The Bar News

Quick Takes on Illinois Supreme Court Opinions Issued Friday, January 24, 2020

The Illinois Supreme Court handed down eight opinions on Friday, January 24. Full summaries of the opinions are available below.

People v. Ashley

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

Marshall Ashley was convicted of stalking under 720 ILCS 5/12-7.3(a)(2), (c)(1), based on allegations that he knowingly engaged in a course of conduct directed at Keshia Tinch, which he knew or should have known would cause her to suffer emotional distress. Evidence at trial was that defendant called Tinch, argued with her, and threatened to come over and kill her, causing Tinch and her mother to leave her apartment and go to her mother’s house. Further evidence was that Ashley sent Tinch a series of text messages, including that he could “make [her] suffer,” asking where she was and who she was with, telling her he had a gun, and attaching a photograph of a handgun. Tinch said she was scared by the messages.

The Supreme Court considered, and largely rejected, Ashley’s constitutional challenges to the provision of the stalking statute in question—that two or more threats that the defendant knows or should know would cause a reasonable person to suffer emotional distress constitute a course of conduct sufficient to establish the offense of stalking. The only portion of the applicable statute that the court found objectionable was the “should know” language because such a standard could be used to improperly punish negligent conduct.

Beyond that, however, the court concluded that the stalking statute is meant to punish only “true threats” and therefore the portion in question does not cover speech protected by the first amendment. To reach this conclusion, the court looked to the statute as a whole, along with the reason for the law. In enacting the stalking statute, and later amending it in 2010 to cover technological developments, the legislature’s intent was to prevent violent attacks on stalking victims by allowing action to be taken before any actual injury was inflicted. And, consistent with the use of the word “threat” in subsections (a-3) and (a-5), which specifically target threats of bodily harm, sexual assault, confinement, and restraint, the court concluded that the use of the word “threatens” in (c)(1) is meant to refer to threats of unlawful violence of the same type.

The court went on to consider the required mental state. True threats, as defined in Virginia v. Black, 538 U.S. 343 (2003), are “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” And, in Elonis v. United States, 575 U.S.      , 135 S. Ct. 2001 (2015), the court held that a federal statute prohibiting threat of injury, which failed to include a mental state, would be satisfied if the defendant acted with intent or knowledge. Looking to Black and Elonis, the court here determined that a defendant “must be subjectively aware of the threatening nature of the speech” at issue (i.e., it must be shown that defendant acted either for the purpose of issuing a threat or with knowledge that his communication would be viewed as such).

In addition to rejecting Ashley’s first amendment challenge to the statute, the court rejected a due process challenge, again noting that, as applied to speech, the statute punishes only true threats and serves the legislature’s intended purpose of preventing the sort of conduct which often precedes violent attacks against stalking victims. Likewise, the court concluded that the statute is not vague in that it punishes only knowing or intentional true threats, thereby providing fair warning about what conduct is prohibited and giving clear enough guidance to avoid arbitrary enforcement.

Today’s decision in Ashley addresses only one specific provision of the statute as amended in 2010. Relatively recently, the court invalidated a separate provision of that statute. See People v. Relerford, 2017 IL 121094 (“communicates to or about” portion of statute unconstitutionally overbroad). Whether other provisions may face constitutional scrutiny remains for another day.

People v. Moore

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

Following a traffic stop in 2013, an officer recovered a gun from the vehicle Leslie Moore was driving. Because Moore had been convicted of murder in 1990, he was charged with unlawful possession of a weapon by a felon. Prior to trial, the judge asked the parties to confirm that the jury would be advised of the nature of Moore’s prior conviction, and both the state and defense counsel agreed that would be proper. At trial, the jury was told of Moore’s murder conviction when the charge was read, a certified copy of the murder conviction was entered into evidence, and the prior murder conviction was mentioned multiple times in the jury instructions.  

At issue in the Illinois Supreme Court was whether Moore’s trial counsel provided ineffective assistance by failing to stipulate to Moore’s felon status. In People v. Walker, 211 Ill. 2d 317 (2004), the court previously adopted the reasoning of Old Chief v. United States, 519 U.S. 172 (1997), and held that where only a defendant’s felon status is at issue, a court should generally exclude the name and nature of the defendant’s prior conviction because it has no probative value and carries a substantial danger of unfair prejudice. Here, then, if defense counsel had offered to stipulate to defendant’s felony status, the trial court would have been obligated to accept it. Thus there was no real dispute that counsel’s performance was deficient under Strickland.

The primary question for the court, then, was whether Moore was prejudiced by counsel’s deficient performance. The court first noted the inherently prejudicial nature of evidence that defendant was previously convicted of murder. Specifically, such evidence carries an inherent risk of overpersuading the jury that defendant is a bad person who probably committed the charged offense “or worse.” The court noted, though, that it could not find prejudice by looking solely to counsel’s conduct, but rather must also consider the evidence in the case.

The only real issue at trial was whether Moore possessed the firearm in question. The arresting officer testified that during the traffic stop, Moore made a movement toward the center console, acted nervously, and volunteered that he had a loaded firearm in the console. There was a video of the stop, but no audio. The video did not confirm the officer’s testimony that defendant made a movement toward the console, and the lack of audio meant that there was no corroboration of defendant’s statements. The gun was not tested for fingerprints. Moore testified that he did not reach toward the center console and did not tell the officer he had a gun in the car. The owner of the gun, Sherry Walls, testified that she accidentally left the gun in Moore’s car the day before, and she produced a receipt showing that the gun was hers. On these facts, the court held that this was a “classic case of closely balanced evidence.” Thus, the error in telling the jury that Moore’s prior conviction was for murder was prejudicial, requiring reversal and remand for a new trial.

Johnson v. Illinois State Police

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

In 2001, Shawna Johnson pled guilty to a misdemeanor charge of battery for striking her then-husband. She obtained a FOID card in 2010, believing that her prior conviction did not qualify as a crime of domestic violence, but subsequently had that card revoked after she was denied the purchase of a handgun because of her 2001 conviction. In revoking the card, the ISP relied on section 8(n) of the FOID Card Act which allows revocation where an individual is “prohibited from acquiring or possessing firearms *** by federal law.” Section 922(g) of the federal Gun Control Act prohibits firearm possession by anyone convicted of a misdemeanor crime of domestic violence.

Johnson subsequently sought a pardon but was denied. Then, in 2013, she filed a petition seeking relief under Section 10 of the FOID Card Act. 430 ILCS 65/10. The circuit court found that statutory factors strongly supported her petition but concluded that the federal prohibition on firearm possession made her ineligible for restoration under Section 10. But the court held that the statutes at issue were unconstitutional as applied to Johnson under the second and fourteenth amendments and ordered ISP to reissue a FOID card to her.

The Supreme Court upheld reinstatement of Johnson’s FOID card rights, but on a different basis. Citing the doctrine of constitutional avoidance, the court did not reach the constitutional question. Instead, the court concluded that the statutes at issue provided for restoration of her “civil right” to keep and bear arms, thereby providing an exception to the federal Gun Control Act.

First, under Section 10 of the FOID Card Act, Johnson could obtain individualized review of her request to restore her FOID card eligibility. And, Johnson satisfied subsections 10(c)(1)-(3) in that she had no forcible felony conviction within 20 years, the circumstances of her criminal history suggested she was not likely to endanger public safety and granting relief would not be contrary to public interest. The remaining issue was whether, under subsection 10(c)(4), granting relief would be contrary to federal law.

The court concluded that it would not. The federal Gun Control Act provides an exception to the misdemeanor-domestic-violence-conviction ban where the conviction has been expunged or set aside, or the individual has been pardoned or had her civil rights restored, under applicable state law. Johnson argued, and the court agreed, that because she met the requirements of subsections 10(c)(1)-(3), allowing for restoration of her FOID Card rights, her civil rights had been restored. Therefore, issuing a FOID Card would not be contrary to federal law under subsection 10(c)(4) because federal law specifically provided for such an exception.

To reach this result, the Illinois Supreme Court had to conclude that the second amendment right is a civil right under Illinois law. The court held that while such a right had not previously been recognized, it was appropriate to recognize such a right now, consistent with the decisions in Heller (holding that the second amendment protects the individual right to keep and bear arms for self-defense by law-abiding citizens) and McDonald (holding that the second amendment right extends to the states through the fourteenth amendment).

The court vacated the circuit court’s finding that the applicable statutes were unconstitutional as applied to Johnson but affirmed the circuit court’s judgment on the alternative basis that Section 10 of the FOID Card Act permits issuance of a FOID Card to Johnson.

People v. King

By Jay Wiegman, Office of the State Appellate Defender

In 2014, the body of Kathleen King, an experienced runner, was found early one morning on railroad tracks near her home, following a night during which she and her husband, Shadwick King, had been drinking and arguing. Shadwick was charged with her murder and tried before a jury. At his trial, forensic pathologist Mitra Kalelkar testified for the state that the cause of death was manual strangulation; she based this opinion in part on certain hemorrhages that she found in the decedent’s eyes, throat, and tongue. Another forensic pathologist, Dr. Larry Blum, testified for the defendant that Kathleen died of a cardiac event brought on by stress, alcohol intoxication, lack of sleep and caffeine consumption. Another expert, Mark Safarik, the director of a consulting company named “Forensic Services International,” and a former supervisor of the behavioral analysis unit of the Federal Bureau of Investigations, testified as an expert in “crime scene analysis.” Among Safarik’s more than 30 “expert” conclusions, he testified that the absence of earbuds or contact lenses was inconsistent with witnesses’ statements that she listened to music when running, it was unlikely that she would have put one of her socks on upside down, she died as the result of manual strangulation, and the leaf material found on her body came from her residence. Kathleen’s sister testified that the two were close, and both Kathleen’s sister and her father testified to their highly emotional reactions to the news of Kathleen’s death. The defendant was convicted and sentenced to 30 years in prison. The Appellate Court, Second District, reversed his convictions and remanded for a new trial. The Illinois Supreme Court granted the state’s petition for leave to appeal.

In a unanimous opinion, the Illinois Supreme Court affirmed the appellate court’s judgment in part, reversed it in part, and remanded for a new trial. Considering the state’s argument that the appellate court erred in holding that Safarik’s testimony was inadmissible in its entirety and that the trial court’s failure to exclude it mandates a new trial, Justice Thomas, writing for the court, stated: “there is absolutely no question that Safarik never should have been allowed to testify as an expert in this case,” and stressed that the court “will not condone the calling of experts solely for the purpose of shoring up one party’s theory of the case, which is precisely the role that Safarik played here.” People v. King 2020 IL 123926, ¶¶ 36, 39. Expert testimony is allowed only when the subject is particularly within the witness’ experience, and when it is outside the average juror’s knowledge or experience. Here it was neither, as some of Safarik’s conclusions—such as those about when certain wounds were sustained and whether Kathleen’s lividity was consistent with her positioning on the railroad tracks  in part—were beyond Safarik’s expertise, and others, such as those about what she would have worn if she were running, were inferences that average jurors could, and should, draw on their own. Because the court readily concluded that the error was not harmless—in that it likely contributed to King’s conviction, the evidence was not cumulative, and the evidence against King was not overwhelming—the Supreme Court affirmed the appellate court as to this issue, and ordered that the defendant be given a new trial.

The court also addressed testimony presented by Kathleen’s father and her sister. The sister’s comments that Kathleen was like a sister to her and had helped her purchase her wedding dress were permissible because the state did not linger on the two questions that elicited those answers, and the questions, which came at the beginning of 80 pages of testimony, set the foundation for how well the witness knew the decedent’s behavioral patterns. The court reversed the appellate court’s decision that this portion of the sister’s testimony should have been excluded. Conversely, the state’s questions concerning the sister’s and father’s reactions upon hearing of Kathleen’s death, which came toward the end of their testimony, “formed the climax for their understandably emotional responses to make a strong and lasting impression on the jury.” King 2020 IL 123926, ¶ 45. The appellate court’s decision as to this issue was affirmed.

Noting that Illinois is among the jurisdictions that do not define reasonable doubt, the court also considered the argument that the state had impermissibly defined reasonable doubt to the jury when it said “It’s okay for you to have questions such as what point of access did he take. It’s okay for you to have a question and to convict the defendant. As long as those questions don’t amount to a reasonable doubt.” King 2020 IL 123926, ¶ 45. The court concluded that the final sentence quoted above demonstrates that the state “went out of its way not to define that term.” King 2020 IL 123926, ¶ 45. The court reversed the appellate court’s determination that the state improperly attempted to define and dilute its burden of proof during closing argument. 

Finally, the court held that the defendant’s motion for substitution of judge was properly denied because, even though it was filed within 10 days after King’s case was placed on the trial judge’s docket, the motion came one day after the judge ruled on the state’s motion for access to cell tower registration records for the Kings’ cell phones, a motion that required the circuit court to make a substantive ruling.

People v. Roddis

By Jay Wiegman, Office of the State Appellate Defender

In People v. Krankel, 102 Ill.2d 181 (1984), the Illinois Supreme Court held that Krankel should have had counsel, other than his originally appointed counsel, appointed to represent him at a posttrial hearing in regard to his pro se motion for new trial based on the allegation that he had received ineffective assistance of counsel due to counsel’s failure to present an alibi defense. In People v. Roddis, 2018 IL App (4th) 170605, the Appellate Court, Fourth District, observed that numerous courts have misinterpreted how to conduct Krankel hearings and the proper procedures required when a defendant raises a pro se post-trial claim of ineffective assistance of counsel. In an effort to eliminate confusion, the Illinois Supreme Court granted leave to appeal, and engaged in a thorough discussion of its opinions applicable to this question. People v. Roddis, 2020 IL 124352, ¶ 37.

On remand for a hearing in accordance with Krankel, the circuit court in the instant case conducted what it termed a “pre-inquiry Krankel hearing” to determine if the allegations were founded, at which time it would appoint counsel and proceed to a “full-blown” Krankel hearing. The circuit court conducted a hearing at which Roddis could elaborate on his allegations and counsel could respond. The circuit court ruled that the allegations did not establish ineffective assistance of counsel. On appeal, the defendant asserted that the trial court erred when it addressed the merits of his claim beyond determining whether to appoint counsel. The appellate court agreed, reversed and remanded. Defendant appealed, arguing that the circuit court erred by considering the legal merits of the ineffective assistance of counsel claim during the Krankel hearing.  

The defendant’s argument on appeal relied upon a well-known passage from People v. Moore, 2017 Ill.2d 207 Ill. 2d 68, 77-78 (2003):

“[W]hen a defendant presents a pro se posttrial claim of ineffective assistance of counsel, the trial court should first examine the factual basis of the defendant’s claim. If the trial court determines that the claim lacks merit or pertains only to matters of trial strategy, then the court need not appoint new counsel and may deny the pro se motion.” (Emphasis added.)

Roddis, 2020 IL 124352, ¶ 49. Roddis argued that the phrase “lacks merit” relates only to the factual merits of a claim, and that the trial court should not resolve the legal merits of a claim at this stage. Justice Garman, writing for a unanimous court disagreed, and stated that “Moore holds that a trial court first examines the factual basis of the claim, not that a trial court only examines the facts. Roddis, 2020 IL 124352, ¶ 50 (emphasis in original). The court also noted that it has never distinguished between factual and legal merit, and stated that rather than limit what a trial court can consider during an inquiry, Moore establishes a minimum threshold for the circuit court’s Krankel consideration. Because a trial court (“the most effective arbiter between patently frivolous claims and those showing possible neglect”) is often presented with meritless pro se claims, a trial court “must be able to consider the merits in their entirety when determining whether to appoint new counsel on a pro se posttrial claim of ineffective assistance of counsel.” Roddis, 2020 IL 124352, ¶ 56, 61. The court noted that it was not attempting to create a framework composed of reasons to deny a pro se, post-trial claim of ineffectiveness, but instead would “adhere to a case-by-case, fact-specific examination, driven by the record.” Roddis, 2020 IL 124352, ¶ 64.

In the instant case, the court found that the circuit court conducted an adequate inquiry into the defendant’s concerns about counsel’s performance and determined that the defendant failed to present any valid arguments in support of his claims, despite “a few misnomers” from the circuit court. Holding that “a trial court may consider both the facts and legal merits of a defendant’s pro se posttrial allegations of ineffective assistance of counsel at the preliminary inquiry stage, the court reversed the judgment of the appellate court and affirmed the judgment of the circuit court. Roddis, 2020 IL 124352, ¶ 70. 

Hess v. Estate of TJay Klamm

By Joanne R. Driscoll, Forde & O’Meara LLP

Is an insurance policy with an anti-stacking provision ambiguous on aggregation or “stacking” of limits when liability limits are listed more than once in the declarations that cover separate vehicles? Following the cardinal rule of examining the policy as a whole, the court held that there was no ambiguity as to liability limits and, thus, the anti-stacking provision applied.

The policy in question provided coverage for four separate vehicles and listed separate premium amounts for each vehicle. The first page of declarations listed three vehicles but listed the limits of liability only once. The second page listed a fourth vehicle and set forth the same limits of liability on that page. Relying on dicta in Bruder v. Country Mutual Insurance Co., 156 Ill. 2d 179 (1993) and Hobbs v. Hartford Insurance Co. of the Midwest, 214 Ill. 2d 11 (2005), the circuit and appellate courts held that the multiple listing of liability limits created an ambiguity on the issue of whether the anti-stacking provision applied.

The Illinois Supreme Court reversed in a unanimous opinion, beginning its analysis by discussing Bruder and Hobbs. In those cases, the policies were found to be unambiguous because the anti-stacking provisions were tied to limits of liability that were only shown once on the declarations page that listed separate premiums for each vehicle. The court acknowledged dicta in those cases that an ambiguity could exist if separate limits of liability were listed for each covered vehicle. It noted, however, that Hobbs expressly rejected establishing any per se rule, stating that the question had to be decided on a case-by-case basis after an examination of the policy as a whole.

Examining the policy at issue, the court noted that the limits of liability were not listed separately for each vehicle; rather they were listed once for the first three vehicles and again on the next page for the fourth vehicle. According to the court, the only reasonable explanation for restating the liability limits on the second page was that the information for all four vehicles could not fit on one physical page.  It could not be read as allowing stacking of liability coverage.

The court found additional support for its reading of the policy based on a separate section on the second page of the declarations. After setting forth the premium for the fourth vehicle, the policy listed an additional premium for uninsured/underinsured motorists (UM/UIM) bodily injury coverage of $100,000 per person and $300,000 per accident, stating it was the “TOTAL LIMIT [of UM/UIM coverage] FOR ALL VEHICLES COVERED UNDER THIS POLICY.” The fact that there were not separate limits of liability attached to each vehicle showed that the intent was not to aggregate the coverage for all four vehicles.

West Bend Mutual Insurance Co. v. TRRS Corp.

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

An insurance coverage dispute arose under a worker’s compensation policy where the employer allegedly did not give notice to its insurer until a year after the injury to an employee. The insurer filed a Complaint for Declaratory Judgment in circuit court, seeking to have that dispute decided by the court. The employee, having filed an Application for Adjustment of Claim, contended that the coverage dispute should be decided by the Illinois Worker’s Compensation Commission. “There is no question that the circuit court shared concurrent jurisdiction with the IWCC for purposes of West Bend’s declaratory judgment action.” The issue before the Supreme Court was whether the appellate court was correct in reversing the circuit court’s stay of the IWCC proceedings in favor of resolution of the contested coverage question by the circuit court, in reliance upon the doctrine of primary jurisdiction.

The doctrine of primary jurisdiction is a judicially created doctrine “that is not technically a question of jurisdiction, but a matter of self-restraint in relations between the courts and administrative agencies.” It involves the question of timing, and not of “judicial competence to hear a particular case.” The doctrine allows for a matter to be referred from the circuit court to an administrative agency when the agency has specialized expertise or there is a need for uniform administrative standards. The “relevant relief” available under the doctrine is the stay of a judicial proceeding in favor of first obtaining resolution of an issue by an administrative agency with expertise. Here, the unanimous appellate opinion authored by Justice Hutchinson for the court stated that staying the administrative proceedings “turned the doctrine of primary jurisdiction on its head.” The circuit court had been bound by the only relevant appellate authority, Hastings Mutual Insurance Co. v. Ultimate Backyard, LLC, 2012 IL App(1st) 101751.  The Supreme Court, in an opinion by Justice Kilbride for a unanimous court, agreed with the appellate court below, saying that the supreme court had never applied the doctrine of primary jurisdiction to stay an administrative proceeding, and overruled Hastings Mutual.

But that is not the end of this matter. The Supreme Court noted that in West Bend’s reply brief in the Supreme Court that West Bend acknowledged that the primary jurisdiction doctrine did not itself provide authority for the order staying the administrative proceeding. West Bend advanced the additional argument that a circuit court possesses inherent equitable power to issue a stay pending judicial review that cannot be abridged by the legislature. The Supreme Court declined to consider the merits of that alternative ground, but instead remanded the case to the circuit court for further arguments on that asserted ground for the stay. In keeping with what the appellate court had done, the Supreme Court also took no position on the merits of that argument.

In re Elena Hernandez

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

In one of two opinions filed the same day concerning the subject of workers’ compensation, the Illinois Supreme Court upheld a statutory exemption protecting workers’ compensation proceeds from medical providers’ claims. The issue was lateraled from the federal system through the certification process in Supreme Court Rule 20.

Ms. Hernandez filed a voluntary Chapter 7 bankruptcy proceeding in the Northern District of Illinois after she sustained injuries at work and incurred medical expenses in excess of $130,000. Ms. Hernandez reported unsecured claims for the medical bills and minimal assets, including her pending workers’ compensation claim, which she valued at $31,000. Shortly after filing her petition, Ms. Hernandez settled the claim for roughly that amount without consulting the bankruptcy trustee. Claiming fraud, the medical providers objected to Ms. Hernandez’ assertion that section 21 of the Workers’ Compensation Act put her settlement proceeds out of the bankruptcy estate.

The dispute reached the Seventh Circuit, which found support for both sides of the issue under principles of statutory construction and determined that the Illinois Supreme Court should decide this important public policy matter. The court of appeals certified this question for the Illinois Supreme Court: After the 2005 amendments to section 8 of the Workers’ Compensation Act, 820 ILCS 305/8 (West 2016), and the enactment of section 8.2 of the Act, does section 21 of the Act exempt the proceeds of a workers’ compensation settlement from the claims of medical care providers who treated the illness or injury associated with that settlement?

The Supreme Court accepted the Seventh Circuit’s request. It identified as the critical inquiry for deciding whether the bankruptcy code allows debtors, under Illinois law, to exempt property from the bankruptcy estate, as whether the provision “unequivocally protects” certain property from all forms of collection.

The court found “no ambiguity whatever” in section 21’s language, a version of which has been on the books for over a century. Noting that the General Assembly enacted unmistakably clear exceptions, regarding certain pension benefits and child support obligations, the Supreme Court found no similar expression of legislative intent to carve out an exception for health care providers. The closest they came with their arguments of implied exceptions was by citing section 8.2(e-20), which permits health care providers to seek payments for outstanding bills directly from an injured employee after entry of a final compensation award or a settlement. But, in the Supreme Court’s view, nothing in that provision places an award, judgment or settlement within reach of the providers; under the statutory scheme, they must seek to recover from other assets of the employee.

Posted on January 27, 2020 by Rhys Saunders
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