The Bar News

Quick Takes on Illinois Supreme Court Opinions Issued Thursday, October 22, 2020

The Illinois Supreme Court handed down three opinions on Thursday, October 22. In People v. Lusby, the court denied a defendant’s request for leave to file a successive post-conviction petition asserting that his sentencing hearing was constitutionally inadequate. In Tabirta v. Cummings, the court considered whether the existence of one part-time employee who services a few of a defendant corporation’s customers from his home in Cook County satisfies the “other office” or “doing business” prongs of section 2-102(a) of the venue statute. In Goral v. Dart, a split court allowed disciplined and fired Cook County correctional officers to continue their lawsuits against Cook County Sheriff Tom Dart.

People v. Lusby

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

In 1996, Jennifer Happ was sexually assaulted and murdered in her home. The investigation into the offense went cold until 2001, when police received information that Ashanti Lusby had admitted to another individual that he committed the crime. At trial, Lusby testified that he had consensual sex with Happ, but denied killing her. Ultimately, he was convicted and sentenced to a total of 130 years in prison. Lusby was 16 years old at the time of the offense, and 23 years old when he was sentenced.

Following issuance of the United States Supreme Court’s opinion in Miller v. Alabama, 567 U.S. 460 (2012), Lusby sought leave to file a successive post-conviction petition asserting that his sentencing hearing was constitutionally inadequate. The trial court denied leave to file, but the appellate court reversed concluding that Lusby had established cause for not raising the issue in his original post-conviction petition because Miller had not yet been decided and had shown prejudice because the sentencing court had not considered age and its attendant characteristics before imposing a de facto life sentence.

Today, the Illinois Supreme Court reversed the appellate court’s decision and affirmed the trial court’s denial of Lusby’s request for leave to file a successive petition. The question of cause was not at issue, as the state conceded that Lusby’s petition made a sufficient showing that his claim based on Miller was not previously available. The lone issue before the court, then, was whether Lusby had established prejudice. The answer to that question depended on whether Lusby’s sentencing hearing was constitutionally sufficient in light of Miller and its progeny.

The court looked to its previous decision in People v. Holman, 2017 IL 120655, to assess the adequacy of Lusby’s 2003 sentencing hearing. In Holman, the court held that a sentencing hearing conducted prior to Miller could nonetheless comply with its requirements if the sentencing court had considered the defendant’s youth and attendant characteristics including: (1) chronological age at the time of the offense and evidence of the defendant’s immaturity and failure to appreciate risks and consequences, (2) family and home environment, (3) degree of participation and any family or peer pressure, (4) incompetence, including any inability to deal with the police, the prosecutor, or defense counsel, and (5) prospects for rehabilitation. Here, the court concluded that the sentencing judge had considered these factors where the judge mentioned Lusby’s age at sentencing and noted that young people often exercise poor judgment, Lusby reported having a good relationship with his parents, there was no evidence of peer pressure or other outside influences, Lusby had mounted a vigorous defense, Lusby had a history of drug and alcohol use but had received treatment and had also obtained his GED, and he had a significant criminal history. The Supreme Court also noted that Lusby had ample opportunity to present mitigating evidence but had chosen not to offer any. The court concluded that Lusby’s de facto life sentence passed constitutional muster on this record.

In dissent, Justice Neville pointed to the cases holding that juvenile life sentences should be rare and uncommon as support for the conclusion that there is a “constitutional presumption against such sentences.” The dissent concluded that the majority erred in its assessment of the pertinent factors here. Specifically, the dissent noted that the sentencing judge considered Lusby’s age only in so much as it precluded the option of capital punishment and resulted in poor judgment but ultimately focused on the brutality of the crime in imposing sentence. The dissent also pointed out that while Lusby reported having a good relationship with his parents, Lusby’s father was essentially absent from his life. And, there was demonstrated rehabilitative potential where the PSI specifically stated that Lusby may benefit from counseling to control his violent tendencies.

The question a court needs to answer at sentencing is “whether the juvenile is so irretrievably depraved, permanently incorrigible, or irreparably corrupt as to be beyond the possibility of rehabilitation and thus unfit to ever reenter society.” The dissent concluded that the trial court did not even come close to satisfying constitutional requirements in imposing the de facto life sentence here, which was understandable since the judge did not have the benefit of Miller and its progeny at the time.

Tabirta v. Cummings, No. 2020 IL 124798

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

The question before the court was whether the existence of one part-time employee who services a few of a defendant corporation’s customers from his home in Cook County satisfies the “other office” or “doing business” prongs of section 2-102(a) of the venue statute.  735 ILCS 5/2-102(a) (West 2016).

The plaintiff truck driver, a Cook County resident, was severely injured during a collision with a truck driven by an employee of the defendant corporation in Ohio. The defendant corporation did not have a registered office in Cook County and denied “doing business” in Cook County because only a small percentage of annual sales (0.19% in 2016 and 0.47% at most in the last five years) occurred there and the location of its one employee in Cook County was of no relevance to his employment. The circuit court agreed that the defendant was not “doing business” in Cook County but denied the motion to transfer venue, ruling that the Cook County residence of the service employee constituted an “other office.” The appellate court affirmed the “other office” holding and did not reach the alternate “doing business” issue.

The Supreme Court reversed, holding the part-time employee’s home in Cook County did not constitute an “other office” of the corporation. The corporation hired the employee because of his experience, not because of the location of his home; the home address was not listed on the corporation’s website or in any public or internal directories; there was no signage on the home; and no customers came to the home. The telephone extension rang on the employee’s cell phone and had no physical connection to the home.

As to the “doing business” prong, the court explained more is required for venue than the “minimal contacts” required to subject a defendant to the jurisdiction of Illinois courts. A relevant factor to consider is the quantity or volume of business conducted in the county.  Here, not only was the volume of the defendant’s sales insufficient, but the work conducted in the Cook County residence did not involve the sale of any products and was merely incidental to the corporation’s usual and customary business.

Justice Kilbride, in a separate concurring opinion, wrote separately to emphasize the narrowness of the court’s “other office” ruling, which is fact intensive. The “other office” test continues to be whether a fixed location was purposely selected by the corporation to carry on an activity in furtherance of its business activities.

Goral v. Dart, 2020 IL 125085

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

The Illinois Supreme Court split 4 to 3 on whether plaintiffs, officers employed by the Cook County Sheriff, could challenge the composition of the Cook County Sheriff's Merit Board in court before the Board completed disciplinary proceedings instituted by the sheriff against the officers. The Supreme Court held that plaintiffs, on unpaid administrative leave pending resolution of whether their employment would be terminated, could challenge the Board's authority in court before pursing all administrative remedies.

The opinion recounts proceedings, including appellate decisions and a Supreme Court supervisory order, before plaintiffs filed motions to dismiss in the administrative proceedings based on challenges to the Merit Board’s statutory authority to address the sheriff's charges of misconduct. The Merit Board declined to address the motions to dismiss as unauthorized by the Board’s administrative rules. Plaintiffs then filed a lawsuit for equitable and legal relief against the sheriff, Cook County, and other county officials. The backdrop of the lawsuit included the General Assembly's amendment of the provision of the Counties Code governing Merit Board appointments. 55 ILCS 5/3-7002 (West 2017). The legislature’s action prompted the sheriff's appointment of a new Merit Board and the filing of amended charges against plaintiffs that restated the previous allegations. 

In a second amended complaint, plaintiffs challenged the composition of both the “old” and “new” Merit Board. Essentially, plaintiffs contended that both boards violated the Code and infringed on their due process rights. The circuit court granted defendants' motion to dismiss the complaint based on plaintiffs' failure to first exhaust administrative remedies before the Merit Board. Among other findings, the appellate court reversed the dismissal order under the “authority” exception to the exhaustion doctrine. 

The Supreme Court majority held that the circuit court did not lack subject matter jurisdiction over the lawsuit based on the exhaustion doctrine. Justice Neville, joined by Chief Justice Anne Burke, Justice Kilbride and Justice Karmeier, rejected defendants' argument that plaintiffs first must fully litigate the charges before the Merit Board, and only then mount a challenge in the court to the Board's statutory authority to adjudicate the charges. In the majority’s view, the authority exception to the exhaustion doctrine permitted plaintiffs to litigate the legitimacy of the Merit Board's composition—and, thus, its jurisdiction—to hear the sheriff's charges against plaintiffs. The Supreme Court read plaintiffs' allegations of an unlawfully constituted Merit Board as a challenge to the Board's power and authority to act; the court found no statutory language vesting the Merit Board with authority to decide the propriety of its composition. The majority disagreed with defendants' prediction that the appellate court's decision inefficiently shifted fact-finding burdens from the Merit Board to the circuit court, and invited a wave of declaratory judgment lawsuits based on procedural challenges to agency hearing officers and piecemeal appeals. The majority reasoned, to the contrary, that judicial efficiency would be served by first permitting the circuit court to address plaintiffs' Board-composition challenges, rather than requiring the Merit Board to proceed with hearings and reach a decision that may be void if a court later ruled the Board lacked authority. The Supreme Court also determined that the circuit court could adjudicate plaintiffs' backpay requests because those claims did not implicate the particular expertise of the Merit Board and ultimately would be subject to de novo review.

Rejecting another defense, the majority held that the de facto officer doctrine did not support dismissal of plaintiffs' lawsuit. A creature of common law, the doctrine confers validity on the conduct of a person acting under color of official title. The doctrine evolved to avoid governmental chaos that would ensue from constant lawsuits raising all conceivable challenges to officials whose authority to act could be questioned. The Supreme Court ruled the de facto officer doctrine did not apply to the Merit Board in this instance, given that the Board had not taken action on the substance of plaintiffs' disciplinary claims before plaintiffs filed their lawsuit.

Finally, the majority addressed defendants' claim that plaintiffs could challenge the sheriff's appointments to the Merit Board only in a quo warranto action. The court noted that the Illinois quo warranto statute, which codifies a common law action to correct an improper appointment or election and oust an individual illegally in office, may be invoked by individuals only under limited circumstances—a citizen may pursue a quo warranto action only after the attorney general and the state's attorney decline to act.  735 ILCS 5/18-102 (West 2018). Here, plaintiffs sought a hearing before a legally-constituted Merit Board, not an ouster of the Board members. The majority reasoned that requiring plaintiffs to assert their challenges to all of the members of the Merit Board in quo warranto proceedings would lead to multiple lawsuits involving each member of the Board and did not present an efficient means of resolving plaintiffs' claims. The court affirmed the appellate court’s judgment and remanded the cases to the circuit court.

Justice Michael Burke provided a comprehensive dissent joined by Justice Theis and Justice Garman. Justice Burke criticized the majority's application of the narrow authority exception to the exhaustion doctrine on the basis that it applies only when an agency acts without jurisdiction; the majority offered a “radical proposition” in concluding that a board appointment determined to be invalid under the Code necessarily means that the agency lacks jurisdiction and that its orders are void. Justice Burke also lamented confusion caused by recent Supreme Court decisions addressing the de facto officer doctrine. In Justice Burke’s view, a traditional understanding of the doctrine establishes that the Merit Board members should be considered at least de facto officers whose authority remained intact in the absence of a proper quo warranto challenge.

Posted on October 22, 2020 by Rhys Saunders
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