nursing home residents who had been improperly and inadequately treated. Toward that end, the Act limited the reasons for discharge or transfer of a resident and required prior notice and hearing. 

The court then explained the legal presumption that a procedural command to a government official is directory so that the failure to comply will not invalidate the official’s actions. That presumption was subject to two exceptions: (1) when there is negative language prohibiting further action in the case of noncompliance or (2) when the right the provision is designed to protect would generally be injured under a directory reading.

The court found that neither of these exceptions was met here. It acknowledged that section 3-411 contained negative language, i.e., “not later than 10 days” but held more was necessary. There also had to be an indication in the statute that the legislature intended to deny authority and prohibit further action in the case of noncompliance, which was not present in the Act. It was on that basis that the court distinguished Frances House, Inc. v. Department of Public Health, 269 Ill. App. 3d 426, 430-31 (1995), cited by the appellate court in support of its mandatory interpretation of section 3-411, and Foley v. Civil Service Comm’n, 89 Ill. App. 3d 871, 873 (1980), and Lincoln Park Realty, Inc. v. Chicago Comm’n on Human Relations, 9 Ill. App. 3d 186, 190 (1972). Those cases were overruled to the extent their analysis only considered the presence of negative language.

Turning to the second exception, the court reiterated long-standing precedent that a statutory command will be construed as mandatory when the right the provision is designed to protect would generally be injured under a directory reading. Here, the court found that a mandatory interpretation of the 10-day requirement would be injurious to the resident because it could deprive the resident of the right to participate fully and meaningfully in a hearing, particularly if the resident was experiencing mental or physical frailties, or when the short timeframe would deprive the resident of the right to retain counsel, subpoena witnesses and documentary evidence, and depose witnesses, rights afforded by the Act (210 ILCS 45/3-703 through 3-707). 

The court rejected the nursing home’s argument that the adverse impact on its rights from a directory reading should also be considered. According to the court, there was no evidence of legislative intent to balance the interests of the nursing home facilities against the residents.

In re Marriage of Zamudio

By Joanne R. Driscoll, Forde Law Offices LLP

When a pension enhancement derived from pre-marital service is paid with marital funds, is the entire enhancement treated as marital property?

During their marriage, the parties purchased a permissive service credit in the Illinois State Retirement System based on time the respondent served in active duty military service prior to the marriage. See 40 ILCS 5/14-104(j) (West 2016) (allowing purchase of pension service credit for up to four years of active duty military service). The circuit court held that the permissive service credit was nonmarital property because the military time used to enhance the pension was earned prior to the marriage. The court ordered the respondent to reimburse the petitioner for half of the marital funds used to purchase the service credit. With one justice dissenting, the appellate court reversed, holding that the pension credit was marital property. In a unanimous opinion, the Supreme Court affirmed the appellate court majority.

Because this case was one of statutory construction, the court looked to the plain and ordinary meaning of section 503 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/503 (West 2016)), defining marital and nonmarital property, and the Illinois Pension Code (Pension Code) (40 ILCS 5/1-101 et seq. (West 2016)), providing for the permissive service credit. 

Section 503 of the Act distinguished marital from nonmarital property based on when the property was “acquired” but did not define that term. After examining dictionary definitions for that term, the court next looked to the Pension Code’s definition of “permissive service,” which included “service credit purchased by the member.” 40 ILCS 5/1-119(5.5) (West 2016). The court rejected the respondent’s argument that he acquired the permissive service credit when he completed his military service before the marriage, concluding that the respondent’s military service only made him eligible to purchase or “acquire” the permissive service credit. The statutory monetary contribution required to purchase the permissive service credit was an essential requirement for acquiring that credit. 40 ILCS 5/14-104(j) (West 2016).

The court also rejected the respondent’s argument that the permissive service credit should be treated as nonmarital property and that the increase in value of that property using marital funds should remain nonmarital with the marital estate being entitled to reimbursement of the amount of the contribution. See 750 ILCS 5/503(a)(7), 5/503(c)(2)(A) (West 2016). The court found that argument contrary to the plain language of section 14-104(j) of the Code, which showed that the military service had no monetary or property value in relation to the respondent’s pension until the service occurred and the payment was made. 40 ILCS 5/14-104(j) (West 2016). Because the monetary contributions to purchase the permissive service credit were made with marital funds during the marriage, the permissive service credit was acquired during the marriage and was, therefore, marital property.

Raab v. Frank

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

The Illinois Supreme Court here applied long-standing precedent governing grounds for a Contribution Act claim under atypical circumstances, a vehicle-cow collision. Kirk Raab sued Kenneth Frank for personal injuries sustained when a cow, an escapee of premises leased by Frank for pasturing cattle, wandered onto a highway and collided with Raab’s vehicle. Raab contended that Frank failed to act reasonably to restrain his livestock, a violation of the Animals Running Act, 510 ILCS 55/1 (West 2010). Seeking contribution, Frank filed a third-party complaint against David and Virginia Grossen, the owners of property abutting Frank’s leased parcel. After Frank settled with Raab, he faced the Grossens’ dispositive motions on the third-party claims. The parties did not dispute that the Grossens were contractually obligated to maintain a fence between the two parcels, and that the cow exited Frank’s pasture through an opening located in a spot that the Grossens bore the responsibility to repair. Ultimately, however, the Grossens prevailed in obtaining judgment as a matter of law in the circuit court, and the Supreme Court upheld those rulings. 

Frank could succeed on his three contribution theories only if he established the Grossens’ potential liability to Raab in tort at the time of the injury to the initial plaintiff. First, the Supreme Court found no merit to Frank’s claim that Raab could have alleged a common law negligence theory against the Grossens, who owned but did not live on the parcel next to Frank’s leasehold. After reviewing caselaw dating back to 1848, the Supreme Court rejected Frank’s theory that the Grossens, who were neither owners nor keepers of the animal, had a common law obligation to prevent “estray damage,” meaning damage caused by a domestic animal found wandering from its enclosure. Second, the court found no potential for tort liability flowing from the Grossens to Raab under the Animals Running Act, which requires only owners and keepers of cattle—not individuals falling outside those categories—to use reasonable care to restrain livestock. Lastly, Frank could not persuade the Supreme Court to revive his contribution action based on the Grossens’ contractual obligation to repair the fence through which the cow escaped. Raab could not rely on the Fence Act as a potential source of liability, both because he did not preserve that theory and he failed to provide the Grossens with the notice of a fence defect that the Fence Act requires. Frank also claimed that Raab was an incidental third-party beneficiary of the fence agreement, but the theory did not satisfy the requirement of potential tort liability.

Sanders v. Illinois Union Insurance Co.

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

The Illinois Supreme Court addressed whether two insurance companies were obligated to indemnify the City of Chicago Heights Police Department for malicious prosecution liability, where its police officers doctored evidence to obtain the conviction of Rodell Sanders for murder, attempted murder, and armed robbery, resulting in 20 years of imprisonment before Sanders was exonerated. The court interpreted the word “offense” in a liability insurance policy to determine whether malicious prosecution—a personal injury as defined by the policy—occurred during the policy period. It did not.   

The dispute arose following Chicago Heights’ police department’s arrest of Sanders in January 1994 for shooting two people, one of whom died. Sanders did not fit the surviving victim’s description of the assailant, and Sanders’ alibi was confirmed by witnesses. Nonetheless, the prosecution continued. Officers framed Sanders, and he was convicted in January 1995. In postconviction proceedings, Sanders succeeded in overturning the judgment. A second trial in August 2013 resulted in a mistrial. After a third trial, in July 2014, the jury acquitted Sanders.  

Sanders, who had filed a federal civil rights action against Chicago Heights during the criminal proceedings, amended his complaint to add claims for malicious prosecution. Illinois Union Insurance Company, Chicago Heights’ primary liability carrier, declined the tender of the claim based on its contention that no covered events occurred during the policy periods insured by Illinois Union in its occurrence-based policy. Chicago Heights’ excess insurer, Starr Indemnity & Liability Company, declined coverage on the same basis under its follow form excess liability policy. Sanders obtained a consent judgment for $15 million in his civil rights lawsuit. He received $5 million total from Chicago Heights’ prior insurer and from Chicago Heights, which assigned to Sanders the city’s rights against Illinois Union and Starr. 

A state court action for declaratory judgment turned on the interpretation of policy language providing that the insurers would indemnify Chicago Heights for damages for which the city was legally obligated to pay because of a claim arising out of the “offense” of “malicious prosecution.” The central question was whether the offense occurred during the policy period. The policy did not define “offense.” The Supreme Court concluded that “offense” referred to the wrongful conduct underlying the malicious prosecution and not, as Sanders and Chicago Heights argued, at the time exoneration. Interpreting exoneration to be the trigger would shift liability to a policy period in which none of the acts giving rise to the claim occurred—contrary to the intent of the occurrence-based policies. The Supreme Court also held that the personal injury of “malicious prosecution” in the context of an insurance policy does not encompass the common-law elements of the tort of malicious prosecution. The court cited with approval authority holding that, in the insurance context, malicious prosecution occurs when the underlying action is instituted. The language of the policy did not require that all elements of the tort be satisfied before the offense occurred. The court also determined that the language of the policy foreclosed plaintiffs’ separate argument that the retrials constituted multiple triggers.  

The Supreme Court concluded that Sanders’ claim was triggered more than a decade before Illinois Union and Starr issued their policies, and affirmed the circuit court’s order granting the insurers’ motion to dismiss.

Posted on November 21, 2019 by Rhys Saunders
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