The Bar News

Quick Takes on Illinois Supreme Court Opinions Issued Thursday, April 16, 2020

The Illinois Supreme Court handed down four opinions on Thursday, April 16. In People v. Lindsey, the court held that the defendant’s Fourth Amendment rights were not violated when the police obtained a search warrant partially based on a drug dog alerting outside his hotel room. In Dynak v. Board of Education of Wood Dale School District 7, the court held that section 24-6 of the School Code only permits teachers to use up to 30 days of accumulated paid sick leave during the six-week period immediately following the birth of a child, and not at the start of the next school year. In Dew-Becker v. Wu, the court ruled that the plaintiff could not recover the $100 he lost in a two-person, head-to-head competition conducted on FanDuel involving an NBA contest under the Loss Recovery Act. In Restore Construction Company, Inc. v. The Board of Education of Proviso Township High Schools District 209, the court addressed whether the Board of Education of Proviso Township High Schools District 209 could assert the Code’s requirements for contract approval to defeat a quantum meruit claim for costs to restore a high school after a fire.

People v. Lindsey

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

Rock Island police received information from a confidential informant that Jonathan Lindsey was selling drugs from a motel room. An undercover officer attempted to purchase drugs from Lindsey, but no deal occurred. Subsequently, Lindsey was placed under surveillance and ultimately subjected to a traffic stop and arrested for driving on a suspended license. Lindsey told police he was staying at the motel. The police took a K-9 to the motel, and the dog alerted on Lindsey’s room. The police used the K-9 alert, among other things, to obtain a search warrant for Lindsey’s motel room. When they executed the warrant, police found heroin, a digital scale, and corner-cut plastic bags.

Lindsey sought to suppress that evidence, arguing that the dog sniff violated the fourth amendment. The trial court disagreed, concluding that the motel corridor was a public place where the police had the right to conduct a dog sniff. The appellate court reversed the trial court, in a 2-1 decision, holding that Lindsey had a reasonable expectation of privacy because the odor of drugs was undetectable in the motel corridor without the officer’s use of a dog sniff at the seams of the motel room door. The dissenting justice would have affirmed the trial court on the basis that motel guests have a reduced expectation of privacy.

The Supreme Court reversed the appellate court and affirmed the trial court’s denial of Lindsey’s motion to suppress. The Court first looked to the property-based approach of fourth amendment analysis. This was the approach at issue in Florida v. Jardines, 569 U.S. 1 (2013), where the U.S. Supreme Court found that a dog sniff at the door to a private home violated the Fourth Amendment on the basis that the area was curtilage and therefore subject to the same protections as the physical space within the four walls of the home. In People v. Burns, 2016 IL 118973, the Illinois Supreme Court applied Jardines to find unconstitutional a dog sniff at the door of an apartment in a locked, multi-unit apartment building. And, in People v. Bonilla, 2018 IL 122484, the Court reached the same conclusion regarding the area outside an apartment unit’s door in an unlocked apartment building.

In distinguishing Jardines, Burns, and Bonilla, the Court emphasized that in each of those cases the dog sniff occurred “outside the doors of the defendants’ homes.” Here, the record did not show that the motel room in question was Lindsey’s “home.” While there was evidence that Lindsey was “staying” at the motel, the length of his stay was not revealed. The Court went on to note that even if the motel room was Lindsey’s home, the area outside of his door was not curtilage under the four-factor test set out in Dunn, 480 U.S. 294 (1987): proximity of the area to the home, whether the area is within an enclosure surrounding the home, the nature of the use of the area, and any steps taken by the resident to protect the area from observation by others. Consequently, the court declined to find curtilage and therefore rejected Lindsey’s argument under a property-based approach.

The Court also rejected Lindsey’s argument under a privacy-based approach. The privacy analysis requires two things: that the individual has exhibited an actual expectation of privacy and that the expectation is one that society is prepared to recognize as reasonable. Lindsey argued that the dog sniff here was like the thermal detection device used in Kyllo, 533 U.S. 27 (2001), to detect heat emanating from defendant’s home, allowing law enforcement to learn details of the home otherwise unknowable without physical intrusion. The Court disagreed, concluding that while Lindsey had a reasonable expectation of privacy inside his motel room, the dog sniff did not detect the odor of narcotics inside the room but instead detected the odor of narcotics in the area outside of the room. While Lindsey may have wanted his drug activity to remain private, Lindsey had “but a sliver of hope” that his activity would not be sensed by a dog sniff in the area outside of that room. Because Lindsey had no reasonable expectation of privacy in the alcove outside of his motel room, there was no fourth amendment violation.

Justice Burke authored a dissent, joined by Justice Neville, concluding that the dog sniff was an unconstitutional search of Lindsey’s motel room in violation of the fourth amendment under a privacy-based analysis. The dissent explained that a drug detection dog is the sort of sophisticated law enforcement device that allows the collection of information about the interior of an enclosed space without the need to physically intrude upon the space.

In a footnote, the majority stated that its decision today does not mean a hotel or motel room may never be a home or that the area outside such room may never be within its curtilage. Instead, it will be a case-by-case determination. Thus, today’s decision is not a blanket endorsement of using drug dogs at hotels and motels, but instead sets forth a framework that can be used to analyze such an encounter under the fourth amendment.

Dynak v. Board of Education of Wood Dale School District 7

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

In this statutory construction case, the Court was asked to decide whether section 24-6 of the School Code (105 ILCS 5/24-6 (West 2016)) permits a school teacher who gives birth at the end of the school year to use accumulated paid sick leave through the start of the next school year.  Section 24-6 does not speak directly to this issue but provides that the “school board may require a certificate from a physician *** as a basis for pay during leave after an absence of 3 days for personal illness or 30 days for birth or as the school board may deem necessary in other cases.” 

The plaintiff requested use of 1.5 days of paid sick leave at the end of the 2015-16 school year and an additional 28.5 paid sick leave days at the beginning of the 2016-17 school year. The school district allowed the use of the 1.5 days but not the 28.5 days. A declaratory judgment action followed, and on cross motions for summary judgment the circuit court ruled in favor of the school district.   

A divided appellate court affirmed.  The majority found that there was no textual support for treating the condition of childbirth different from other conditions for which paid sick leave was allowed. 2019 IL App (2d) 180551, ¶ 56. The dissent opined that the majority’s holding was an impermissible rewriting of the statute, which, in his opinion, “allows a teacher to use accumulated paid sick days ‘for birth’ for the next 30 workdays following the birth, with no limitations or exceptions.”  Id. ¶ 64. 

The Illinois Supreme Court, in an opinion authored by Chief Justice Anne Burke, and in which Justices Neville and Michael Burke took no part, affirmed the circuit court and appellate court majority, holding that section 24-6 only permits teachers to use up to 30 days of accumulated paid sick leave during the six-week period immediately following the birth. In doing so, it first examined the plain language of the statute, which strongly suggested legislative intent that sick leave for birth must have a temporal connection to the birth. According to the Court, “the 30-day requirement [for a medical certificate] only makes sense if the intent was for paid sick leave to follow immediately after the birth.”  2020 IL 125062, ¶ 21.   

Next, applying the doctrine of noscitur a sociis (words grouped together are given related meaning), the Court reasoned that the only way to “interpret the statute’s allowance of sick leave for personal illness, quarantine at home, or serious illness or death in the immediate family or household is that the sick leave must be contemporaneous with the event.” Id., ¶ 23. Then, considering the consequences of a statutory interpretation, the Court noted that plaintiff’s interpretation would lead to absurd results, such as a teacher using paid sick leave at the beginning of the school year to make up for the days lost to illness or family death that occurred during the summer break. The Court reasoned that just as sick leave for illness may not be disconnected in time from the illness, sick leave for birth may not be disconnected in time from the birth.  Id., ¶ 25. 

Justice Karmeier in his special concurrence, joined by Justice Kilbride, agreed with the majority opinion’s outcome but opined that the majority departed from the plain and ordinary meaning of the statute. According to the special concurrence, the statutory language offered no support for finding that teachers must immediately use their sick leave at the start of the qualifying event. In fact, it expressly allows for sick leave for adoption to begin when the adoption is completed or before and while the adoption process is underway.   

The special concurrence pointed out absurdities with the majority’s interpretation. For example, a teacher could not use sick leave for birth for the entire date on which the birth occurs; and a teacher could not take sick leave for death to attend a family member’s funeral if it takes place a few days or longer after the actual death, unless that teacher uses sick leave immediately following the time of death until the day of the funeral. 

According to the special concurrence, section 24-6 sets forth the qualifying events for which sick leave could be used but then requires a fact-specific inquiry of the unique circumstances of each case. The special concurrence believed that sick leave for birth should not be constrained to “immediately following birth,” but it agreed with the majority’s holding that section 24-6 limits a teacher’s use of sick leave for birth to the six-week period that follows the teacher’s initial use of such sick leave. Because the plaintiff’s requested sick leave would be taken more than six weeks following her initial use of her sick leave for birth, she was not entitled to use any paid sick leave for birth at the beginning of the 2016-17 school year.

Dew-Becker v. Wu

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

That a large amount of money is involved in a case does not at all augur that the Supreme Court will grant leave to appeal, nor does a small amount necessarily predict denial of leave. This case, involving an attempt to recover money lost on FanDuel, involves $100. The majority, in an opinion authored by Chief Justice Anne M. Burke, affirmed the outcome in both courts below that this plaintiff, having lost $100 in a two person head-to-head competition conducted on FanDuel involving an NBA contest, could not recover his loss under a section of the Criminal Code, 720 ILCS 5/28-8(a), which some courts have termed the Loss Recovery Act. Justice Karmeier dissented with a lengthy opinion. Justice Michael J. Burke did not participate.

Section 28-8(a), which can be traced to the late 1800's, creates a civil right of recovery for “any person who by gambling shall lose to any other person...” Although participants on FanDuel use screen names, plaintiff was clearly aware of defendant’s true identity, and invited defendant to participate in this contest. (The appellate opinion reveals that defendant’s screen name was “questionably legal.”) The appellate court assumed, arguendo, that a head-to-head daily fantasy sports contest was “gambling,” but in reliance on four reasons concluded that recovery could not be had. Among those reasons was the appellate court’s conclusion that the statute required a direct connection between the “persons” involved in the wager, while here an intermediary was involved, and that “the trend in Illinois is toward more relaxed gambling laws,” and that this section’s relevance has dwindled since its inception in the late 1800's.

The Supreme Court, while affirming the denial of recovery, disagreed with the reasoning of the appellate court, and, much to the contrary, held that the activity did not involve “gambling.” As a matter of first impression, the court selected among three tests in use in foreign jurisdictions to determine whether this wager involved an exempted contest of skill, choosing the “predominate factor” test. Under that test, even though both chance and skill are involved, if skill is the dominating element that determines the result, gambling is not involved. After examining an array of articles and studies, the court concluded that “because the outcomes of head-to-head (daily fantasy sports) contests are predominately skill based, we conclude that plaintiff was not engaged in ‘gambling’ with defendant” under the statute. The court distinguished a 2015 opinion of the Illinois Attorney General, stating in part that “that opinion did not have the benefit of the more recent research that has established the predominance of skill in (these) contests.”

Justice Karmeier commenced his dissent by stating that “Due to its misconception of the predominate factor test, the ingenuity exerted in head-to-head DFS contests duped the majority into believing it is a game of skill when it truly is a game of chance.” The dissent “highlight[ed] the impropriety of the majority’s reliance on scientific studies” not found in the record or in any briefs. He warned that under the majority’s approach, any time a study concludes that traditional gambling involves skill more than chance those activities will be now legal. The dissent’s fundamental characterization of these wagers is that once the fantasy lineup is set, the participant cannot influence the athletes’ performance, and that that contingent event determines the outcome.

The Sports Wagering Act, effective June 28, 2019, 230 ILCS 45/25-1 et seq., had not yet been adopted at the time of the appellate opinion, and had no bearing on the outcome here. Although the prospective applicability of that act was not expressly analyzed, a footnote in the majority opinion stated that that act “does not address or regulate DFS contests.” In contrast, the dissent stated that "the Act clearly governs daily fantasy sports,” and that the ability to recover such losses “has now come to an end.” 

Restore Construction Company, Inc., v. The Board of Education of Proviso Township High Schools District 209

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

The Illinois Supreme Court interpreted the School Code in two decisions filed the same day. In this case the court addressed whether the Board of Education of Proviso Township High Schools District 209 could assert the code’s requirements for contract approval to defeat a quantum meruit claim for costs to restore Proviso East High School in Maywood, Illinois, after a fire caused extensive damage to the premises. The Supreme Court concluded that the district could not rely on its board’s failure to strictly comply with statutorily-mandated bidding and contract approval procedures to avoid payment of the costs of disaster remediation the district requested on an emergency basis.

Concerned about repairing the high school in time to reopen for the next academic year, within two weeks of the May 2014 fire, district representatives entered into a contract with Restore Restoration to mitigate the fire damage and a contract with an affiliated company, Restore Construction, to repair the building. The Supreme Court emphasized that the district did not act without oversight; a financial oversight panel (“FOB”) and its chief fiscal officer operated under the Financial Oversight Panel Law (105 ILCS 5/1H30(3) (West 2014)) The district’s chief school business official, Todd Drafall, answered to the FOB and not to the district in carrying out his responsibilities in overseeing the project, the cost of which was covered by the district’s insurer, Travelers Indemnity Company. Drafall provided regular updates about the project to the FOB and the board; both accepted Drafall’s actions.

A dispute arose when the district’s insurer questioned the workers’ wages and did not remit payment for the total value of the work, which exceeded $7.2 million. The Restore entities filed a lawsuit against a variety of defendants, including the district, and sought recovery of a $1.48 million shortfall from the district’s insurer. The district defended the lawsuit not based on any defect in the performance of the work or any lack of information by its board, but a “narrower technical defense”: the school code required competitive bidding and a formal vote by the board to approve the contracts with the Restore entities, and the failure to follow those requirements precluded the municipal entity’s liability under any theory, including quantum meruit. 105 ILCS 5/1-1 et seq. (West 2014). The circuit court dismissed the complaint based on the statutory defense, but the appellate court reversed the dismissal order.

Justice Karmeier delivered the court’s rejection of the board’s defense to the Restore entities’ claims. The court observed that the FOB exercised fiscal management over the district because the district was financially troubled; under the circumstances, the actions of the FOB, not of the board, were dispositive. Drafall, the FOB’s chief operating officer, established that the FOB was well aware of and fully approved the project. The record also demonstrated that a majority of the board had informally approved the project.

As a separate reason for rejecting the district’s argument, the court drew a distinction between contracts that are ultra vires and contracts which a municipality has the power to enter but enters irregularly or illegally. The Supreme Court reasoned that, in the latter situation, if a contract is made in good faith and the municipality accepts its benefits, the municipality may not invoke its own failure to comply with a statute to avoid payment.

The court closed with the observation that the Restore entities sought only to recover to the extent of the district’s insurance, which eliminated the “risk of a raid on the public treasury.” That was the concern of the dissenter, Justice Garman, who noted that the requirements of the statute must be strictly followed to protect Illinois taxpayers from unscrupulous public servants making sweetheart deals.

Posted on April 16, 2020 by Rhys Saunders
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