The Bar News

Quick Takes on Illinois Supreme Court Opinions Issued Thursday, May 21, 2020

The Illinois Supreme Court handed down three opinions on Thursday, May 21. In People v. Green, the court weighed in on conflict-of-interest issues when an attorney has represented an intended victim of a crime where another person turns out to be the actual victim.  In Levin v. Retirement Board of the County Employees’ & Officers’ Annuity & Benefit Fund, the court upheld an appellate court decision that a county board exceeded its authority in denying an employee health insurance because she was previously a state employee. In Lewis v. Lead Industries Association, the court held that plaintiffs in a class action lawsuit to recover the costs of lead screening undergone by their children had no claim.     

People v. Green

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

At issue in this case is the narrow question of whether trial counsel’s prior representation of the intended victim of an offense creates a conflict—per se or actual —where another individual turns out to be the actual victim of the offense.

Here, a man named Keeko was the intended victim of a drive-by shooting, but a man named Lewis was actually shot. Donnell Green retained an attorney to represent him on first degree murder charges arising from that shooting. That attorney had previously represented Keeko and did not disclose his prior representation to the court. After his conviction was affirmed on direct appeal, Green learned of the prior attorney-client relationship between his trial counsel and Keeko and raised the issue in a post-conviction petition, which the circuit court ultimately denied. The appellate court affirmed that denial.

Two types of conflict are recognized under Illinois law: per se and actual. A per se conflict where defense counsel’s connection to a person or entity creates a conflict without the need for the defendant to demonstrate that he suffered actual prejudice. A per se conflict will be found where counsel has a prior or contemporaneous association with the victim, prosecution, or entity assisting the prosecution; contemporaneously represents a prosecution witness; or was a former prosecutor personally involved in prosecuting defendant.

Green argued that his situation fit into the first category of per se conflict in that counsel here had an association with the “victim,” albeit the intended, and not actual, victim. The Supreme Court rejected the argument that counsel’s prior representation of Keeko presented the same risks as if Keeko had been the actual victim, specifically the risk of “an imperceptible, negative, subliminal effect on the attorney’s performance and later charges of unfaithful representation.” The court concluded that even though the state prosecuted defendant under a theory of transferred intent, where Keeko was the intended victim but Lewis was the actual victim, Keeko had never been the “victim” of defendant’s charged offense for purposes of establishing a per se conflict.

Also, the Supreme Court explicitly declined to expand the per se conflict rule beyond the three “long-standing” categories. Instead, a defendant who finds himself in the same circumstances as Green must resort to establishing an actual conflict of interest, which requires a showing that defendant was prejudiced by counsel’s prior representation of the intended victim. While Green raised the actual conflict issue in the circuit court, he did not pursue that argument on appeal. Accordingly, the Supreme Court affirmed the denial of defendant’s post-conviction petition.

Levin v. Retirement Board of the County Employees’ & Officers’ Annuity & Benefit Fund

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

Plaintiff worked as a Cook County assistant state’s attorney for more than twenty years, and then served as the executive director of the Illinois Criminal Justice Information Authority. She made appropriate contributions to both the defendant county fund and to the state system. Upon leaving her service with the state, she became an annuitant under the county fund. Later, her application to purchase health insurance under the county fund program was denied because of a “last employer” requirement which had been enacted by the fund board as a qualification. A divided appellate court reversed that outcome, stating that the board had exceeded its authority under the statute. 

Upon this appeal to the Supreme Court, Justice Neville recused himself. The remaining members of the court “are divided so that it is not possible to secure the constitutionally required concurrence of four judges for a decision...” As a result, under Perlman v. First National Bank of Chicago, 60 Ill.2d 529 (1975), the appeal was dismissed, effectively affirming the appellate court, but without any precedential value to be attached to the action of the Supreme Court.

Lewis v. Lead Industries Association

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

Plaintiffs in this class action lawsuit sought to recover the costs of mandatory lead screening undergone by their children pursuant to the requirements of the Lead Poisoning Prevention Act (Act) (410 ILCS 45/1 et seq. (West 2000)). The question before the court was whether the plaintiffs had standing to pursue that recovery when they did not pay for the tests (Medicaid did) and would never be liable for the costs. In a unanimous decision written by Justice Neville, with Justices Kilbride and Michael Burke taking no part, the court held that plaintiffs had no claim.  

Plaintiffs’ tort action alleged civil conspiracy to conceal and misrepresent the dangers of lead-based paint, particularly in housing. No personal injury or property damage was alleged. Because the conspiracy count was grounded on a theory of intentional misrepresentation or fraud, the court held that it fell squarely within the fraudulent misrepresentation exception to Moorman’s prohibition of recovering purely economic loss in tort. Moorman Manufacturing Co. v. National Tank Co., 91 Ill. 2d 69, 88-89 (1982). But, as with any fraud case, the plaintiffs were still obligated to prove actual injury. 

The appellate court found actual injury based on (1) the Family Expense Act (750 ILCS 65/15 (West 2000)), because it imposed an obligation on parents to pay the medical expenses of their children, and (2) the collateral source rule, which provides that the parent’s right of action “is not affected by the fact that a third party paid those expenses.”  2018 IL App (1st) 172894, ¶¶ 10-13. The Supreme Court disagreed as to both reasons and reversed.

Applying rules of statutory construction, the court read the plain language of the Family Expense Act as obligating parents only for “expenses” owed to those persons or entities who have obtained the status of “creditors.” It then applied the dictionary definition of “creditor” to conclude that the medical providers who screened plaintiffs’ children were not “creditors” because the Medicaid program was designed to prevent medical providers from becoming creditors of Medicaid recipients. The court also rejected the plaintiffs’ argument that they retained liability for the medical expenses pursuant to section 11-22 of the Illinois Public Aid Code (305 ILCS 5/11-22 (West 2018)), which allowed the state to proceed against a Medicaid recipient who recovers for expenses paid by the state for which a third party is liable. The court noted that the state’s right of recoupment is a claim against a wrongdoer, not the Medicaid recipient.  305 ILCS 5/11-22 (West 2012). 

Turning to the collateral source rule, the court explained that the rule prescribes the methodology of awarding damages. It noted that no Illinois case has used the rule to excuse a plaintiff asserting an economic tort claim from establishing an injury and that decisions in other states have rejected the notion that the collateral source rule may be invoked to establish an injury. 

The plaintiffs’ inability to prove economic injury due to defendants’ conduct meant they had no claim at all.

Posted on May 21, 2020 by Rhys Saunders
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