The Bar News

Quick Takes on Illinois Supreme Court Opinions Issued Thursday, November 19, 2020

The Illinois Supreme Court handed down seven opinions on Thursday, November 19. They included opinions in two criminal cases and five civil cases.

People v. Reveles-Cordova

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

Alejandro Reveles-Cordova was found guilty of both criminal sexual assault and home invasion predicated on criminal sexual assault arising out of a single incident. At issue before the Supreme Court was whether both convictions could stand or whether the criminal sexual assault conviction had to be vacated on one-act, one-crime grounds as a lesser-included offense. Today, a unanimous Supreme Court vacated Reveles-Cordova’s criminal sexual assault conviction.

Under the one-act, one-crime doctrine, the court first must determine whether a defendant’s conduct involved multiple acts or a single act. Multiple convictions based on a single physical act are improper. If there were multiple acts, however, the court must go on to determine if one offense was a lesser-included of the other. If so, multiple convictions cannot stand.

Here, the sexual assault and home invasion involved multiple physical acts (unlawful entry to the home of another, sexual assault) requiring the court to proceed to the second step of the analysis. In ascertaining whether one offense is a lesser included of another, it is well-settled that courts use the abstract elements approach. That approach has resulted in a split of authority among the appellate court districts as to whether the court should look only to the specific statutory subsection of home invasion under which the defendant was charged or whether the court can look to the entire statutory provision as a whole.

Home invasion involves unlawful entry into the dwelling place of another with knowledge that one or more persons is present, coupled with additional enumerated conduct, such as using or threatening force while armed, intentionally causing injury, discharging a firearm, or committing one of several types of sexual offenses. 720 ILCS 5/12-11(a). Today, the Supreme Court clarified that “each of the alternative acts or predicates contained in the six subsections of section 12-11(a) of the home invasion statute should be construed as separately proscribed offenses.” And, within the subsection listing various sex offenses, each is a separately proscribed offense, as well.

In reaching its decision, the Court looked to the United States Supreme Court’s decision in Whalen v. United States, 445 U.S. 684 (1980), which held that convictions of rape and felony murder predicated on rape could not both stand; the rape conviction had to be vacated. Although the felony murder statute allowed for felony murder to be predicated on any of six different predicate felonies, the Court concluded that under Blockburger v. United States, 284 U.S. 299 (1932), the appropriate analysis is to look to the specific statutory subsection under which the defendant was charged to determine whether one offense is a lesser-included of another. Blockburger announced the rule that “the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact the other does not.” And, a conviction for killing in the course of a rape necessarily encompassed all of the elements of the offense of rape.

Applying that same reasoning here, defendant’s conviction of criminal sexual assault had to be vacated because all of its elements were necessarily included in the offense of home invasion predicated on criminal sexual assault. In reaching this conclusion, the Court expressly overruled the decisions in People v. Fuller, 2013 IL App (3d) 110391, and People v. Bouchee, 2011 IL App (2d) 090542.

People v. Brown

By Jay Wiegman, Office of the State Appellate Defender

The section of the Criminal Code related to fitness evaluations of criminal defendants, 725 ILCS 5/104-11 (which is captioned “Raising Issue; Burden; Fitness motions”), provides that a circuit court may order a fitness evaluation where there is a bona fide doubt of fitness or where there is merely concern that a defendant may not be fit to stand trial, by providing in pertinent part:

“(a) The issue of the defendant’s fitness for trial, to plead, or to be sentenced may be raised by the defense, the State or the Court at any appropriate time before a plea is entered or before, during, or after trial. When a bona fide doubt of the defendant’s fitness is raised, the court shall order a determination of the issue before proceeding further.

(b) Upon request of the defendant that a qualified expert be appointed to examine him or her to determine prior to trial if a bona fide doubt as to his or her fitness to stand trial may be raised, the court, in its discretion, may order an appropriate examination. However, no order entered pursuant to this subsection shall prevent further proceedings in the case. An expert so appointed shall examine the defendant and make a report as provided in Section 104‑15.”

In People v. Brown, 2020 IL 125203, a unanimous Supreme Court explained that the above sections provide that where a trial court is not convinced that a bona fide doubt has been raised, the trial court still has the discretion to grant the defendant’s request for appointment of an expert to aid in that determination, but is not then required to conduct a fitness hearing if the expert does not determine that the defendant is unfit to stand trial.

Before Brown’s trial, defense counsel advised the court that the defendant had recently discussed mental health issues from his past. Counsel felt that he and the defendant communicated well and that the defendant understood what was happening, but counsel preferred an expert determination. The circuit court ordered a fitness evaluation, which ultimately concluded that, although the defendant suffered from schizoaffective disorder, post-traumatic stress disorder and mild intellectual disability, he had the ability to understand the nature and purpose of the proceedings against him and to assist in his defense. Upon receipt of the report, defense counsel advised a different judge that there was no reason to believe the defendant was unfit and asked that the matter be placed on the trial call. The circuit court acknowledged receipt of the report and acknowledged the parties’ stipulation that if called to testify, the doctor would testify consistently with the report.               

Following a jury trial, the defendant was convicted of armed robbery and aggravated robbery and was sentenced to 21 years in the Department of Corrections. On direct appeal, the defendant argued that, because the trial court failed to exercise any judicial discretion in finding defendant fit, Brown’s fitness hearing was constitutionally deficient. The Appellate Court, Third District, with one justice dissenting, stated that a trial court cannot base its determination of fitness solely upon a stipulation to the existence of psychiatric conclusions. The Appellate Court reversed the defendant’s convictions and remanded for a new trial.

The state sought leave to appeal and argued that the appellate court erred when it found that the trial court failed to exercise its judicial discretion in finding the defendant unfit to stand trial. The state also argued that if error occurred, the proper remedy was remand for a retrospective fitness hearing.

The Supreme Court granted the state’s petition for leave to appeal, reversed the judgment of the appellate court and affirmed the judgment of the circuit court. In its brief to the Supreme Court, the state raised two arguments: 1) that the trial court never found there was a bona fide doubt of defendant’s fitness; and 2) assuming the trial court had found a bona fide doubt concerning Brown’s fitness, the judge who received the report had exercised judicial discretion in determining that defendant was fit to stand trial. Defendant responded that the state had waived the argument and that defense counsel had, in fact, sought a hearing concerning defendant’s fitness to stand trial.

Writing for the Court, Justice Michael Burke first addressed the principles of waiver/forfeiture. While finding that the state had forfeited the argument that a bona fide doubt existed by tacitly acknowledging it in the Appellate Court, the Supreme Court cited People v. Artis, 232 Ill. 2d 156 (2009) for the proposition that when the appellate court reverses the judgment of the trial court and the appellee in the appellate court and then brings the case to the Supreme Court on appeal, that party may raise any issues properly presented by the record to sustain the judgment of the trial court, even if those issues were not raised in the appellate court. Regarding the state’s failure to raise the issue in its petition for leave to appeal, the Court noted that the failure to raise an issue in a petition for leave to appeal is not a jurisdictional bar but is, instead, a principle of administrative convenience. The Court noted that review of an issue not specifically mentioned in a petition for leave to appeal is appropriate when that issue is “inextricably intertwined” with other matters properly before the Court.

Addressing the substance of the state’s argument, the Court agreed that defense counsel had never indicated that he had a bona fide doubt concerning defendant’s fitness when he requested a fitness evaluation. While section 104‑11(a) ensures that a defendant’s rights are not violated when the trial court has already found a bona fide doubt concerning defendant’s fitness to have been raised, section 104‑11(b) aids the trial court in determining whether there is a bona fide doubt of fitness. Thus, if a trial court is not convinced that a bona fide doubt has been raised, the trial court has the discretion under section 104‑11(b) to grant the defendant’s request for appointment of an expert to aid in that determination. But where, as here, an order for a fitness evaluation is not based on a bona fide doubt of fitness, and where the expert determines that the defendant is not unfit, no fitness hearing is required. Thus, the circuit court in this case did not err in accepting the parties’ stipulation to the fitness report and then setting it for trial, as was requested by defense counsel.

Dameron v. Mercy Hospital and Medical Center, et al., 2020 IL 125219

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

In the course of this medical malpractice litigation, plaintiff retained a physician to perform an EMG study on plaintiff and prepare a report, which was accomplished. Plaintiff initially disclosed that physician as a Rule 213(f)(3) controlled expert witness. A year prior to the trial date, plaintiff moved to redesignate the physician as a Rule 201(b)(3) consultant and to thereby shield the report along with any studies which had been prepared, including the EMG. The circuit court ordered that plaintiff disclose that material. Plaintiff refused, was held in “friendly contempt,” was fined $1 (a necessary jurisdictional step) and filed this interlocutory appeal pursuant to Rule 304(b)(5).

The appellate court reversed the circuit court, holding that it was proper to redesignate the witness as a consultant and that the report and EMG study were shielded from discovery. Here, the Supreme Court, in an opinion by Justice Garman, unanimously affirmed the appellate court. Justice Neville did not participate.

The court noted that both the Supreme Court Rules and Illinois caselaw are silent on whether a party may change a witness’ designation from Rule 213(f)(3) to Rule 201(b)(3). The court noted that it has held that a party may abandon a previously disclosed expert witness if clear and timely notice is given to the opposing party. The court rejected the argument that that particular result depended upon the fact that there the defendant had deposed the expert before the abandonment occurred. The court then went on to take the “further” step to approve the redesignation to the status of consultant. Because the trial was to be a year in the future, no unfair surprise was occasioned to defendant.

The court rejected defendants’ contention that even if redesignation is to be permitted, the report and test results constituted “objective data that is not ‘core work product’” within the ambit of Rule 201(b)(3). Defendants had not argued that “exceptional circumstances” existed to support disclosure. “Defendants do not contend, for example, that the results of [the] EMG study would not be replicable if the same study were conducted by a different doctor.” The court did not see reason to speculate as to the motive for the redesignation of the expert.

The State of Illinois ex rel. Leibowitz v. Family Vision Care, LLD, 2020 IL 124754

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

In this qui tam enforcement action brought under the Insurance Claims Fraud Protection Act (Act) (740 ILCS 92/1 et seq. (West 2016)), the court, in a unanimous opinion written by Justice Michael Burke, answered two questions affecting a relator’s standing:  (1) whether the relator had to have a personal claim, status or right; and (2) whether the relator could bring a claim on behalf of the state under section 5(b) of the Act (740 ILCS 92/5(b)) for a violation of a criminal law (here, insurance fraud under 720 ILCS 5/17-10.5(a)(1) (West 2016)) that results in injury to the state’s sovereignty but no pecuniary loss. 

Upholding the relator’s standing, the court began its analysis by citing the qui tam provision in the Act that allows an “interested person,” including an insurer, to bring a civil action. 740 ILCS 92/15 (West 2016).  Because that provision did not define “interested person,” the court applied the rule of statutory construction to view the statute as a whole and to give effect to all its provisions. Looking to other provisions of the Act, the court noted that none of them required pecuniary interest as a condition of the relator attaining standing. Then, reading those provisions together, the court held that they illustrated that “the defining characteristic of an ‘interested person’ under the Act is the disclosure of material evidence of wrongdoing and involvement in the litigation, not a personal claim, status, or right affected by the fraud.” 

In further support of its conclusion that a pecuniary interest on the part of the relator was not required, the court applied another rule of construction, to avoid absurdity, inconvenience, or injustice. It opined that excluding uninjured whistleblowers would defeat the purpose of the Act and discourage employees from coming forward to disclose their employers’ insurance fraud.

Answering the second question of whether the state had to suffer a pecuniary injury, the court was guided by qui tam litigation under the Illinois False Claims Act (740 ILCS 175/1 et seq. (West 2016)), which held that standing is conferred on a relator, as a partial assignee, to sue for fraud resulting in pecuniary injury to the state. Citing Scachitti v. UBS Financial Services, 215 Ill. 2d 484, 508 (2005) and Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000), the court stated that the government’s standing under false claims act cases rested on injury to its sovereignty based on the violation of its laws as well as a “proprietary” injury. 

Analogizing the state’s injury under the Act to false claims act cases, the court held that the state suffers “injury in fact” to its sovereignty based on violations of its laws and, thus, it, too, can assign to a relator its claim for that injury. In further support, the court noted that neither section 5(b)’s provision for civil penalties nor the qui tam enforcement provision of section 15 of the Act mentioned pecuniary injury to the state. To impose such a condition upon a relator’s standing would defeat the purpose of the Act.

Lastly, the court rejected the defendants’ constitutional argument that the attorney general was the sole officer authorized to litigate on behalf of the people and that a private citizen without a legal interest could not exercise the state’s law-enforcement power. The court applied the same reasoning as in Scachitti that a statute is constitutional if the attorney general retains sufficient control over the qui tam action. That control existed under the Act.

Policemen’s Benevolent Labor Committee v. The City of Sparta, 2020 IL 125508

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

In this statutory construction case, the court construed section 11-1-12 of the Municipal Code (65 ILCS 5/1101-12 (West 2016)), which prohibits a municipality from requiring a police officer to issue a specific number of citations within a designated time period and from comparing police officers with respect to the number of citations they issued. The second paragraph of section 11-1-12 permits the evaluation of officers based on their “points of contact,” defined to include “traffic stops completed, arrests, written warnings, and crime prevention measures.” The last sentence of that paragraph excludes “either the issuance of citations or the number of citations issued by a police officer” as a point of contact.

The City of Sparta instituted an activity-points policy (the Policy) for evaluating its police officers’ performance. That Policy required full-time officers to meet a monthly points minimum by conducting certain activities, including issuing citations or traffic stop warnings. The number of activity points could be used to discipline officers or issue awards. The Policemen’s Benevolent Labor Committee (the Union) filed a complaint, seeking a declaratory judgment that the Policy violated section 11-1-12 of the Municipal Code.

Examining the plain language of section 11-1-12, a unanimous court held that the city’s Policy was in direct violation of the unambiguous prohibition that “’[p]oints of contact shall not include *** the issuance of citations.’” 65 ILCS 5/11-1-12 (West 2016). The court rejected the city’s argument that section 11-1-12 was ambiguous because the last sentence in the second paragraph, which excludes the issuance of citations or the number of citations issued by a police officer from consideration as points of contacts, is inconsistent with the rest of the statute that does not create a per se prohibition on considering citations. The court held that there was no conflict because the first paragraph prohibited quotas requiring the issuance of a certain number of citations in a designated time period, and the second paragraph prohibited the inclusion of citations in a points-of-contact policy.  According to the court, the city’s argument would require reading the last sentence of section 11-1-12 out of the statute, which is prohibited by rules of statutory construction.

Concluding, the court noted that the city could continue to evaluate its officers based on “‘quantifiable contact[s]’” other than the issuance of citations. And it recognized argument by an amicus that the failure to include issuance of citations as part of duty performance undercuts important traffic safety enforcement programs.  But the court responded that its duty was to enforce the law as written and that it was for the legislature to write the law and consider its effects.

Tzakis v. Maine Township, et al., 2020 IL 125017

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

The public duty rule provided that a local government entity was not liable in tort and owed no duty to individual members of the public when performing customary governmental duties for the public at large. The rationale was that a municipality’s duty is to preserve the well-being of the community, and that that duty is owed to the public, rather than to specific members of the community. In Coleman v. East Joliet Fire Protection Dist., 2016 IL 117952, with split opinions, the court abolished that common law rule. Here, in an opinion authored for the court by Justice Theis, the court held that the Coleman abolition of the rule did not apply retrospectively to this case. Justice Kilbride did not participate.

The plaintiff property owners filed suit initially in 2009 concerning flood damage to their property after heavy rains on several dates, commencing in 2008. The Supreme Court noted that the complaint is 299 pages long, that it contains more than 1,500 allegations, including numerous allegations that plaintiffs were allowed to strike out with black lines. The Supreme Court said that “the appendix to the record fails to describe in any detail the nature of each document.” While that observation was followed by a citation to Rule 342, no consequence was attached to that nature of the appendix here.

Defendants filed their first motion to dismiss raising the public duty rule in March 2010 and continued to assert that argument in all subsequent motions to dismiss. The circuit court granted dismissal of certain aspects of plaintiffs’ complaints based on the public duty rule. After Coleman abolished the rule on January 22, 2016, plaintiffs sought reconsideration of those dismissals. Defendants responded that Coleman should only be applied prospectively. The trial court initially granted plaintiffs’ motion to reconsider and vacated the dismissal, but on rehearing the dismissal was reinstated, with the court stating that the new regime should not be retroactively applied in this case.

Although numerous theories were pled which will not be summarized here, pertinent to the major issue the appellate court found that Coleman did apply retroactively and that therefore the public duty rule did not apply to plaintiffs’ claims. Here, the Supreme Court held that the public duty rule applied “to the allegations contained in the complaint.” The Supreme Court then worked through the remaining issues and affirmed the dismissal of the entirety of the complaint.

Generally, a decision is presumed to apply both retroactively and prospectively. That presumption can be overcome in two circumstances. The issuing court may expressly prescribe prospectivity. And, a court may, in certain circumstances, override the presumption “with respect to the parties appearing before it.” Here, the Court worked through the three factors to be applied. In doing that, the Court noted that if the defendants had obtained a dismissal when they first raised the public duty rule in 2010, the judgment would have been final and appealable long before Coleman abolished the rule in 2016. Further, the conduct alleged by plaintiffs occurred between 8 and 56 years before the public duty rule was abolished. Plaintiffs sought to hold defendants liable for actions surrounding the construction and operation of a storm water system going back 60 years.

The court found Molitor v. Kaneland Community Unit District, 18 Ill. 2d 11 (1959), which abolished sovereign immunity, to be “most helpful” in the analysis of injustice or hardship. It is important to observe that the factors being analyzed favor limiting Coleman to prospective-only application “in this case.”

Turning to the merits, the Court affirmed the trial court’s finding that the public duty rule applied to these allegations, and that a cause of action based on the special duty exception to the public duty rule did not exist here.

Zander v. Carlson, 2020 IL 125691

 By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

 Plaintiff Russell Zander, a former Fox Lake patrol officer, lost his bid to sue his union, the Fraternal Order of Police Labor Council (“FOP”), and a lawyer the FOB assigned to represent Zander when he faced allegations of job related misconduct and the police chief’s recommendation that Zander be terminated. On the advice of Roy Carlson, the FOB staff lawyer assigned to defend Zander against the disciplinary charges, Zander opted to proceed with arbitration rather than a hearing before the local board of fire and police commissioners. Zander lost; the arbitrator upheld the termination decision. Blaming Carlson for mishandling the arbitration and the FOB for assigning Carlson and otherwise contributing to Zander’s loss of his employment as a police officer, Zander filed a lawsuit in circuit court. The court dismissed the case against Carlson based on federal caselaw immunizing union employees, like Carlson, for actions undertaken to further collective bargaining rights. Ruling that the claims against the FOB constituted a charge that the union breached its duty of fair representation, the court found that Zander had to proceed on those claims before the Illinois Labor Relations Board. On that jurisdictional basis, the circuit court dismissed the claims against the FOB as well. The Illinois Supreme Court accepted review of the case after the appellate court agreed with the circuit court’s reasoning and dismissal of the lawsuit.   

The Illinois Public Labor Relations Act, 5 ILCS 315/1 et seq. (West 2018) (“the Act”), controlled the Supreme Court’s assessment of whether Zander could sue Carlson for legal malpractice. Given close similarities between the Act and the federal Labor Management Relations Act, the Supreme Court found guidance in federal decisions interpreting the state Act’s federal counterpart. The Illinois Supreme Court followed a decision of the United States Supreme Court, Atkinson v. Sinclair Refining Co., 370 U.S. 238 (1962), and its progeny, and concluded that Carlson was immune from personal liability for actions taken on behalf of the FOB. The court determined that an attorney handling a labor grievance for a member has not entered into an attorney-client relationship with the member; the principal client is the union. The Court also found unavailing plaintiff’s alternative theory that he was a third-party beneficiary of the relationship between the lawyer and union. The Court deemed forfeited Zander’s belated contention that Carlson should be liable to the extent of his malpractice coverage, a theory the Court found unsupported by relevant precedent.

 As to Zander’s claims against the FOB, the Supreme Court rejected Zander’s attempt to plead around the exclusive jurisdiction of the Illinois Labor Relations Board by contending that the underlying facts concerning the relationship between Carlson, the FOB and union members like Zander did not arise from the collective bargaining act. The Supreme Court determined that the allegations of the complaint made clear that the dispute between Zander and the FOB arose solely from Zander’s status as a union member under a collective bargaining agreement between the FOB and Zander’s former employer. Zander’s attempt to impose liability on the FOB for its staff attorney’s conduct related to the arbitration arose from the union’s duty to fairly represent Zander in the collective bargaining process. Zander, therefor, had to bring his claim against the FOB to the Illinois Labor Relations Board, not the circuit court.   

Posted on November 19, 2020 by Rhys Saunders
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